x
|
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND EXCHANGE ACT
OF 1934
|
|
¨
TRANSITION REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Brand
|
Licensor
|
Year
Launched
|
ESQ
|
Hearst
Communication, Inc.
|
1993
|
Coach
|
Coach,
Inc.
|
1999
|
Tommy
Hilfiger
|
Tommy
Hilfiger Licensing, Inc.
|
2001
|
HUGO
BOSS
|
HUGO
BOSS Trade Mark Management GmbH & Co KG
|
2006
|
Juicy
Couture
|
L.C.
Licensing, Inc.
|
2007
|
Lacoste
|
Lacoste
S.A., Sporloisirs S.A. and Lacoste Alligator S.A.
|
2007
|
·
|
capitalizing
on the strength of the Company’s brands to gain market share across all
price categories;
|
·
|
the
expense reduction initiatives implemented throughout fiscal
2009;
|
·
|
working
with retail customers to help them better manage their inventory, improve
their productivity and reduce credit risk;
and
|
·
|
continuing
to tightly manage cash and inventory
levels.
|
Market
Category
|
Suggested
Retail Price Range
|
Primary
Category of Movado Group, Inc. Brands
|
||
Exclusive
|
$10,000
and over
|
Concord
|
||
Luxury
|
$1,500
to $9,999
|
Ebel
|
||
Premium
|
$500
to $1,499
|
Movado
|
||
Moderate
|
$100
to $499
|
ESQ,
Coach, HUGO BOSS, Juicy Couture and Lacoste
|
||
Fashion
|
$55
to $99
|
Tommy
Hilfiger
|
||
Mass
Market
|
Less
than $55
|
-
|
·
|
the
location of the mall;
|
·
|
the
location of the Company’s store within the
mall;
|
·
|
the
other tenants in the mall;
|
·
|
the
occupancy rate of the mall;
|
·
|
the
success of mall and tenant advertising to attract
customers;
|
·
|
increased
competition in areas surrounding the mall;
and
|
·
|
increased
competition from shopping over the internet and other alternatives such as
mail-order.
|
|
·
|
reducing
gross profit margins;
|
|
·
|
forcing
an increase in suggested retail prices; which could lead
to
|
|
·
|
decreasing
consumer demand; which could lead
to
|
|
·
|
higher
inventory levels.
|
|
·
|
instability
or
changes
in social, political and/or economic conditions that could disrupt the
trade activity in the countries where the Company’s manufacturers,
suppliers and customers are
located;
|
|
·
|
the
imposition of additional duties, taxes and other charges on imports and
exports;
|
|
·
|
changes
in foreign laws and regulations;
|
|
·
|
the
adoption or expansion of trade
sanctions;
|
|
·
|
recessions
in foreign economies; and
|
|
·
|
a
significant change in currency valuation in specific countries or
markets.
|
Location
|
Function
|
Square
Footage
|
Lease
Expiration
|
Moonachie,
New Jersey
|
Watch
assembly, distribution and repair
|
100,000
|
July
2019
|
Paramus,
New Jersey
|
Executive
offices
|
99,000
|
June
2013
|
Bienne,
Switzerland
|
Corporate
functions, watch sales, distribution, assembly and repair
|
53,560
|
January
2012
|
Kowloon,
Hong Kong
|
Watch
sales, distribution and repair
|
13,960
|
March
2013
|
Villers
le Lac, France
|
European
service and watch distribution
|
12,800
|
January
2016
|
Markham,
Canada
|
Office,
distribution and repair
|
11,200
|
August
2012
|
New
York, New York
|
Public
relations office, licensed brand showroom
|
9,900
|
August
2016
|
ChangAn
Dongguan, China
|
Quality
control and engineering
|
7,535
|
March
2009
|
Hackensack,
New Jersey
|
Warehouse
|
6,600
|
July
2009
|
Munich,
Germany
|
Watch
sales
|
4,290
|
January
2012
|
Shanghai,
China
|
Watch
sales
|
3,200
|
August
2011
|
Tokyo,
Japan
|
Watch
sales
|
2,970
|
July
2010
|
Coral
Gables, Florida
|
Caribbean
office, watch sales
|
2,880
|
January
2012
|
Grenchen,
Switzerland
|
Watch
sales
|
2,800
|
February
2010
|
Munich,
Germany
|
Watch
repair
|
2,200
|
December
2011
|
Singapore
|
Watch
sales, distribution and repair
|
970
|
June
2010
|
Crown
House, United Kingdom
|
Watch
sales
|
850
|
July
2009
|
Dubai,
United Arab Emirates
|
Watch
sales
|
730
|
July
2009
|
Fiscal
Year Ended
|
Fiscal
Year Ended
|
|||||||||||||||
January
31, 2009
|
January
31, 2008
|
|||||||||||||||
Quarter
Ended
|
Low
|
High
|
Low
|
High
|
||||||||||||
April
30
|
$ | 17.38 | $ | 26.02 | $ | 27.53 | $ | 34.58 | ||||||||
July
31
|
$ | 18.91 | $ | 23.09 | $ | 28.24 | $ | 34.66 | ||||||||
October
31
|
$ | 12.06 | $ | 25.59 | $ | 27.55 | $ | 34.48 | ||||||||
January
31
|
$ | 6.64 | $ | 15.09 | $ | 21.41 | $ | 30.97 |
Issuer
Repurchase of Equity Securities
|
||||||||||||||||
Period
|
Total
Number of Shares Purchased
|
Average
Price Paid Per Share
|
Total
Number of Shares Purchased as Part of Publicly Announced Plans or
Programs
|
Maximum
Number of Shares that May Yet Be Purchased Under the Plans or
Programs
|
||||||||||||
February
1, 2008 - February 29, 2008
|
148,500 | $ | 20.14 | 148,500 | 807,543 | |||||||||||
March
1, 2008 - March 31, 2008
|
406,750 | $ | 18.60 | 406,750 | 400,793 | |||||||||||
April
1, 2008 - April 14, 2008
|
422,066 | $ | 19.51 | 400,793 | - | |||||||||||
April
15, 2008 - April 30, 2008
|
238,491 | $ | 20.30 | 238,115 | 761,885 | |||||||||||
May
1, 2008 - May 31, 2008
|
286,733 | $ | 21.59 | 286,539 | 475,346 | |||||||||||
June
1, 2008 - June 30, 2008
|
396,006 | $ | 20.55 | 396,006 | 79,340 | |||||||||||
July
1, 2008 - July 31, 2008
|
16,700 | $ | 20.08 | 16,700 | 62,640 | |||||||||||
September
1, 2008 - September 30, 2008
|
78,884 | $ | 23.22 | - | 62,640 | |||||||||||
January
1, 2009 - January 31, 2009
|
1,935 | $ | 22.27 | - | 62,640 | |||||||||||
Total
|
1,996,065 | $ | 20.12 | 1,893,403 | 62,640 |
Company
Name / Index
|
1/31/04
|
1/31/05
|
1/31/06
|
1/31/07
|
1/31/08
|
1/31/09
|
Movado
Group, Inc.
|
100.0
|
129.1
|
135.3
|
207.6
|
177.2
|
57.3
|
NYSE
(U.S. Companies)
|
100.0
|
108.4
|
121.7
|
140.7
|
137.4
|
89.6
|
S&P
SmallCap 600 Index
|
100.0
|
116.5
|
139.1
|
150.8
|
140.1
|
88.7
|
Russell
2000 Index
|
100.0
|
108.7
|
129.2
|
142.7
|
128.7
|
81.3
|
Fiscal
Year Ended January 31,
|
||||||||||||||||||||
2009
|
2008
|
2007
|
2006
|
2005
|
||||||||||||||||
Statement
of income data:
|
||||||||||||||||||||
Net
sales (1)
|
$ | 460,857 | $ | 559,550 | $ | 532,865 | $ | 470,941 | $ | 418,966 | ||||||||||
Cost
of sales
|
173,225 | 222,868 | 209,922 | 184,621 | 168,818 | |||||||||||||||
Gross
profit (1)
|
287,632 | 336,682 | 322,943 | 286,320 | 250,148 | |||||||||||||||
Selling,
general and administrative (2) (3) (4) (5)
|
284,242 | 285,905 | 270,624 | 238,283 | 215,072 | |||||||||||||||
Operating
income (1) (2) (3) (4) (5)
|
3,390 | 50,777 | 52,319 | 48,037 | 35,076 | |||||||||||||||
Other
income, net (6) (7) (8) (9)
|
681 | - | 1,347 | 1,008 | 1,444 | |||||||||||||||
Interest
expense
|
(2,915 | ) | (3,472 | ) | (3,785 | ) | (4,574 | ) | (3,544 | ) | ||||||||||
Interest
income
|
2,132 | 4,666 | 3,280 | 465 | 114 | |||||||||||||||
Income
before taxes and minority interests
|
3,288 | 51,971 | 53,161 | 44,936 | 33,090 | |||||||||||||||
Provision
/ (benefit) for income taxes (10) (11) (12) (13) (14)
|
736 | (9,471 | ) | 2,890 | 18,319 | 6,783 | ||||||||||||||
Minority
interests
|
237 | 637 | 133 | - | - | |||||||||||||||
Net
income
|
$ | 2,315 | $ | 60,805 | $ | 50,138 | $ | 26,617 | $ | 26,307 | ||||||||||
Net
income per share-Basic (15)
|
$ | 0.09 | $ | 2.33 | $ | 1.95 | $ | 1.05 | $ | 1.06 | ||||||||||
Net
income per share-Diluted (15)
|
$ | 0.09 | $ | 2.23 | $ | 1.87 | $ | 1.02 | $ | 1.03 | ||||||||||
Basic
shares outstanding (15)
|
24,782 | 26,049 | 25,670 | 25,273 | 24,708 | |||||||||||||||
Diluted
shares outstanding (15)
|
25,554 | 27,293 | 26,794 | 26,180 | 25,583 | |||||||||||||||
Cash
dividends declared and paid per share (15)
|
$ | 0.29 | $ | 0.32 | $ | 0.24 | $ | 0.20 | $ | 0.16 | ||||||||||
Balance
sheet data (end of period):
|
||||||||||||||||||||
Working
capital (16)
|
$ | 306,168 | $ | 419,632 | $ | 383,422 | $ | 366,530 | $ | 303,225 | ||||||||||
Total
assets
|
$ | 563,990 | $ | 646,216 | $ | 577,618 | $ | 549,919 | $ | 477,074 | ||||||||||
Total
long-term debt (16)
|
$ | - | $ | 60,895 | $ | 80,196 | $ | 109,955 | $ | 45,000 | ||||||||||
Shareholders’
equity
|
$ | 398,960 | $ | 463,195 | $ | 378,381 | $ | 321,678 | $ | 316,557 |
(1)
|
Fiscal
2008 net sales includes a non-cash charge for estimated returns in the
amount of $15.0 million and gross profit and operating income include a
non-cash charge of $11.0 million, related to the closing of certain
wholesale customer doors in the
U.S.
|
(2)
|
Fiscal
2009 includes a pre-tax charge of $11.1 million associated with the
Company’s expense reduction initiatives and a restructuring of certain
benefit arrangements.
|
(3)
|
Fiscal
2009 includes a non-cash impairment charge of $4.5 million recorded in
accordance with SFAS No. 144, “Accounting for Impairment of Long-Lived
Assets”.
|
(4)
|
Fiscal
2007 includes a one-time benefit of $2.2 million for an out-of-period
adjustment related to foreign
currency.
|
(5)
|
Fiscal
2005 includes a non-cash impairment charge of $2.0 million recorded in
accordance with SFAS No. 144, “Accounting for the Impairment or Disposal
of Long-Lived Assets”.
|
(6)
|
The
fiscal 2009 other income consists of a pre-tax gain of $0.7 million on the
collection of life insurance proceeds from policies covering the Company’s
former Chairman.
|
(7)
|
The
fiscal 2007 other income consists of a pre-tax gain of $0.8 million on the
sale of artwork, a pre-tax gain of $0.4 million on the sale of a building
and a pre-tax gain of $0.1 million on the sale of rights to a web domain
name.
|
(8)
|
The
fiscal 2006 other income consists of a pre-tax gain of $2.6 million on the
sale of a building offset by a pre-tax loss of $1.6 million representing
the impact of the discontinuation of foreign currency cash flow hedges
because it was not probable that the forecasted transactions would occur
by the end of the originally specified time
period.
|
(9)
|
The
fiscal 2005 other income consists of a $1.4 million litigation
settlement.
|
(10)
|
The
fiscal 2009 effective tax rate of 22.4% includes tax accrued on the future
repatriation of foreign earnings of $7.4 million somewhat offset by a
release of valuation allowances on foreign tax losses of $3.0
million.
|
(11)
|
The
fiscal 2008 effective tax benefit of $9.5 million, or rate of -18.2%,
reflects a result of the recognition of previously unrecognized tax
benefits due to the settlement of the IRS audit for fiscal years 2004
through 2006 ($12.5 million) and the release of valuation allowances in
whole or part on Swiss and UK tax losses ($7.6
million).
|
(12)
|
The
fiscal 2007 effective tax rate of 5.4% reflects a partial release of the
valuation allowance on Swiss tax
losses.
|
(13)
|
The
fiscal 2006 effective tax rate of 40.8% reflects a tax charge of $7.5
million associated with repatriated foreign earnings under the American
Jobs Creation Act of 2004.
|
(14)
|
The
fiscal 2005 effective tax rate of 20.5% reflects the adjustments in the
fourth quarter relating to refunds from a retroactive Swiss tax ruling and
a favorable U.S. tax accrual
adjustment.
|
(15)
|
For
all periods presented, basic and diluted shares outstanding, and the
related “per share” amounts reflect the effect of the fiscal 2005
two-for-one stock split.
|
(16)
|
The
Company defines working capital as current assets less current
liabilities. In fiscal 2009 the Company reclassified $65.0
million of outstanding debt from non-current liabilities to current
liabilities, due to the non-compliance with the interest coverage ratio
covenant under certain of its current debt
agreements.
|
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Wholesale:
|
||||||||||||
United
States
|
$ | 165,829 | $ | 235,093 | $ | 279,465 | ||||||
International
|
205,520 | 231,338 | 166,209 | |||||||||
Retail
|
89,508 | 93,119 | 87,191 | |||||||||
Net
sales
|
$ | 460,857 | $ | 559,550 | $ | 532,865 |
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
%
of net sales
|
%
of net sales
|
%
of net sales
|
||||||||||
Net
sales
|
100.0 | % | 100.0 | % | 100.0 | % | ||||||
Gross
margin
|
62.4 | % | 60.2 | % | 60.6 | % | ||||||
Selling,
general and administrative expenses
|
61.7 | % | 51.1 | % | 50.8 | % | ||||||
Operating
income
|
0.7 | % | 9.1 | % | 9.8 | % | ||||||
Other
income
|
0.2 | % | 0.0 | % | 0.3 | % | ||||||
Interest
expense
|
0.6 | % | 0.6 | % | 0.7 | % | ||||||
Interest
income
|
0.5 | % | 0.8 | % | 0.6 | % | ||||||
Provision
/ (benefit) for income taxes
|
0.2 | % | (1.7 | )% | 0.5 | % | ||||||
Minority
interests
|
0.1 | % | 0.1 | % | 0.1 | % | ||||||
Net
income
|
0.5 | % | 10.9 | % | 9.4 | % |
Required
|
Required
|
Actual
|
Actual
|
|||||||||||||
Senior
|
Credit
|
January
31,
|
January
31,
|
|||||||||||||
Covenant
|
Notes
|
Facilities
|
2009
|
2008
|
||||||||||||
Interest
Coverage Ratio
|
Min.
3.50x
|
Min.
3.50x
|
2.45 | x | 16.09 | x | ||||||||||
Average
Debt Coverage Ratio
|
Max.
3.25x
|
Max.
3.25x
|
2.72 | x | 0.93 | x | ||||||||||
Capital
Expenditures Limit
|
n/a | $ | 42,608 | $ | 22,681 | $ | 27,392 | |||||||||
Priority
Debt Limit
|
$ | 79,095 | n/a | $ | 40,000 | $ | 25,907 | |||||||||
Lien
Limit
|
$ | 79,095 | n/a | $ | - | $ | - |
Total
|
Less
than 1 year
|
2-3
years
|
4-5
years
|
More
than 5 years
|
||||||||||||||||
Contractual
Obligations:
|
||||||||||||||||||||
Debt
Obligations (1)
|
$ | 65,000 | $ | 65,000 | $ | - | $ | - | $ | - | ||||||||||
Interest
Payments on Debt (1)
|
2,566 | 2,566 | - | - | - | |||||||||||||||
Operating
Lease Obligations (2)
|
85,591 | 15,013 | 28,259 | 20,257 | 22,062 | |||||||||||||||
Purchase
Obligations (3)
|
35,909 | 35,909 | - | - | - | |||||||||||||||
Other
Long-Term Obligations (4)
|
100,800 | 20,328 | 41,000 | 27,971 | 11,501 | |||||||||||||||
Total
Contractual Obligations
|
$ | 289,866 | $ | 138,816 | $ | 69,259 | $ | 48,228 | $ | 33,563 |
Schedule
Number
|
Page
Number
|
|
Management’s
Annual Report on Internal Control Over Financial Reporting
|
F-1
|
|
Report
of Independent Registered Public Accounting Firm
|
F-2
|
|
Consolidated
Statements of Income for the fiscal years ended January 31, 2009, 2008 and
2007
|
F-4
|
|
Consolidated
Balance Sheets at January 31, 2009 and 2008
|
F-5
|
|
Consolidated
Statements of Cash Flows for the fiscal years ended January 31, 2009, 2008
and 2007
|
F-6
|
|
Consolidated
Statements of Changes in Shareholders’ Equity for the fiscal years ended
January 31, 2009, 2008 and 2007
|
F-7
to F-8
|
|
Notes
to Consolidated Financial Statements
|
F-9
to F-39
|
|
Valuation
and Qualifying Accounts and Reserves
|
II
|
S-1
|
|
All
other schedules are omitted because they are not applicable, or not
required, or because the required information is included in the
Consolidated Financial Statements or notes
thereto.
|
|
Incorporated
herein by reference is a list of the Exhibits contained in the Exhibit
Index on
pages 59 through 67
of this annual
report
.
|
MOVADO
GROUP, INC.
(Registrant)
|
||
Dated:
April 9, 2009
|
By:
|
/s/ Efraim Grinberg
|
Efraim
Grinberg
|
||
Chairman
of the Board of Directors,
|
||
President
and Chief Executive Officer
|
Dated:
April 9, 2009
|
/s/ Efraim Grinberg
|
|
Efraim
Grinberg
|
||
Chairman
of the Board of Directors,
|
||
President
and Chief Executive Officer
|
||
Dated:
April 9, 2009
|
/s/ Richard J. Coté
|
|
Richard
J. Coté
|
||
Executive
Vice President and
|
||
Chief
Operating Officer
|
||
Dated:
April 9, 2009
|
/s/ Sallie A. DeMarsilis
|
|
Sallie
A. DeMarsilis
|
||
Senior
Vice President, Chief Financial Officer
|
||
and
Principal Accounting Officer
|
||
Dated:
April 9, 2009
|
/s/ Margaret Hayes Adame
|
|
Margaret
Hayes Adame
|
||
Director
|
||
Dated:
April 9, 2009
|
/s/ Alan H. Howard
|
|
Alan
H. Howard
|
||
Director
|
||
Dated:
April 9, 2009
|
/s/ Richard D. Isserman
|
|
Richard
D. Isserman
|
||
Director
|
||
Dated:
April 9, 2009
|
/s/ Nathan Leventhal
|
|
Nathan
Leventhal
|
||
Director
|
||
Dated:
April 9, 2009
|
/s/ Donald Oresman
|
|
Donald
Oresman
|
||
Director
|
||
Dated:
April 9, 2009
|
/s/ Leonard L.
Silverstein
|
|
Leonard
L. Silverstein
|
||
Director
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
3.1
|
Restated
By-Laws of the Registrant. Incorporated by reference to Exhibit
3.1 to the Registrant’s Current Report on Form 8-K filed on February 8,
2008.
|
|
3.2
|
Restated
Certificate of Incorporation of the Registrant as amended. Incorporated
herein by reference to Exhibit 3(i) to the Registrant's Quarterly Report
on Form 10-Q filed for the quarter ended July 31, 1999.
|
|
4.1
|
Specimen
Common Stock Certificate. Incorporated herein by reference to
Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K for the year
ended January 31, 1998.
|
|
4.2
|
Note
Purchase and Private Shelf Agreement dated as of November 30, 1998 between
the Registrant and The Prudential Insurance Company of America.
Incorporated herein by reference to Exhibit 10.31 to the Registrant’s
Annual Report on Form 10-K for the year ended January 31,
1999.
|
|
4.3
|
Note
Purchase and Private Shelf Agreement dated as of March 21, 2001 between
the Registrant and The Prudential Insurance Company of
America. Incorporated herein by reference to Exhibit 4.4 to the
Registrant’s Annual Report on Form 10-K for the year ended January 31,
2001.
|
|
4.4
|
Amendment
dated as of March 21, 2004 to Note Purchase and Private Shelf Agreement
dated as of March 21, 2001 between the Registrant and The Prudential
Insurance Company of America. Incorporated herein by reference
to Exhibit 4.5 to the Registrant’s Annual Report on Form 10-K for the year
ended January 31, 2004.
|
|
4.5
|
Omnibus
Amendment entered into as of June 5, 2008 to (i) Note Purchase and Private
Shelf Agreement dated as of March 21, 2001 (as amended by
amendment dated as of March 21, 2004) between the Registrant and The
Prudential Insurance Company of America and (ii) Note Purchase and Private
Shelf Agreement dated as of November 30, 1998. Incorporated herein by
reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form
10-Q for the quarter ended July 31, 2008.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.1
|
Amendment
Number 1 to License Agreement dated December 9, 1996 between the
Registrant as Licensee and Coach, a division of Sara Lee Corporation as
Licensor, dated as of February 1, 1998. Incorporated herein by
reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form
10-Q for the quarter ended October 31, 1998.
|
|
10.2
|
Agreement
dated January 1, 1992, between The Hearst Corporation and the Registrant,
as amended on January 17, 1992. Incorporated herein by reference to
Exhibit 10.8 filed with the Company’s Registration Statement on Form S-1
(Registration No. 33-666000).
|
|
10.3
|
Letter
Agreement between the Registrant and The Hearst Corporation dated October
24, 1994 executed October 25, 1995 amending License Agreement dated as of
January 1, 1992, as amended. Incorporated herein by reference
to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended October 31, 1995.
|
|
10.4
|
Registrant's
1996 Stock Incentive Plan amending and restating the 1993 Employee Stock
Option Plan. Incorporated herein by reference to Exhibit 10.5 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended October
31, 1996. *
|
|
10.5
|
Lease
dated August 10, 1994 between Rockefeller Center Properties, as landlord
and SwissAm, Inc., as tenant for space at 630 Fifth Avenue, New York, New
York. Incorporated herein by reference to Exhibit 10.4 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended July 31,
1994.
|
|
10.6
|
Registrant's
amended and restated Deferred Compensation Plan for Executives effective
June 17, 2004. Incorporated herein by reference to Exhibit 10.7
to the Registrant’s Annual Report on Form 10-K for the year ended January
31, 2005. *
|
|
10.7
|
License
Agreement dated December 9, 1996 between the Registrant and Sara Lee
Corporation. Incorporated herein by reference to Exhibit 10.32
to the Registrant’s Annual Report on Form 10-K for the year ended January
31, 1997.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.8
|
First
Amendment to Lease dated April 8, 1998 between RCPI Trust, successor in
interest to Rockefeller Center Properties (“Landlord”) and Movado Retail
Group, Inc., successor in interest to SwissAm, Inc. (“Tenant”) amending
lease dated August 10, 1994 between Landlord and Tenant for space at 630
Fifth Avenue, New York, New York. Incorporated herein by
reference to Exhibit 10.37 to the Registrant’s Annual Report on Form 10-K
for the year ended January 31, 1998.
|
|
10.9
|
Second
Amendment dated as of September 1, 1999 to the December 1, 1996 License
Agreement between Sara Lee Corporation and
Registrant. Incorporated herein by reference to Exhibit 10.1 to
the Registrant’s Quarterly Report on Form 10-Q for the quarter ended
October 31, 1999.
|
|
10.10
|
License
Agreement entered into as of June 3, 1999 between Tommy Hilfiger
Licensing, Inc. and Registrant. Incorporated herein by
reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form
10-Q for the quarter ended October 31, 1999.
|
|
10.11
|
Severance
Agreement dated December 15, 1999, and entered into December 16, 1999
between the Registrant and Richard J. Coté. Incorporated herein by
reference to Exhibit 10.35 to the Registrant’s Annual Report on Form 10-K
for the year ended January 31, 2000. *
|
|
10.12
|
Lease
made December 21, 2000 between the Registrant and Mack-Cali Realty, L.P.
for premises in Paramus, New Jersey together with First Amendment thereto
made December 21, 2000. Incorporated herein by reference to
Exhibit 10.22 to the Registrant’s Annual Report on Form 10-K for the year
ended January 31, 2000.
|
|
10.13
|
Lease
Agreement dated May 22, 2000 between Forsgate Industrial Complex and the
Registrant for premises located at 105 State Street, Moonachie, New
Jersey. Incorporated herein by reference to Exhibit 10.1 to the
Registrant’s Quarterly Report on Form 10-Q filed for the quarter ended
April 30, 2000.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.14
|
Second
Amendment of Lease dated July 26, 2001 between Mack-Cali Realty, L.P., as
landlord, and Movado Group, Inc., as tenant, further amending lease dated
as of December 21, 2000. Incorporated herein by reference to Exhibit 10.2
to the Registrant’s Quarterly Report on Form 10-Q filed for the quarter
ended October 31, 2001.
|
|
10.15
|
Third
Amendment of Lease dated November 6, 2001 between Mack-Cali Realty, L.P.,
as lessor, and Movado Group, Inc., as lessee, for additional space at
Mack-Cali II, One Mack Drive, Paramus, New Jersey. Incorporated herein by
reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form
10-Q filed for the quarter ended October 31, 2001.
|
|
10.16
|
Amendment
Number 2 to Registrant’s 1996 Stock Incentive Plan dated March 16, 2001.
Incorporated herein by reference to Exhibit 10.27 to the Registrant’s
Annual Report on Form 10-K for the year ended January 31,
2002.*
|
|
10.17
|
Amendment
Number 3 to Registrant’s 1996 Stock Incentive Plan approved June 19, 2001.
Incorporated herein by reference to Exhibit 10.28 to the Registrant’s
Annual Report on Form 10-K for the year ended January 31,
2002.*
|
|
10.18
|
Amendment
Number 3 to License Agreement dated December 9, 1996, as previously
amended, between the Registrant, Movado Watch Company S.A. and Coach, Inc.
dated as of January 30, 2003. Incorporated herein by reference to Exhibit
10.29 to the Registrant’s Annual Report on Form 10-K for the year ended
January 31, 2002.
|
|
10.19
|
First
Amendment to the License Agreement dated June 3, 1999 between Tommy
Hilfiger Licensing, Inc., Registrant and Movado Watch Company S.A. entered
into January 16, 2002. Incorporated herein by reference to Exhibit 10.1 to
the Registrant’s Quarterly Report on Form 10-Q for the quarter ended July
31, 2002.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.20
|
Second
Amendment to the License Agreement dated June 3, 1999 between Tommy
Hilfiger Licensing, Inc., Registrant and Movado Watch Company S.A. entered
into August 1, 2002. Incorporated herein by reference to Exhibit 10.2 to
the Registrant’s Quarterly Report on Form 10-Q for the quarter ended July
31, 2002.
|
|
10.21
|
Endorsement
Agreement dated as of April 4, 2003 between the Registrant and The
Grinberg Family Trust. Incorporated herein by reference to Exhibit 10.28
to the Registrant’s Annual Report on Form 10-K for the year ended January
31, 2003.
|
|
10.22
|
Third
Amendment to License Agreement dated June 3, 1999 between Tommy Hilfiger
Licensing, Inc. and the Registrant entered into as of May 7, 2004.
Incorporated herein by reference to Exhibit 10.1 to the Registrant’s
Quarterly Report on Form 10-Q for the quarter ended April 30,
2004.
|
|
10.23
|
Employment
Agreement dated August 27, 2004 between the Registrant and Mr. Eugene J.
Karpovich. Incorporated herein by reference to Exhibit 10.2 the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended October
31, 2004. *
|
|
10.24
|
Employment
Agreement dated August 27, 2004 between the Registrant and Mr. Timothy F.
Michno. Incorporated herein by reference to Exhibit 10.4 to the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended October
31, 2004. *
|
|
10.25
|
Master
Credit Agreement dated August 17, 2004 and August 20, 2004 between MGI
Luxury Group S.A. and UBS AG. Incorporated herein by reference to Exhibit
10.2 to the Registrant’s Quarterly Report on Form 10-Q for the quarter
ended July 31, 2004.
|
|
10.26
|
Fourth
Amendment to License Agreement dated June 3, 1999 between Tommy Hilfiger
Licensing, Inc. and the Registrant entered into as of June 25, 2004.
Incorporated herein by reference to Exhibit 10.4 to the Registrant’s
Quarterly Report on Form 10-Q for the quarter ended July 31,
2004.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.27
|
Fifth
Amendment of Lease dated October 20, 2003 between Mack-Cali Realty, L.P.
as landlord, and the Registrant as tenant further amending the lease dated
as of December 21, 2000. Incorporated herein by reference to Exhibit 10.29
to the Registrant’s Annual Report on Form 10-K for the year ended January
31, 2004.
|
|
10.28
|
Registrant’s
1996 Stock Incentive Plan, amended and restated as of April 8,
2004. Incorporated herein by reference to Exhibit 10.37 to the
Registrant’s Annual Report on Form 10-K for the year ended January 31,
2005.*
|
|
10.29
|
License
Agreement entered into December 15, 2004 between MGI Luxury Group S.A. and
HUGO BOSS Trade Mark Management GmbH & Co. Incorporated
herein by reference to Exhibit 10.38 to the Registrant’s Annual Report on
Form 10-K for the year ended January 31, 2005.
|
|
10.30
|
$50
million Credit Agreement dated as of December 15, 2005 between the
Registrant, MGI Luxury Group S.A. and Movado Watch Company S.A., as
borrowers, the Lenders signatory thereto and JPMorgan Chase Bank, N.A. as
Administrative Agent, Swingline Bank and Issuing
Bank. Incorporated herein by reference to Exhibit 10.34 to the
Registrant’s Annual Report on Form 10-K for the year ended January 31,
2006.
|
|
10.31
|
CHF
90 million Credit Agreement dated as of December 15, 2005 between MGI
Luxury Group S.A. and Movado Watch Company S.A., as borrowers, the
Registrant as Parent, each of the lenders signatory thereto and JPMorgan
Chase Bank as administrative agent. Incorporated herein by
reference to Exhibit 10.35 to the Registrant’s Annual Report on Form 10-K
for the year ended January 31, 2006.
|
|
10.32
|
License
Agreement dated as of November 18, 2005 by and between the Registrant,
Swissam Products Limited and L.C. Licensing, Inc. Incorporated
herein by reference to Exhibit 10.37 to the Registrant’s Annual Report on
From 10-K for the year ended January 31, 2006.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.33
|
License
Agreement entered into effective March 27, 2006 between MGI Luxury Group
S.A. and Lacoste S.A., Sporloisirs S.A. and Lacoste Alligator
S.A. Incorporated herein by reference to Exhibit 10.1 to the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended April 30,
2006.
|
|
10.34
|
Third
Amendment to License Agreement dated as of January 1, 1992 between the
Registrant and Hearst Magazines, a Division of Hearst Communications,
Inc., effective February 15, 2007. Incorporated herein by reference to
Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended April 30, 2007.
|
|
10.35
|
Fifth
Amendment to License Agreement dated December 9, 1996 between the
Registrant and Coach, Inc., effective March 9, 2007. Incorporated herein
by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form
10-Q for the quarter ended April 30, 2007.
|
|
10.36
|
Sixth
Amendment to License Agreement dated June 3, 1999 between the Registrant
and Tommy Hilfiger Licensing, Inc., effective April 11, 2007. Incorporated
herein by reference to Exhibit 10.3 to the Registrant’s Quarterly Report
on Form 10-Q for the quarter ended April 30, 2007.
|
|
10.37
|
Form
of Long-Term Incentive Plan Award Notice under the Registrant’s Executive
Long-Term Incentive Plan. Incorporated herein by reference to Exhibit 10.1
to the Registrant’s Current Report on Form 8-K filed May 4, 2007.
*
|
|
10.38
|
Line
of Credit Letter Agreement dated as of June 16, 2008 between the
Registrant and Bank of America, N.A. and Amended and Restated Promissory
Note dated as of June 16, 2008 to Bank of America, N.A. Incorporated
herein by reference to Exhibit 10.1 to the Registrant’s Quarterly Report
on Form 10-Q for the quarter ended July 31, 2008.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.
39
|
Promissory
Note dated as of July 31, 2008 to JPMorgan Chase Bank, N.A. Incorporated
herein by reference to Exhibit 10.2 to the Registrant’s Quarterly Report
on Form 10-Q for the quarter ended July 31, 2008.
|
|
10.40
|
Movado
Group, Inc. Long-Term Incentive Plan. Incorporated herein by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed June 6,
2006. *
|
|
10.41
|
Movado
Group, Inc. Long-Term Incentive Plan form of award agreement. Incorporated
herein by reference to Exhibit 10.2 to the Registrant’s Current Report on
Form 8-K filed June 6, 2006. *
|
|
10.42
|
First
Amendment dated as of February 27, 2009 to Lease dated May 22, 2000
between Forsgate Industrial Complex as Landlord and Movado Group, Inc. as
Tenant for the premises known as 105 State Street, Moonachie, New
Jersey.
|
|
10.43
|
Amendment
Number 1 to the April 8, 2004 Amendment and Restatement of the Movado
Group, Inc. 1996 Stock Incentive Plan. Incorporated herein by reference to
Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended July 31, 2008. *
|
|
10.44
|
Movado
Group, Inc. Amended and Restated Deferred Compensation Plan for
Executives, Effective January 1, 2008. Incorporated herein by reference to
Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended July 31, 2008. *
|
|
10.45
|
Letter
Agreement, dated as of September 23, 2008, by and among Movado Group, Inc.
as Borrower and Guarantor, Movado Watch Company SA and MGI Luxury Group
S.A. , as Borrowers, Movado Retail Group, Inc. and Movado LLC, as
Guarantors, JP Morgan Chase Bank, N.A. as Lender, Administrative Agent,
Swingline Bank and Issuing Bank, Bank of America, N.A., PNC Bank, National
Association and Citibank, N.A.. Incorporated herein by reference to
Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed
September 29, 2008.
|
Exhibit
|
Sequentially
|
|
Number
|
Description
|
Numbered Page
|
10.46
|
Transition
and Retirement Agreement dated as of December 19, 2008 by and between the
Registrant and Gedalio Grinberg. Incorporated herein by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed December
23, 2008. *
|
|
10.47
|
Joint
Venture Agreement dated May 11, 2007 by and between Swico Limited, Movado
Group, Inc. and MGS Distribution Limited. **
|
|
21.1
|
Subsidiaries
of the Registrant.
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP.
|
|
31.1
|
Certification
of Chief Executive Officer.
|
|
31.2
|
Certification
of Chief Financial Officer.
|
|
32.1
|
Certification
of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
32.2
|
Certification
of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Net
sales
|
$ | 460,857 | $ | 559,550 | $ | 532,865 | ||||||
Cost
of sales
|
173,225 | 222,868 | 209,922 | |||||||||
Gross
profit
|
287,632 | 336,682 | 322,943 | |||||||||
Selling,
general and administrative
|
284,242 | 285,905 | 270,624 | |||||||||
Operating
income
|
3,390 | 50,777 | 52,319 | |||||||||
Other
income, net (Note 18)
|
681 | - | 1,347 | |||||||||
Interest
expense
|
(2,915 | ) | (3,472 | ) | (3,785 | ) | ||||||
Interest
income
|
2,132 | 4,666 | 3,280 | |||||||||
Income
before income taxes and minority interests
|
3,288 | 51,971 | 53,161 | |||||||||
Provision
/ (benefit) for income taxes (Note 8)
|
736 | (9,471 | ) | 2,890 | ||||||||
Minority
interests
|
237 | 637 | 133 | |||||||||
Net
income
|
$ | 2,315 | $ | 60,805 | $ | 50,138 | ||||||
Basic
income per share:
|
||||||||||||
Net
income per share
|
$ | 0.09 | $ | 2.33 | $ | 1.95 | ||||||
Weighted
basic average shares outstanding
|
24,782 | 26,049 | 25,670 | |||||||||
Diluted
income per share:
|
||||||||||||
Net
income per share
|
$ | 0.09 | $ | 2.23 | $ | 1.87 | ||||||
Weighted
diluted average shares outstanding
|
25,554 | 27,293 | 26,794 | |||||||||
Dividends
declared and paid per share
|
$ | 0.29 | $ | 0.32 | $ | 0.24 |
January
31,
|
||||||||
2009
|
2008
|
|||||||
ASSETS
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$ | 86,621 | $ | 169,551 | ||||
Trade
receivables, net
|
76,710 | 94,328 | ||||||
Inventories,
net
|
228,884 | 205,129 | ||||||
Other
current assets
|
47,863 | 50,317 | ||||||
Total
current assets
|
440,078 | 519,325 | ||||||
Property,
plant and equipment, net
|
66,749 | 68,513 | ||||||
Other
non-current assets
|
57,163 | 58,378 | ||||||
Total
assets
|
$ | 563,990 | $ | 646,216 | ||||
LIABILITIES
AND EQUITY
|
||||||||
Current
liabilities:
|
||||||||
Loans
payable to banks
|
$ | 40,000 | $ | - | ||||
Current
portion of long-term debt
|
25,000 | 10,000 | ||||||
Accounts
payable
|
20,794 | 38,397 | ||||||
Accrued
liabilities
|
42,754 | 29,591 | ||||||
Accrued
payroll and benefits
|
4,932 | 13,179 | ||||||
Deferred
and current income taxes payable
|
430 | 8,526 | ||||||
Total
current liabilities
|
133,910 | 99,693 | ||||||
Long-term
debt
|
- | 50,895 | ||||||
Deferred
and non-current income taxes payable
|
6,856 | 6,363 | ||||||
Other
non-current liabilities
|
22,459 | 24,205 | ||||||
Total
liabilities
|
163,225 | 181,156 | ||||||
Commitments
and contingencies (Notes 10 and 11)
|
||||||||
Minority
interests
|
1,805 | 1,865 | ||||||
Shareholders’
equity:
|
||||||||
Preferred
Stock, $0.01 par value, 5,000,000 shares authorized; no shares
issued
|
- | - | ||||||
Common
Stock, $0.01 par value, 100,000,000 shares authorized; 24,592,682 and
24,266,873 shares issued, respectively
|
246 | 243 | ||||||
Class
A Common Stock, $0.01 par value, 30,000,000 shares authorized; 6,634,319
and 6,634,319 shares issued and outstanding, respectively
|
66 | 66 | ||||||
Capital
in excess of par value
|
131,796 | 128,902 | ||||||
Retained
earnings
|
320,481 | 325,296 | ||||||
Accumulated
other comprehensive income
|
43,742 | 65,890 | ||||||
Treasury
Stock, 6,826,734 and 4,830,669 shares at cost,
respectively
|
(97,371 | ) | (57,202 | ) | ||||
Total
shareholders’ equity
|
398,960 | 463,195 | ||||||
Total
liabilities and equity
|
$ | 563,990 | $ | 646,216 |
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Cash
flows from operating activities:
|
||||||||||||
Net
income
|
$ | 2,315 | $ | 60,805 | $ | 50,138 | ||||||
Adjustments
to reconcile net income to net cash (used) / provided by operating
activities:
|
||||||||||||
Depreciation
and amortization
|
18,457 | 16,684 | 16,580 | |||||||||
Utilization
of NOL
|
- | - | 210 | |||||||||
Deferred
income taxes
|
327 | (8,717 | ) | (10,655 | ) | |||||||
Provision
for losses on accounts receivable
|
3,210 | 2,302 | 9,698 | |||||||||
Provision
for losses on inventory
|
2,282 | 2,809 | 1,953 | |||||||||
Gain
on proceeds from insurance
|
(681 | ) | - | - | ||||||||
Stock-based
compensation
|
226 | 4,911 | 3,227 | |||||||||
Impairment
of long-lived assets
|
4,525 | - | - | |||||||||
Excess
tax / (benefit) from stock-based compensation
|
151 | (1,883 | ) | (1,968 | ) | |||||||
Loss
on disposition of property, plant and equipment
|
164 | 1,208 | - | |||||||||
Gain
on sale of assets
|
- | - | (1,347 | ) | ||||||||
Minority
interest
|
237 | 637 | 133 | |||||||||
Changes
in assets and liabilities:
|
||||||||||||
Trade
receivables
|
10,549 | 18,976 | (1,244 | ) | ||||||||
Inventories
|
(36,068 | ) | 666 | 7,627 | ||||||||
Other
current assets
|
(13,073 | ) | (1,470 | ) | (5,990 | ) | ||||||
Accounts
payable
|
(16,922 | ) | 3,495 | (473 | ) | |||||||
Accrued
liabilities
|
12,546 | (1,914 | ) | (3,429 | ) | |||||||
Accrued
payroll and benefits
|
(8,247 | ) | (1,572 | ) | 4,584 | |||||||
Income
taxes payable
|
(2,925 | ) | (12,006 | ) | (731 | ) | ||||||
Other
non-current assets
|
3,800 | (2,408 | ) | (4,072 | ) | |||||||
Other
non-current liabilities
|
(1,740 | ) | 1,111 | 3,593 | ||||||||
Net
cash (used) / provided by operating activities
|
(20,867 | ) | 83,634 | 67,834 | ||||||||
Cash
flows from investing activities:
|
||||||||||||
Capital
expenditures
|
(22,681 | ) | (27,392 | ) | (20,178 | ) | ||||||
Proceeds
from sale of assets
|
- | - | 1,791 | |||||||||
Trademarks
|
(851 | ) | (641 | ) | (711 | ) | ||||||
Proceeds
from insurance
|
1,006 | - | - | |||||||||
Net
cash used in investing activities
|
(22,526 | ) | (28,033 | ) | (19,098 | ) | ||||||
Cash
flows from financing activities:
|
||||||||||||
Proceeds
of bank borrowings
|
40,000 | - | - | |||||||||
Repayments
of bank borrowings
|
(26,175 | ) | (18,618 | ) | (26,512 | ) | ||||||
Repayment
of Senior Notes
|
(10,000 | ) | (5,000 | ) | (5,000 | ) | ||||||
Repurchase
of treasury stock
|
(37,871 | ) | (1,030 | ) | - | |||||||
Stock
options exercised and other changes
|
522 | 666 | 2,894 | |||||||||
Investment
from JV interest
|
- | 787 | - | |||||||||
Excess
(tax) / benefit from stock-based compensation
|
(151 | ) | 1,883 | 1,968 | ||||||||
Distribution
of minority interest earnings
|
(298 | ) | - | - | ||||||||
Dividends
paid
|
(5,909 | ) | (8,327 | ) | (6,158 | ) | ||||||
Net
cash used in financing activities
|
(39,882 | ) | (29,639 | ) | (32,808 | ) | ||||||
Effect
of exchange rate changes on cash and cash equivalents
|
345 | 10,578 | (6,542 | ) | ||||||||
Net
(decrease) / increase in cash and cash equivalents
|
(82,930 | ) | 36,540 | 9,386 | ||||||||
Cash
and cash equivalents at beginning of year
|
169,551 | 133,011 | 123,625 | |||||||||
Cash
and cash equivalents at end of year
|
$ | 86,621 | $ | 169,551 | $ | 133,011 |
Preferred
Stock
|
Common
Stock
|
Class
A
Common
Stock
|
Capital
in
Excess
of
Par
Value
|
Retained
Earnings
|
Accumulated
Other
Comprehensive
Income
|
Treasury
Stock
|
||||||||||||||||||||||
Balance,
January 31, 2006
|
$ | - | $ | 232 | $ | 68 | $ | 107,965 | $ | 236,515 | $ | 27,673 | $ | (50,775 | ) | |||||||||||||
Net
income
|
50,138 | |||||||||||||||||||||||||||
Dividends
($0.24 per share)
|
(6,158 | ) | ||||||||||||||||||||||||||
Stock
options exercised, net of tax of $2,603
|
5 | 6,497 | (1,762 | ) | ||||||||||||||||||||||||
Supplemental
executive retirement plan
|
122 | |||||||||||||||||||||||||||
Stock-based
compensation expense
|
3,227 | |||||||||||||||||||||||||||
Conversion
of Class A Stock to Common
Stock
|
2 | (2 | ) | |||||||||||||||||||||||||
Net
unrealized gain on investments, net of tax
of
$50
|
42 | |||||||||||||||||||||||||||
Net
change in effective portion of hedging
contracts,
net of tax of $771
|
1,246 | |||||||||||||||||||||||||||
Foreign
currency translation adjustment
|
3,346 | |||||||||||||||||||||||||||
Balance,
January 31, 2007
|
- | 239 | 66 | 117,811 | 280,495 | 32,307 | (52,537 | ) | ||||||||||||||||||||
Net
income
|
60,805 | |||||||||||||||||||||||||||
Dividends
($0.32 per share)
|
(8,327 | ) | ||||||||||||||||||||||||||
FIN
48 transition adjustment
|
(7,677 | ) | ||||||||||||||||||||||||||
Stock
repurchase
|
(1,030 | ) | ||||||||||||||||||||||||||
Stock
options exercised, net of tax of $2,343
|
4 | 6,051 | (3,635 | ) | ||||||||||||||||||||||||
Supplemental
executive retirement plan
|
129 | |||||||||||||||||||||||||||
Stock-based
compensation expense
|
4,911 | |||||||||||||||||||||||||||
Net
unrealized loss on investments, net of tax
benefit
of $72
|
(176 | ) | ||||||||||||||||||||||||||
Net
change in effective portion of hedging
contracts,
net of tax of $2,574
|
3,942 | |||||||||||||||||||||||||||
Foreign
currency translation adjustment
|
29,817 | |||||||||||||||||||||||||||
Balance,
January 31, 2008
|
- | 243 | 66 | 128,902 | 325,296 | 65,890 | (57,202 | ) | ||||||||||||||||||||
Net
income
|
2,315 | |||||||||||||||||||||||||||
Dividends
($0.29 per share)
|
(7,130 | ) | ||||||||||||||||||||||||||
Stock
repurchase
|
(37,871 | ) | ||||||||||||||||||||||||||
Stock
options exercised, net of tax benefit of
$234
|
3 | 2,524 | (2,298 | ) | ||||||||||||||||||||||||
Supplemental
executive retirement plan
|
144 | |||||||||||||||||||||||||||
Stock-based
compensation expense
|
226 | |||||||||||||||||||||||||||
Net
unrealized loss on investments, net of tax
benefit
of $128
|
(190 | ) | ||||||||||||||||||||||||||
Net
change in effective portion of hedging
contracts,
net of tax benefit of $1,511
|
(2,266 | ) | ||||||||||||||||||||||||||
Foreign
currency translation adjustment
|
(19,692 | ) | ||||||||||||||||||||||||||
Balance,
January 31, 2009
|
$ | - | $ | 246 | $ | 66 | $ | 131,796 | $ | 320,481 | $ | 43,742 | $ | (97,371 | ) |
(Shares
information in thousands)
|
Common
Stock
|
Class
A Common Stock
|
Treasury
Stock
|
|||||||||
Balance,
January 31, 2006
|
23,216 | 6,767 | (4,614 | ) | ||||||||
Stock
issued to employees exercising stock options
|
428 | - | (48 | ) | ||||||||
Conversion
of Class A Common Stock
|
125 | (125 | ) | - | ||||||||
Restricted
stock and other stock plans, less cancellations
|
103 | - | (16 | ) | ||||||||
Balance,
January 31, 2007
|
23,872 | 6,642 | (4,678 | ) | ||||||||
Stock
issued to employees exercising stock options
|
274 | - | (71 | ) | ||||||||
Conversion
of Class A Common Stock
|
8 | (8 | ) | - | ||||||||
Stock
repurchase
|
- | - | (44 | ) | ||||||||
Restricted
stock and other stock plans, less cancellations
|
113 | - | (38 | ) | ||||||||
Balance,
January 31, 2008
|
24,267 | 6,634 | (4,831 | ) | ||||||||
Stock
issued to employees exercising stock options
|
229 | - | (79) | |||||||||
Stock
repurchase
|
- | - | (1,893 | ) | ||||||||
Restricted
stock and other stock plans, less cancellations
|
97 | - | (24 | ) | ||||||||
Balance,
January 31, 2009
|
24,593 | 6,634 | (6,827 | ) |
2009
|
2008
|
2007
|
||||||||||
Balance,
beginning of year
|
$ | 2,193 | $ | 1,954 | $ | 2,185 | ||||||
Provision
charged to operations
|
1,864 | 2,193 | 1,954 | |||||||||
Settlements
made
|
(2,193 | ) | (1,954 | ) | (2,185 | ) | ||||||
Balance,
end of year
|
$ | 1,864 | $ | 2,193 | $ | 1,954 |
Fiscal
Year Ended January 31,
|
||||||||
2009
|
2008
|
|||||||
Finished
goods
|
$ | 146,073 | $ | 117,027 | ||||
Component
parts
|
81,423 | 76,222 | ||||||
Work-in-process
|
1,388 | 11,880 | ||||||
$ | 228,884 | $ | 205,129 |
Fiscal
Year Ended January 31,
|
||||||||
2009
|
2008
|
|||||||
Land
and buildings
|
$ | 3,995 | $ | 4,285 | ||||
Furniture
and equipment
|
60,592 | 62,434 | ||||||
Computer
software
|
37,953 | 41,529 | ||||||
Leasehold
improvements
|
40,660 | 42,930 | ||||||
Design
fees and tooling costs
|
10,010 | 10,690 | ||||||
153,210 | 161,868 | |||||||
Less:
accumulated depreciation
|
86,461 | 93,355 | ||||||
$ | 66,749 | $ | 68,513 |
Required
|
Required
|
Actual
|
Actual
|
|||||||||||||
Senior
|
Credit
|
January
31,
|
January
31,
|
|||||||||||||
Covenant
|
Notes
|
Facilities
|
2009
|
2008
|
||||||||||||
Interest
Coverage Ratio
|
Min.
3.50x
|
Min.
3.50x
|
2.45 | x | 16.09 | x | ||||||||||
Average
Debt Coverage Ratio
|
Max.
3.25x
|
Max.
3.25x
|
2.72 | x | 0.93 | x | ||||||||||
Capital
Expenditures Limit
|
n/a | $ | 42,608 | $ | 22,681 | $ | 27,392 | |||||||||
Priority
Debt Limit
|
$ | 79,095 | n/a | $ | 40,000 | $ | 25,907 | |||||||||
Lien
Limit
|
$ | 79,095 | n/a | $ | - | $ | - |
Fiscal
Year Ended January 31,
|
||||||||
2009
|
2008
|
|||||||
Swiss
Revolving Credit Facility
|
$ | - | $ | 25,895 | ||||
U.S.
Revolving Credit Facility
|
40,000 | - | ||||||
Series
A Senior Notes
|
10,000 | 15,000 | ||||||
Senior
Series A-2004 Notes
|
15,000 | 20,000 | ||||||
65,000 | 60,895 | |||||||
Less:
current portion
|
65,000 | 10,000 | ||||||
Long-term
debt
|
$ | - | $ | 50,895 |
Fiscal
Year Ended January 31,
|
||||||||
2009
|
2008
|
|||||||
Maximum
borrowings
|
$ | 44,800 | $ | 40,900 | ||||
Average
monthly borrowings
|
$ | 27,800 | $ | 32,200 | ||||
Weighted-average
interest rate
|
3.0 | % | 2.9 | % |
Fair
Value of Liability
|
Maturities
|
||||
Forward
exchange contracts
|
$ | 1.1 |
Fiscal
2010
|
||
|
·
|
Level
2 - Inputs, other than the quoted prices in active markets, that are
observable either directly or
indirectly.
|
|
·
|
Level
3 - Unobservable inputs based on the Company’s
assumptions.
|
|
|
Fair Value at January
31, 2009
|
||||||||||||||||
Level 1
|
Level 2
|
Level 3
|
Total
|
|||||||||||||
Assets:
|
||||||||||||||||
Available-for-sale
securities
|
$ | 135 | $ | - | $ | - | $ | 135 | ||||||||
SERP
assets - employer
|
750 | - | - | 750 | ||||||||||||
SERP
assets - employee
|
13,429 | - | - | 13,429 | ||||||||||||
Total
|
$ | 14,314 | $ | - | $ | - | $ | 14,314 | ||||||||
Liabilities:
|
||||||||||||||||
Hedge
derivatives
|
$ | - | $ | 1,120 | $ | - | $ | 1,120 | ||||||||
SERP
liabilities - employee
|
13,429 | - | - | 13,429 | ||||||||||||
Total
|
$ | 13,429 | $ | 1,120 | $ | - | $ | 14,549 |
2009
|
2008
|
2007
|
||||||||||
Current:
|
||||||||||||
U.S. Federal
|
$ | (7,891 | ) | $ | 3,414 | $ | 8,168 | |||||
U.S. State and
Local
|
249 | 1,681 | 1,147 | |||||||||
Non-U.S.
|
4,001 | 5,672 | 4,168 | |||||||||
(3,641 | ) | 10,767 | 13,483 | |||||||||
Noncurrent:
|
||||||||||||
U.S. Federal
|
450 | (10,635 | ) | 509 | ||||||||
U.S. State and
Local
|
- | - | (89 | ) | ||||||||
Non-U.S.
|
- | (963 | ) | - | ||||||||
450 | (11,598 | ) | 420 | |||||||||
Deferred:
|
||||||||||||
U.S. Federal
|
4,386 | (5,214 | ) | (3,972 | ) | |||||||
U.S. State and
Local
|
294 | (1,307 | ) | (366 | ) | |||||||
Non-U.S.
|
(753 | ) | (2,119 | ) | (6,675 | ) | ||||||
3,927 | (8,640 | ) | (11,013 | ) | ||||||||
Provision
/ (benefit) for income taxes
|
$ | 736 | $ | (9,471 | ) | $ | 2,890 |
2009
Deferred Taxes
|
2008
Deferred Taxes
|
|||||||||||||||
Assets
|
Liabilities
|
Assets
|
Liabilities
|
|||||||||||||
Net
operating loss carryforwards
|
$ | 15,948 | $ | - | $ | 17,364 | $ | - | ||||||||
Inventory
|
4,829 | - | 5,957 | - | ||||||||||||
Unprocessed returns | 1,366 | - | 5,703 | - | ||||||||||||
Receivable
allowance
|
2,188 | 493 | 2,396 | 715 | ||||||||||||
Deferred
compensation
|
12,853 | - | 10,435 | - | ||||||||||||
Unrepatriated earnings | - | 7,135 | - | - | ||||||||||||
Hedge
derivatives
|
- | 958 | - | 2,533 | ||||||||||||
Depreciation/amortization
|
8,264 | 3,122 | 1,641 | 1,124 | ||||||||||||
Other
|
2,507 | 30 | 2,392 | 53 | ||||||||||||
47,955 | 11,738 | 45,888 | 4,425 | |||||||||||||
Valuation
allowance
|
(7,641 | ) | - | (10,689 | ) | - | ||||||||||
Total
deferred tax assets and liabilities
|
$ | 40,314 | $ | 11,738 | $ | 35,199 | $ | 4,425 |
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Provision
for income taxes at the U.S. statutory rate
|
$ | 1,151 | $ | 18,188 | $ | 18,607 | ||||||
Lower
effective foreign income tax rate
|
(5,458 | ) | (9,303 | ) | (5,359 | ) | ||||||
Change
in valuation allowance
|
(2,611 | ) | (7,292 | ) | (11,182 | ) | ||||||
Tax
provided on repatriated earnings of foreign subsidiaries
|
165 | - | - | |||||||||
Tax
provided on unrepatriated earnings of foreign subsidiaries
|
7,388 | - | - | |||||||||
Change
in unrecognized tax benefits, net
|
450 | (11,598 | ) | - | ||||||||
State
and local taxes, net of federal benefit
|
456 | (214 | ) | 379 | ||||||||
Change
in investment
|
(785 | ) | - | - | ||||||||
Other,
net
|
(20 | ) | 748 | 445 | ||||||||
Total
provision / (benefit) for income taxes
|
$ | 736 | $ | (9,471 | ) | $ | 2,890 |
2009
|
2008
|
|||||||
Beginning
balance
|
$ | 10,089 | $ | 30,052 | ||||
Additions
based on tax positions related to the current year
|
- | 477 | ||||||
Additions
for tax positions of prior years
|
184 | 1,915 | ||||||
Lapse
of statute of limitations
|
(6 | ) | (1,051 | ) | ||||
Decreases
for tax positions of prior years
|
(65 | ) | (21,153 | ) | ||||
Cash
settlements
|
(4,761 | ) | (186 | ) | ||||
F/X
fluctuations
|
(22 | ) | 35 | |||||
Ending
balance
|
$ | 5,419 | $ | 10,089 |
Fiscal
Year Ended January 31,
|
||||
2010
|
$ | 15,013 | ||
2011
|
14,512 | |||
2012
|
13,747 | |||
2013
|
11,512 | |||
2014
|
8,745 | |||
Thereafter
|
22,062 | |||
$ | 85,591 |
Outstanding
|
Weighted-Average
|
|||||||
Options
|
Exercise
Price
|
|||||||
January
31, 2006
|
3,169,613 | $ | 12.96 | |||||
Options
granted
|
144,000 | $ | 19.86 | |||||
Options
exercised
|
(430,873 | ) | $ | 8.96 | ||||
Options
cancelled
|
(28,800 | ) | $ | 13.85 | ||||
January
31, 2007
|
2,853,940 | $ | 13.91 | |||||
Options
granted
|
89,500 | $ | 31.57 | |||||
Options
exercised
|
(269,319 | ) | $ | 12.64 | ||||
Options
cancelled
|
(20,666 | ) | $ | 14.18 | ||||
January
31, 2008
|
2,653,455 | $ | 14.63 | |||||
Options
granted
|
109,250 | $ | 21.78 | |||||
Options
exercised
|
(229,307 | ) | $ | 11.97 | ||||
Options
cancelled
|
(85,832 | ) | $ | 12.45 | ||||
January
31, 2009
|
2,447,566 | $ | 15.27 |
Range
of Exercise Prices
|
Number
Outstanding
|
Weighted-Average
Remaining Contractual Life (years)
|
Weighted-Average
Exercise Price
|
Number
Exercisable
|
Weighted-Average
Exercise Price
|
|||||||||||||||||||||||||
$ | 3.02 | - | $ | 6.01 | 98,740 | 1.3 | $ | 4.25 | 98,740 | $ | 4.25 | |||||||||||||||||||
$ | 6.02 | - | $ | 9.01 | 78,066 | 2.1 | $ | 7.25 | 78,066 | $ | 7.25 | |||||||||||||||||||
$ | 9.02 | - | $ | 12.01 | 490,122 | 1.2 | $ | 10.44 | 490,122 | $ | 10.44 | |||||||||||||||||||
$ | 12.02 | - | $ | 15.01 | 301,044 | 4.6 | $ | 13.69 | 224,382 | $ | 13.69 | |||||||||||||||||||
$ | 15.02 | - | $ | 18.01 | 703,417 | 2.7 | $ | 15.65 | 675,088 | $ | 15.59 | |||||||||||||||||||
$ | 18.02 | - | $ | 21.01 | 568,427 | 4.3 | $ | 18.47 | 532,096 | $ | 18.45 | |||||||||||||||||||
$ | 21.02 | - | $ | 24.01 | 108,750 | 9.2 | $ | 22.27 | 3,918 | $ | 23.55 | |||||||||||||||||||
$ | 24.02 | - | $ | 27.01 | 25,000 | 7.7 | $ | 25.85 | 16,667 | $ | 25.85 | |||||||||||||||||||
$ | 27.02 | - | + | 74,000 | 8.3 | $ | 32.92 | 31,001 | $ | 32.90 | ||||||||||||||||||||
2,447,566 | 3.5 | $ | 15.27 | 2,150,080 | $ | 14.45 |
Number
of Restricted Stock Units
|
Weighted-
Average Grant Date Fair Value
|
|||||||
January
31,2006
|
321,090 | $ | 14.39 | |||||
Units
granted
|
255,450 | $ | 19.02 | |||||
Units
vested
|
(102,940 | ) | $ | 10.01 | ||||
Units
forfeited
|
(10,255 | ) | $ | 16.78 | ||||
January
31, 2007
|
463,345 | $ | 17.87 | |||||
Units
granted
|
164,185 | $ | 32.06 | |||||
Units
vested
|
(113,410 | ) | $ | 15.28 | ||||
Units
forfeited
|
(17,390 | ) | $ | 18.84 | ||||
January
31, 2008
|
496,730 | $ | 23.12 | |||||
Units
granted
|
220,521 | $ | 21.69 | |||||
Units
vested
|
(95,226 | ) | $ | 18.74 | ||||
Units
forfeited
|
(55,571 | ) | $ | 25.20 | ||||
January
31, 2009
|
566,454 | $ | 23.09 |
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Net
income
|
$ | 2,315 | $ | 60,805 | $ | 50,138 | ||||||
Net
unrealized (loss) / gain on investments, net of tax
|
(190 | ) | (176 | ) | 42 | |||||||
Net
change in effective portion of hedging contracts, net of
tax
|
(2,266 | ) | 3,942 | 1,246 | ||||||||
Foreign
currency translation adjustment (1)
|
(19,692 | ) | 29,817 | 3,346 | ||||||||
Total
comprehensive (loss) / income
|
$ | (19,833 | ) | $ | 94,388 | $ | 54,772 |
Fiscal
Year Ended
|
||||||||
January
31,
|
||||||||
2009
|
2008
|
|||||||
Net
unrealized (loss) / gain on investments, net of tax
|
$ | (34 | ) | $ | 156 | |||
Net
unrealized gain on hedging contracts, net of tax
|
1,485 | 3,751 | ||||||
Cumulative
foreign currency translation adjustment
|
42,291 | 61,983 | ||||||
Accumulated
other comprehensive income
|
$ | 43,742 | $ | 65,890 |
Net
Sales
|
Operating
Income / (Loss) (1) (2)
|
|||||||||||||||||||||||
2009
|
2008
|
2007
|
2009
|
2008
|
2007
|
|||||||||||||||||||
Wholesale
|
$ | 371,349 | $ | 466,431 | $ | 445,674 | $ | 8,702 | $ | 50,210 | $ | 48,132 | ||||||||||||
Retail
|
89,508 | 93,119 | 87,191 | (5,312 | ) | 567 | 4,187 | |||||||||||||||||
Consolidated
total
|
$ | 460,857 | $ | 559,550 | $ | 532,865 | $ | 3,390 | $ | 50,777 | $ | 52,319 |
Total
Assets
|
Capital
Expenditures
|
|||||||||||||||||||
2009
|
2008
|
2009
|
2008
|
2007
|
||||||||||||||||
Wholesale
|
$ | 515,517 | $ | 580,665 | $ | 20,051 | $ | 19,684 | $ | 12,757 | ||||||||||
Retail
|
48,473 | 65,551 | 2,630 | 7,708 | 7,421 | |||||||||||||||
Consolidated
total
|
$ | 563,990 | $ | 646,216 | $ | 22,681 | $ | 27,392 | $ | 20,178 |
Depreciation
and Amortization
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Wholesale
|
$ | 12,047 | $ | 11,466 | $ | 11,617 | ||||||
Retail
|
6,410 | 5,218 | 4,963 | |||||||||
Consolidated
total
|
$ | 18,457 | $ | 16,684 | $ | 16,580 |
Net
Sales (3)
|
Operating
(Loss) Income (1) (2)
|
|||||||||||||||||||||||
2009
|
2008
|
2007
|
2009
|
2008
|
2007
|
|||||||||||||||||||
United
States
|
$ | 255,337 | $ | 328,212 | $ | 366,656 | $ | (31,264 | ) | $ | (18,066 | ) | $ | 7,704 | ||||||||||
International
|
205,520 | 231,338 | 166,209 | 34,654 | 68,843 | 44,615 | ||||||||||||||||||
Consolidated
total
|
$ | 460,857 | $ | 559,550 | $ | 532,865 | $ | 3,390 | $ | 50,777 | $ | 52,319 |
Total
Assets
|
Long-Lived
Assets
|
|||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
United
States
|
$ | 289,567 | $ | 341,846 | $ | 50,369 | $ | 51,544 | ||||||||
International
|
274,423 | 304,370 | 16,380 | 16,969 | ||||||||||||
Consolidated
total
|
$ | 563,990 | $ | 646,216 | $ | 66,749 | $ | 68,513 |
(1)
|
Fiscal
2009 Wholesale Operating Income included an $11.1 million charge related
to the Company’s cost savings initiatives and a restructuring of certain
benefit arrangements, of which $7.4 million was recorded in the United
States and $3.7 million was recorded in the International
segment.
|
(2)
|
Fiscal
2009 United States and Retail Operating Loss includes a non-cash
impairment charge of $4.5 million recorded in accordance with SFAS No.
144, “Accounting for the Impairment or Disposal of Long-Lived
Assets”.
|
(3)
|
The
United States and international net sales are net of intercompany sales of
$253.3 million, $275.2 million and $258.3 million for the twelve months
ended January 31, 2009, 2008 and 2007,
respectively.
|
Quarter
|
||||||||||||||||
1
st
|
2
nd
|
3
rd
|
4
th
|
|||||||||||||
Fiscal
2009
|
||||||||||||||||
Net
sales
|
$ | 101,353 | $ | 129,689 | $ | 135,846 | $ | 93,969 | ||||||||
Gross
profit
|
$ | 65,020 | $ | 83,903 | $ | 86,202 | $ | 52,507 | ||||||||
Net
income / (loss)
|
$ | 1,249 | $ | 8,136 | $ | 15,729 | $ | (22,799 | ) | |||||||
Net
income / (loss) per share:
|
||||||||||||||||
Basic
|
$ | 0.05 | $ | 0.33 | $ | 0.64 | $ | (0.93 | ) | |||||||
Diluted
|
$ | 0.05 | $ | 0.32 | $ | 0.62 | $ | (0.92 | ) | |||||||
Fiscal
2008
|
||||||||||||||||
Net
sales
|
$ | 101,363 | $ | 139,467 | $ | 180,153 | $ | 138,567 | ||||||||
Gross
profit
|
$ | 61,652 | $ | 83,346 | $ | 109,887 | $ | 81,797 | ||||||||
Net
income
|
$ | 2,400 | $ | 12,264 | $ | 26,528 | $ | 19,613 | ||||||||
Net
income per share:
|
||||||||||||||||
Basic
|
$ | 0.09 | $ | 0.47 | $ | 1.02 | $ | 0.75 | ||||||||
Diluted
|
$ | 0.09 | $ | 0.45 | $ | 0.97 | $ | 0.72 | ||||||||
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Cash
paid during the year for:
|
||||||||||||
Interest
|
$ | 2,434 | $ | 3,407 | $ | 3,760 | ||||||
Income taxes
|
$ | 13,042 | $ | 11,542 | $ | 13,751 |
Fiscal
Year Ended January 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Gain
on proceeds from insurance premiums (a)
|
$ | 681 | $ | - | $ | - | ||||||
Gain
on sale of building (b)
|
- | - | 374 | |||||||||
Sale
of artwork (c)
|
- | - | 848 | |||||||||
Sale
of rights to web domain (d)
|
- | - | 125 | |||||||||
Other
income, net
|
$ | 681 | $ | - | $ | 1,347 |
Severance related
|
||||
Balance
at April 30, 2008
|
$ | - | ||
Provision
charged
|
2,192 | |||
Balance
at July 31, 2008
|
2,192 | |||
Provision
charged
|
3,393 | |||
Severance
paid
|
(2,759 | ) | ||
Balance
at October 31, 2008
|
2,826 | |||
Provision
charged
|
3,094 | |||
Severance
paid
|
(1,511 | ) | ||
Balance
at January 31, 2009
|
$ | 4,409 |
Description
|
Balance
at beginning of year
|
Net
provision charged to operations
|
Currency
revaluation
|
Net
write-offs
|
Balance
at end of year
|
|||||||||||||||
Year
ended January 31, 2009:
|
||||||||||||||||||||
Doubtful accounts, returns and
allowances (1)
|
$ | 36,348 | $ | 35,628 | $ | (456 | ) | $ | (51,922 | ) | $ | 19,598 | ||||||||
Year
ended January 31, 2008:
|
||||||||||||||||||||
Doubtful accounts, returns and
allowances (1)
|
$ | 26,079 | $ | 49,091 | $ | 657 | $ | (39,479 | ) | $ | 36,348 | |||||||||
Year
ended January 31, 2007:
|
||||||||||||||||||||
Doubtful accounts, returns and
allowances
|
$ | 25,693 | $ | 41,184 | $ | 91 | $ | (40,889 | ) | $ | 26,079 |
Description
|
Balance
at beginning of year
|
Net
provision charged to operations
|
Currency
revaluation
|
Net
write-offs
|
Balance
at end of year
|
|||||||||||||||
Year
ended January 31, 2009:
|
||||||||||||||||||||
Inventory
reserve
|
$ | 21,170 | $ | 2,282 | $ | (737 | ) | $ | (6,751 | ) | $ | 15,964 | ||||||||
Year
ended January 31, 2008:
|
||||||||||||||||||||
Inventory reserve
(2)
|
$ | 48,575 | $ | 2,809 | $ | 3,754 | $ | (33,968 | ) | $ | 21,170 | |||||||||
Year
ended January 31, 2007:
|
||||||||||||||||||||
Inventory
reserve
|
$ | 49,250 | $ | 1,953 | $ | 2,348 | $ | (4,976 | ) | $ | 48,575 |
(2)
The inventory reserve net write-offs in fiscal 2008 were the result of
efforts to cleanse discontinued component and watch inventory by scrapping
the product, resulting in a reduction to existing reserves with no impact
to the consolidated statement of
income.
|
Description
|
Balance
at beginning of year
|
Net
benefit to operations
|
Currency
revaluation
|
Adjustment
|
Balance
at end of year
|
|||||||||||||||
Year
ended January 31, 2009:
|
||||||||||||||||||||
Deferred tax asset valuation
(3)
|
$ | 10,689 | $ | (2,625 | ) | $ | (588 | ) | $ | 165 | $ | 7,641 | ||||||||
Year
ended January 31, 2008:
|
||||||||||||||||||||
Deferred tax asset valuation
(4)
|
$ | 16,741 | $ | (7,407 | ) | $ | 2,391 | $ | (1,036 | ) | $ | 10,689 | ||||||||
Year
ended January 31, 2007:
|
||||||||||||||||||||
Deferred tax asset valuation
(5)
|
$ | 29,555 | $ | (9,544 | ) | $ | 976 | $ | (4,246 | ) | $ | 16,741 |
(3)
The detail of adjustments is as follows:
|
(5)
The detail of adjustments is as follows:
|
||||||||
Prior
year adjustments
|
$ | 164 |
Release
of valuation allowance – Ebel NOL’s
|
$ | (273 | ) | |||
Statutory
tax rate changes
|
1 |
Ebel
NOL’s expired
|
(2,541 | ) | |||||
$ | 165 |
Ebel
Germany pre-acquisition NOL’s
|
(1,017 | ) | |||||
Prior
year adjustments
|
(415 | ) | |||||||
$ | (4,246 | ) |
|
“Tenant
shall pay to the Landlord as Fixed Rent for the demised premises
commencing on March 1, 2009 to and through July 31, 2014, the sum of SEVEN
HUNDRED FORTY-NINE THOUSAND SEVEN HUNDRED FIFTEEN AND NO/100 ($749,715.00)
DOLLARS per annum, payable in equal monthly installments of SIXTY-TWO
THOUSAND FOUR HUNDRED SEVENTY-SIX AND 25/100 ($62,476.25) DOLLARS, and
commencing September 1, 2014 through August 31, 2019, the sum of EIGHT
HUNDRED NINETY-FOUR THOUSAND SIX HUNDRED SIXTY THOUSAND AND NO/100
($894,660.00) DOLLARS per annum, payable in equal monthly installments of
SEVENTY-FOUR THOUSAND FIVE HUNDRED FIFTY-FIVE THOUSAND AND NO/100
($74,555.00) DOLLARS.
|
WITNESS
/s/ Andrew L. Moss
/s/ Andrew L. Moss
|
FORSGATE INDUSTRIAL
COMPLEX
,
Landlord
By:
/s/ Charles Klatskin
Charles Klatskin, General
Partner
By:
/s/ Stephen Seiden
Stephen Seiden, General
Partner
|
WITNESS
/s/ Sallie A. DeMarsilis
|
MOVADO
GROUP, INC.
Tenant
By:
/s/ Rick Cote
Name: Rick Cote
Title: COO
|
(1)
|
THE
FOLLOWING PAGES OF THE FOUR DISTRIBUTORSHIP AGREEMENTS ANNEXED HERETO
COLLECTIVELY AS ANNEX B: TOMMY HILFIGER AGREEMENT - PAGES 6 AND 18; JUICY
COUTURE AGREEMENT – PAGES 6, 7 AND 19; HUGO BOSS AGREEMENT – PAGES 6 AND
18; LACOSTE AGREEMENT – PAGES 38 AND 39 AND SCHEDULE
VIII;
|
(2)
|
ANNEX
B TO (WHICH IS THE LAST PAGE OF) THE SERVICE AGREEMENT ANNEXED HERETO AS
ANNEX C;
|
(3)
|
ALL
OF ANNEX D
|
|
List
of Annexes
|
(A)
|
MGI
wishes to develop its activities in the United Kingdom through, among
other actions, the development of licensed brands and direct access to the
market.
|
(B)
|
Swico
is a watch distributor in the United Kingdom and is currently the
distributor there of Hugo Boss watches under an agreement with MGI’s
Affiliate, MGI Luxury Group, S.A., dated May 1, 2005 (“Swico HB
Distributorship”). In order to grow and secure the current
business of its domestic markets, Swico is searching for new brands for
distribution and a strong partner to develop for the long
term.
|
(C)
|
In
view of their satisfactory relationship and common objectives, Swico and
MGI (collectively, the “
Shareholders
”)
wish to create a joint venture relationship through ownership in the
Company of, respectively, a 51% interest by MGI (or an entity that is
owned 100% by MGI) and a 49% interest by
Swico.
|
(D)
|
The
Shareholders wish to set forth herein certain matters relating to the
establishment of the Company, the management and operations thereof, as
well as the transfers by the Shareholders of their interests in the
Company.
|
1.
|
INTERPRETATION
|
1.1
|
Definitions
: Unless
the context otherwise requires, the following terms shall have the
following meanings for purposes of this
Agreement.
|
1.2
|
The
following terms are defined in the indicated
Clause:
|
2.
|
ESTABLISHMENT
OF THE COMPANY
|
2.1
|
Contributions
. MGI
shall subscribe for 51 Shares at a subscription price of £408,000,
representing 51% of the total Shares to be in issue. Swico
shall subscribe for 49 Shares at a subscription price of £392,000, of
which £372,000 shall be satisfied by Swico procuring the transfer to the
Company of its inventory of Hugo Boss watches in saleable condition and
related display material and spare parts for such watches, the aggregate
fair market value of which is £372,000, and the balance of the
subscription price of £20,000 shall be paid by Swico in cash so that the
shareholding of Swico shall represent 49% of the total Shares to be in
issue. The Memorandum and Articles of Association of the
Company are attached hereto as Annex
A.
|
3.
|
BUSINESS
OF THE COMPANY AND INITIAL OPERATIONS
|
3.1
|
Principal
Business
. The business of the Company shall be to sell,
market and distribute in the United Kingdom certain watch brands pursuant
to the Distribution Agreements (as defined below) (the "
Business
") in
accordance with the Business Plan (as defined in Clause
8.1
below) and to engage in such other
businesses or activities or make such other investments as may be approved
by the Shareholders from time to time in accordance with this
Agreement.
|
3.2
|
Distribution
Agreements
. MGI shall, or shall cause its appropriate
Affiliate to, enter into exclusive distribution agreements, substantially
in the form attached hereto as Annex B, except as the parties may
otherwise agree (the “
Distribution
Agreements
”), with the Company, and the Company will enter into the
Distribution Agreements, pursuant to which MGI or its appropriate
Affiliate shall grant to the Company the exclusive right to distribute
HUGO BOSS, TOMMY HILFIGER, LACOSTE and JUICY COUTURE watches in the United
Kingdom. Swico and MGI agree that, upon the effective date of the
Distribution Agreement relating to the distribution of HUGO BOSS watches,
they will take all action or cause their Affiliates, as the case may be,
to take all action, to terminate the Swico HB
Distributorship. In addition, subject to Clause 10.2.2,
MGI will, or will cause its appropriate Affiliate to, offer to the Company
substantially similar watch distribution agreements in the United Kingdom
for any other brands which may hereafter be licensed to MGI or any of its
Affiliates, subject, in each case, to the terms, conditions and
limitations set forth in each licence, and the Company shall enter into,
and the Shareholders will take all action to cause the Company to enter
into, such distribution agreements. All references in this Agreement to
“Distribution Agreements” shall include all such additional distribution
agreements as may be entered into from time to time by the Company and MGI
or any of its Affiliates. Any failure by MGI or its Affiliates to offer or
execute such additional distribution agreements shall be deemed to be a
material breach by MGI of this Agreement, and any failure by either
Shareholder to take all action to cause the Company to enter into such
additional distribution agreements shall be deemed to be a material breach
by such Shareholder of this
Agreement
|
3.3
|
Service
Agreement
. Swico shall enter into a service agreement,
substantially in the form attached as Annex C, with the Company (the
“Service Agreement”), and the Company shall enter into the Service
Agreement with Swico pursuant to which Swico shall provide to the Company
certain services relating to the day-to-day operations of the
Business.
|
3.4
|
Employees
.
|
(a)
|
Swico
shall arrange in consultation with MGI the hiring of adequate staff,
including sales staff, by the Company. Such staff shall include sales
staff derived from employees of Swico currently dedicated to the HUGO BOSS
brand. Swico shall assume the costs of transferring the employment of such
employees to the Company.
|
(b)
|
All
employees shall be employed by the Company at market-standard rates of
compensation with market-standard benefits. Employees transferred from
Swico will benefit from the terms and conditions applicable to their
employment on the date of transfer ; provided however that the Company
shall in no event assume any liability or obligation (including, without
limitation, pension liabilities or other accrued liabilities) owed by
Swico to any such employees which arose prior to the date of their
transfer. If, notwithstanding the foregoing, the Company shall be deemed
to have assumed any such liability or obligation, then Swico will
indemnify, defend and hold the Company harmless against and in respect of
all such liabilities and obligations. Swico shall indemnify and
hold harmless the Company from and against any losses and expenses arising
from any claim by any employee of Swico relating to such transfers or the
transactions contemplated hereby, including without limitation any tax
liability or any claim by any such employee that such employee’s
employment should have been transferred to the
Company.
|
(c)
|
All
agreements with employees (including those relating to compensation,
commissions, benefits other agreements) shall be set forth in writing and
made available for review by, and, if required pursuant to
Clause 4.3.1, the approval of, the Chairman (as defined
below).
|
3.5
|
Insurance
. Swico
shall cause the Company to be covered by Swico’s group umbrella insurance
policies as part of the services provided pursuant to the Services
Agreement, with the exception of marine insurance for goods in transit
which coverage shall be provided by MGI as part of its umbrella coverage
for Affiliates . The Company shall reimburse to MGI MGI’s
incremental costs incurred relating to such insurance coverage promptly
upon receipt from MGI of an invoice
therefor.
|
3.6
|
Systems
. At
any time after the combined sales of the Company for any fiscal year
exceed £10 million, upon the request of MGI, the Company shall implement
and the Shareholders shall take all action to cause the Company to
implement, and Swico shall (in connection with the services provided by it
under the Service Agreement) implement, MGI’s information technology
systems for accounting/financial
reporting.
|
4.
|
CORPORATE
GOVERNANCE AND MANAGEMENT
|
4.1
|
General
. The
Shareholders shall use their respective voting powers at general meetings
of the Company (each a "
Shareholders
Meeting
"), and shall take all other actions necessary, including
action that may be taken through its shareholding in the Company, to give
effect to all of the provisions of this Agreement, the Distribution
Agreements and the Service Agreement. In the event of any
conflict between the terms of this Agreement, on the one hand, and the
terms of the governing documents of the Company on the other hand, the
terms of this Agreement shall
prevail.
|
4.2
|
Managing
Director.
|
4.2.1
|
Appointment
. The
Company shall be managed by a Managing Director. The Shareholders expect
that Swico, based on its knowledge of the watch market in the United
Kingdom, will furnish a recommendation for Managing Director to the
Company for consideration. The Shareholders shall cause the Company to
appoint as Managing Director the person recommended by Swico, following
the prior approval of MGI, which shall not be withheld without good
reason. For the purposes of the preceding sentence, “good
reason” shall include, without limitation, failure of the candidate to
have satisfactory relations with retailers and failure of the candidate to
have achieved satisfactory financial results (as compared to forecasted
results) . The Shareholders will cause the Company to remove
the Managing Director upon request by Swico for any or no reason, or upon
request by MGI, for good cause. For the purposes of the
preceding sentence, “good cause” shall include, without limitation, the
failure of the Managing Director to properly manage the day-to-day
activities of the Company, including without limitation the failure of the
Managing Director to comply with the requirements set forth in
Clause 4.2.3(b) below. The Managing Director shall devote all of his
or her professional time to the business and operations of the Company;
provided that if Mr. Keith Sheppard becomes the Managing Director, he
shall devote such of his professional time to the business and operations
of the Company as reasonably
necessary.
|
4.2.2
|
Remuneration
. The
remuneration of the Managing Director shall be determined and paid by the
Company, subject to approval by the Chairman. The Managing
Director shall not have a separate employment contract, except as required
by law and in no event shall the Managing Director be entitled to any
severance payment of any kind whatsoever in the event of the termination
of his employment by or resignation from the
Company.
|
4.2.3
|
Duties and Powers of
the Managing Director
.
|
|
(a)
|
Subject
to the rights of the Chairman, the Board or of the Shareholders to approve
certain specific decisions and actions as set forth in Clauses 4.3.1,
4.3.2, 4.4.5 or
4.5.1
or as provided by
applicable law, the Managing Director shall conduct the day-to-day
activities of the Company.
|
|
(b)
|
The
Managing Director shall:
|
|
(i)
|
promote
the development of the Business;
|
|
(ii)
|
ensure
the continuity of the sales team
management;
|
|
(iii)
|
promote
the continuity and development of customer
relationships;
|
|
(iv)
|
liaise
with Swico to ensure the continuity of the Swico personnel providing
services to the Company pursuant to the Service
Agreement;
|
|
(v)
|
prepare
for review and approval by the Chairman a draft annual strategic plan,
business plan and budget consistent with the Business Plan, and implement
the approved annual strategic plan, business plan and
budget;
|
|
(vi)
|
communicate
regularly with the Chairman regarding the operations of the Company
including meeting not less than quarterly with the Advisory Committee to
discuss and review any material financial, commercial or strategic
developments or issues, including, without limitation, any action taken by
the Managing Director under
Clause 4.2.3(c);
|
|
(vii)
|
cause
the Company to adhere to the MGI group ethics and control policies as
communicated by MGI from time to time and to comply with all procedures
relating to MGI internal control over financial
reporting;
|
|
(viii)
|
manage
the employees of the
Company; and
|
|
(xi)
|
comply
with the requirements of this
Agreement.
|
|
(c)
|
Without
limiting the provisions of sub-clause (a) above, the Managing
Director may take the following actions without the prior approval of the
Chairman or of the Board:
|
|
(i)
|
hire
or terminate the employment of personnel having annual compensation of
less than £50,000;
|
|
(ii)
|
grant
individual salary increases up to 10% higher than the increase based on
the general cost of living index, or equivalent index in the United
Kingdom, so long as total salary increases for such annual period do not
exceed the budgeted salary
increases;
|
|
(iii)
|
negotiate
and execute on behalf of the Company any commercial agreements in the
ordinary course of business, consistent with past practice, if any,
involving annual expenditures not to exceed the applicable budgeted amount
for such expense category, or, absent a specific budgeted amount, the
amount set forth in the Business Plan, or, absent any specific amount in
the Business Plan, £50,000; and
|
|
(iv)
|
make
payments from and deposits into the bank accounts of the Company in the
ordinary course of business, consistent with past practice, if any, and to
the extent not otherwise inconsistent with any other provision of this
Agreement.
|
4.3
|
Chairman.
|
|
4.3.1
|
Duties and Powers.
The Chairman, who shall be appointed in accordance with
Clause 4.4.2, shall have a role in the management of the business of
the Company, as provided herein. Without limiting the
foregoing, the prior approval of the Chairman is required for any of the
following decisions and actions to be taken, it being understood that the
failure of the Managing Director to obtain the prior approval of the
Chairman, or, failing approval by the Chairman, the approval of the
Board, with respect to any of the following shall be deemed to
be a material breach by Swico of this Agreement referred to under
Clause
15.2
of this Agreement; provided,
that, in the event any annual budget has not been duly approved on or
before December 31
st
of any year, then the Business Plan (during the first 5 years of this
Agreement) or the budget of the previous year (after the fifth year of
this Agreement) shall continue to apply on a temporary basis pending such
approval:
|
|
(a)
|
hiring
or termination of the employment of personnel with annual compensation in
excess of £50,000 or of any Person who is a Relative of any Board member
appointed by Swico or of the Managing
Director;
|
|
(b)
|
any
action or decision that would represent a deviation of more than 5% with
respect to any individual budget or Business Plan line
item;
|
|
(c)
|
acquisition
of fixed assets exceeding £50,000 individually or in the aggregate during
any year, except to the extent specifically provided in the approved
budget;
|
|
(d)
|
any
material change to the marketing, sales or technology policies established
by the Board;
|
|
(e)
|
incurrence
of any liability in excess of £15,000 individually or collectively in any
month, except to the extent specifically provided in the approved
budget;
|
|
(f)
|
initiation
or settlement of any litigation or claim exceeding
£35,000;
|
|
(g)
|
entering
into any contract not in the ordinary course of the business of the
Company;
|
|
(h)
|
entering
into any commercial agreements involving an annual amount exceeding
£50,000, except to the extent specifically provided in the approved
budget;
|
|
(i)
|
any
decision or approval required in connection with the Service Agreement;
and
|
|
(j)
|
making
payments from the bank accounts of the Company other than in the ordinary
course of business, except as otherwise expressly permitted by this
Agreement.
|
|
4.3.2
|
With
respect to the foregoing decisions and actions, the Managing Director
shall notify the Chairman of the Managing Director’s recommendation for
such decision or action. The Chairman shall use reasonable
efforts to inform the Managing Director of his decision thereon within
five business days after such notification. In the event the
Chairman has not notified its decision to the Managing Director within
such five business day period, the Managing Director may consider that the
Chairman disagrees with the recommendation of the Managing Director and
may submit such proposed decision or action to the Board for decision in
accordance with Clause 4.3.3. If the Chairman repeatedly
fails to notify the Managing Director within such five business day period
of its decision on any recommendation from the Managing Director, then
Swico shall have the right to request that MGI replace the Chairman, which
request MGI will consider in good
faith.
|
|
4.3.3
|
Disagreement of
Managing Director and the Chairman
. Should the Managing
Director and the Chairman disagree with respect to any of the decisions or
actions set forth in Clause 4.3.1, either the Managing Director or
the Chairman may submit such proposed decision or action to the Board for
decision in accordance with this
Agreement.
|
|
4.3.4
|
Service
Agreement.
The Managing Director shall consult the
Chairman with respect to all decisions relating to the Service
Agreement. The Chairman shall have the opportunity to be
present (including by telephone) or represented at all material
discussions or reporting in connection with the Service Agreement, and the
Managing Director shall provide the Chairman with copies of all material
written communications and summaries of all material oral communications
with Swico relating to the Service Agreement. It is the
intention of the Shareholders that the Chairman shall have the right in
its sole discretion to make any decision to terminate the Service
Agreement on behalf of the Company in accordance with Clause 5(b)
thereof. [Therefore, in the event the Chairman instructs the
Managing Director to terminate the Service Agreement, the Managing
Director shall so terminate the Service Agreement in accordance with the
terms thereof.] Any failure of the Managing Director to so
follow the instructions of the Chairman expressed in compliance with the
Service Agreement shall be deemed to be a material breach of this
Agreement by Swico.
|
4.4
|
Board of
Directors.
|
4.4.1
|
Number and
Composition
. The board of directors of the Company (the
“
Board
”)
shall at all times shall be comprised of four members (each, a “
Director
”), two
of whom shall be designated by MGI and two of whom shall be designated by
Swico.
|
4.4.2
|
Chairman
. The
Board shall be presided by a Chairman (the “
Chairman
”). He
shall be designated (and may be removed at any time) by MGI from among the
members of the Board appointed by MGI in accordance with Clause
4.4.1
,
provided
, that
MGI shall consult in good faith with Swico prior to so appointing the
Chairman. The Chairman shall not have a second or casting vote
at any meeting of the Board or at any committee
thereof.
|
|
4.4.3
|
Removal and
Replacement of Directors.
|
|
4.4.4
|
Board
Meetings.
|
|
(a)
|
Meetings
of the Board shall take place at least once every six-month
period.
|
|
(b)
|
A
meeting of the Board may be called by the Chairman or by any Director by
giving notice in writing to the Company and the other Directors specifying
the date, time and agenda for such meeting. Not less than
seven (7) days' notice shall be given to all Directors;
provided
,
however
, that
such notice period (i) shall not apply in the case of an adjourned
meeting and (ii) may be reduced with the written consent of all of
the Directors.
|
|
(c)
|
All
meetings of the Board shall require the presence in person, of both
Directors appointed by MGI and both Directors appointed by
Swico. Any Director may, by written notice to all Directors
transmitted by mail, electronic mail or facsimile, appoint his fellow
representative Director as his alternate to attend and vote for such
Director at any Board meeting and in which case such Director shall have
two votes.
|
|
(d)
|
The
adoption of any resolution of the Board shall require the unanimous
approval of all Directors present or represented at a duly constituted
meeting of the Board. In the event the required affirmative
vote is not obtained as to any proposed resolution, then the proposed
resolution will not be adopted and, if it would have resulted in a
modification of the Business Plan or this Agreement, the modification will
not be adopted. The Board shall not at any meeting adopt any
resolution covering any matter that is not specified on the agenda for
such meeting unless all Directors are present at such
meeting.
|
|
(e)
|
Meetings
of the Board, subject to applicable law, may be conducted via telephone or
videoconference, with such participation constituting presence for
purposes of the quorum requirement. Meetings of the Board shall
take place in England.
|
|
(f)
|
The
costs of attendance of Directors at meetings of the Board shall, to the
extent permitted by law, be borne by the
Company.
|
|
(g)
|
Any
action that may be taken by the Directors at a meeting of any Board may be
taken by a written resolution signed by all of the Directors in lieu of a
meeting.
|
|
4.4.5
|
Authority of
Board
. The Board shall make all major decisions of the
Company and all decisions outside the day- to-day business of the Company,
except for (i) those decisions and actions that may be taken without
such prior approval by the Managing Director alone or with the approval of
the Chairman, in accordance with Clauses 4.2.3(c) or 4.3.1 and
(ii) those decisions and actions that require the approval of the
Shareholders in accordance with Clause 4.5.2. In addition,
the Board shall decide on any matter submitted to it by the Managing
Director or the Chairman in case of disagreement between the Managing
Director and the Chairman. Without limiting the foregoing, the following
decisions and actions shall require the prior approval of the
Board:
|
|
(a)
|
any
acquisition or disposition of assets exceeding £15,000 individually or in
any calendar month, other than as specifically approved by the Chairman or
provided in the approved budget;
|
|
(b)
|
entry
into any lease or sublease arrangement of real
property;
|
|
(c)
|
any
change to the agreed dividend policy set forth in Clause
10.1
;
|
|
(d)
|
incurrence
of indebtedness for borrowed money;
|
|
(e)
|
acquisition
of the equity of another Person;
|
|
(f)
|
any
participation in any joint venture or partnership;
and
|
|
(g)
|
any
material modification to the Business Plan (other than merely adopting
annual budgets), including, without limitation, any such modification that
results in: (i) a decrease in profitability by more than two percent
(2.0%); (ii) an increase of expenses by more than five percent (5.0%)
of the budgeted amount for such category of expenses; or (iii) an
increase in working capital of more than five percent
(5.0%);
|
|
(h)
|
approval
of the annual budget and strategic plans and business plans proposed by
the Managing Director and approved by the
Chairman.
|
4.5
|
Shareholder Meetings
and Approval.
|
4.5.1
|
Meetings of the
Shareholders
. Shareholder meetings shall be promptly
convened by the Chairman upon delivery to the Chairman of a written
request therefor by any two Directors. Shareholder Meetings may
otherwise be convened as permitted or required by
law.
|
4.5.2
|
Shareholder
Approval
. The following actions and decisions relating
shall require the approval of the Shareholders by a vote of at least 75%
of all voting rights:
|
|
(a)
|
increase,
amortization or reduction of
capital;
|
|
(b)
|
merger,
spin-off, consolidation or transfer of any portion of the business or
assets of any Company;
|
|
(c)
|
nomination
of the statutory auditor;
|
|
(d)
|
approval
of the annual accounts and affectation of the
profit;
|
|
(e)
|
approval
of agreements with any Related
Party;
|
|
(f)
|
transformation
of the corporate form of the
Company;
|
|
(g)
|
dissolution,
liquidation or reorganization or restructuring of the Company;
and
|
|
(h)
|
all
other matters for which shareholder approval is required in accordance
with applicable law.
|
5.
|
REPORTING
AND INFORMATION RIGHTS
|
5.1
|
Information
Rights
. Each Shareholder and its authorized
representatives, the Chairman, and each Director shall have the right,
upon reasonable prior notice, during normal business hours to inspect from
time to time the books and accounting records of the Company, to make
extracts and copies therefrom at its own expense and to have full access
to all of the Company's employees, property and assets. The
Managing Director shall ensure that the foregoing rights and access are
provided.
|
5.2
|
Books and
Records
. The Company shall, and in particular the
Managing Director shall cause the Company to, maintain proper, complete
and accurate books of account in accordance with generally accepted
accounting principles as applied by MGI and its Affiliates. The
Company shall have its accounts audited annually in accordance with such
standards by a reputable firm of international accountants appointed by
the Shareholders. The Shareholders agree to take all action to
cause the Company to appoint as statutory auditor the firm designated by
MGI, with the initial firm serving as auditor to be
PricewaterhouseCoopers.
|
5.3
|
Reports
. The
Company shall have or shall arrange to have furnished to it under the
Service Agreement, or otherwise, sufficient accounting, technological and
administrative personnel and infrastructure to satisfy the normal
reporting requirements of the MGI group, as communicated by MGI to the
Board and to the Managing Director from time to time, as well as the
requirements of applicable law. Without limiting the
foregoing, the Company shall, and in particular the Managing Director
shall cause the Company to, provide to the Board (i) unaudited
financial data for the period just ended within 3 weeks after
the end of each fiscal year and within 2 weeks after the end of each
quarter (ii) within 2 months after the end of each fiscal year, the
annual audited financial statements of the Company for such fiscal years,
(iii) within two weeks after the end of each quarter,
quarterly unaudited financial statements of the Company for such quarter,
(iv) within 20 days after the end of each month, a management report
including without limitation key operating metrics (e.g. sales and return
statistics), a comparison of operating results with the relevant operating
budget and an explanation of material differences between
actual results and the budgeted amounts, if any and (v) such other
reports as the Board may determine. The failure of the Managing
Director to comply with the foregoing reporting requirements within one
week after notice of non-delivery of the report shall be deemed to be a
material breach of this Agreement by
Swico.
|
5.4
|
Budgets and Business
Plans
. The Managing Director shall prepare proposed
annual operating and capital budgets and business plans for the Company,
which shall be submitted to the Chairman and to the Board for
approval.
|
6.
|
RESTRICTIONS
ON TRANSFER OF SHARES
|
6.1
|
Limitation on
Transfers
. No Shareholder shall sell, give, assign,
pledge, encumber, grant a security interest in or otherwise dispose of any
Shares (each, a "
Transfer
"),
except as expressly permitted by this Clause
6
. Any attempt to Transfer any Shares
in violation of the preceding sentence shall be null and void, and the
Company shall not register any such
Transfer.
|
6.2
|
Transfers
. Notwithstanding
any other provision of this Agreement, no Transfer may be made unless
(a) the transferee has agreed in writing to be bound by the terms and
conditions of this Agreement and (b) the Transfer complies in all
respects with the other applicable provisions of this Agreement and the
governing documents of the Company. The non-transferring
Shareholder shall cooperate with the transferring Shareholder in respect
of all transfers permitted
hereunder.
|
6.3
|
Transfers to
Affiliates
. Any Transfer by a Shareholder to an
Affiliate thereof (a “
Permitted
Transferee
”) may be made on the condition that the Permitted
Transferee shall be bound by and agrees to all of the provisions of this
Agreement and;
provided
, that
the transferring Shareholder shall obtain the written consent to such
Transfer from the other Shareholder, which shall not be unreasonably
withheld. Any Transfer made in accordance with the previous
sentence may be made without compliance with the provisions of
Clause
6.4
or
6.5
. If a Permitted Transferee after
any such Transfer ceases to be an Affiliate of the transferring
Shareholder, such Permitted Transferee shall transfer such Shares back to
such transferring Shareholder.
|
6.4
|
Prohibited
Transfers
. Notwithstanding anything in this Agreement to
the contrary, no Transfers, other than Transfers permitted pursuant to
Clause
6.3
, shall be made prior to July
1, 2012 (the “
Lock-up Expiration
Date
”).
|
6.5
|
Transfers to Third
Parties.
|
6.5.1
|
Transfer
Notice
. If a Shareholder (the "
Transferring
Shareholder
") receives a bona fide offer to acquire Shares and the
Transferring Shareholder proposes to accept such offer, the Transferring
Shareholder shall send written notice (the "
Transfer
Notice
") to the Company and the other Shareholder (the "
Offeree
"),
which notice shall state (i) the name of the Transferring
Shareholder, (ii) the name and address of the proposed transferee
(the "
Transferee
"),
(iii) the number of Shares to be Transferred (the "
Offered
Shares
"), (iv) the amount and form of the proposed
consideration for the Transfer, (v) the other terms and conditions of
the proposed Transfer and (vi) confirmation that the Transferee is
willing to purchase the Shares held by the Offeree on the same terms and
conditions. In the event that the proposed consideration for
the Transfer includes consideration other than cash, the Transfer Notice
shall include a calculation of the fair market value of such consideration
and an explanation of the basis for such calculation. The total
value of the consideration for the proposed Transfer is referred to herein
as the "
Offer
Price
", and the “
Offer Price Per
Share
” shall equal the Offer Price divided by the number of Offered
Shares.
|
6.5.2
|
Rights of
Offeree
. For a period of 30 days after delivery of a
Transfer Notice (the "
Offer Period
"),
the Offeree shall have the right by delivering written notice to the
Transferring Shareholder to such effect (the “
First Refusal
Right
”) to (i) purchase in aggregate all, but not less than
all, of the Offered Shares at a purchase price equal to the Offer Price,
(ii) purchase 100% of the Shares held by the Transferring Shareholder
and any Permitted Transferees to which the Transferring Shareholder shall
have transferred Shares at a price equal to the Buyout Price,
(iii) sell all of the Shares owned by it to the Transferee at a price
equal to the Offer Price Per Share multiplied by the number of shares held
by the Offeree and otherwise pursuant to the terms and conditions set
forth in the Transfer Notice (the “
Tag Along
Right
”) or (iv) withhold its consent to the sale by the
Transferring Shareholder to the Transferee in its absolute discretion, in
which event the Transferring Shareholder shall not consummate such
Transfer. The notice delivered by the Offeree to the Transferring
Shareholder shall state which of the foregoing alternatives (i-iv) the
Offeree has elected.
|
6.5.3
|
Sale to Third-Party
Purchaser
. Unless the Offeree shall have elected during
the Offer Period in accordance with Clause
6.5.1
to exercise its First Refusal Right, its
Tag Along Right, to be bought out or to withhold its consent to the sale
by the Transferring Shareholder to the Transferee, the Transferring
Shareholder may Transfer all of the Offered Shares to the Transferee
identified in the Transfer Notice on the terms and conditions set forth in
the Transfer Notice;
provided
, that
the Transfer shall be completed within three months after the giving of
the Transfer Notice.
|
7.
|
SWICO
CHANGE OF CONTROL
|
7.1
|
Change of Control of
Swico
. Swico shall provide to MGI at least forty five
(45) days prior notice of any Swico Change of Control. MGI
shall have the right to purchase all of the Shares held by Swico and all
Permitted Transferees to which Swico shall have transferred Shares at the
Buyout Price, by sending notice to such effect to Swico within thirty (30)
days after receipt of such notice.
|
7.2
|
Definition of Swico
Change of Control
. A “
Swico Change of
Control
” shall be deemed to occur if (i) any competitor of MGI
acquires more than 5% of the shares or voting rights of Swico or any
Affiliate thereof (or, in the event the shares of Swico become publicly
traded on a recognized investment exchange, such competitor acquires more
than 10% of the shares or voting rights of Swico or any Affiliate thereof)
or (ii) Mr. Keith Sheppard ceases to spend at least 50% of his time
in the active day-to-day management of Swico or its Affiliates for any
reason other than death or permanent disability. For the
purposes of this Clause
7.2
, Fossil,
Swatch Group, Callanan International, Egana, Binda, Vestal and Advance,
and any of their successors in interest, shall be deemed to be competitors
of MGI, and, whether any other Person shall be considered to be a
competitor of MGI shall be determined using reasonable judgment after
taking into consideration the price, market position and placement at
point of sale of the products of such
Person.
|
8.
|
FINANCIAL
PERFORMANCE
|
8.1
|
Business
Plan
. Attached hereto as Annex D is the agreed business
plan for the Company setting out specific financial performance measures
annually for the period ending January 31, 2012 and containing the
underlying principles and assumptions on the basis of which the
Shareholders agree that the Business will be run for the duration of this
Agreement (such business plan, as expressly duly modified by the
Shareholders in accordance with the terms of this Agreement, the “
Business
Plan
”).
|
8.2
|
Poor Financial
Performance Year 5
. In the event that, (i) based on
the audited consolidated financial statements of the Company for the years
ended January 31, 2008 through January 31, 2012, the Company has a
cumulative loss or (ii) based on the audited consolidated financial
statements of the Company for the years ended January 31, 2011 and January
31, 2012, the Company has failed to attain an average annual return on
sales of at least 3%, then either Shareholder may elect by notice to the
other Shareholder on or before April 30, 2012 to dissolve the Company, and
both Shareholders shall vote in favour of such dissolution at the
Shareholder Meeting duly convened for such purpose and shall otherwise
co-operate in respect thereof.
|
8.3
|
Poor Financial
Performance Year 10
. In the event that, based on the
audited consolidated financial statements of the Company for the years
ended January 31, 2015 to January 31, 2017, the Company has failed to
attain an average annual return on sales of at least 5%, then either
Shareholder may elect by notice to the other Shareholder on or before
April 30, 2017 to dissolve the Company, and both Shareholders shall vote
in favour of such dissolution at the Shareholder Meeting duly convened for
such purpose and shall otherwise co-operate in respect
thereof.
|
9.
|
BUY
OUT RIGHT
|
9.1
|
Buy-Out
Right
. MGI shall have the right to purchase the Shares
of Swico and all Permitted Transferees to which Swico shall have
transferred Shares hereunder on July 1, 2017 and each fifth anniversary
thereof (each such date or, if such date is not a business day, the next
following business day, a “
Buy-Out Date
”),
by notice to Swico at least eighteen (18) months prior to any Buy-Out
Date, at the Buy-Out Price (as defined below). Upon receipt of
such notice, Swico and any such Permitted Transferees shall be required to
so transfer their Shares to MGI on the Buy-Out
Date.
|
9.2
|
Buy-Out
Price
. The “
Buy-Out Price
”
shall equal the product of (i) the percentage of total Shares held by
the transferring party(ies) and (ii) 5 multiplied by the “
Cash Flow
Value
” (which is hereby defined as the average annual operating
cash flow (EBIT) for the three fiscal years prior to the Buy-Out Date
based on the audited consolidated financial statements of the Company),
plus the net asset value of the Company (on a consolidated basis) on the
Buy-Out Date (or minus the net liability value of Company (on a
consolidated basis) on the Buy-Out Date, as the case may
be).
|
10.
|
COVENANTS
|
10.1
|
Dividend
Policy.
The Parties agree that a dividend equal to 75%
of the distributable profits of the Company on a consolidated basis in any
year shall be declared as a dividend to the Shareholders on or before the
15
th
month after the end of such year, to the extent permitted by applicable
law;
provided
, that
such policy may be modified or waived pursuant to decision of the
Board.
|
10.2
|
Non-Competition.
|
10.2.1
|
During
the term of this Agreement, neither Swico nor its Affiliates shall without
the prior consent of MGI, within any country where the Company regularly
conducts business and distributes products, directly or indirectly
distribute, sell or market any fashion watch brand that is competitive
with any licensed brand distributed by or on behalf of MGI or any of its
Affiliates in such country. Whether any fashion watch brand is competitive
with any of MGI’s or its Affiliates’ licensed brands will be determined
where applicable by reference to the applicable licence agreement itself;
provided
however that brands marketed by or on behalf of any of the following
companies or their Affiliates shall be deemed to be competitive with the
MGI licensed brands: Fossil, Swatch Group, Callanan International, Egana,
Binda, Vestal and Advance. Whether any other fashion brand
shall be considered to be competitive with any MGI licensed brand shall be
determined using reasonable judgment after taking into consideration brand
message, price, market position, final consumer profile and placement at
point of sale. The Shareholders will consider appropriate
exemptions from this provision in the event the Company commences to
distribute products in any country other than the United Kingdom, where
Swico or any of its Affiliates have pre-existing
business.
|
10.2.2
|
If
Swico breaches any of the provisions of Clause
10.2.1
(the “
Non-Compete
Covenant
”), MGI shall be released from its obligation to appoint
the Company as distributor for any new MGI licensed
brands.
|
10.2.3
|
Swico
agrees that the Non-Compete Covenant is reasonable in geographical and
temporal scope and in all other respects. If any court
determines that the Non-Compete Covenant, or any part thereof, is invalid
or unenforceable, the remainder thereof shall not thereby be affected and
shall be given full effect without regard to the invalid
portions.
|
10.2.4
|
If
any court determines that the Non-Compete Covenant is unenforceable
because of the duration or geographic scope of such provision, such court
shall have the power to reduce the duration or scope of such provision, as
the case may be, and, in its reduced form, such provision shall then be
enforceable.
|
10.3
|
Non-Solicitation
. During
the term of this Agreement and until the second anniversary of the valid
termination or expiration thereof, neither MGI and its Affiliates, on the
one hand, nor Swico and its Affiliates, on the other hand, shall recruit
any employee, officer or director of the other for employment or as a
consultant.
|
11.
|
REPRESENTATIONS
AND WARRANTIES
|
11.1
|
Each
Shareholder represents to the other Shareholder
that:
|
|
11.1.1
|
such
Shareholder has the full power and authority to enter into, execute and
deliver this Agreement and to perform the transactions contemplated hereby
and, if such Shareholder is not a natural Person, such Shareholder is duly
incorporated or organized and existing under the laws of the jurisdiction
of its incorporation or
organization;
|
|
11.1.2
|
the
execution and delivery by such Shareholder of this Agreement and the
performance by such Shareholder of the transactions contemplated hereby
have been duly authorized by all necessary corporate or other action of
such Shareholder;
|
|
11.1.3
|
assuming
the due authorization, execution and delivery hereof by the other
Shareholder, this Agreement constitutes the legal, valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally;
and
|
|
11.1.4
|
the
execution, delivery and performance of this Agreement by such Shareholder
and the consummation of the transactions contemplated hereby will not
(a) violate any provision of the organizational or governance
documents of such Shareholder; (b) require such Shareholder to obtain
any consent, approval or action of, or make any filing with or give any
notice to, any governmental authority in such Shareholder's country of
organization or any other Shareholder pursuant to any instrument, contract
or other agreement to which such Shareholder is a party or by which such
Shareholder is bound, or (c) conflict with or result in any breach of or
default under any of the terms and conditions of any instrument, contract
or other agreement by which such Shareholder is
bound.
|
12.
|
FEES
AND EXPENSES
|
12.1
|
Each
Shareholder shall bear its own fees and expenses in connection with the
preparation, execution and performance of this Agreement and the other
documents contemplated hereby.
|
13.
|
CONFIDENTIALITY
|
13.1
|
General
Obligation
. Each Shareholder undertakes that it shall
not reveal, and shall use its reasonable efforts to ensure that its
directors, officers, managers, partners, members, employees, legal,
financial and professional advisors and bankers (collectively, "
Representatives
")
do not reveal, to any third party any Confidential Information without the
prior written consent of the Company or the Shareholder concerned, as the
case may be. The term "
Confidential
Information
" as used in this Agreement means (a) any
information concerning the organization, business, technology, finance,
transactions or affairs of the Company and each Shareholder or any of
their respective directors, officers or employees (whether conveyed in
written, oral or in any other form and whether such information is
furnished before, on or after the date of this Agreement) and (b) any
information or materials prepared by a Shareholder or its Representatives
that contains or otherwise reflects, or is generated from, Confidential
Information.
|
13.2
|
Exceptions
. The
provisions of Clause
13.1
shall not
apply to:
|
|
13.2.1
|
disclosure
of Confidential Information that is or becomes generally available to the
public other than as a result of disclosure by or at the direction of a
Shareholder or any of its Representatives in violation of this
Agreement;
|
|
13.2.2
|
disclosure
by a Shareholder to its
Representatives;
|
|
13.2.3
|
disclosure,
after giving prior notice to the other Parties to the extent practicable
under the circumstances and subject to any practicable arrangements to
protect confidentiality, to the extent required under the rules of any
stock exchange or by applicable laws or governmental regulations or
judicial or regulatory process or in connection with any judicial process
regarding any legal action, suit or proceeding arising out of or relating
to this Agreement; or
|
|
13.2.4
|
disclosure
by any Shareholder of Confidential Information concerning the Company that
is reasonably necessary in the ordinary course of business or otherwise in
connection with transactions or proposed transactions of the
Company.
|
13.3
|
Disclosure to Third
Parties
. Upon any Shareholder entering into negotiations
with any Person with a view to Transferring any Shares to such Person,
information in respect of the Company that is reasonably necessary to
permit such Person to evaluate the business of the Company may be provided
to such Person,
provided
that
such Person has executed a confidentiality agreement in such form as may
be reasonably required by the Board; and
provided
further
that if
such Person is involved in a business in competition with that of the
Company, the Board may prohibit the disclosure of any such Confidential
Information as the Board may
determine.
|
14.
|
PUBLICITY
|
14.1
|
Except
as required by law or regulations of any stock exchange or by any
governmental authority, no publicity release or public announcement
concerning the relationship or involvement of the Parties shall be made by
any Shareholder without advance approval thereof by the other Shareholder,
which approval shall not be unreasonably
withheld.
|
15.
|
TERMINATION
AND BREACH
|
15.1
|
Term
. This
Agreement shall become effective upon the execution hereof by the
Shareholders and the Company and shall continue in effect until the
earlier to occur of (a) the date on which the Company goes into
liquidation or dissolution, any property or assets of the Company are
placed in the hands of a receiver, trust custodian or liquidator or a
winding up order in respect of the Company is issued, or (b) the date
on which this Agreement is validly terminated in accordance with
Clause
15.2
or (c) any date agreed
upon in writing by the Shareholders or (e) where all the Shares are held
by one Person.
|
15.2
|
Breach.
|
|
15.2.1
|
Upon
the material breach of this Agreement by any Shareholder, the
non-breaching Shareholder may provide to the breaching Shareholder
notification of such material breach, setting forth in reasonable detail
therein the nature of such material breach. The breaching
Shareholder and the non-breaching Shareholder shall meet to discuss in
good faith the material breach and the cure thereof. Following such
discussion, formal notification (the “
Notification
”)
may be given by the non-breaching Shareholder to the breaching Shareholder
of the breach and requesting that the breaching Shareholder cure the
breach.
|
|
15.2.2
|
If
the breaching Shareholder shall not have cured such breach within 30 days
after delivery of the Notification, the non-breaching Shareholder may,
without prejudice to any other legal remedies it may have, within 60 days
after expiration of such 30-day period, [(i) elect to terminate this
Agreement and the Distribution Agreements], and dissolve and liquidate the
Company (and the breaching Shareholder shall take all actions to
co-operate in respect of the implementation of such dissolution and
liquidation (including voting in favour thereof at the shareholder meeting
duly convened for such purpose)) or (ii elect to purchase the
interests held by the breaching Shareholder and any Permitted Transferees
thereof in the Company at a price equal to the product of (a) the
percentage of total Shares held by the breaching Shareholder (and any
Permitted Transferees thereof) and (b) 90% of 5 multiplied by the
Cash Flow Value, plus the net asset value of the Company (on a
consolidated basis) on the Buy-Out Date (or minus the net liability value
of the Company (on a consolidated basis) on the Buy-Out Date,
as the case may be). Notwithstanding the foregoing, if the
Breach occurs during the 5 first years of activity (to January 31, 2012),
such price will be equal to the multiple of (a) the percentage of
total Shares held by the breaching Shareholder (and any Permitted
Transferees thereof) and (b) 5 multiplied by the annual operating
cash flow for the last fiscal year prior to the Buy-Out Date based on the
audited consolidated financial statements of the Company, plus the net
asset value of the Company (on a consolidated basis) on the Buy-Out Date
(or minus the net liability value of the Company (on a consolidated basis)
on the Buy-Out Date, as the case may be). Alternatively the
non-breaching Shareholder may offer to purchase the Shares held by the
breaching Shareholder and any Permitted Transferees thereof in the Company
at any other price to be negotiated by the
Parties.
|
|
15.2.3
|
A
“material breach” for purposes of this Clause
15.2
shall include the breach by a Shareholder
of the provisions of this Agreement (including without limitation of the
management rules, the decision-making process or the non-compete or
non-solicitation undertakings) or a breach of the provisions of the
Distribution Agreements or the Service Agreement (with any beach thereof
by any Affiliate of MGI being attributed to MGI and any breach thereof by
any Affiliate of Swico being attributed to Swico) resulting, in any of the
foregoing events in damages to the Company in excess of
£35,000. Any material breach of, or actions inconsistent with,
the terms of this Agreement (i) by the Managing Director or any
Director designated by Swico shall be attributed to Swico, and
(ii) by the Chairman or any Director designated by MGI shall be
attributed to MGI.
|
15.3
|
Damages
. In
no event shall any Shareholder be required to pay indirect or
consequential damages in respect of any breach by such Shareholder of any
provision of this Agreement, except in the event of
fraud.
|
16.
|
NOTICES
|
16.1
|
Each
notice or other communication hereunder shall be in writing and delivered
or sent to the relevant Shareholder at its address or fax number set out
in Schedule 1 (or such other address or fax number as the addressee may
specify to the other Parties). Any notice or other
communication shall be deemed to have been delivered
(a) if given or made by letter, when actually delivered to the
relevant address; and (b) if given or made by fax, upon dispatch and
the receipt of a transmission report confirming
dispatch.
|
17.
|
MISCELLANEOUS
|
17.1
|
No
Partnership
. The Shareholders expressly do not intend
hereby to form a partnership, either general or limited, under any
jurisdiction's partnership law. The Shareholders do not intend
to be partners one to another, or partners as to any third party, or
create any fiduciary relationship among themselves, solely by virtue of
their status as Shareholders.
|
17.2
|
Discrepancies
. If
there is any discrepancy between any provision of this Agreement and any
provision of the governing documents of the Company, the provisions of
this Agreement shall prevail, and the Parties shall procure that such
governing documents are promptly amended, to the extent permitted by
applicable law, in order to conform with this
Agreement.
|
17.3
|
Amendment
. This
Agreement may not be amended, modified or supplemented except by a written
instrument executed by each of the
Parties.
|
17.4
|
Waiver
. No
waiver of any provision of this Agreement shall be effective unless set
forth in a written instrument signed by the Shareholder waiving such
provision. No failure or delay by a Shareholder in exercising any right,
power or remedy under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of the same preclude any further
exercise thereof or the exercise of any other right, power or
remedy. Without limiting the foregoing, no waiver by a
Shareholder of any breach by the other Shareholder of any provision hereof
shall be deemed to be a waiver of any subsequent breach of that or any
other provision hereof.
|
17.5
|
Entire
Agreement
. This Agreement (together with the agreements
attached as Annexes hereto) constitutes the whole agreement between the
Parties relating to the subject matter hereof and supersedes any prior
agreements or understandings relating to such subject
matter.
|
17.6
|
Severability
. Each
and every obligation under this Agreement shall be treated as a separate
obligation and shall be severally enforceable as such and in the event of
any obligation or obligations being or becoming unenforceable in whole or
in part. To the extent that any provision or provisions of this
Agreement are unenforceable they shall be deemed to be deleted from this
Agreement, and any such deletion shall not affect the enforceability of
this Agreement as remain not so
deleted.
|
17.7
|
Assignment; Binding on
Transferee
. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Parties hereto and their
respective successors and Permitted Transferees and transferees under
Clause
6.5
from and after the effective
date hereof. Neither Party may transfer its rights and
obligations under this Agreement without the prior written consent, which
shall not be unreasonably withheld, of the other
Party.
|
18.
|
GOVERNING
LAW AND JURISDICTION
|
18.1
|
This
Agreement shall be governed by and construed in accordance with the laws
of England.
|
18.2
|
Disputes.
|
|
18.2.1
|
Any
dispute or claim arising out of or in connection with or relating to this
Agreement, or the breach, termination or invalidity hereof, including any
claim for injunctive relief, shall be finally settled by arbitration under
the Rules of Conciliation and Arbitration of the International Chamber of
Commerce (the "
Rules
") as are
in force at the time of any such arbitration. For the purpose
of such arbitration, there shall be three arbitrators appointed in
accordance with the Rules. The place of arbitration shall be in
London. All arbitration proceedings shall be conducted in the
English language. Judgment upon any arbitral award
rendered hereunder may be entered in any court having jurisdiction, or
application may be made to such court for a judicial acceptance of the
award and an order of enforcement, as the case may
be.
|
|
18.2.2
|
Each
Shareholder shall co-operate in good faith to expedite (to the maximum
extent practicable) the conduct of any arbitral proceedings commenced
under this Agreement.
|
|
18.2.3
|
The
costs and expenses of the arbitration, including, without limitation, the
fees of the arbitrators shall be borne equally by each party to the
dispute or claim, and each party shall pay its own fees, disbursements and
other charges of its counsel.
|
|
18.2.4
|
Any
award made by the arbitrators shall be final and binding on each of the
Parties that were parties to the dispute. The Shareholders
expressly agree to waive the applicability of any laws and regulations
that would otherwise give the right to appeal the decisions of the
arbitrators or to seek specific performance in another forum so that there
shall be no appeal to any court of law for the award of the arbitrators,
and a Shareholder shall not challenge or resist the enforcement action
taken by any other the other Shareholder in whose favour an award of the
Arbitration Panel was given.
|
A.
|
Movado
Group, Inc.
|
|
Principle
Office: 650 From Road, Paramus, NJ
07652
|
|
Address
for notification: same, to the attention of Jon Step, with a copy
to:General Counsel, Movado Group, Inc., 650 From Road, Paramus, NJ 07652,
U.S.A.
|
|
Address
for Notification: same as Registered
Office ,
to theattention of Keith Sheppard
|
|
if
to Swico:
|
|
Meadway,
Haslemere, Surrey GU27 1NN, England
|
|
Attention :
Keith Sheppard
|
|
Facsimile:
|
|
if
to the Company
|
|
c/o
Swico at the address above:
|
|
Attention: Chairman
|
|
Facsimile:
|
|
By:
|
________________________________
|
|
Name:
|
|
Title:
|
|
By:
|
________________________________
|
|
Name:
|
|
Title:
|
|
MGS
DISTRIBUTION LIMITED.
|
|
By:________________________________
|
|
Name:
|
|
Title:
|
|
ANNEX A
|
|
Arrange
for inclusion of the Company under Swico’s umbrella coverage (except for
marine insurance for goods in
transit)
|
|
ANNEX
B
|
1.1
|
In
this Agreement, except where the context otherwise requires, the
capitalized terms listed below shall have the respective meanings assigned
to them as follows:
|
|
“Affiliate”
|
means
as to either party, a person or entity which controls, is under common
control with, or is controlled by such
party.
|
“Corporate
Accounts”
|
means
premium and incentive accounts and other corporate accounts which have
been approved in writing by Licensor under the JC License for the purchase
of Products solely for the use of the employees of such
accounts.
|
|
“Products”
|
means
watches manufactured by or for Supplier and bearing one
or more of the
Trademarks
|
|
“Territory”
|
means
the United Kingdom (excluding Travel Retail
Accounts).
|
|
“Licensor”
|
means
the licensor under the JC License, including any successors and
assigns.
|
|
“JC”
|
means
Juicy Couture.
|
|
“JC
License”
|
means
the license agreement between SWISSAM PRODUCTS LIMITED, MOVADO GROUP, INC.
and L.C. LICENSING, INC., as the same may be amended from time to time,
pursuant to which Supplier has the right to use the Trademarks in
connection with the manufacture, marketing, advertising, sale and
distribution of the Products.
|
|
“JC
Stores”
|
means
retail and outlet stores, including flagship stores, owned or operated
by Licensor or by any of its
Affiliates.
|
|
“Trademarks”
|
means
all trademarks licensed to Supplier by Licensor under the JC License and
used on or in connection with the Products, including, without limitation,
JUICY, JUICY COUTURE or any other product that contains the name
JUICY.
|
|
“Travel
Retail Accounts” means any
account whose retail business consists of in-flight duty free
retail sales operations.
|
1.2
|
Unless
otherwise defined herein, each capitalized term used herein shall have the
meaning as set forth in the JC
License.
|
2.
|
APPOINTMENT
|
2.1
|
Subject
to the terms and conditions contained herein, for the term of this
Agreement, Supplier hereby appoints Distributor as the exclusive wholesale
distributor for marketing, distribution and sales of the Products in the
Territory (with the exception of sales to Corporate Accounts), and
Distributor hereby accepts such appointment. Notwithstanding
anything to the contrary contained herein, Supplier may permit Distributor
to sell Products to certain Corporate Accounts located within
the Territory on a case by case basis subject to the approval by Licensor
as provided in theJC License and as Supplier may, in its sole and absolute
discretion designate in writing from time to
time.
|
|
2.2 Distributor
shall purchase all Products directly from Supplier, or from one or more
other sources nominated in writing by Supplier, subject to Distributor’s
right to purchase Products (a) from other distributors with which Supplier
has contracted for the distribution of the Products (“Approved
Distributors”) that are located in Switzerland, the European Union, the
European Economic Area or any other country with which the European Union
has concluded a free trade agreement (in the aggregate, the “European
Area”) and (b) from approved retailers that satisfy the conditions set
forth in Section 8.2 hereof (“Approved Retailers”) located in the European
Area (provided that prior to exercising such right Distributor receives
written confirmation from Supplier that each such other distributor is an
Approved Distributor and that each such retailer is an Approved Retailer).
Such Approved Distributors and Approved Retailers, only, are included
within and comprise the JC selective distribution
network.
|
|
2.3 Distributor
shall sell the Products only to Approved Retailers in the Territory and,
within the European Area, only within the JC selective distribution
network. Distributor shall refrain, outside the Territory and
in relation to the Products, from actively soliciting orders, establishing
any branch or maintaining any distribution depots. In no event
will Distributor sell or continue selling Products to any retailer that
does not satisfy the conditions in Section 8.2 of this
Agreement.
|
2.4
|
Distributor
shall use reasonable commercial efforts to advertise, promote, market,
distribute and sell the Products in the Territory. Without
limiting the generality of the foregoing, Distributor shall at all times
maintain adequate stocks of Products to meet demand for the Products in
the Territory by those retailers, if any, not being direct shipped by
Supplier and Distributor will use reasonable efforts to avoid accumulating
excess inventory not in line with its forecasts. Distributor shall
maintain an adequate sales force for the effective distribution and sale
of the Products in the Territory including at least one (1) full time
watch division manager to supervise/manage a dedicated sales manager and
sales executive for the Products, experienced in managing a watch
distribution business and one (1) full time marketing manager working on
the advertising and promotion of the
Products.
|
2.5
|
During
the term of this Agreement Distributor shall not directly or indirectly
distribute any other watch brands which, in the determination of Supplier,
compete with the Products in the Territory. No other brand
licensed to MGI or any Affiliate of MGI shall be deemed to compete with
the Products.
|
2.6
|
The
parties acknowledge that under the Joint Venture Agreement each of Swico
and MGI, as the only shareholders of Distributor, has the right under
section 15.2 of the JV Agreement, to dissolve, or to purchase the other’s
interest in, Distributor. Accordingly, if either Swico or MGI (the
“Non-breaching Party”) elects under the foregoing provision of the JV
Agreement to purchase the other party’s interest in,
Distributor and (a) written notice from Swico and MGI confirming such
election has been provided to Supplier and Distributor and (b) the
Non-breaching Party also notifies Supplier that it wishes this Agreement
to be assigned, then effective upon the date specified in such notice from
the Non-breaching Party (or, absent the specification of any date, then as
soon as reasonably practicable) Supplier shall assign all of Distributor’s
right, title and interest in and under this Agreement to such
Non-breaching Party or to any Affiliate of such Non-Breaching Party as
specified in such notice. Distributor hereby grants Supplier a power of
attorney for purposes of Supplier executing and delivering on behalf of
Distributor any and all documents or other instruments necessary to effect
such assignment.
|
3.
|
ORDERING,
SHIPMENT AND PRICES
|
3.1
|
From
time to time Distributor shall submit purchase orders for the Products to
Supplier. All purchase orders shall be subject to acceptance by
Supplier, which acceptance may, at Supplier’s option, be evidenced by the
issuance of written confirmations or acknowledgments. Supplier hereby
reserves the absolute right to reject the whole or any part of any
purchase order for any commercially valid reason, including, without
limitation, Distributor’s credit condition or its accumulation of excess
or non-current inventory or its failure otherwise to adhere to the terms
and conditions of this Agreement, notwithstanding that any such rejection
may prevent Distributor from achieving its Minimum Purchase Requirements.
Subject to Sections 3.2 and 11.1, all purchase orders shall be irrevocable
after acceptance by Supplier; provided, however, that Distributor may
reschedule or cancel that portion of any purchase order pertaining to
Products which Supplier fails to deliver as confirmed within thirty (30)
days after the later of the advised delivery date or shipping date.
Distributor will provide Supplier with a four (4) month rolling forecast
of its anticipated order volume monthly by SKU, for the four (4) month
period. Supplier will use reasonable efforts to deliver the
Products ordered in accordance with the forecast within three (3) months
after acceptance of the purchase order by Supplier and to deliver all
other Product orders within three (3) to five (5) months after acceptance
of the purchase order. As soon as is reasonably practicable
after acceptance of each purchase order, Supplier shall advise Distributor
of the shipping dates applicable to such order. All shipping
dates so advised are estimates only and Supplier shall not have any
liability for failure to actually ship by such dates or to deliver by
Distributor’s requested delivery dates. Supplier shall notify
Distributor in the event of any anticipated delay in shipping dates of
thirty (30) days or more. Each order submitted by Distributor will specify
a “ship to” address which shall be Distributor’s address or the address
for one of Distributor’s customers.
|
3.2
|
The
purchase prices for all Products purchased by Distributor shall be in
Euros and based on Supplier’s suggested retail price in effect in the
European Union as of the date of shipment. Such prices shall be calculated
based on the discount structure as set forth on Schedule A annexed hereto.
Supplier will provide current price lists for the Products to Distributor
from time to time and shall have the right to modify such prices at any
time; provided, however, that no price increase shall become effective
sooner than sixty (60) days after written notice thereof to
Distributor. Supplier will give Distributor prior notice of all
such price changes. For all orders shipped before the effective date of
any price increase, the applicable price shall be the price in effect on
the date of shipment. With respect to orders for the Products
that have been accepted by Supplier but which have not been shipped as of
the effective date of a price increase, the applicable price shall be the
price in effect on the date of shipment; provided that if the price
increase is more than ten percent (10%) of the last applicable price,
Distributor shall have the right within ten (10) days from the effective
date of the price increase to cancel all or any part of the order for the
Products subject to such price increase upon notice to Supplier. All
prices are ex-works Supplier’s distribution
facility.
|
4.
|
MINIMUM
TURNOVER REQUIREMENTS
|
4.1
|
Each
contract year for the duration of this Agreement, Distributor will make
minimum sales of Products in the Territory (“Minimum Turnover
Requirement”) equal to at least sixty percent (60%) of the amount of
Product sales as budgeted in the Business Plan annexed to the JV
Agreement. Notwithstanding the foregoing there shall be no
Minimum Turnover Requirement for the first contract
year.
|
4.2
|
Sales
in excess of the Minimum Turnover Requirement in any contract year shall
be neither carried over nor credited toward the Minimum Turnover
Requirement of a subsequent contract
year.
|
5.
|
ADVERTISING
AND PROMOTION
|
5.1
|
As
used herein “advertising” means only the publication in print or broadcast
media of advertisements approved by Supplier and “promotion” means all
other forms of Product promotion, other than advertising, approved by
Supplier including, without limitation, point of sale material, co-op
advertising, marketing, public relations, special events and the
like. All advertising and promotions (including, without
limitation, the methods, media selection, layouts, venue and timing
thereof) shall be subject to the prior written approval of
Supplier. Distributor shall submit all proposed and promotion
materials for approval at least four (4) weeks prior to the first
anticipated use thereof and shall not engage in any advertising or
promotion or use any such materials without Supplier’s prior written
approval. Unless otherwise expressly approved in writing by Supplier,
Distributor will use only such materials including, without limitation,
point of sale material, packaging, advertising and ancillary material
furnished by Supplier.
|
|
5.2 Distributor
shall conduct all advertising and promotion of the Products in the
Territory at its own expense, subject to matching a portion of such
expenditures by Supplier as hereinafter provided. At a minimum,
Distributor shall expend each contract year for approved advertising and
promotion an amount equal to * of Distributor’s
budgeted sales of Products for such contract year. Distributor’s budgeted
sales of Products for the first through the fifth contract years are set
forth in Annex D to the JV Agreement and Distributor’s budgeted sales each
contract year thereafter shall be as contained in the annual business plan
and budget as adopted in accordance with the provisions of the JV
Agreement at or before the beginning of each contract year, or, at such
time, if any, that the JV Agreement is no longer in effect, then as
approved by Distributor in good faith consultation with Supplier, and may
be adjusted in the same manner quarterly. So long as Distributor satisfies
its advertising and promotion commitment as set forth in this Section
5.2,
|
|
then
Supplier will match such expenditures each contract year by spending an
amount on advertising and/or promotion equal to * of
the Net Invoiced Cost of Distributor’s Product purchases in such year
(“Supplier’s Advertising Amount”). “Net Invoiced Cost” means the invoiced
price actually paid by Distributor to Supplier net of all discounts, all
costs referred to in Section 3.3 hereof, all credits for returns and all
uncollected amounts. There shall be deemed included as part of Supplier’s
Advertising Amount each year an amount equal to up to * of the
Net Invoiced Cost of Distributor’s Product purchases in such year that is
spent by Supplier in connection with JC’s advertising and promotion
campaign (“Image Program”), which final amount shall be determined in
accordance with the requirements of the JC License. Distributor
acknowledges that the way the funds allocated to the Image Fund will be
spent by Supplier is that Supplier will pay such amount directly to
Licensor or its Affiliates under the JC License. Supplier’s obligation
hereunder to spend Supplier’s Advertising Amount in any contract year is
contingent on Supplier receiving from Distributor within thirty (30) days
after the end of each quarter in such contract year, a
statement setting out and showing Distributor’s advertising
expenditures and promotion expenditures incurred during such prior
quarterly period (supported by invoices and other documents reasonably
acceptable to Supplier, substantiating the expenditures for Distributor’s
approved advertising and promotion); and provided further that such costs
are no less, on a proportionate basis, than the minimum required
expenditures set forth in this Section 5.2. In the event
Distributor’s actual Product sales for any contract year (other than the
final contract year of this Agreement) exceed the total budged sales for
such year on which its advertising and promotion expenditures for the year
were based, then Distributor shall spend an amount equal to
* of such excess in the following contract
year.
|
6.
|
REPORTING
|
6.1
|
Quarterly
(beginning with the quarter ending July 31, 2007 and from time to time at
the reasonable request of Supplier, Distributor shall furnish Supplier
with a comprehensive written report in reasonable detail regarding (i) the
advertising, promotions, distribution and sales of the Products for the
immediately proceeding quarter or such other relevant period as Supplier
may reasonably request; (ii) Distributor’s market analysis; and (iii) such
other matters as Supplier shall
request.
|
6.2
|
Distributor
will consult with Supplier, as Supplier shall reasonably request for
purposes of determining a marketing plan for distribution of the Products
in the Territory each year. Such plan shall be followed by
Distributor.
|
6.3
|
Distributor
shall promptly notify Supplier of any significant changes in Distributor’s
sales forecasts and shall furnish Supplier such information related to
sales, sales forecasts, warranty claims and inventories of Products as may
be reasonably requested from time to time by
Supplier.
|
7.
|
SERVICE
AND REPAIR
|
7.1
|
Distributor
shall establish and maintain, at its expense, such number of authorized
service facilities for the service and repair of the Products in the
Territory (the “Service Center(s)”) as Supplier may reasonably request, it
being understood that initially there shall be one (1) such Service
Center. Distributor shall accept all Products for service,
returned by any consumer or retailer in the Territory for service whether
covered by the applicable consumer warranty (“warranty repairs”) or not
covered by said warranty (“out-of-warranty repairs”). All costs
related to out-of-warranty service, including, without limitation, costs
of all Products and Product parts used in the performance thereof, shall
be borne by Distributor. Distributor shall purchase such
Products and parts from Supplier or from one or more parts distributors
designated in writing by Supplier and maintain an adequate stock of
Products, parts and materials as necessary to perform such service in a
timely manner.
|
7.2
|
Within
thirty (30) days after the Effective Date, Distributor will furnish
Supplier with Distributor’s initial price list for all out of warranty
repairs. Distributor will give Supplier no less than ninety
(90) days prior written notice of any change to any such prices.
Distributor shall submit to Supplier each month, a statement summarizing
all out of warranty repairs performed in the immediately preceding month
indicating for each watch repaired the corresponding style number and the
work performed. Distributor will use only those parts
(excluding batteries) for out of warranty service on the Products which
are supplied directly by or otherwise approved in writing by Supplier as
original equipment for the
Products.
|
|
(b)
|
Dates
repair received, completed and returned to customer.
and
|
|
(c)
|
Complete
description of work performed
|
7.4
|
Supplier
shall offer a range of parts that it determines appropriate in its sole
discretion. Supplier shall also establish the cost of such
parts in its sole discretion. In no event shall Distributor use
any parts for warranty repairs except parts furnished by
Supplier. Supplier shall supply Distributor at no charge with
an initial inventory of such parts to be used solely for performing
warranty repairs as Supplier determines reasonable and necessary and
thereafter with replenishment parts equivalent to up to one percent (1%)
of the Net Invoiced Cost of the Products purchased by Distributor in the
prior contract year. This allotment of such parts to be used
for warranty repairs must be used in the year provided. No
portion of any such allotment may be carried forward into a subsequent
contract year. All shipping charges, including any duty, or
Customs brokerage fees, for parts shall be paid by
Supplier. Supplier shall have the right to furnish such parts
to Distributor in the form of finished watches in its sole
discretion.
|
8.
|
TRADE
PRACTICES
|
8.1
|
Distributor
shall sell the Products at competitive levels, at wholesale in accordance
with generally accepted customs in the trade and shall refrain from using
selling methods or practices which shall be harmful to the reputation of
the Products, Supplier or the Trademarks. Distributor’s right
to determine the prices of reselling and to employ conditions of trade at
its exclusive discretion remains unaffected, provided however that
Distributor shall sell the Products to JC Stores at a price which is not
greater than eighty percent (80%) of the prevailing wholesale price for
the same Products in the Territory.
|
8.2
|
Distributor
may sell Products only to those specialty shops, department stores and
retail outlets (including those that sell directly to the consumer) that
satisfy Supplier’s objective criteria for approved retailer status as set
forth in Schedule B annexed. The satisfaction of such requirements shall
be evidenced by written approval to Distributor from Supplier as provided
in this Section 8.2. Upon execution of this Agreement, and prior to the
opening of each selling season (and whenever Distributor wishes to sell
Products to retail customers not previously approved by Supplier),
Distributor must submit a list of such proposed retail customers (not
including previously approved retail customers) for Supplier’s written
approval. Supplier has the right to withdraw any such approval
on written notice to Distributor, provided, however, that Supplier will
not withdraw approval of a retail customer that is then authorized to
carry and is carrying JC products, unless Supplier is reasonably
dissatisfied with the display, delivery or inventory model of Products of
such retail customer. After such notice, Distributor may not
accept additional orders for Products from such retail customer, but may
fill any existing order. Once each quarter, Distributor shall
provide Supplier with a list of the retailers in the Territory
that purchased Products in the immediately preceding quarter containing
the addresses of their sales outlets, it being understood that such list
is of a confidential nature and shall be for the sole use of Supplier and,
if requested, Licensor, and shall be kept confidential by Supplier and
shall not be disclosed by Supplier to any person whatsoever, other than
employees of Supplier and Licensor whose performance of their duties
require the disclosure of such list to
them.
|
8.3
|
Except
as expressly permitted by Supplier in writing, Distributor may not (a)
sell Products directly to the public in retail stores; (b) use Products as
giveaways, prizes or premiums, except for promotional programs which have
received the prior written approval of Supplier; or (c) sell Products to
any Affiliate of Distributor or any of its directors, officers, employees
or any person having an equity participation in or any other affiliation
to Distributor, other than to Distributor’s employees or other
representatives for their personal use, without the prior written approval
of Supplier. Supplier may, at Distributor’s expense, purchase any Products
found in the marketplace that Distributor has sold to unapproved customers
in violation of this Section 8.3 or Section 2.3. Distributor shall include
and enforce the following on all invoices to its retail customers:
“Limitations on Sale by Buyer: Seller expressly reserves the right to
limit the amount of merchandise delivered to only such quantities as are
necessary to meet the reasonably expected demand at Buyer’s store
locations. This Merchandise is sold to Buyer for resale to the ultimate
consumer and/or within the JC selective distribution network and only and
only from such store locations as have been approved in writing by Seller.
Buyer shall be expressly prohibited from selling the merchandise purchased
hereunder to a retailer or other dealer in like merchandise, or to any
party who Buyer knows, or has reason to know, intends to resell the
merchandise and is not a member of the JC selective distribution network.
The merchandise purchased hereunder may not be sold by Buyer from any
store locations which Seller has advised Buyer do not qualify as an
acceptable location”.
|
9.
|
PROTECTION
OF INTERESTS; TRADEMARKS
|
9.1
|
Distributor
shall protect and at all times seek to promote Supplier’s best interests
in the Territory and shall immediately notify Supplier of any fact or
situation which may be or may be reasonably presumed to become detrimental
to Supplier or to its good will, copyrights, patents, or to the Trademarks
or other intellectual property rights of Supplier or
Licensor. Distributor shall have the exclusive right to use the
Trademarks in connection with distribution of the Products in the
Territory for the term hereof and solely for the limited purpose of and
only to the extent necessary for performing its obligations hereunder and
for no other purpose. Distributor agrees that it shall have no
rights with respect to the Trademarks in connection with the Products
except only as expressly and specifically set forth herein and that its
every use shall inure exclusively to the benefit of Licensor and that
Distributor shall not, at any time, acquire any rights therein or
challenge the validity thereof. Distributor further agrees at
no time to use any of the Trademarks or other intellectual property rights
owned by or licensed to Supplier in a manner not authorized by Supplier.
Distributor shall not apply to register, nor shall Distributor use or
permit the use of, any name, logo, mark or tradedress which is confusingly
similar to any of the Trademarks or do any act or thing, or permit any act
or thing to be done, which may in any way impair, dilute, reduce the value
of the Trademarks or damage the goodwill relating to the
Trademarks
|
9.2
|
If
requested by Supplier, in writing, the Distributor shall assist and
cooperate with Supplier, its counsel and agents as so requested, in
connection with any matters involving any of Supplier’s intellectual
property rights in the Territory including without limitation, in any
legal proceedings and any out-of-pocket expenses incurred by the
Distributor in connection with litigation in which the Distributor
participates at the request of Supplier shall be reimbursable to the
Distributor and any recoveries form any such litigation or the settlement
thereof shall belong exclusively to Supplier; provided, however, that
Supplier shall have the exclusive right (but not the obligation) to take
such action against third parties in the respect of the Trademarks and all
other intellectual property rights of
Supplier.
|
9.3
|
In
the event that Distributor sells any Products outside the Territory in
violation of Section 2.3 hereof, then Supplier may, in addition to all
other rights and remedies available to it, repurchase all or any portion
of such Products. Within ten (10) days after receipt of a
statement from the Supplier listing all such Products purchased, together
with a list of the model numbers, and setting forth Supplier’s
out-of-pocket costs incurred in connection with such purchase, Distributor
shall reimburse Supplier such out-of-pocket
costs. Distributor acknowledges that such payment is not
a penalty but fair compensation to Supplier’s for breach of this Agreement
and damage to Supplier goodwill and
tradename.
|
10.
|
TERM
AND TERMINATION
|
10.1
|
This
Agreement shall take effect upon the Effective Date and shall, unless
otherwise earlier terminated as provided herein continue for the duration
of the JV
Agreement. It
shall be automatically terminated upon the termination or expiration of
the JV Agreement.
|
10.2
|
In
the event (a) this Agreement is assigned to Swico, MGI or to an Affiliate
of Swico or MGI in accordance with Section 2.6 hereof, or (b) either Swico
or MGI purchases all of the other’s interest in Distributor under Section
15.2.2 of the JV Agreement or (c) Swico, its Affiliates or Permitted
Transferees (as such term is defined in the JV Agreement) otherwise
acquire control of Distributor, then this Agreement shall continue from
the date of such assignment, purchase and/or acquisition, as the case may
be, until the third anniversary of such date at which time this Agreement
shall expire and neither party shall have any further obligation to the
other hereunder except as to those obligations which by their express
terms survive beyond the expiration or termination of this Agreement.
Following any assignment, purchase or acquisition referred to in Section
10.1, this Agreement may be terminated by either party hereto upon prior
written notice to the other party:
|
|
(i)
|
in
the event such other party shall have breached any of the terms and
conditions hereof and, if remediable shall have failed to remedy such
breach within sixty (60 ) days after the notification of the
breach by the non-breaching party;
or
|
10.3
|
In
addition to any other rights of termination provided hereunder, Supplier
may terminate this Agreement immediately by notice to Distributor if
Distributor (i) fails to satisfy the Minimum Turnover Requirement for any
contract year; or (ii) fails to satisfy the minimum advertising
expenditures in Section 5.2 in any contract year or (iii) fails to comply
with the payment terms in Section 3.3 or (iv) breaches any of the
covenants contained in Article 8 or Article 9 hereof; or (v) transfers or
attempts to transfer a substantial part of its business to a third party
or attempts to assign this Agreement to a third party (or relinquishes
control of any previously approved assignee under Section 13.5) or has its
business merged or consolidated with a third party without the prior
written consent of Supplier.
|
|
11.
|
EFFECTS
OF TERMINATION
|
|
11.1
|
Upon
the expiration of this Agreement or its termination by Supplier, Supplier
may, at its sole discretion, reject all or part of any outstanding orders
received or accepted by Supplier.
|
|
11.2
|
Upon
expiration or termination of this Agreement for any
reason:
|
|
(i)
|
Any
sums due and owing by either party to the other shall become immediately
due and payable, and such sums shall be paid
forthwith.
|
|
(ii)
|
Supplier
may immediately appoint a successor to Distributor in the Territory and
announce the change of its distributorship to the
public.
|
|
(iii)
|
Distributor
shall take a physical inventory of all Products in stock and submit a
report of such inventory to Supplier. Supplier shall have the
right to have a representative present to verify such
inventory. Supplier shall be entitled but not obliged to take
over any portion of the Products remaining in stock from Distributor at
the price in currency originally paid by Distributor to Supplier, plus the
cost of shipping and insurance. Upon notice to Distributor of
Supplier’s election to buy back any or all such inventory, Distributor
shall cooperate as requested by Supplier for the packing and shipping of
such inventory. Distributor may sell any Products not taken
over by Supplier for six (6) months after the termination of this
Agreement or such shorter period as notified by Supplier subject to all
the provisions hereof, including, without limitation, Article
8.
|
|
(iv)
|
Distributor
shall immediately cease all use of the Trademarks; provided, however, that
Distributor may continue to use the Trademarks solely in connection with
the sale of the Products pursuant to Section 11.2 (iii) above and in such
a way as not to impair, dilute, reduce the value of or damage the goodwill
relating to the Trademarks.
|
|
(v)
|
Any
advertising must be at the discretion of Supplier and must be approved by
Supplier.
|
(vi)
|
Distributor,
at its expense, will return to Supplier all materials belonging to
Supplier and all proprietary data or confidential information furnished to
Distributor by Supplier during the term
hereof.
|
12.
|
INDEMNIFICATION
|
|
Distributor
hereby agrees to indemnify and hold the Supplier, and its Affiliates
and/or agents and each of their officers, directors and employees harmless
from and against any and all liabilities, damages, costs and expenses
(including reasonable attorneys’ fees) which arise out of or in connection
with any act or omission related to this Agreement by Distributor, its
successors, assigns, parents, subsidiaries, Affiliates, agents, and
contractors, or the officers, directors or employees of any of them.
Supplier reserves the right, without being required to do so, at its own
expense and without waiver of any indemnity hereunder, to defend any
claim, action or lawsuit coming within the purview of this Section
12. This section shall survive the termination or expiration of
this Agreement.
|
|
13.
|
GENERAL
TERMS AND CONDITIONS
|
|
13.1
|
Supplier
reserves the right to designate in writing from time to time any other
Affiliate of Supplier to exercise any of the rights or perform
any of the obligations of Supplier
hereunder
|
|
13.2
|
Neither
party shall have the power to represent the other party. For
purposes of this Agreement, Distributor is an independent contractor and
neither the agent nor the representative of Supplier or any of its
affiliated companies. Distributor, its employees, contractors
and Affiliates shall not act or represent themselves as agents or
representatives of, or as having the right, power or authority, express or
implied to assume or create any obligation or liability on behalf of
Supplier or any of its affiliated
companies.
|
|
13.3
|
Neither
party hereto shall be liable for any delay or failure in fulfilling the
obligations hereunder (except for the payment of money) when such delay or
failure is caused by riots, war (declared or not), or hostilities between
any nations; acts of God, fire, storm, flood or earthquake; strikes, labor
disputes, shortage or delay of carriers, or shortage of raw materials,
labor power or other utility services; any governmental restrictions; or
any other unforeseeable contingencies beyond the control of the
party.
|
13.4
|
Any
notice to be given pursuant to this Agreement shall be written in English
and shall be deemed duly given when sent by reputable overnight
international courier including FedEx, UPS or DHL to the respective
address first set forth above or by facsimile to the respective facsimile
number set forth below confirmed by letter as aforesaid, or to such other
address and/or facsimile number as a party hereto may designate by like
notice.
|
|
To
Supplier:
|
Copy
to:
|
|
To
Distributor:
|
|
Copy
to:
|
|
Supplier’s
designated Affiliate under Section 13.1 shall be designated by notice to
Distributor, which notice shall include the address and facsimile number
of such Affiliate for purposes of giving notice
hereunder. Notice to Supplier’s designated Affiliate shall be
made and deemed duly given in the same manner as for notice to
Supplier.
|
13.5
|
In
view of the fact that this Agreement has been entered into because of the
confidence that Supplier has in Distributor, it is understood that the
terms and conditions hereof shall be performed by Distributor only and
that, except as expressly permitted in Section 2.6 hereof, this Agreement
may not be assigned, whether by operation of law or otherwise, without the
prior written approval of Supplier which Supplier may withhold or grant in
its sole and absolute discretion and any such purported assignment by
Distributor without such approval by Supplier shall be void and of no
effect. Following any such assignment, Distributor shall remain obligated
as a guarantor for all the payment obligations of the approved assignee
hereunder and any change in control of the approved assignee without the
approval of Supplier shall constitute a breach of this Section 13.5 and
shall entitle Supplier to terminate this Agreement as provided under
Section 10.3
|
13.6
|
The
captions of this Agreement are inserted solely for ease of reference and
are not deemed to form a part of or to modify the terms and conditions of
this Agreement.
|
13.7
|
This
Agreement shall be governed exclusively by the law of Hong Kong without
reference to its conflict of laws rules. Any dispute,
controversy or difference which may arise out of, in relation to, or in
connection with this Agreement shall be finally settled by arbitration in
Hong Kong in accordance with the under the Rules of Arbitration of the
International Chamber of Commerce by three (3) Arbitrators appointed in
accordance with said rules. Each party hereto shall be bound by
any arbitration award so rendered and any judgment upon such award may be
entered as a non-appealable final, foreign judgment in any court having
jurisdiction thereon. The language of the proceedings shall be
English.
|
|
13.8
|
When
interpreting the terms and conditions of this Agreement, the English
language shall be applied
exclusively.
|
13.9
|
This
Agreement, including the terms and conditions incorporated by reference in
Section 3.3 hereof, constitutes the entire agreement of the parties with
respect to the subject matter hereof and prevails over and supersedes all
prior agreements, whether written or oral, relating to the subject matter
hereof and may not be altered, waived, modified, or discharged except by
an express writing referring to this Agreement signed on behalf of the
parties hereto by their duly authorized representatives. In the event of
any conflict or inconsistency between this Agreement and the JV Agreement,
the latter shall control.
|
13.10
|
The
failure of either party hereto to enforce at any time any of the
provisions or terms of this Agreement, or any rights in respect thereof,
or the exercise of or failure to exercise by either party any rights or
any of its elections herein provided, shall in no way be considered to be
a waiver of such provisions, terms, rights or elections or in any way to
affect the validity of this
Agreement.
|
13.11
|
In
connection with this Agreement, the parties may from time to time exchange
proprietary data or confidential information. The parties agree
to keep in confidence all such proprietary data or confidential
information received in accordance with this Agreement and to use the same
only in connection with the performance of this Agreement. This
provision shall survive the termination or expiration of this
Agreement.
|
13.12
|
Should
any provision of this contract held invalid, incomplete or unenforceable,
this will not affect the validity of the remaining
provisions. Supplier and Distributor undertake to replace the
invalid incomplete or unenforceable provision by provision which comes
closest to the commercial goal that the parties intended to achieve on the
conclusion of this agreement by the invalid, uncompleted and unenforceable
provision. Notwithstanding anything to the contrary contained herein, in
the event of any conflict or inconsistency between any term or provision
of this Agreement and the JC License, the latter shall
control.
|
13.13
|
Supplier
shall have the right to injunctive relief to enforce the covenants,
agreements and obligations of Distributor hereunder in addition to any
other relief to which Supplier may be entitled at law or in
equity.
|
13.14
|
Each
order deliverable under this Agreement shall be deemed sold under a
separate contract. Non-delivery or default by Supplier as to
any order shall not be deemed a breach of the
entire
|
13.15
|
Distributor
shall comply with all applicable laws, rules and regulations in the
Territory, including, without limitation, the provisions of Directive
2002/96/EC
,
which governs waste electrical and electronic equipment, including all
related amendments and all laws, rules and regulations in the Territory
related thereto Distributor shall provide Supplier with
evidence of any such compliance upon
request.
|
|
Title: _______________________ Title: ___________________________
|
|
Name:
_______________________ Name: ___________________________
|
|
SCHEDULE
A
|
|
DISTRIBUTOR
DISCOUNT SCHEDULE
|
|
SCHEDULE B
|
|
OBJECTIVE
CRITERIA FOR APPROVED RETAILER
STATUS
|
1.
|
EXTERNAL
ELEMENTS
|
A.
|
Location/Street
|
B.
|
Appearance
|
C.
|
Shop
Windows
|
(iii)
|
Windows
provide sufficient space to display a representative selection of JC brand
products
|
(iv)
|
Professionally
maintained and attractive window
decoration
|
2.
|
INTERNAL
ELEMENTS
|
A.
|
General
Outfitting
|
B.
|
Presentation
Showcases
|
|
(iv)
|
JC
products are grouped together and displayed separately from other
brands
|
3.
|
OTHER
PRODUCTS
|
A.
|
Premises
used solely for the retail sale of quality watches, jewelry, fashion
accessories and/or fashion apparel.
|
B.
|
products
displayed to prevent confusion with any other brands
products.
|
C.
|
Retailer
also sells at least two (2) Swiss watch brands or any three (3) of the
following fashion/designer/prestige watch brands: Emporio
Armani, Diesel, DKNY, Kenneth Cole, Versace, Puma, D&G, CK, Sector,
Briel, Guess, Lacoste
|
4.
|
PRESENTATION/PROMOTION
|
A.
|
Visual/Collateral
|
(i)
|
Brand
visuals properly presented and changed out seasonally or whenever
requested by brand
|
B.
|
Advertising
|
(i)
|
Dealer’s
advertising is consistent with the quality requirements of the
brand
|
(ii)
|
Dealer
agrees to conduct co-op advertising on the basis of an agreed and shared
budget and media plan
|
C.
|
Personnel/Customer
Service
|
(i)
|
Sales
staff with good knowledge of JC brand and
products
|
(ii)
|
Available
for regular training on brand and new
products
|
(iii)
|
Well
dressed, groomed and polite
|
(iv)
|
Capacity
to advise customer on how to operate products
correctly
|
(v)
|
Able
to carry out simple adjustments (e.g. sizing metal
bracelets)
|
5.
|
REPORTING
|
A.
|
Provides
clear and comprehensive information
|
B.
|
Provides
information on sales and stock
situation
|
C.
|
Provides
monthly sales reports by SKU
|
D.
|
Provides
immediate information on problems with
products
|
6.
|
FINANCES
|
A.
|
Good
payment record
|
B.
|
Creditworthy
|
C.
|
Sound
finances
|
1.1
|
In
this Agreement, except where the context otherwise requires, the
capitalized terms listed below shall have the respective meanings assigned
to them as follows:
|
|
“Affiliate”
|
means
as to either party, a person or entity which controls, is under common
control with, or is controlled by such
party.
|
“Corporate
Accounts”
|
means
premium and incentive accounts and other corporate accounts which have
been approved in writing by THLI under the THLI License for the purchase
of Products solely for the use of the employees of such
accounts.
|
|
“Products”
|
means
watches manufactured by or for Supplier and bearing one
or more of the
Trademarks
|
|
“Territory”
|
means
the United Kingdom.
|
|
“THLI”
|
means
Tommy Hilfiger Licensing, Inc., a Delaware corporation, including any
successors and assigns.
|
|
“THLI
License”
|
means
the license agreement between Supplier and THLI, as the same may be
amended from time to time, pursuant to which Supplier has the right to use
the Trademarks in connection with the manufacture, marketing, advertising,
sale and distribution of the
Products.
|
“Tommy
Hilfiger Stores”
|
means
retail and outlet stores, including flagship stores, owned by or
affiliated with THLI that bear the name “Tommy Hilfiger” or
“Hilfiger”.
|
|
“Trademarks”
|
means
all trademarks licensed to Supplier by THLI under the THLI License and
used on or in connection with the Products, including, without limitation,
TOMMY, HILFIGER, TOMMY HILFIGER, Flag Design and Crest
Design.
|
|
“Travel
Retail Accounts” means any
account whose retail business consists of in-flight duty free
retail sales operations.
|
1.3
|
Unless
otherwise defined herein, each capitalized term used herein shall have the
meaning as set
|
|
forth
in the THLI License.
|
2.
|
APPOINTMENT
|
2.2
|
Subject
to the terms and conditions contained herein, for the term of this
Agreement, Supplier hereby appoints Distributor as the exclusive wholesale
distributor for marketing, distribution and sales of the Products in the
Territory (with the exception of sales to Tommy Hilfiger Stores, Corporate
Accounts and Travel Retail Accounts), and Distributor hereby accepts such
appointment. Notwithstanding anything to the contrary contained
herein, Supplier may permit Distributor to sell to certain Tommy Hilfiger
Stores and Corporate Accounts on a case by case basis as Supplier may, in
its sole and absolute discretion, designate in writing from time to
time.
|
2.2
|
Distributor
shall purchase all Products directly from Supplier, or from one or more
other sources nominated in writing by Supplier, subject to Distributor’s
right to purchase Products (a) from other distributors with which Supplier
has contracted for the distribution of the Products (“Approved
Distributors”) that are located in Switzerland, the European Union, the
European Economic Area or any other country with which the European Union
has concluded a free trade agreement (in the aggregate, the “European
Area”) and (b) from approved retailers that satisfy the conditions set
forth in Section 8.2 hereof (“Approved Retailers”) located in the European
Area (provided that prior to exercising such right Distributor receives
written confirmation from Supplier that each such other distributor is an
Approved Distributor and that each such retailer is an Approved Retailer).
Such Approved Distributors and Approved Retailers, only, are included
within and comprise the Tommy Hilfiger selective distribution
network.
|
|
2.3 Distributor
shall sell the Products only to Approved Retailers in the Territory and,
within the European Area, only within the Tommy Hilfiger selective
distribution network. Distributor shall refrain, outside the
Territory and in relation to the Products, from actively soliciting
orders, establishing any branch or maintaining any distribution depots. In
no event will Distributor sell or continue selling Products to any
retailer that does not satisfy the conditions in Section 8.2 of this
Agreement.
|
2.4
|
Distributor
shall use its best efforts to advertise, promote, market, distribute and
sell the Products in the Territory. Without limiting the
generality of the foregoing, Distributor shall at all times maintain
adequate stocks of Products to meet demand for the Products in the
Territory by those retailers, if any, not being direct shipped by Supplier
and Distributor will use reasonable efforts to avoid accumulating excess
inventory not in line with its forecasts. Distributor shall
maintain an adequate sales force for the effective distribution and sale
of the Products in the Territory, including at least one (1) full time,
dedicated brand manager for the Products, experienced in managing a watch
distribution business.
|
2.7
|
During
the term of this Agreement, Distributor shall not directly or indirectly
manufacture or distribute any goods, including other watch brands, which,
in the determination of Supplier, compete with the Products in the
Territory. No other brand licensed to MGI or any Affiliate of
MGI shall be deemed to compete with the
Products.
|
2.6
|
The
parties acknowledge that under the Joint Venture Agreement each of Swico
and MGI, as the only shareholders of Distributor, has the right under
section 15.2 of the JV Agreement, to dissolve, or to purchase the other’s
interest in, Distributor. Accordingly, if either Swico or MGI (the
“Non-breaching Party”) elects under the foregoing provision of the JV
Agreement to purchase the other party’s interest in,
Distributor and (a) written notice from Swico and MGI confirming such
election has been provided to Supplier and Distributor and (b) the
Non-breaching Party also notifies Supplier that it wishes this Agreement
to be assigned, then effective upon the date specified in such notice from
the Non-breaching Party (or, absent the specification of any date, then as
soon as reasonably practicable) Supplier shall assign all of Distributor’s
right, title and interest in and under this Agreement to such
Non-breaching Party or to any Affiliate of such Non-Breaching Party as
specified in such notice. Distributor hereby grants Supplier a power of
attorney for purposes of Supplier executing and delivering on behalf of
Distributor any and all documents or other instruments necessary to effect
such assignment.
|
3.
|
ORDERING,
SHIPMENT AND PRICES
|
3.2
|
From
time to time Distributor shall submit purchase orders for the Products to
Supplier. All purchase orders shall be subject to acceptance by
Supplier, which acceptance may, at Supplier’s option, be evidenced by the
issuance of written confirmations or acknowledgments. Supplier
hereby reserves the absolute right to reject the whole or any part of any
purchase order for any commercially valid reason, including, without
limitation, Distributor’s credit condition or its accumulation of excess
or non-current inventory or its failure otherwise to adhere to the terms
and conditions of this Agreement, notwithstanding that any such rejection
may prevent Distributor from achieving its Minimum Purchase
Requirements. Subject to Sections 3.2 and 11.1, all
purchase orders shall be irrevocable after acceptance by Supplier;
provided, however, that Distributor may reschedule or cancel that portion
of any purchase order pertaining to Products which Supplier fails to
deliver as confirmed within thirty (30) days after the later of the
advised delivery date or shipping date.. Distributor will
provide Supplier with a four (4) month rolling forecast of its anticipated
order volume monthly by SKU, for the four (4) month
period. Supplier will use reasonable efforts to deliver the
Products ordered in accordance with the forecast within three (3) months
after acceptance of the purchase order by Supplier and to deliver all
other Product orders within three (3) to five (5) months after acceptance
of the purchase order. As soon as is reasonably practicable
after acceptance of each purchase order, Supplier shall advise Distributor
of the shipping dates applicable to such order. All shipping
dates so advised are estimates only and Supplier shall not have any
liability for failure to actually ship by such dates or to deliver by
Distributor’s requested delivery dates. Supplier shall notify
Distributor in the event of any anticipated delay in shipping dates of
thirty (30) days or more. Each order submitted by Distributor will specify
a “ship to” address which shall be the address of Distributor’s
warehouseman or the address for one of Distributor’s
customers
|
3.3
|
The
prices for all Products purchased by Distributor shall be in Euros and
based on Supplier’s recommended Euro retail price in effect in the
European Union as of the date of shipment. Such prices are ex-works and
shall be calculated based on the discount structure as set forth on
Schedule A annexed hereto. Supplier will provide current price lists for
the Products to Distributor from time to time and shall have the right to
modify such prices at any time; provided, however, that no price increase
shall become effective sooner than sixty (60) days after written notice
thereof to Distributor. Supplier will give Distributor prior
notice of all such price changes. For all orders shipped before
the effective date of any price increase, the applicable price shall be
the price in effect on the date of shipment. With respect to
orders for the Products that have been accepted by Supplier but which have
not been shipped as of the effective date of a price increase, the
applicable price shall be the price in effect on the date of shipment;
provided that if the price increase is more than ten percent (10%) of the
last applicable price, Distributor shall have the right within ten (10)
days from the effective date of the price increase to cancel all or any
part of the order for the Products subject to such price increase upon
notice to Supplier. All prices are ex-works Supplier’s distribution
facility in Hong Kong.
|
3.4
|
No
provisions contained in Distributor’s orders which are different from or
additional to the terms and conditions of this Agreement shall be binding
on the parties hereto or applicable to the sale of the Products unless
signed by a duly authorized representative of each of the parties as
provided by Section 13.9 hereof. Distributor shall have sole
responsibility for invoicing its customers and for the collection of all
amounts due from them for Product shipped to them either by Distributor or
by Supplier in accordance with the “ship to” designation made on the
applicable purchase orders. In no event shall non-payment by any such
customer or any claim or allegation any customer may have against
Distributor constitute grounds for any off set, deduction, claim or
defense on the part of Distributor against Supplier or in respect of any
obligation due to Supplier and Distributor shall pay Supplier all amounts
due to Supplier in accordance with the terms of this Agreement without off
set or deduction for any amounts claimed to be due to Distributor by
Supplier.
|
5.
|
MINIMUM
TURNOVER REQUIREMENTS
|
4.1
|
Each
contract year for the duration of this Agreement, Distributor will make
minimum sales of Products in the Territory (“Minimum Turnover
Requirement”) equal to at least sixty percent (60%) of the amount of
Product sales as budgeted in the Business Plan annexed to the JV
Agreement. Sales in excess of the Minimum Turnover Requirement in any
contract year shall be neither carried over nor credited toward the
Minimum Turnover Requirement of a subsequent contract year.
Notwithstanding the foregoing there shall be no Minimum Turnover
Requirement for the first contract
year.
|
5.
|
ADVERTISING
AND PROMOTION
|
5.1
|
As
used herein “advertising” means only the publication in print or broadcast
media of advertisements approved by Supplier and “promotion” means all
other forms of Product promotion, other than advertising, approved by
Supplier including, without limitation, point of sale material, co-op
advertising, marketing, public relations, special events and the
like. All promotions (including, without limitation, the
methods, media selection, layouts and timing thereof) shall be subject to
the prior written approval of Supplier. Distributor shall
submit all proposed promotion materials for approval at least four (4)
weeks prior to the first anticipated use thereof and shall not engage in
any promotion or use any such materials without Supplier’s prior written
approval. Unless otherwise expressly approved in writing by Supplier,
Distributor will use only such materials including, without limitation,
point of sale material, packaging, advertising and ancillary material
furnished by Supplier.
|
5.2
|
Distributor
shall conduct all advertising and promotion of the Products in the
Territory at its own expense, subject to matching of a portion of such
expenditures by Supplier as hereinafter provided. At a minimum,
Distributor shall expend each contract year for approved advertising and
promotion an amount equal to * of Distributor’s budgeted sales of Products
for such contract year. Distributor’s budgeted sales of
Products for the first through the fifth contract years are set forth in
Annex D to the JV Agreement and Distributor’s budgeted sales each contract
year thereafter shall be as contained in the annual business plan and
budget as adopted in accordance with the provisions of the JV Agreement at
or before the beginning of each contract year, or, at such time, if any,
that the JV Agreement is no longer in effect, then as approved by
Distributor in good faith consultation with Supplier, and may be adjusted
in the same manner quarterly. So long as Distributor satisfies its
advertising and promotion commitment as set forth in this Section 5.2,
then Supplier will match such expenditures each contract year by an amount
equal to * of the Net Invoiced Cost of Distributor’s Product purchases in
such year.
|
5.3
|
Distributor
will use only such materials for fixturing at the point of sale as are
approved by Supplier in writing. Distributor will fixture or cause to be
re-fixtured at its sole cost and expense each in-store shop or area
dedicated to the sale of the Products within sixty (60) days after notice
from Supplier to do so, subject to Section 5.2 hereof, which notice may be
given by Supplier from time to time as Supplier shall determine in its
sole and absolute discretion but not more frequently than once every six
(6) months as to any particular in-store shop or retail location unless
Supplier is otherwise so required by
THLI.
|
6.
|
REPORTING
|
6.1
|
Quarterly
(beginning July 31, 2007) and from time to time at the reasonable request
of Supplier, Distributor shall furnish Supplier with a comprehensive
written report in reasonable detail regarding (i) the advertising,
promotions, distribution and sales of the Products for the immediately
proceeding quarter or such other relevant period as Supplier may
reasonably request; (ii) Distributor’s market analysis; and (iii) such
other matters as Supplier shall
request.
|
6.2
|
Distributor
will consult with Supplier, as Supplier shall reasonably request for
purposes of determining a marketing plan for distribution of the Products
in the Territory each year. Such plan shall be followed by
Distributor.
|
6.3
|
Distributor
shall promptly notify Supplier of any significant changes in Distributor’s
sales forecasts and shall furnish Supplier such information related to
sales, sales forecasts, warranty claims and inventories of Products as may
be reasonably requested from time to time by
Supplier.
|
7.
|
SERVICE
AND REPAIR
|
7.1
|
Distributor
shall establish and maintain, at its expense, such number of authorized
service facilities for the service and repair of the Products in the
Territory (the “Service Center(s)”) as Supplier may reasonably request, it
being understood that initially there shall be one (1) such Service
Center. Distributor shall accept all Products for service,
returned by any consumer or retailer in the Territory for service whether
covered by the applicable consumer warranty (“warranty repairs”) or not
covered by said warranty (“out-of-warranty repairs”). All costs
related to out-of-warranty service, including, without limitation, costs
of all Products and Product parts used in the performance thereof, shall
be borne by Distributor. Distributor shall purchase such
Products and parts from Supplier or from one or more parts distributors
designated in writing by Supplier and maintain an adequate stock of
Products, parts and materials as necessary to perform such service in a
timely manner.
|
7.2
|
Within
thirty (30) days after the Effective Date, Distributor will furnish
Supplier with Distributor’s initial price list for all out of warranty
repairs. Distributor will give Supplier no less than ninety
(90) days prior written notice of any change to any such prices.
Distributor shall submit to Supplier each month, a statement summarizing
all out of warranty repairs performed in the immediately preceding month
indicating for each watch repaired the corresponding style number and the
work performed. Distributor will use only those parts
(excluding batteries) for out of warranty service on the Products which
are supplied directly by or otherwise approved in writing by Supplier as
original equipment for the
Products.
|
|
(b)
|
Dates
repair received, completed and returned to
customer.and
|
|
(c)
|
Complete
description of work performed
|
7.4
|
Supplier
shall offer a range of parts that it determines appropriate in its sole
discretion. Supplier shall also establish the cost of such
parts in its sole discretion. In no event shall Distributor use
any parts for warranty repairs except parts furnished by
Supplier. Supplier shall supply Distributor at no charge with
an initial inventory of such parts to be used solely for performing
warranty repairs as Supplier determines to be reasonable and necessary and
thereafter with replenishment parts equivalent to up to one percent (1%)
of the Net Invoiced Cost of the Products purchased by Distributor in the
prior contract year. This allotment of parts to be used for
warranty repairs must be used in the year provided. No portion
of any such allotment may be carried forward into a subsequent contract
year. All shipping charges, including any duty, or Customs
brokerage fees, for parts shall be paid by Supplier. Supplier
shall have the right to furnish such parts to Distributor in the form of
finished watches in its sole
discretion.
|
8.
|
TRADE
PRACTICES
|
8.1
|
Distributor
shall sell the Products at competitive levels, at wholesale in accordance
with generally accepted customs in the trade and shall refrain from using
selling methods or practices which shall be harmful to the reputation of
the Products, Supplier or the Trademarks. Distributor’s right
to determine the prices of reselling and to employ conditions of trade at
its exclusive discretion remains
unaffected.
|
8.3
|
Distributor
may sell Products only to those specialty shops, department stores and
retail outlets (including those that sell directly to the consumer) that
satisfy Supplier’s objective criteria for approved retailer status as set
forth in Schedule B annexed hereto, such satisfaction to be evidenced by
written approval to Distributor from Supplier as provided in this Section
8.2. Upon execution of this Agreement, and prior to the opening of each
selling season (and whenever Distributor wishes to sell Products to retail
customers not previously approved by Supplier), Distributor must submit a
list of such proposed retail customers (not including previously approved
retail customers) for Supplier’s written approval. Supplier has
the right to withdraw any such approval on written notice to Distributor,
provided, however, that Supplier will not withdraw approval of a retail
customer that is then carrying any products of THLI’s men’s sportswear
licensee unless Supplier is reasonably dissatisfied with the display,
delivery or inventory model of Products of such retail
customer. After such notice, Distributor may not accept
additional orders for Products from such retail customer, but may fill any
existing order. Once each quarter, Distributor shall provide
Supplier with a list of the retailers in the Territory that
purchased Products in the immediately preceding quarter containing the
addresses of their sales outlets, it being understood that such list is of
a confidential nature and shall be for the sole use of Supplier and, if
requested, THLI, and shall be kept confidential by Supplier and shall not
be disclosed by Supplier to any person whatsoever, other than employees of
Supplier and THLI whose performance of their duties require the disclosure
of such list to them.
|
8.3
|
Except
as expressly permitted by Supplier in writing, Distributor may not (a)
sell Products directly to the public in retail stores; (b) use Products as
giveaways, prizes or premiums, except for promotional programs which have
received the prior written approval of Supplier; or (c) sell Products to
any Affiliate of Distributor or any of its directors, officers, employees
or any person having an equity participation in or any other affiliation
to Distributor, other than to Distributor’s employees or other
representatives for their personal use, without the prior written approval
of Supplier. Supplier may, at Distributor’s expense, purchase any Products
found in the marketplace that Distributor has sold to unapproved customers
in violation of this Section 8.3 or Section 2.3. Distributor shall include
and enforce the following on all invoices to its retail customers:
“Limitations on Sale by Buyer: Seller expressly reserves the right to
limit the amount of merchandise delivered to only such quantities as are
necessary to meet the reasonably expected demand at Buyer’s store
locations. This Merchandise is sold to Buyer for resale to the ultimate
consumer and/or within the Tommy Hilfiger selective distribution network
and only from such store locations as have been approved in writing by
Seller. Buyer shall be expressly prohibited from selling the merchandise
purchased hereunder to a retailer or other dealer in like merchandise,
or to any party who Buyer knows, or has reason to know, intends
to resell the merchandise and is not a member of the Tommy Hilfiger
selective distribution network. The merchandise purchased hereunder may
not be sold by Buyer from any store locations which Seller has advised
Buyer do not qualify as an acceptable
location”.
|
9.
|
PROTECTION
OF INTERESTS; TRADEMARKS
|
9.3
|
Distributor
shall protect and at all times seek to promote Supplier’s best interests
in the Territory and shall immediately notify Supplier of any fact or
situation which may be or may be reasonably presumed to become detrimental
to Supplier or to its good will, copyrights, patents, or to the Trademarks
or other intellectual property rights of Supplier or
THLI. Distributor shall have the exclusive right to use the
Trademarks in connection with distribution of the Products in the
Territory for the term hereof and solely for the limited purpose of and
only to the extent necessary for performing its obligations hereunder and
for no other purpose. Distributor agrees that it shall have no
rights with respect to the Trademarks in connection with the Products
except only as expressly and specifically set forth herein and that its
every use shall inure exclusively to the benefit of THLI and that
Distributor shall not, at any time, acquire any rights therein or
challenge the validity thereof. Distributor further agrees at
no time to use any of the Trademarks or other intellectual property rights
owned by or licensed to Supplier in a manner not authorized by Supplier.
Distributor shall not apply to register, nor shall Distributor use or
permit the use of, any name, logo, mark or tradedress which is confusingly
similar to any of the Trademarks or do any act or thing, or permit any act
or thing to be done, which may in any way impair, dilute, reduce the value
of the Trademarks or damage the goodwill relating to the
Trademarks
|
9.4
|
If
requested by Supplier, in writing, the Distributor shall assist and
cooperate with Supplier, its counsel and agents as so requested, in
connection with any matters involving any of Supplier’s intellectual
property rights in the Territory including without limitation, in any
legal proceedings and any out-of-pocket expenses incurred by the
Distributor in connection with litigation in which the Distributor
participates at the request of Supplier shall be reimbursable to the
Distributor and any recoveries form any such litigation or the settlement
thereof shall belong exclusively to Supplier; provided, however, that
Supplier shall have the exclusive right (but not the obligation) to take
such action against third parties in the respect of the Trademarks and all
other intellectual property rights of
Supplier.
|
9.3
|
In
the event that Distributor sells any Products outside the Territory in
violation of Section 2.3 hereof, then Supplier may, in addition to all
other rights and remedies available to it, repurchase all or any portion
of such Products. Within ten (10) days after receipt of a
statement from the Supplier listing all such Products purchased, together
with a list of the model numbers, and setting forth Supplier’s
out-of-pocket costs incurred in connection with such purchase, Distributor
shall reimburse Supplier such out-of-pocket
costs. Distributor acknowledges that such payment is not
a penalty but fair compensation to Supplier’s for breach of this Agreement
and damage to Supplier goodwill and
tradename.
|
10.
|
TERM
AND TERMINATION
|
10.3
|
This
Agreement shall take effect upon the Effective Date and shall, unless
otherwise earlier terminated as provided herein, continue for the duration
of the JV
Agreement . It
shall be automatically terminated upon the termination or expiration of
the JV Agreement.
|
10.4
|
In
the event (a) this Agreement is assigned to Swico, MGI or to an Affiliate
of Swico or MGI in accordance with Section 2.6 hereof, or (b) either Swico
or MGI purchases all of the other’s interest in Distributor under Section
15.2.2 of the JV Agreement or (c) Swico, its Affiliates or Permitted
Transferees (as such term is defined in the JV Agreement) otherwise
acquire control of Distributor, then this Agreement shall continue from
the date of such assignment, purchase and/or acquisition, as the case may
be, until the third anniversary of such date at which time this Agreement
shall expire and neither party shall have any further obligation to the
other hereunder except as to those obligations which by their express
terms survive beyond the expiration or termination of this Agreement.
Following any assignment, purchase or acquisition referred to in Section
10.1, this Agreement may be terminated by either party hereto upon prior
written notice to the other party:
|
|
(i)
|
in
the event such other party shall have breached any of the terms and
conditions hereof and, if remediable shall have failed to remedy such
breach within sixty (60 ) days after the notification of the
breach by the non-breaching party;
or
|
10.4
|
In
addition to any other rights of termination provided hereunder, Supplier
may terminate this Agreement immediately by notice to Distributor if
Distributor (i) fails to satisfy the Minimum Turnover Requirement for any
contract year; or (ii) fails to satisfy the minimum advertising
expenditures in Section 5.2 in any contract year or (iii) fails to comply
with the payment terms in Section 3.3 or (iv) breaches any of the
covenants contained in Article 8 or Article 9 hereof; or (v) transfers or
attempts to transfer a substantial part of its business to a third party
or attempts to assign this Agreement to a third party (or relinquishes
control of any previously approved assignee under Section 13.5) or has its
business merged or consolidated with a third party without the prior
written consent of Supplier.
|
|
11.
|
EFFECTS
OF TERMINATION
|
|
11.1
|
Upon
the expiration of this Agreement or its termination by Supplier, Supplier
may, at its sole discretion, reject all or part of any outstanding orders
received or accepted by Supplier.
|
|
11.2
|
Upon
expiration or termination of this Agreement for any
reason:
|
|
(i)
|
Any
sums due and owing by either party to the other shall become immediately
due and payable, and such sums shall be paid
forthwith.
|
|
(ii)
|
Supplier
may immediately appoint a successor to Distributor in the Territory and
announce the change of its distributorship to the
public.
|
|
(iii)
|
Distributor
shall take a physical inventory of all Products in stock and submit a
report of such inventory to Supplier. Supplier shall have the
right to have a representative present to verify such
inventory. Supplier shall be entitled but not obliged to take
over any portion of the Products remaining in stock from Distributor at
the price in currency originally paid by Distributor to Supplier, plus the
cost of shipping and insurance. Upon notice to Distributor of
Supplier’s election to buy back any or all such inventory, Distributor
shall cooperate as requested by Supplier for the packing and shipping of
such inventory. Distributor may sell any Products not taken
over by Supplier for six (6) months after the termination of this
Agreement or such shorter period as notified by Supplier subject to all
the provisions hereof, including, without limitation, Article
8.
|
|
(iv)
|
Distributor
shall immediately cease all use of the Trademarks; provided, however, that
Distributor may continue to use the Trademarks solely in connection with
the sale of the Products pursuant to Section 11.2(iii) above and in such a
way as not to impair, dilute, reduce the value of or damage the goodwill
relating to the Trademarks.
|
|
(v)
|
Any
advertising must be at the discretion of Supplier and must be approved by
Supplier.
|
(vii)
|
Distributor,
at its expense, will return to Supplier all materials belonging to
Supplier and all proprietary data or confidential information furnished to
Distributor by Supplier during the term
hereof.
|
13.
|
INDEMNIFICATION
|
|
Distributor
hereby agrees to indemnify and hold the Supplier, and its Affiliates
and/or agents and each of their officers, directors and employees harmless
from and against any and all liabilities, damages, costs and expenses
(including reasonable attorneys’ fees) which arise out of or in connection
with any act or omission related to this Agreement by Distributor, its
successors, assigns, parents, subsidiaries, Affiliates, agents, and
contractors, or the officers, directors or employees of any of them.
Supplier reserves the right, without being required to do so, at its own
expense and without waiver of any indemnity hereunder, to defend any
claim, action or lawsuit coming within the purview of this Section
12. This section shall survive the termination or expiration of
this Agreement.
|
|
13.
|
GENERAL
TERMS AND CONDITIONS
|
|
13.1
|
Supplier
may, from time to time, designate in writing an Affiliate of Supplier to
exercise any of the rights or perform any of the obligations of Supplier
hereunder.
|
|
13.2
|
Neither
party shall have the power to represent the other party. For
purposes of this Agreement, Distributor is an independent contractor and
neither the agent nor the representative of Supplier or any of its
affiliated companies. Distributor, its employees, contractors
and Affiliates shall not act or represent themselves as agents or
representatives of, or as having the right, power or authority, express or
implied to assume or create any obligation or liability on behalf of
Supplier or any of its affiliated
companies.
|
|
13.3
|
Neither
party hereto shall be liable for any delay or failure in fulfilling the
obligations hereunder (except for the payment of money) when such delay or
failure is caused by riots, war (declared or not), or hostilities between
any nations; acts of God, fire, storm, flood or earthquake; strikes, labor
disputes, shortage or delay of carriers, or shortage of raw materials,
labor power or other utility services; any governmental restrictions; or
any other unforeseeable contingencies beyond the control of the
party.
|
13.5
|
Any
notice to be given pursuant to this Agreement shall be written in English
and shall be deemed duly given when sent by reputable overnight
international courier including FedEx, UPS or DHL to the respective
address first set forth above or by facsimile to the respective facsimile
number set forth below confirmed by letter as aforesaid, or to such other
address and/or facsimile number as a party hereto may designate by like
notice.
|
To
Supplier:
|
Fax: +
41 32 329 37 78
|
|
Attn:
General Manager – Tommy Hilfiger
|
Copy
to:
|
Fax: +
1 201 267 8050
|
|
Attn: Brand
Manager – Tommy Hilfiger
|
To
Distributor:
|
Fax:
_________________
|
|
Supplier’s
designated Affiliate under Section 13.1 shall be designated by notice to
Distributor, which notice shall include the address and facsimile number
of such Affiliate for purposes of giving notice
hereunder. Notice to Supplier’s designated Affiliate shall be
made and deemed duly given in the same manner as for notice to
Supplier.
|
13.6
|
In
view of the fact that this Agreement has been entered into because of the
confidence that Supplier has in Distributor, it is understood that the
terms and conditions hereof shall be performed by Distributor only and
that, except as expressly permitted in Section 2.6 hereof, this
Agreement may not be assigned, whether by operation of law or otherwise,
without the prior written approval of Supplier which Supplier may withhold
or grant in its sole and absolute discretion and any such purported
assignment by Distributor without such approval by Supplier shall be void
and of no effect. Following any such assignment, Distributor shall remain
obligated as a guarantor for all the payment obligations of the approved
assignee hereunder and any change in control of the approved assignee
without the approval of Supplier shall constitute a breach of this Section
13.5 and shall entitle Supplier to terminate this Agreement as provided
under Section 10.3
|
|
13.6
|
The
captions of this Agreement are inserted solely for ease of reference and
are not deemed to form a part of or to modify the terms and conditions of
this Agreement.
|
|
13.7
|
This
Agreement shall be governed exclusively by the law of Switzerland without
reference to its conflict of laws rules and to the exclusion of the United
Nations Convention on Contracts for the International Sale of
Goods. Any dispute, controversy or difference which may arise
out of, in relation to, or in connection with this Agreement shall be
finally settled by arbitration in Geneva, Switzerland under the Rules of
Arbitration of the International Chamber of Commerce, Paris by three (3)
Arbitrators appointed in accordance with said rules. Each party
hereto shall be bound by any arbitration award so rendered and any
judgment upon such award may be entered as a non-appealable final, foreign
judgment in any court having jurisdiction thereon. The language
of the proceedings shall be
English.
|
|
13.8
|
When
interpreting the terms and conditions of this Agreement, the English
language shall be applied
exclusively.
|
13.10
|
This
Agreement, including the terms and conditions incorporated by reference in
Section 3.3 hereof, constitutes the entire agreement of the parties with
respect to the subject matter hereof and prevails over and supersedes all
prior agreements, whether written or oral, relating to the subject matter
hereof and may not be altered, waived, modified, or discharged except by
an express writing referring to this Agreement signed on behalf of the
parties hereto by their duly authorized representatives. In the event of
any conflict or inconsistency between this Agreement and the JV Agreement,
the latter shall control.
|
13.10
|
The
failure of either party hereto to enforce at any time any of the
provisions or terms of this Agreement, or any rights in respect thereof,
or the exercise of or failure to exercise by either party any rights or
any of its elections herein provided, shall in no way be considered to be
a waiver of such provisions, terms, rights or elections or in any way to
affect the validity of this
Agreement.
|
13.11
|
In
connection with this Agreement, the parties may from time to time exchange
proprietary data or confidential information. The parties agree
to keep in confidence all such proprietary data or confidential
information received in accordance with this Agreement and to use the same
only in connection with the performance of this Agreement. This
provision shall survive the termination or expiration of this
Agreement.
|
13.12
|
Should
any provision of this contract held invalid, incomplete or unenforceable,
this will not affect the validity of the remaining
provisions. Supplier and Distributor undertake to replace the
invalid incomplete or unenforceable provision by provision which comes
closest to the commercial goal that the parties intended to achieve on the
conclusion of this agreement by the invalid, uncompleted and unenforceable
provision. Notwithstanding anything to the contrary contained herein, in
the event of any conflict or inconsistency between any term or provision
of this Agreement and the THLI License, the latter shall
control.
|
13.13
|
Supplier
shall have the right to injunctive relief to enforce the covenants,
agreements and obligations of Distributor hereunder in addition to any
other relief to which Supplier may be entitled at law or in
equity.
|
13.15
|
Each
order deliverable under this Agreement shall be deemed sold under a
separate contract. Non-delivery or default by Supplier as to
any order shall not be deemed a breach of the
entire
|
13.15
|
Distributor
shall comply with all applicable laws, rules and regulations in the
Territory, including, without limitation, the provisions of Directive
2002/96/EC
,
which governs waste electrical and electronic equipment, including all
related amendments and all laws, rules and regulations in the Territory
related thereto. Distributor shall provide Supplier with evidence of any
such compliance upon request.
|
|
Title: _______________________ Title: ___________________________
|
|
Name:
_______________________ Name: ___________________________
|
|
SCHEDULE
A
|
|
DISTRIBUTOR
DISCOUNT SCHEDULE
|
|
SCHEDULE B
|
|
OBJECTIVE
CRITERIA FOR APPROVED RETAILER
STATUS
|
7.
|
EXTERNAL
ELEMENTS
|
A.
|
Location/Street
|
B.
|
Appearance
|
C.
|
Shop
Windows
|
(v)
|
Windows
provide sufficient space to display a representative selection of TH brand
products
|
(vi)
|
Professionally
maintained and attractive window
decoration
|
8.
|
INTERNAL
ELEMENTS
|
A.
|
General
Outfitting
|
B.
|
Presentation
Showcases
|
|
(iv)
|
TH
products are grouped together and displayed separately from other
brands
|
9.
|
OTHER
PRODUCTS
|
A.
|
Premises
used solely for the retail sale of quality watches, jewelry, fashion
accessories and/or fashion apparel.
|
B.
|
TH
products displayed to prevent confusion with any other brands
products.
|
C.
|
Retailer
also sells at least two (2) Swiss watch brands or any three (3) of the
following fashion/designer/prestige watch brands: Emporio
Armani, Diesel, DKNY, Kenneth Cole, Versace, Puma, D&G, CK, Sector,
Briel, Guess, Lacoste
|
10.
|
PRESENTATION/PROMOTION
|
A.
|
Visual/Collateral
|
(i)
|
Brand
visuals properly presented and changed out seasonally or whenever
requested by brand
|
B.
|
Advertising
|
(i)
|
Dealer’s
advertising is consistent with the quality requirements of the
brand
|
(ii)
|
Dealer
agrees to conduct co-op advertising on the basis of an agreed and shared
budget and media plan
|
C.
|
Personnel/Customer
Service
|
(i)
|
Sales
staff with good knowledge of TH brand and
products
|
(ii)
|
Available
for regular training on brand and new
products
|
(iii)
|
Well
dressed, groomed and polite
|
(iv)
|
Capacity
to advise customer on how to operate products
correctly
|
(v)
|
Able
to carry out simple adjustments (e.g. sizing metal
bracelets)
|
11.
|
REPORTING
|
A.
|
Provides
clear and comprehensive information
|
B.
|
Provides
information on sales and stock
situation
|
C.
|
Provides
monthly sales reports by sku
|
D.
|
Provides
immediate information on problems with
products
|
12.
|
FINANCES
|
A.
|
Good
payment record
|
B.
|
Creditworthy
|
C.
|
Sound
finances
|
1.1
|
"
Agreement
" shall mean
the present distribution agreement including all the schedules attached
hereto, as well as its future amendments and
restatements.
|
1.2
|
"
Devanlay
" shall mean the
worldwide exclusive licensee of the
Licensor
for
Lacoste Apparel
Products
.
|
1.3
|
"
Lacoste Apparel Products
Distributor
" shall mean those parties in certain countries to which
the distribution of the
Lacoste Apparel Products
in such countries has been granted by
Devanlay
.
|
1.4
|
"
Crocodile
" shall mean
the pictorial representation of an alligator or crocodile depicted in
Schedule
I
.
|
1.5
|
"
Lacoste Trademarks
Image
" shall mean the presently existing identification in the
principal markets where the
Lacoste Apparel
Products
, the
Other Lacoste Products
and the
Lacoste
Watches
are distributed, between the
Lacoste Trademarks
and
good taste, authenticity, quality, functionality, modernity, elegance,
high end sports and leisure, however at competitive quality/price ratios.
The
Lacoste Trademarks
Image
shall be judged in relation to all of the elements making up
the perception by the consumer of the
Lacoste Watches
as to
their style, quality, price, marketing and merchandising, advertising and
promotion.
|
1.6
|
"
Licensed Trademarks
"
shall mean those trademarks listed in Schedule
II
.
|
1.7
|
"
Lacoste Watches
" shall
mean watches for men, women and children as listed in Schedule
IV
bearing any
Licensed Trademark
manufactured and marketed by the
Master Licensee
itself
and/or under its control and responsibility and distributed by the
Master
Licensee
.
|
1.8
|
1.9
|
"
Territory
" shall mean
the United Kingdom.
|
1.10
|
"
Supplemental Agreement
"
shall mean the agreement entered into by and between the
Licensor
, the
Master License
and the
Distributor
in
execution of the terms of Article 2 of the
Master
Agreement
.
|
1.11
|
"
Models
" shall mean any
and all creations specific to the
Lacoste Watches
, or part
thereof, each of which shall be assigned a specific stock keeping unit
(“SKU”) number or other identifier by
Master
Licensee
.
|
1.12
|
"
Know-How
" shall mean the
Watches Know-How
,
Licensor
’s
Marketing and Merchandising
Know-How
and
Promotion and Advertising
Know-How
for the distribution and advertising of the
Lacoste Watches
and the
Licensed
Trademarks
.
|
1.13
|
"
Marketing and Merchandising
Know-how
" shall mean all accumulated expertise, which is
implemented world-wide by the
Licensor
, concerning the
distribution of the
Lacoste Apparel
Products
, the
Other Lacoste Products
and the
Lacoste
Watches
according to the
Lacoste Trademarks Image
including the level of quality and the techniques of such distribution
(
i.e.
, the
selection, training, supervision, etc. of the retailers), all of which
know-how is regularly updated and improved as a result of the
Licensor
's research, and
which know-how is owned by or originated from the
Licensor
and is made
available to the
Master
Licensee
and to other
Licensor
's licensees
through the
Licensor
and which the
Licensor
is not
otherwise obliged to hold in
confidence.
|
1.14
|
"
Promotion and Advertising
Know-how
" shall mean all accumulated expertise which is implemented
world-wide by the
Licensor
in maintaining
a high quality promotion and advertising policy for the
Lacoste Trademarks
Image
, the
Lacoste
Apparel Products
, the
Other Lacoste Products
and the
Lacoste
Watches
through selected and controlled channels, all of which
know-how is regularly updated and improved as a result of the
Licensor
's research, and
which know-how is owned by or originated from the
Licensor
and is made
available to the
Master
Licensee
and to other
Licensor
's licensees
through the
Licensor
and which the
Licensor
is not
otherwise obliged to hold in
confidence.
|
1.15
|
"
Watches Know-how
" shall
mean all accumulated world-wide expertise of the
Master Licensee
concerning the creation, development, manufacture, distribution,
marketing, merchandising, advertising, promotion and sale of watches and
time-keeping devices at a high quality level and according to selected and
controlled techniques and fixtures designed to facilitate the distribution
of watches (including, but not limited to, the design of display materials
and showcases), which know-how is regularly updated and improved by the
Master Licensee
and is owned by or originated from the
Master Licensee
and is
made available to the
Licensor
and to other
Licensor
's licensees
through the
Licensor
and which
the
Master
Licensee
is not otherwise obliged to hold in
confidence.
|
1.16
|
"
Approved Watches
Retailers
" shall mean selected retailers (the categories of which
are listed in Schedule
V.a
) which have
entered with the Distributor, whenever possible, into the Lacoste Watches
Approved Retailer Contract, annexed hereto as Schedule
VIII
, as the form of the same may be modified by
Master Licensee
from time to time, defining the conditions to be fulfilled and applied for
the sale of the
Lacoste
Watches
through the
Lacoste Watches Selective
Distribution System
.
|
1.17
|
"
Lacoste Corners
" shall
mean the locations in certain shops of high standing which are devoted
exclusively to the sale of the
Lacoste Apparel Products
and, subject to the provisions of Article
11.2
hereinafter, of certain
Lacoste Watches
and/or
Other Lacoste
Products
, using various fittings, displays, appliances, original
furniture and equipment specially designed or approved by the
Licensor
and are
authorized to use the name "Lacoste" and the
Crocodile
as signboards
and as service marks for retail
services.
|
1.18
|
"
Lacoste Boutiques
" shall
mean the stand alone shops belonging to independent retailers or to
Devanlay
or to the
Lacoste Apparel Products
Distributor
and devoted exclusively to the sale of the
Lacoste Apparel Products
and, subject to the provisions of Article 11.2 hereinafter, of
certain
Lacoste
Watches
and/or
Other Lacoste Products
,
using various fittings, displays, appliances, original furniture and
equipment specially designed or approved by the
Licensor,
and are
authorized to use the name "Lacoste" and the
Crocodile
as signboards
and as service marks for retail services. Among the
Lacoste Boutiques
shall
be included, if the economic conditions of the markets in question so
permit, certain
Lacoste
Boutiques
known as
"global stores"
, of a
sufficient size to be organized for the sale on a large scale not only of
the
Lacoste Apparel
Products
but also, subject to the provisions of Article
11.2
hereinafter, of certain
Lacoste Watches
and/or
Other Lacoste
Products.
|
1.19
|
"
Commercial Surface
"
shall mean the total surface of a
Lacoste Boutique
or a
Lacoste Corner
,
excluding the stock premises.
|
1.20
|
"
Sales Surface
" shall
mean, within the
Commercial Surface
of
each
Lacoste
Boutique
or
Lacoste Corner
, that
surface of the floor used for the presentation and the sale of products on
the furniture (fixed to the walls or free-standing) or displays, excluding
any area used for customers traffic in the point of sale and excluding the
shop-windows.
|
1.21
|
"
Presentation Surface
"
shall mean, within the
Sales Surface
of each
Lacoste Boutique
or
Lacoste Corner
,
the total surface actually dedicated to the presentation and the sale of
products on the furniture (fixed to the walls or free-standing) or
displays, determined according to the rules specified in Schedule
VI
.
|
1.22
|
"
Lacoste Watches Selective
Distribution System
" shall mean the group of
Approved Watches
Retailers
organized by the
Master Licensee
in
accordance with the specific guidelines of the
Licensor
to sell the
Lacoste Watches
while respecting the specific criteria in the area of client service,
merchandising, presentation, advertising, promotion and respect of the
Lacoste Trademarks
Image
.
|
1.23
|
"
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
" shall mean the group of
Lacoste Boutiques
and
Lacoste
Corners
organized by
Devanlay
in accordance
with the specific guidelines of the
Licensor
and which
comply with specific criteria with respect to client service,
merchandising, presentation, advertising, promotion and respect of the
Lacoste Trademarks
Image
. The
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
is distinct from the
Lacoste Watches Selective
Distribution System
and from the
"Approved Apparel Retailers"
Selective Distribution System
(as hereinafter defined) as well as
from each of the selective distribution systems existing for each of the
Other Lacoste
Products
.
|
1.24
|
"
Approved Apparel Retailers"
Selective Distribution System
" shall mean the group of approved
retailers which has been organised by
Devanlay
in accordance
with the specific guidelines of the
Licensor
with the
purpose of selling the
Lacoste Apparel Products
and which comply with specific criteria with respect to client service,
merchandising, presentation, advertising, promotion and respect of the
Lacoste Trademarks
Image
.
|
1.25
|
"
Net Sales
" shall mean
the actual invoiced price for sales in the
Territory
of all
Lacoste Watches
(whether
sold at regular prices or at reduced prices, such as end-of-season prices)
by the
Distributor
to
Approved Watches
Retailers
and to members of the
"Lacoste Boutiques
and
Lacoste Corners" Selective
Distribution System
, less returns, rebates, bad debts, trade
discounts, shipping charges, insurance, and such sales taxes as are
imposed on the
Distributor
by any
governmental authority.
|
1.26
|
"
Sales to Distributor
"
shall mean the actual invoiced price in the
Territory
of all
Lacoste Watches
(whether
made at regular prices or at reduced prices, such as end-of-season prices)
sold by the
Master
Licensee
to
Distributor
to be resold
to
Approved Watches
Retailers
and members of the "
Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
, less returns, rebates, bad
debts, trade discounts, shipping charges, shipping insurance and such
sales taxes as are imposed on the
Master Licensee
by any
governmental authority.
|
1.27
|
"
Points of Sale
" shall
mean the points of sales of the retailers listed in Schedule
V
.
|
1.28
|
"
Seconds
" shall mean
damaged and/or defective
Lacoste
Watches.
|
2.1
|
Subject
to the terms and conditions contained herein, the
Master Licensee
hereby
grants to the
Distributor
and the
Distributor
hereby
accepts the right to use, within the limits of the
Supplemental
Agreement
, the
Licensed Trademarks, the Models
and the
Know-How
in connection with the distribution, marketing, merchandising,
advertising, promotion and sale of the
Lacoste Watches
listed
in Schedule
IV
in the
Territory
under the
conditions provided for hereunder.
|
2.2
|
No
other rights or licenses are granted by the
Master Licensee
to the
Distributor
,
expressly or by implication, except as herein
provided.
|
2.3
|
For
the duration of this
Agreement
,
the
Master Licensee
shall
not appoint any other distributor for the
Lacoste Watches
in the
Territory
nor
shall it directly supply the
Lacoste Watches
to
customers within the
Territory
.
|
2.4
|
The
Distributor
shall
not sub-license any of the rights granted to it hereunder or contract with
any third party for the performance of any of Distributor’s obligations
hereunder, without the prior written agreement of the
Master Licensee,
which
Master
Licensee
shall have the right to withhold in its sole and absolute
discretion.
|
2.5
|
The
Master Licensee
makes no express or implied warranties to
Distributor
except as
explicitly set forth in this
Agreement
.
|
3.1
|
This
Agreement
shall
come into effect as of the Effective Date and shall, unless otherwise
earlier terminated as provided herein, continue for the duration of the JV
Agreement and automatically expire upon the expiration or termination of
the
JV
Agreement
.
|
|
3.2
In
the event (a) this Agreement is assigned to
SWICO
,
MGI
or to an Affiliate
of
Swico
or
MGI
in accordance with
Article 18.2 hereof, or (b) either
Swico
or
MGI
purchases all of the
other’s interest in Distributor under Section 15.2.2 of the
JV Agreement
or (c)
Swico
, its
Affiliates or Permitted Transferees (as such term is defined in the
JV Agreement
) otherwise
acquire control of
Distributor
, then this
Agreement shall continue from the date of such assignment, purchase and/or
acquisition, as the case may be, until the third anniversary of such date
at which time this Agreement shall expire and neither party shall have any
further obligation to the other hereunder except as to those obligations
which by their express terms survive beyond the expiration or termination
of this Agreement.
|
3.3
|
In
any event when either the
Master Agreement
or the
JV Agreement
expires or terminates this
Agreement
shall
automatically terminate with no compensation payable to the
Distributor
.
|
5.1
|
The
Distributor
shall
use its best efforts to establish a well managed and successful long term
business as distributor of the
Lacoste Watches
and, to
the extent possible given the market and legal conditions prevailing in
the
Territory
,
shall use the
Know-How
in order to
promote the image, sales and distribution of the
Lacoste Watches
in the
Territory
, in
conformity with such policies as are prescribed and co-ordinated
world-wide by the
Licensor
for the
Licensed Trademarks
and
the
Lacoste Trademark
Image
.
|
5.2
|
The
Distributor
shall
co-operate closely with the
Master Licensee
and with
the
Licensor’s
other licensees or distributors for the
Lacoste Apparel Products
and
Other Lacoste
Products
, so as to give an uniform and homogeneous image of the
Licensed
Trademarks
and of all the families of products bearing the
Licensed Trademarks
both
in the
Territory
and worldwide and shall keep the
Master Licensee
informed
of its direct contacts with said licensees or
distributors.
|
6.1
|
The
Distributor
shall
not advertise and/or create branches or warehouses outside the
Territory
nor shall it
sell actively the
Lacoste
Watches
for delivery outside the
Territory
or to third
parties whom it is aware may subsequently resell
Lacoste Watches
outside
the
Territory
and
undertakes to take all reasonable steps to prevent any third party to whom
it has sold the
Lacoste
Watches
from so doing; provided, however, that, considering the
specific regulation prevailing in the European Union (EU) the
Distributor
may resell
the
Lacoste
Watches
to other
Lacoste Watches
distributors that are under contract with
Master Licensee
or to
members of the
Lacoste
Watches Selective Distribution System
located in any member country
of the EU, whether or not within the
Territory
(other than
Lacoste Boutiques
and/or to
Lacoste
Corners
as the
Lacoste Boutiques
and
the
Lacoste
Corners
constitute a selective distribution system which is
distinct from the
Lacoste
Watches Selective Distribution System
) but only in accordance with
the following terms and conditions:
|
-
|
it
shall take all necessary measures to ensure that the
Lacoste Watches
thus
delivered remain in the
Lacoste Watches Selective
Distribution System
within the
EU,
|
-
|
it
shall in particular ensure and see to it that, in the event its
Approved Watches
Retailers
sell to
other retailers,
such retailers are members of the
Lacoste Watches Selective
Distribution System
in the
EU.
|
6.2
|
The
Distributor
shall
not either directly or indirectly distribute or sell on its own account or
on the account of any third party any products having any characteristics
unique to the
Lacoste
Watches
or likely to create confusion with
Lacoste Watches
in the
mind of the public such undertaking to remain in full force and effect for
one year after the termination or non renewal of this
Agreement.
|
6.3
|
The
Distributor
shall
never manufacture, distribute or sell directly or indirectly any product
bearing a name, trademark or emblem similar to the
Licensed Trademarks
, or
likely to be confused with the
Licensed Trademarks
.
This prohibition is permanent.
|
6.4
|
During
the term of this
Agreement
Distributor
shall notify
Master Licensee
in
advance in the event it intends to become, directly or indirectly, a
distributor, agent or sales representative in the Territory of or for
(“represent”) any other watch brand with products priced at retail within
a range of Euro 150 to Euro 800. Within thirty (30) days after receipt of
any such notice, if there is reasonable basis for
Master Licensee
to
conclude that
Distributor
’s
representation of such other brand will be inconsistent or incompatible
with any of
Distributor
’s
obligations hereunder, then
Master Licensee
shall
have the right to terminate this Agreement upon one hundred eighty (180)
days prior notice to
Distributor
.
Notwithstanding the foregoing,
Distributor
shall have
the right to nullify such termination notice from
Master Licensee
if,
within thirty (30) days after such notice,
Distributor
notifies
Master Licensee
that it will not, and so long as it does not, at any time thereafter for
the duration of this
Agreement
represent such
brand in the
Territory
.
|
6.5
|
In
order to preserve the identity and the specific characteristics of each of
the selective distribution systems described in the
Agreement
, the
Distributor
shall
respect the integrity of the
Lacoste Watches Selective
Distribution System
and the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
and "
Approved
Apparel Retailers" Selective
Distribution System
not only with regard to third parties but also
between these systems so that:
|
|
6.5.1
|
sales
of
Lacoste Watches
to final consumers be made in proportions commensurate with private use by
such consumers;
|
|
6.5.2
|
until
they are sold to final consumers, through the
Lacoste Watches Selective
Distribution System
or the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
Lacoste Watches
remain
at all times within the custody of a member of either of these
systems.
|
|
6.6
|
The
Distributor
shall
take all appropriate measures so that all members of the
Lacoste Watches Selective
Distribution System
with whom
Distributor
has any
dealings, similarly adhere
to
the commitments
mentioned in Article
6.5
above.
|
7.1
|
From
time to time,
Distributor
shall submit
purchase orders for
Lacoste Watches
to
Master
Licensee
. All purchase orders shall be subject to
acceptance by
Master
Licensee
, which acceptance may, at
Master Licensee’s
option, be evidenced by the issuance of written confirmations or
acknowledgments.
Master
Licensee
hereby reserves the absolute right to reject the whole or
any part of any purchase order for any commercially valid reason,
including, without limitation,
Distributor’s
credit
condition or its accumulation of excess or non-current inventory or its
failure otherwise to adhere to the terms and conditions of this Agreement,
notwithstanding that any such rejection may prevent
Distributor
from
achieving its
Minimum
Turnover Requirements
. All purchase orders shall be irrevocable
after acceptance by
Master Licensee
;
provided, however, that
Distributor
may
reschedule or cancel that portion of any purchase order pertaining to
Lacoste Watches
which
Master
Licensee
fails to deliver within thirty (30) days after the later
of the advised delivery date or shipping date.
Distributor
will provide
Master Licensee
with a four (4) month rolling forecast of its anticipated order volume
monthly by SKU, for the four (4) month period.
Master Licensee
will use
reasonable efforts to deliver
Lacoste Watches
ordered
in accordance with the forecast within three (3) months after acceptance
of the purchase order by
Master Licensee
and to
deliver all other
Lacoste
Watch
orders within three (3) to five (5) months after acceptance
of the purchase order. As soon as is reasonably practicable after
acceptance of each purchase order,
Master Licensee
shall
advise
Distributor
of the shipping dates applicable to such order. All shipping
dates so advised are estimates only and
Master Licensee
shall
not have any liability for failure to actually ship by such dates or to
deliver by
Distributor’s
requested
delivery dates.
Master
Licensee
shall notify
Distributor
in event of
any anticipated delay in shipping dates of thirty (30) days or more. Each
order submitted by
Distributor
will specify
a “ship to” address which shall be the address of
Distributor’s
warehouseman or the address for one of
Distributor’s
customers.
|
7.2
|
The
Distributor
shall place
all orders for
Lacoste
Watches
with the
Master Licensee
exclusively; provided that notwithstanding the foregoing, the
Distributor
may order
the
Lacoste
Watches
from another member of the
Lacoste Watches Selective
Distribution System
resident in the
EU.
|
7.3
|
Unless
otherwise agreed in writing by
Distributor
and
Master Licensee
,
Lacoste Watches
shall be
deemed delivered to
Distributor
when
delivered by
Master
Licensee
or
Master
Licensee’s
freight forwarder or distribution center into the
possession of a carrier designated by
Master
Licensee
.
Distributor
shall bear
all risk of loss, damage or shortage pertaining to
Lacoste Watches
after
delivery to carrier for shipment to the designated “ship to” address on
the corresponding purchase order. All costs of delivery, including,
without limitation, all costs for freight, import licenses, customs duties
or other duties or imposts, insurance and special handling shall be paid
by
Distributor
.
|
8.1
|
The
purchase prices for all
Lacoste Watches
purchased by
Distributor
shall be in
Euros and based on
Master
Licensee’s
suggested retail price in effect in the
Territory
as of the date
of shipment. Such prices shall be calculated based on the discount
structure as set forth on Schedule
VIII
attached hereto.
Master
Licensee
will provide current price lists for the
Watches
to
Distributor
from time to
time and shall have the right to modify such prices at any time; provided,
however, that no price increase shall become effective sooner than sixty
(60) days after written notice thereof to
Distributor
.
Master Licensee
will
give
Distributor
prior notice of all such price changes. For all orders shipped
before the effective date of any price increase, the applicable price
shall be the price in effect on the date of shipment. With respect to
orders for
Lacoste
Watches
that have been accepted by
Master Licensee
but
which have not been shipped as of the effective date of a price increase,
the applicable price shall be the price in effect on the date of shipment;
provided that if the price increase is more than ten percent (10%) of the
last applicable price,
Distributor
shall have
the right within ten (10) days from the effective date of the price
increase to cancel all or any part of the order for
Lacoste Watches
subject
to such price increase upon notice to
Master Licensee
. All
prices are ex-works
Master Licensee’s
affiliate’s Hong Kong distribution facility or such other distribution
facility as
Master
Licensee
shall designate.
|
|
8.2The
invoices shall be sent directly by the
Master Licensee
to
the
Distributor
.
All payments shall be made in Euros in accordance with
Master Licensee’s
standard terms of sale (to the extent not inconsistent with the terms
contained herein) net ninety (90) days after the invoice date. A discount
of two percent (2%) is granted for cash payment in
advance.
|
8.3
|
Distributor
shall have
sole responsibility for invoicing its customers and for the collection of
all amounts due from them for
Lacoste Watches
sold to
them by
Distributor
. In no event
shall non-payment by any such customer or any claim or allegation any
customer may have against
Distributor
constitute
grounds for any off set, deduction, claim or defence on the part of
Distributor
against
Master Licensee
or
in respect of any obligation due to
Master Licensee
and
Distributor
shall
pay
Master
Licensee
all amounts due to
Master Licensee
in
accordance with the terms of this
Agreement
without off
set or deduction for any amounts claimed to be due to
Distributor
by
Master
Licensee
.
|
|
9.1
|
The
Master Licensee
shall take all reasonable steps to ensure that the
Lacoste Watches
delivered pursuant to this
Agreement
satisfy all
applicable quality requirements.
|
9.2
|
Lacoste Watches
delivered by the
Master
Licensee
to the
Distributor
shall be
covered by the
Master
Licensee
's International Warranty as the same may be modified by
Master Licensee
from time to time.
|
9.3
|
The
Distributor
shall establish and
maintain at its own cost
such number of authorized service
facilities for the service and repair of
Lacoste Watches
in the
Territory
(the
“Service center(s)”) as
Master Licensee
may
reasonably request, it being understood that initially there shall be one
(1) such Service Center.
Distributor
shall accept
all
Lacoste Watches
for service returned by any consumer or retailer whether covered by
the applicable consumer warranty (“warranty repairs”) or not covered by
said warranty (“out-of-warranty repairs”).
Distributor
shall
purchase from
Master
Licensee
and maintain an adequate stock of
Lacoste Watches
and
component parts and materials and employ at each Service Center such
number of qualified service technicians necessary to perform such service
in a timely manner. All shipping charges, including any duty,
or Customs brokerage fees, for such parts shall be paid by
Distributor
.
Master Licensee
shall
have the right to furnish parts to
Distributor
in the form
of finished watches. Within sixty (60) days after the end of
each contract year, provided
Distributor
has complied
with all its obligations hereunder,
Master Licensee
will
issue a credit to
Distributor
equal to one
percent (1%) of the
Sales
to Distributor
in such prior contract year; provided that
Master Licensee
will
review this amount annually in light of the actual average incidence of
warranty repairs.
|
9.4
|
Within
thirty (30) days after the Effective Date,
Distributor
will furnish
Master Licensee
with
Distributor’s
initial price list for all out of warranty repairs. All such prices will
be competitive as compared to prices charged for similar services
performed for other watch brands that compete with
Lacoste Watches
in the
Territory
.
Distributor
will give
Master Licensee
no
less than ninety (90) days prior written notice of any change to any such
prices.
Distributor
shall submit
to
Master Licensee
quarterly, a statement summarizing all out of warranty repairs and all
warranty repairs performed in the immediately preceding quarter indicating
for each watch repaired: the corresponding style number, the work
performed and customer's name and address.
Distributor
will use
only those parts (excluding batteries) for service on
Lacoste Watches
which
are supplied directly by or otherwise approved in writing by
Master Licensee
as
original equipment for
Lacoste Watches
.
|
9.5
|
Distributor
will issue
estimates for repair work within five (5) working days after receipt of a
Lacoste Watch
for
repair on ninety percent (90%) of
Lacoste Watches
submitted to
Distributor
for repair.
Working days are defined as all days of the year except Saturdays and
Sundays and legal holidays. Warranty repairs will be completed within
fifteen (15) working days after receipt of a
Lacoste Watch
for repair
on ninety percent (90%) of the in-warranty work performed by
Distributor
, unless
detained because of delays in receiving necessary parts from the
Master Licensee
. Out of
warranty repairs will be completed within twenty (20) working days after
receipt of the customer's written authorization to proceed with repair of
a
Lacoste Watch
on
ninety percent (90%) of the out of warranty work performed by
Distributor
. On the same
day any repairs are completed, the
Lacoste Watch
repaired
or serviced will be returned to the customer via express mail or such
other method as
Master
Licensee
may reasonably request. Increases in the postage or other
ground delivery rates may require requisite increases in charges to the
customer by the
Distributor
for
shipping
|
10.1
|
Obligations
of the
Master
Licensee
|
|
The
Master Licensee
shall
share appropriate
Know
How
pertaining to the
Lacoste Watches
with
Distributor
and
maintain regular contacts among their respective personnel. To this
effect, the
Master
Licensee
shall from time to
time:
|
|
10.1.1
|
give
the
Distributor
access to certain market surveys, statistics, reports and information it
may have (which it is not obliged to third parties to hold in confidence)
regarding the market position of the
Lacoste Watches
in the
Territory
among
competitors, retail customers and consumers;
and
|
|
10.1.2
|
at
the
Distributor
’s
request, provide reasonable assistance to the
Distributor
in training
a reasonable number of the
Distributor
’s staff in
the marketing, merchandising, promotion and advertising of the
Lacoste Watches
;
and
|
|
10.1.3
|
advise
the
Distributor
of
its requirements with regard to marketing and merchandising, including for
example specifications concerning the presentation of the
Lacoste Watches
in the
shop-windows or inside shops and the point-of-sale materials, that the
Distributor
shall
implement within the
Territory
;
and
|
10.2
|
Obligations
of the
Distributor
|
|
10.2.1
|
make
such investments as are reasonably required to create and/or maintain the
organisation necessary for the distribution, marketing and merchandising,
promotion and advertising of the
Lacoste Watches.
This
organization shall operate in a manner so as to avoid any risk of
confusion to the retail trade or consumers with other brands offered by
the Master Licensee or by Distributor. Such organisation shall include at
least one (1) full time watch division manager to supervise and
manage a dedicated sales manager and sales executive for
Lacoste Watches
,
experienced in managing a watch distribution business and one (1) full
time marketing manager working on the advertising and promotion of
Lacoste Watches
;
and
|
|
10.2.2
|
consult
with the
Master
Licensee
at least three (3) months before the beginning of the sale
of each season’s collection with respect to the
Distributor
’s marketing
and merchandising policy. At
Master Licensee
’s
request, the
Distributor
shall
participate in the coordination meetings organised by the
Licensor
and/or
Master Licensee
. This
consultation shall be done with the purpose of reaching an agreement on
the objectives and the means to achieve the best possible sales results
within the
Territory
as well as the
best possible co-ordination with the marketing and merchandising policy of
the
Lacoste Apparel
Products
and
Other
Lacoste Products
; and
|
|
10.2.3
|
provide
the
Master
Licensee
three (3) months after the start of the sales of each
collection of
Lacoste
Watches
a collection report which shall include the
comments of the
Distributor
detailed by
Model (SKU) within each such collection. The
Distributor
shall in
particular comment on the market receptivity to the collection. Such
report shall also include any requests for future
collections.
|
|
10.2.4
|
provide
the
Master
Licensee
once a year, at the beginning of the month of October,
with its estimated
Net
Sales
figures in the
Territory
in units and
in turnover for the following three (3) calendar years, for each of the
lines of
Lacoste
Watches
, by category of products (as defined in Schedule
IV
attached hereto); and shall update these
estimates for the first year of this three year period, a first time six
(6) months later (in April), and a second time twelve (12) months later
(in October); and
|
|
10.2.5
|
provide
the
Master
Licensee
quarterly, beginning with the second quarter after the
Effective Date with a report listing each
Approved Watches
Retailer
and each
Lacoste Boutique
and
Lacoste Corner
to
which
Distributor
sold any
Lacoste Watches
in the previous quarter and detailing for each by SKU the
quantities and the
Net
Sales
, of the
Lacoste Watches
sold
during the preceding quarterly period);
and
|
|
10.2.6
|
in
general :
|
|
a)
|
give
the
Master
Licensee
complete access to any and all market surveys, reports and
information it may have (which it is not obliged to third parties to hold
in confidence) regarding the market position of the
Lacoste Watches
among
competitors, retail customers and consumers in the
Territory
;
and
|
|
b)
|
use
reasonable efforts to reply to any request from the
Master Licensee
concerning additional details or statistics based on sales including,
without limitation, monthly sell-through data for certain accounts;
and
|
|
c)
|
in
the interests of both parties, enable the
Master Licensee
’s
personnel to carry out their role of assistance to and consultation with
the
Distributor
and supply them with such help and information as may be reasonably
available for the completion of their role and, in particular, provide all
available information and necessary surveys for the analysis of the retail
outlets sales activity so as to permit the
Master Licensee
to
better define the conditions and the trends of the market;
and
|
|
d)
|
shall
ensure that the
Approved
Watches Retailers
implement and conform to the marketing and
merchandising policy defined by the
Licensor
according to
the provisions of Article
10.2.2
above;
and
|
|
e)
|
shall
ensure that the
Approved
Watches Retailers
conform to the specifications concerning the
fittings, the decoration and architecture of the points-of-sale and use
the furniture and other elements, developed by the
Licensor
, in connection
with the sale of the
Lacoste
Watches
.
|
a)
|
the
members of the
Lacoste
Watches Selective Distribution System
, through
Approved Watches
Retailers
selected in the
Territory
and to which,
whenever possible, it shall be contractually linked;
and
|
b)
|
the
members of the
"Lacoste
Boutiques and Lacoste Corners" Selective Distribution System
,
subject to the terms and conditions set forth in Article
11.2
hereinafter.
|
11.1
|
Approved
Watches Retailers
|
|
11.1.1
|
Conditions of
Approval
|
|
a)
|
the
location and environment of the point-of-sale (type and category of the
building, location in the town in question, type of shops in the
neighborhood, sales area of the shop, quality of the frontage, length of
the shop window); and
|
|
b)
|
its
fittings (quality of the shop sign, window-dressing, quality of the
furnishings and lighting); and
|
|
c)
|
the
type, brand and nature of the products sold in the outlet;
and
|
|
d)
|
the
qualification of the personnel; and
|
|
e)
|
the
financial capabilities and solvency
guarantees.
|
|
11.1.2
|
Approval of the
Approved
Watches Retailers
|
|
The
Master Licensee
reserves the right to verify that every point of sale selected by the
Distributor
as an
Approved Watches
Retailer
conforms to the objective criteria set forth in
Article
11.1.1
hereinabove.
Distributor
shall submit
or cause to be submitted to the
Master Licensee
a copy
of the completed application for every potential point of sale for
approval and will follow the application procedures for each such proposed
point of sale as set forth in the Lacoste Watches General Conditions of
Distribution. The
Master
Licensee
shall have one-hundred-twenty (120) days to approve in
writing a potential point of sale based upon the objective criteria set
forth under Article
11.1.1
hereinabove
and the
Master
Licensee
shall not unreasonably withhold, delay or condition its
approval, and shall be deemed to have given its approval if
Master Licensee
does not
notify
Distributor
that it disapproves of such proposed point of sale with one-hundred-twenty
(120) days of receipt of the completed
application.
|
|
11.1.3
|
Duties of the
Approved
Watches Retailers
|
|
a)
|
the
standing of the point-of-sale and its environment remain at all times
compatible with the
Lacoste Trademarks
Image
, as established and coordinated by the
Licensor
;
and
|
|
b)
|
the
sales area in the store is always sufficient to permit the presentation of
the
Lacoste
Watches
in a sufficient shopping space without disproportion with
the other brands offered for sale and allowing to distinguish them;
and
|
|
c)
|
each
point-of-sale always contains an adequate range of the
Lacoste Watches
;
and
|
|
d)
|
the
sales personnel of each point-of-sale is always well qualified and trained
in presenting and selling the
Lacoste Watches
;
and
|
|
e)
|
INTENTIONALLY
DELETED
|
|
f)
|
no
misleading advertising is made; and
|
|
g)
|
the
counters, posters, demonstration and other advertising material are
displayed in a prominent position in each store and set up with the
Distributor
's approval;
and
|
|
h)
|
a
notice stating "
Approved
Watches Lacoste Retailer
" is displayed in a prominent position in
the window or near the
Lacoste Watches
display
area.
|
|
11.1.4
|
The
Distributor
shall
ensure that all elements bearing or representing the
Licensed Trademarks
(such as awnings, pennants, etc.) used by the
Approved Watches
Retailers
on the façade, in the window or inside their shops are
exclusively those supplied by the
Distributor
or,
exceptionally those which have received the prior and express written
approval of the
Distributor
.
|
11.2
|
Special
provisions applicable to the members of the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution
System
|
|
11.2.1
|
Presentation Surface
of
the
Lacoste Watches
and/or of the
Other Lacoste Products
in the
Lacoste
Boutiques
and
Lacoste
Corners
|
|
a)
|
So
as to make sure that at the same time the
Lacoste Boutiques
and
Lacoste Corners
remain principally devoted to the sale of
Lacoste Apparel Products
and only on a subordinate basis of the
Lacoste Watches
and/or
of the
Other Lacoste
Products
and to allow the development of the
Lacoste Watches
together
with the
Other Lacoste
Products
, the
Lacoste Boutiques
with a
Commercial Surface
exceeding 50m² and the
Lacoste Corners
with a
Commercial Surface
exceeding 40m² shall be authorised to sell the
Lacoste Watches
and all
the categories of the
Other Lacoste Products
that they wish to sell.
Devanlay
shall reserve
for the
Lacoste
Watches
together with the
Other Lacoste Products
in each of these
Lacoste
Boutiques
and in each of these
Lacoste Corners
at least
ten percent (10%) and at most twenty percent (20%) of the
Presentation Surface
of
such
Lacoste
Boutique
or
Lacoste
Corner
.
|
|
b)
|
Provided
that they have been authorised beforehand and in writing by
Devanlay
, the
Lacoste Boutiques
with a
Commercial Surface
smaller than or equal to 50m² and the
Lacoste
Corners
with a
Commercial Surface
smaller than or equal to 40m² may sell certain
Lacoste Watches
and/or
Other Lacoste
Products
in the same conditions. Given the size of these points of
sale, the parties agree that no reservation of a minimum
Presentation Surface
shall apply to them.
|
|
11.2.2
|
Selection
of the collections of the
Lacoste Watches
for the
"Lacoste Boutiques and
Lacoste Corners" Selective Distribution
System
|
|
a)
|
The
collections of the
Lacoste Watches
for the
"Lacoste Boutiques and
Lacoste Corners" Selective Distribution System
shall be selected in
the
Territory
among the collections approved by the
Licensor,
by mutual
agreement between the
Distributor
and the
Lacoste Apparel Products
Distributor
in such country.
|
|
b)
|
Subject
to the terms of paragraph (a) hereinabove, such selection shall be made
taking into account:
|
-
|
the
availability of the collections of the
Lacoste Watches
in such
country, and
|
-
|
the
commercial interest that the
Lacoste Watches
may
offer to the
Lacoste
Boutiques
and the
Lacoste Corners
,
and
|
-
|
the
purchasing behaviour and habits of such country,
and
|
-
|
the
periodicity appropriate to the
Lacoste
Watches
.
|
|
c)
|
|
d)
|
In
the event of a disagreement between the
Distributor
and a
Lacoste Apparel Products
Distributor
about the selection of collections of
Lacoste Watches
for the
"Lacoste Boutiques and
Lacoste Corners" Selective Distribution System
in the
Territory
, the
Distributor
shall notify
the
Master
Licensee
who will then notify the
Licensor
. The
Licensor
and
Devanlay
shall make
their best efforts to find together a well-balanced solution which
preserves together the
Lacoste Trademarks
Image
, the development of the "lifestyle" image of the Lacoste
brand and the interests of the
Lacoste Apparel Products
and of the
Lacoste
Watches
. The final decision shall rest with
Devanlay
.
|
|
e)
|
Once
the ranges of the
Lacoste
Watches
and of the
Other Lacoste Products
and the total number of references/color of the
Lacoste Watches
and/or
of the
Other Lacoste
Products
have been selected, the owners of the
Lacoste Boutiques
and of
the
Lacoste
Corners
will be free to decide, within this framework, the
quantities of
Lacoste
Watches
and/or of
Other Lacoste
Products
to be
ordered.
|
|
11.2.3
|
Supply
of the
"Lacoste Boutiques
and Lacoste Corners" Selective Distribution System
by the
Distributors
of the
Lacoste
Watches
|
|
a)
|
The
Distributor
shall
present the collections directly to the
Lacoste Boutiques
and to
the
Lacoste
Corners
, which shall place their orders and repeat orders directly
with them according to their specificities (size, location, customers).
The
Distributor
shall transmit electronically to the
Lacoste Apparel Products
Distributor
a copy of each order placed by the
Lacoste Boutiques
and
the
Lacoste
Corners
located in the
Territory
. These
orders shall be sent to the
Lacoste Apparel
Products Distributor
upon receipt by the
Distributor
, and shall
specify the anticipated delivery dates. Upon receipt of the copies of the
orders and within 10 days at most, the
Lacoste Apparel
Products Distributor
may
contact the
Distributor
if, after
examining the orders, it appears that the selection of the collection for
a specific point of sale does not comply with the terms of Article
11.2.2
hereinabove. In such an event, the
Lacoste Apparel Products
Distributor
shall
have the right to request the
Distributor
not to
accept these orders insofar as they do not conform with the pre-agreed
terms relating to the selection of ranges of
Lacoste Watches
set
forth in Article
11.2.2
hereinabove. The
Distributor
undertakes to act in accordance with the request of the
Lacoste Apparel Products
Distributor
. In the absence of reaction from the
Lacoste Apparel Products
Distributor
within 10 days following the receipt of the copies of
the orders for the beginning of the season, such orders may be implemented
as such. Notwithstanding the foregoing, repeat orders may be delivered by
the
Distributor
as
soon as they are received.
|
|
b)
|
The
Lacoste Boutiques
and the
Lacoste
Corners
shall be supplied and invoiced directly by the
Distributor
.
|
|
c)
|
The
Distributor
shall
send each six months to the
Lacoste Apparel Products
Distributor
a detailed recapitulative statement of the invoices of
Lacoste Watches
sent to each
Lacoste
Boutiques
and
Lacoste Corner
. Copies
of these statements shall be sent simultaneously to the
Licensor
, to
Devanlay
and to the
Master
Licensee
.
|
|
d)
|
In
the event of a violation by a
Lacoste Boutique
or a
Lacoste Corner
of
the limits of the
Presentation Surface
established for the
Lacoste Watches
together
with the
Other Lacoste
Products
in the point of sale or of the selection of the
collections of the
Lacoste Watches
and of
the
Other Lacoste
Products
intended to be commercialised in this point of sale, or of
the maximum number of references/colour of
Lacoste Watches
and/or
of
Other Lacoste
Products
which may be commercialised in such
Lacoste Boutique
or
Lacoste Corner
, or
in the event that the purchasing turnover of
Lacoste Apparel Products
during six months is less than eighty percent (80%) of the total
purchasing turnover of the relevant
Lacoste Boutique
or
Lacoste Corner
during the same period,
Devanlay
, or the
Lacoste Apparel Products
Distributor
concerned, shall be entitled on a first instance to
issue a warning to the relevant
Lacoste Boutique
or
Lacoste Corner
and, if any of these occurrences should be repeated, to forbid such point
of sale to commercialize
Lacoste Watches
and
Other Lacoste
Products
during at least one
season.
|
|
11.2.4
|
Selective
Distribution Systems
|
|
a)
|
The
Distributor
acknowledges that the
Lacoste Boutiques
and
the
Lacoste
Corners
are
Points
of Sale
with specific characteristics resulting inter alia from the
fact that all the products sold in these premises bear the
Lacoste Trademarks
, as
well as from the fact that these points of sale are principally devoted to
the sale of
Lacoste
Apparel Products
and only on a subordinate basis of
Lacoste Watches
together
with
Other Lacoste
Products
, contrary to the members of the
"Approved Apparel Retailers"
Selective Distribution System
who can sell products of different
brands and who are devoted to the sale of the
Lacoste Apparel
Products
, unless they are selected as approved retailers for
Lacoste Watches
and/or
Other Lacoste
Products
.
|
|
b)
|
The
Distributor
therefore undertakes to take all appropriate measures to ensure the
integrity of the
Lacoste
Watches Selective Distribution System
, the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
and the
"Approved Apparel Retailers"
Selective Distribution System
in its
Territory
.
|
|
11.2.5
|
Assistance
of
Devanlay
and/or
of the
Lacoste Apparel
Products
Distributor
to the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
in connection with the
Lacoste Watches
and/or
the
Other Lacoste
Products
|
|
a)
|
in
the field of merchandising, they
shall :
|
-
|
ensure
the coherence of the merchandising for the
Lacoste Apparel
Products
, the
Lacoste Watches
and/or
the
Other Lacoste
Products
, and
|
-
|
present
in a suitable fashion the
Lacoste Watches
following the rules contained in the merchandising guide (called the
"Green Book") and its seasonal editions developed by
Devanlay
, which shall be
updated by the
Licensor
and
Devanlay
and approved by
the
Licensor
,
and
|
-
|
present
completely, in particular in the shop-windows, the lines of
Lacoste Apparel
Products
,
Lacoste
Watches
together with
Other Lacoste Products
,
so as to express fully the Lacoste "way-of-life",
and
|
-
|
use
their best efforts to include the
Lacoste Watches
together
with the
Other Lacoste
Products
in their local or national advertising and promotion
campaigns.
|
|
b)
|
in
the field of reporting, they
shall :
|
-
|
do
their best efforts to ensure that the
Lacoste Boutiques
progressively put in place IT systems allowing a detailed reporting of
their sales of
Lacoste
Apparel Products
,
Lacoste Watches
and
Other Lacoste
Products
, and
|
-
|
for
those
Lacoste
Boutiques
who have not yet put in place, and as long as they have
not done so, continue providing the
Licensor
and the
Master Licensee
with
reports similar to those available as of March 1
st
,
2004, and
|
-
|
supply
the
Lacoste
Boutiques
with such elements as may be necessary for the IT
treatment and the reporting of their sales of
Lacoste Watches
, subject
to having received the basic data about the
Lacoste Watches
necessary to the operation of such a system from the
Licensor
, who shall have
obtained it himself from the
Master Licensee
,
and
|
-
|
prepare
and submit to the
Licensor
and to the
Master Licensee
,
for the
Lacoste
Boutiques
which have put in place the necessary IT systems and have
received the necessary basic data about the
Lacoste
Watches
:
|
(i)
|
on
a monthly basis and under the same conditions and terms as for the sales
of the
Lacoste Apparel
Products
by the
Lacoste Boutiques
, the
information relating to the sales of the
Lacoste Watches
in each
Lacoste Boutique
.
This information shall include for each
Lacoste Boutique
the
detail of the sales to the consumer of the
Lacoste Watches
,
and
|
(ii)
|
on
a semi-annual basis the information relating to the sales by reference of
the
Lacoste
Watches
in each of the
Lacoste
Boutiques
.
|
|
11.2.6
|
Contribution
of the
Distributor
|
|
a)
|
In
consideration of the merchandising and reporting services and of the
reservation of the
Presentation Surfaces
made for the
Lacoste
Watches
by the
Lacoste Apparel Products
Distributors
, the
Distributor
shall
pay,
each six
months, to the
Lacoste
Apparel Products Distributor
, a contribution representing a fixed
percentage of five percent (5%) of the purchases of the
Lacoste Watches
made by
the
"Lacoste Boutiques
and Lacoste Corners" Selective Distribution System
in the
Territory
during such
six (6) month period.
|
|
b)
|
|
c)
|
These
amounts shall be calculated on 30 June and 31 December of each year and
the corresponding contribution shall be paid no later than 31 August and
28 February of each year, by the
Distributor
.
|
|
d)
|
If
the contribution due by the
Distributor
has not been
fully paid at the dates specified in Article
11.2.6
c)
hereinabove to the
Lacoste Apparel Products
Distributors
, the
Licensor
and the
Master Licensee
shall
have the right, thirty (30) days after a notice given by registered mail
with certified receipt which will not have been followed by complete
payment of all and any due and unpaid contributions, to instruct forthwith
the
Distributor
to
stop any further deliveries of the
Lacoste Watches
to the
members of the
"Lacoste
Boutiques and Lacoste Corners" Selective Distribution System
and
the
Distributor
agrees to forthwith comply with such
instructions.
|
|
11.2.7
|
Furniture
and sales equipment used for the
Lacoste
Watches
|
|
11.2.8
|
End-of-season
goods
|
|
11.2.9
|
Specific
agreements:
|
11.2.10
|
11.3
|
Mail
Order – Internet
|
|
11.3.1
|
the
advertising and/or the sale of the
Lacoste Watches
on the
Internet or by Mail Order may only be made by
Approved Watches
Retailers
and members of the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
;
and
|
|
11.3.2
|
the
web site or the Mail Order catalogues on which the
Lacoste Watches
shall be
advertised and/or sold shall be submitted to
Master Licensee
for
Master Licensee
's
written approval. Such approval shall be granted if the following
conditions are met :
|
|
a)
|
the
name, the environment, the presentation and the general standing of the
web site or the Mail Order catalogues as well as (for any such web site)
the way it functions shall be compatible with the
Lacoste Trademarks
Image
; and
|
|
b)
|
the
web site or the Mail Order catalogues shall offer to consumers a high
quality service for the
Lacoste Watches
;
and
|
|
c)
|
the
manner in which the
Models
and the
Licensed Trademarks
are
presented on the web site or in the Mail Order catalogues in connection
with the advertising and/or the sale of the
Lacoste Watches
shall be
submitted to
Master
Licensee
for
Master Licensee
's
written approval. The
Approved Watches
Retailers
and the members of the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
may not include or use any
of the
Licensed
Trademarks
in the workings (as they exist as of this day or in the
future) of the web, and in particular no
Licensed Trademark
may
be included or used in a domain name, an URL address or an e-mail
address.
|
11.4
|
The
Distributor
shall
be free to fix its wholesale price to the members of the
Lacoste Watches Selective
Distribution System
and the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
so as to facilitate the
diffusion of the
Lacoste
Watches
and the development of sales within the
Territory
. The
Distributor
shall keep
the
Master
Licensee
informed on a regular basis of its pricing policy. More
specifically, the
Distributor
shall inform the
Master Licensee
of any
modification in its price structure as soon as practicable after such
modification.
|
12.1
|
Seconds
and end-of
season close-outs of
Lacoste Watches
(
Lacoste Watches
no
longer included in the collection of the
Lacoste Watches
) may be
sold with the
Licensed
Trademarks
by the
Distributor
exclusively
through the normal channels of distribution for the
Lacoste
Watches
.
|
12.2
|
Damaged
or defective
Lacoste
Watches
may in no circumstances be sold in any manner whatsoever,
and shall be destroyed at their expense by the
Distributor
.
|
13.1
|
As used herein “advertising”
means only the publication in print or broadcast media of advertisements
approved by Master Licensee and “promotion” means all other forms of
promotion, other than advertising, for
Lacoste
Watches
approved by
Master Licensee
including, without limitation, point of sale material, co-op advertising,
marketing, public relations, special events and the like. All advertising
and promotions (including, without limitation, the methods, selection,
layouts, venue and timing thereof) shall be subject to the prior written
approval of
Master
Licensee
.
Distributor
shall submit
all proposed advertising and promotion materials for approval at least
four (4) weeks prior to the first anticipated use thereof and shall not
engage in any advertising or promotion or use any such materials without
Master Licensee’s
prior written approval. Unless otherwise expressly approved in writing by
Master Licensee
,
Distributor
will
use only such materials including, without limitation, point of sale
material, packaging, advertising and ancillary material furnished or
approved by
Master
Licensee
.
|
|
to
Master Licensee
setting out and showing
Distributor’s
advertising and promotion expenditures incurred during such period
(supported by invoices and other documents reasonably acceptable to
Master Licensee
,
substantiating the expenditures for
Distributor’s
approved
advertising and promotion)and, within thirty (30) days after its receipt
of such statement accompanied by such substantiation,
Master Licensee
shall
pay the appropriate
A/P
Amount
to
Distributor
. Such
statement shall be itemized as set forth in Schedule
X
.
Distributor
acknowledges
that
Master Licensee’s
A/P Amount
represents only a portion of
Master Licensee’s
total
spending each year in respect of advertising and promotion of
Lacoste Watches
in the
Territory
in as
much as
Master
Licensee
also contributes directly to
Licensor
under the terms
of the
Master
Agreement
to support
Licensor’s
spending on
advertising and promotion. In the event
Distributor’s
actual
Net Sales
for
Lacoste Watches
in
any contract year (other than the final contract year of this
Agreement
) exceed the
total budgeted sales for such year on which its promotion expenditures for
such year were based, then
Distributor
shall spend
an amount equal to * of such excess in the following contract
year.
|
13.3
|
In
addition to its other obligations under this Article
13
,
Distributor
shall:
|
|
13.3.1
|
ensure
that not only the
Lacoste
Trademarks Image
but also the personal reputation of
Mr René LACOSTE and his family are
safeguarded.
|
|
13.3.2
|
keep
the
Master
Licensee
informed, as soon as executed, of all its advertisements
and promotions and provide the
Master Licensee
with
copies of the same.
|
|
13.3.3
take all necessary
steps to ensure that the
Approved Watches
Retailers,
should they themselves elect to advertise and promote
the sale of
Lacoste
Watches
use only advertising and promotional material that has been
approved by
Master
Licensee
for use by
Distributor
.
|
|
13.3.4
only use in its
advertising and promotional campaigns for
Lacoste Watches
,
products or accessories bearing the
Licensed Trademarks
in
so far as such products or accessories exist and are
available.
|
|
13.3.5
|
permit
the
Master
Licensee
’s other distributors and the
Licensor
’s other
licensees and distributors to use free of charge and subject to copyright
laws to the corresponding artistic property rights, such advertising
material.
|
13.4
|
Distributor
shall ensure
that the advertising and promotional programmes that are to be executed
locally by the
Approved
Watches Retailers
are submitted to the
Distributor
for its
prior written approval. The
Distributor
undertakes
to give notice to the
Master Licensee
of their
contents (with the exception of the price) should the
Master Licensee
so
request or in the event that there exists a doubt about their conformity
with the applicable requirements set forth
herein.
|
13.5
|
The
Master Licensee
shall supply the
Distributor
from time to
time, at cost price, with whatever advertising material used by the
Licensor
or the
Master Licensee
that
the
Distributor
may wish to purchase (which is permitted for use) within the
Territory
.
|
15.1
|
By
either of the parties:
|
|
15.1.1
|
in
the event that the other party fails to fulfil any of its obligations,
upon sixty (60) days prior notice to the defaulting party if, before the
end of such notice period, such failure has not been remedied, or the
defaulting party has refused to remedy the said failure, if it can be
remedied, or has failed or refused to pay reasonable compensation should
it not be possible to remedy the failure and this without prejudice of any
compensation or damages whatsoever;
or
|
|
15.1.2
|
This
Agreement
may be
terminated at any time by either of the parties, immediately upon notice,
in the event that the other shall be in violation of any substantial
agreement with any material creditor, or (1) be dissolved; (2) apply for
or consent to the appointment of a receiver, trustee or liquidator for its
properties or assets; (3) admit in writing its inability to pay its debts
as they are or become due; (4) make a general assignment for the benefit
of creditors; (5) file a voluntary petition or be the subject of an
involuntary petition in bankruptcy or an answer seeking re-organization in
arrangement with creditors, or take advantage of any bankruptcy,
reorganization, insolvency or re-adjustment of debt law or statute, or
file an answer admitting the material allegations of a petition filed
against it in any proceedings under such a law or statute, or take any
action for the purposes of effecting any of the foregoing; or (6) have any
order, judgment or decree entered against it without the application,
approval or consent of the party concerned, by any court of competent
jurisdiction approving a petition seeking reorganization of its properties
or assets or the appointment of a receiver, trustee or liquidator for
it.
|
15.2
|
By
the
Master
Licensee
|
|
15.2.1
|
Within
fifteen (15) days of the sending of a registered letter, with notification
of receipt, without giving rise to any damages or compensation whatsoever,
in the event of a change in control of the
Distributor,
except as
expressly permitted under Article 18.2 hereof, or if an individual or
company directly or indirectly in competition with the activities of the
Licensor
or the
Master Licensee
,
including a licensee, a sub-licensee, a distributor, a sub-distributor, an
agent or a customer of the
Licensor
or the
Master Licensee
should
become a shareholder, even a minority shareholder of the
Distributor
. The
Distributor
then
undertakes to inform of the occurrence of any of the events hereabove
described within eight (8) days
thereof.
|
|
15.2.2
|
The
Master Licensee
nevertheless, shall be entitled to postpone its right to terminate this
Agreement
to
assess the compatibility of such change with the
Licensor
and its own
commercial conceptions and
interests.
|
|
15.2.3
|
If
within three months following the receipt of the
Distributor
’s notice of
the occurrence of such events, the
Master Licensee
has not
implemented its right to terminate this
Agreement
, it shall
continue in force until its normal expiry date subject to the execution of
the other provisions contained in this Article
15
.
|
|
15.2.4
|
W
ithin thirty
(30) days following formal notice in the event of the
Distributor
’s failure to
settle the invoices from the
Master Licensee
within
the period of time stipulated, without prejudice to any proceedings for
forced collection which could be initiated by the
Master Licensee
and
notwithstanding the provisions of Article
15.1.1
|
|
15.2.5
|
Immediately
and without advance notice and without prejudice to damages, in the event
that any
Minimum Sales
Requirement
set forth in Article
14
above should not be
reached.
|
|
15.2.6
|
Immediately
and without notice in the event that the
Distributor
fails to
fulfil its obligations with regard to the
Lacoste Watches Selective
Distribution System
, notwithstanding Article
15.1.1
above.
|
|
15.2.7
|
Immediately
and without notice in the event of expiry, termination or non-renewal of
the
Master
Agreement
and/or of the
Supplemental
Agreement
.
|
16.1
|
Upon
expiry or termination of this
Agreement
for whatever
reason:
|
|
16.1.1
|
all
rights and licenses granted to the
Distributor
pursuant to
this
Agreement
shall terminate and revert to the
Master Licensee
;
and
|
|
16.1.2
|
subject
to the provisions of Article
16.1.6
hereunder, the
Distributor
shall
immediately cease to trade as a Lacoste distributor, shall cease to use
the
Know-how,
the
Licensed
Trademarks
, and the
Models
and shall not
assist any third party to do so, and any outlet store owned by the
Distributor
shall
terminate its sales and activities in connection with the Lacoste Watches
within ninety (90) days of the date of termination or expiry;
and
|
|
16.1.3
|
the
Distributor
shall
immediately cease using all documents and items bearing or representing
the
Licensed
Trademarks
(catalogues, technical documents, etc.);
and
|
|
16.1.4
|
the
Distributor
shall
cancel at its own expense all government clearances it may have obtained
with the appropriate governmental authorities;
and
|
|
16.1.5
|
the
Distributor
shall
deliver immediately, at its cost, to the
Master Licensee
or to
any third party designated by the
Master Licensee
, all
remaining advertising and promotional and display material, and in general
all documents and items bearing or representing the
Licensed Trademarks
(catalogues, technical documents, etc);
and
|
|
16.1.6
|
the
Master Licensee
shall
have the right, at its sole discretion,
to:
|
|
a)
|
repurchase
or have any third party it may wish to appoint repurchase, all or part of
the stock of
Lacoste
Watches
which the
Distributor
may have on
hand at the date of termination or expiry or non renewal at the price
invoiced by the
Master
Licensee
to the
Distributor
minus
rebates taking into consideration their age, state and
condition.
|
|
b)
|
If
the
Master
Licensee
does not exercise its purchase option as aforesaid, the
Distributor
shall
be free to sell on a non exclusive basis the products remaining in
inventory within the
Territory
during a
period of six (6) months after the expiry or termination date hereof. This
Agreement
shall
govern the said sales during said period. Such sales will be exclusively
made to the
Approved
Watches Retailers
or to
Lacoste Boutiques
and
Lacoste Corners
in
quantities not exceeding those normally sold to said
Approved Watches
Retailers
or to
Lacoste Boutiques
or
Lacoste Corners
during the previous year.
|
16.2
|
Furthermore
it is hereby agreed that the termination, expiry or non-renewal shall
automatically entail at
the Licensor
's sole
option
choice
either:
|
|
16.2.1
|
the
immediate termination of the commercial agreements which may have been
entered into between the
Distributor
and the
Approved Watches
Retailers
,
|
|
16.2.2
|
or
the assignment of such commercial agreements to a new Lacoste distributor
designated by the
Master
Licensee
.
|
16.3
|
The
Distributor
, given
the specific conditions prevailing in the profession, shall not object in
any way whatsoever, during the period of notice preceding the termination
or non-renewal of this
Agreement
, to any visits
to its clients and taking of orders for the following season that may be
carried out by the new distributor for
Lacoste Watches
chosen
by the
Master
Licensee
.
|
16.4
|
The
Distributor
acknowledges and agrees that it is entering into this
Agreement
on the express
understanding that its receipt from sales of
Lacoste Watches
under
this
Agreement
are
intended to be sufficient to compensate it fully for all risks, costs and
expenses incurred in connection with this
Agreement
, including,
i.e., all costs and expenses incurred by the
Distributor
for its
sales, marketing, merchandising, advertising and promotion efforts with
respect to the
Lacoste
Watches
.
|
16.5
|
Accordingly,
upon the end, the termination or the non-renewal in whole or in part of
this
Agreement
and
regardless of its duration, for whatever reason, the
Distributor
shall have
no right to any further payment, indemnity or compensation for loss of
goodwill or for any risks, costs or expenses incurred or developed by the
Distributor
during
the term of this
Agreement
.
|
18.1
|
This
Agreement
shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
|
18.2
|
It is expressly
understood and agreed that this
Agreement
or any
interest therein shall not be in part or as a whole directly or indirectly
sold, assigned, pledged or otherwise encumbered by the
Distributor
without the written
consent of the
Master
Licensee
and any such
purported assignment, sale, pledge or encumbrance shall be void ab initio
and of no effect. Notwithstanding the foregoing, t
he parties
acknowledge that under the
JV Agreement
each of
SWICO
and
MGI
, as the only
shareholders of
Distributor
, has the
right under section 15.2 of the
JV Agreement
, to
dissolve, or to purchase the other’s interest in,
Distributor
.
Accordingly, if either
SWICO
or
MGI
(the “Non-breaching
Party”) elects under the foregoing provision of the
JV Agreement
to purchase the other party’s interest in,
Distributor
and (a)
written notice from
SWICO
and
MGI
confirming such
election has been provided to
Master Licensee
and
Distributor
and
(b) the Non-breaching Party also notifies
Master Licenseee
that it
wishes this Agreement to be assigned, then effective upon the date
specified in such notice from the Non-breaching Party (or, absent the
specification of any date, then as soon as reasonably practicable)
Master Licensee
shall
assign all of
Distributor’s
right,
title and interest in and under this Agreement to such Non-breaching Party
or to any Affiliate of such Non-Breaching Party as specified in such
notice. Distributor hereby grants
Master Licensee
a power
of attorney for purposes of
Master Licensee
executing and delivering on behalf of
Distributor
any and all
documents or other instruments necessary to effect such
assignment.
|
18.3
|
The
Distributor
shall
not delegate or sub-contract, whether in whole or in part, any of its
duties arising out of or under this
Agreement
without the
prior written consent of the
Master Licensee
which
Master Licensee
has the right to withhold in its sole and absolute
discretion.
|
19.1
|
The
Distributor
shall
indemnify the
Master
Licensee
and the
Licensor
and hold the
Master Licensee
and the
Licensor
harmless from any liability, loss or expense, including reasonable
attorney's fees, with respect to the
Distributor
's breach of
this
Agreement
or
any claim asserted by any other person or entity against the
Distributor
, the
Master Licensee
, and/or
the
Licensor
that
arises out of the performance or non-performance by
Distributor
of its
obligations under this
Agreement
.
|
19.2
|
The
Distributor
shall
defend the
Master
Licensee
and the
Licensor
against all
claims, actions, suits or proceedings and shall indemnify and hold
the
Master
Licensee
and the
Licensor
harmless from any and all resulting losses, liabilities,
costs (including any and all related legal fees and expenses incurred by
the
Master
Licensee
and the
Licensor
)
and damages
(including punitive damages) arising out of or in any way connected with
its
Lacoste
Watches
retail activity. Such indemnification shall include, but
not be limited to, losses, liabilities, costs and/or
damages
|
20.1
|
It
is expressly agreed that, within the scope of this
Agreement
, the
Distributor
shall
purchase and resell the merchandise for its own account and shall act as
an independent trader both with respect to the
Master Licensee
and to
the customers. Consequently, under no circumstances shall the
Distributor
make the
Master Licensee
liable vis a vis third parties and it shall take all the necessary steps
to guarantee the
Master
Licensee
against the financial consequences of any claims that
could be made against the
Master Licensee
by such third parties as a result of commercial
operations carried out by the
Distributor
.
|
20.2
|
Nothing
in this
Agreement
shall be construed to render either party liable for any debts or
obligations of the other party and the parties shall in no way be
considered agents or representatives of each other. Neither party shall
have the authority to act for or bind the
other.
|
21.1
|
the
Master Licensee
and the
Distributor
recognise that all information or proprietary information (including all
Know-How
) so far
received or to be received in the future from the other, which is related,
directly or indirectly, to the conduct of affairs governed by this
Agreement
(a) shall
remain the exclusive property of the party from which it will have
originated, (b) shall be kept and maintained as confidential, (c) shall
not be used for any purpose outside the scope of this
Agreement
, (d) shall be
disclosed only to those employees or agents as may be reasonably deemed
necessary to carry out the purpose of this
Agreement
, and (e) shall
not be disclosed to third parties without prior written approval of the
other. Information which is in its entirety already in the public realm or
was received from third parties who are not under any obligation to limit
disclosure of such information or which is required to be disclosed by law
or any regulation body shall not be governed by this Article
21.1
.
|
21.2
|
However,
the
Master
Licensee
may disclose to its other distributors anywhere in the
world any confidential or proprietary information it may have received
from the
Distributor
, and use
such information in connection with the agreements it has with such other
distributors.
|
21.3
|
The
Distributor
undertakes to obtain from all third parties which it may hire such as
advertising agencies, and market research firms, a commitment to keep
strictly confidential any technical, commercial, financial or marketing
information they may have obtained from the
Distributor
or from the
Master Licensee
,
either in connection with the services to be performed by them or
otherwise, and a commitment not to re-use the creations or studies
commissioned by the
Distributor
for the
benefit of third parties without the prior written approval of the
Master
Licensee
.
|
21.4
|
The
prohibitions contained in this Article
21
shall permanently remain in full force and
effect.
|
22.1
|
The
Distributor
shall
at its own expense ensure that all local and national laws, rules,
regulations and other requirements and codes of practice applicable in the
Territory
and all
policies and ethical and other standards from time to time specified by
the
Master
Licensee
in respect of the treatment of any persons involved in the
sale of any
Lacoste
Watches
or otherwise in respect of any human rights or other issues
are complied with in relation to all activities of the
Distributor
and/or its
authorised
Suppliers
under this
Agreement
.
|
22.2
|
The
Distributor
shall
observe at all times (a) all local and national laws, rules, regulations
and other requirements and codes of conduct applicable in the
Territory
; (b) the
relevant provisions of any applicable and enforceable treaty, law or
regulation in relation to the protection of human rights and in particular
childhood, salaries, duration and condition of workmanship, (c) the
relevant provisions of any applicable and enforceable treaty, law or
regulation in relation to the protection of the environment, and shall
take all necessary measures to immediately bring to an end any violation
of such provisions.”
|
22.3
|
The
Distributor
shall
indemnify the
Master
Licensee
and its assignees and successors for any claims, known or
unknown, liabilities, demands, damages, cases of action, costs expenses,
dues, covenants, suits, indemnities and judgements which any third party
shall make.
|
24.1
|
The
Distributor
shall,
at its own expense, in the
Territory
and the
Master Licensee
shall,
at its own expense, in Switzerland, execute any documents required to
comply with the laws and requirements of the respective countries with
respect to declaring, recording or otherwise rendering this
Agreement
effective.
|
24.2
|
Any
notice served by one party upon the other shall be in writing in the
English language and shall be delivered personally (including by courier)
or be sent by facsimile. Such notice or document shall be deemed to have
been received in the case of personal delivery when delivered or, if sent
by facsimile, on the day following that on which the facsimile was sent,
provided that the party serving such notice shall send a copy by
registered airmail within two (2) days after sending the facsimile
notice.
|
|
24.2.1
|
If
to the
Master
Licensee
:
|
|
Copy
to:
|
|
Attn:
Legal Department
|
|
Movado
Group, Inc.
|
|
650
From Road
|
|
Paramus,
New Jersey 07652
|
|
USA
|
|
Tel: (201)
267-8105
|
|
Fax: (201)
267-8050
|
|
24.2.2
|
If
to the
Distributor
|
24.3
|
No
rights of either party arising out of this
Agreement
, or any
provision hereof, shall be waived except in writing. Failure by either
party to exercise or enforce, in any one or more instances, any of the
terms or conditions of this
Agreement
shall not
constitute or be deemed a waiver of that party’s right thereafter to
enforce the terms and conditions of this
Agreement
.
|
24.4
|
This
Agreement
and the
Schedules hereto constitute the entire understanding of the parties with
respect to the subject matter hereof, and the rights, obligations, and
interests of any party as they may pertain herein may not otherwise be
changed, modified or amended except by the written
Agreement
of the party
to be charged.
|
24.5
|
If
at any time any party hereto shall deem or be advised that any further
assignments, licenses, assurances in law or other acts or instruments,
including lawful oaths, are necessary or desirable to vest in it the
rights provided for herein, the parties hereto agree to do all acts and
execute all documents as may reasonably be necessary or proper for that
purpose or otherwise to carry out the intent of this
Agreement
.
|
24.6
|
The
rights and obligations of the parties hereto under this
Agreement
shall be
subject to all applicable laws, orders, regulations, directions,
restrictions and limitations of competent authorities having jurisdiction
on the parties hereto.
|
24.7
|
In
the event, however, that any such law, order, regulation, direction,
restriction or limitation, or construction thereof, shall substantially
alter the relationship between the parties under this
Agreement
or the
advantages derived from such relationship, or shall prevent the
performance of any provision of this
Agreement
, either party
may request the other party hereto to modify this
Agreement
, and if within
ninety (90) days subsequent to the making of such request, the parties
hereto are unable to agree upon a mutually satisfactory modification
hereof, such party may terminate this
Agreement
by giving
thirty (30) days notice not later than thirty (30) days following the end
of such ninety (90) days period.
|
24.8
|
Notwithstanding,
anything contained herein to the contrary no third party other than a
party hereto and the
Licensor
is intended to
or shall have any legal or equitable right remedy or claim under this
Agreement
or any
part thereof, as against any party to this
Agreement
, it being
understood that the provisions of this
Agreement
are for the
sole benefit of the parties hereto and
Licensor
and no other
party shall be or be deemed a third party beneficiary of this
Agreement
(the foregoing
is without prejudice to the rights of any nominee of the
Master Licensee
in
respect of orders placed on it by the
Distributor
in
accordance with the terms hereof)
.
|
24.9
|
This
Agreement
may be
executed in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
|
24.10
|
Paragraphs
headings of this
Agreement
are for
convenience only and shall not be construed as a part of this
Agreement
or as a
limitation on the scope of any terms or provisions of this
Agreement
.
|
|
24.11When
interpreting the terms and conditions of this Agreement, the English
language shall be applied
exclusively.
|
25.1
|
This
Agreement
is
governed and construed in accordance with Swiss Law without reference to
its conflict of law principles.
The Vienna Convention on the
International Sales of Goods of April 11, 1980 shall not apply to this
Agreement
.
|
25.2
|
All
disputes arising out or in connection with this
Agreement
which cannot
be amicably settled by consultation, shall be finally settled by
arbitration in Geneva, Switzerland under the rules of the International
Chamber of Commerce by one arbitrator appointed in accordance with said
rules. Each party hereto shall be bound by any arbitration award so
rendered and any judgment upon such award may be entered as a
non-appealable, final foreign judgment in any court having jurisdiction
thereon.
|
MGI
LUXURY GROUP S.A.
|
MGS
DISTRIBUTION LIMITED
|
20.
|
SCHEDULE
II
|
21.
|
22.
|
23.
|
THE
LICENSED TRADEMARKS
|
-
|
the
total
Presentation
surface
|
-
|
the
Presentation
surface
of the
Lacoste Apparel
Products
|
-
|
the
Presentation
surface
of the
Lacoste Watches
and of
the
Other Lacoste
Products
|
-
|
the
percentage of the
Presentation surface
of
the
Lacoste
Watches
and of the
Other Lacoste Products
/
the total
Presentation
surface
.
|
a)
|
The
location and environment of the point of sale (type and category of the
building, location in the town in question, type of shops in the
neighbourhood) shall remain at all times compatible with Lacoste brand
image. The sale area shall be sufficient to permit the presentation of the
Lacoste Watches
in
a sufficient shopping space without disproportion with the other brands
offered for sale and allowing to distinguish them. The frontage shall be
made of materials of good quality, well maintained and
attractive.
|
b)
|
The
shop sign shall be well maintained and attractive. The window dressing
shall be of good quality and sophisticated. The lighting shall be
sufficient and sophisticated.
|
c)
|
The
type, brand and nature of the products sold in the outlet shall be
compatible with Lacoste brand
image.
|
d)
|
The
sale personnel shall be well
qualified.
|
e)
|
The
financial capabilities and solvency guarantees shall be
good.
|
|
II/
Application procedure to open an
account
|
a)
|
Any application
(hereinafter referred
to as the "
Application
") to open an
account to become an approved retailer for the sale of
Lacoste
Watches
shall be made in writing to the authorized
wholesale distributor of
Lacoste Watches
in the
country where the prospective point of sale is located (hereinafter
referred to as the "
Distributor
"). The
Distributor
shall
promptly send the completed
Application
to
Licensee
.
|
b)
|
Within
a maximum delay of four months as from the receipt of the
Application
, the
Licensee
shall evaluate
the point of sale in order to determine if the point of sale, subject to
the
Application
,
and its sales personnel satisfy the
Selection
Criteria
.
|
c)
|
Following
this evaluation :
|
(i)
|
if
the point of sale and staff do not satisfy the
Selection Criteria
, the
Licensee
shall
notify the
Distributor
which shall so inform the applicant in writing and shall list in
writing the elements which do not satisfy the
Selection Criteria
.
Consequently, the
Distributor
shall turn
down the
Application;
|
(ii)
|
if
the point of sale and staff satisfy the
Selection Criteria
, the
Licensee
shall
notify the
Distributor
which shall so inform the applicant in writing and provide the
applicant (which shall then be deemed an
Approved Retailer
) with
a Lacoste Watches Approved Retailer
contract.
|
|
III/
Satisfaction of Selection Criteria
|
-
|
shall
inform the
Approved
Retailer
in writing and shall list the elements which do not
satisfy the
Selection
Criteria
;
|
-
|
shall
also ask the
Approved
Retailer
to take the appropriate measures so that the
Selection Criteria
be
satisfied, within a delay of six (6) months as from the date of receipt of
the above mentioned letter.
|
(i)
|
either
Licensee
shall
determine that the
Selection Criteria
are
satisfied and so inform the
Distributor
which
shall inform the
Approved Retailer
in writing accordingly;
|
(ii)
|
or
Licensee
shall
determine that the
Selection Criteria
are
still not satisfied and so inform the
Distributor
which
shall inform the
Approved Retailer
in writing and shall list the elements which still do not satisfy the
Selection
Criteria
. In such a case the
Distributor
shall, upon
instruction from
Licensee
, terminate the
Lacoste watches approved retailer contract signed with the
Approved Retailer
(hereinafter referred to as the "
Contract
") within the
conditions set out in article 6.1.1 of the Lacoste watches approved
retailer contract. Nevertheless, if the
Approved Retailer
has
started repairs or demonstrates that it decided to do so, the
Distributor
may then
grant another delay of six (6) months. At the end of this delay, a new
evaluation shall be carried out within the same conditions as the one
described above in (i) and in the first two sentences of
(ii).
|
|
3.1The
Approved Retailer
undertakes, for the duration of the
Contract
, that the
Point of Sale
and the
sales staff of the
Point
of Sale
satisfy the
Selection
Criteria
.
|
|
3.2Fittings
and Management of the
Point of
Sale
|
|
3.2.1The
sales area of the
Point
of Sale
shall always permit the presentation of the
Lacoste Watches
in a
sufficient area.
|
|
3.2.2All
items bearing any trademark owned by the
Lacoste Group
(“
Lacoste Trademarks
”)
used by the
Approved
Retailer
on its shop front (such as awning, sign, etc…) in the shop
window or inside the
Point of Sale
shall be
exclusively those supplied by the
Distributor
or
exceptionally those which have received the prior and express written
approval of the
Distributor
.
|
|
3.3Supplies
|
|
3.4Sales
|
|
3.4.1The
price at which the
Lacoste Watches
will be
sold by the
Distributor
to the
Approved Retailer
and
other sales conditions applicable to the
Lacoste
Watches
will be the one
applicable in the
Territory
at the date
the order is received.
|
|
3.4.2The
Approved Retailer
shall continuously offer for sale an appropriate assortment of the
Lacoste
Watches
.
|
|
3.4.3In
addition, the
Approved
Retailer
shall ensure that the
Lacoste Watches
are only
sold in their original presentation and shall respect the recommendations
made by the
Distributor
concerning
the merchandising of the
Lacoste
Watches
.
|
|
3.4.4The
Approved Retailer
shall not sell at its
Point of Sale
other
products in immediate proximity to the
Lacoste Watches
likely
to damage or devalue the image of the
Lacoste Trademarks
and/or the
Lacoste
Watches
.
|
|
3.4.5Subject
to Article 3.3, the
Approved Retailer
undertakes not to sell the
Lacoste Watches
other
than at the
Point of
Sale
at the address stated at the very beginning of this
Contract
exclusively to
the ultimate consumer.
|
|
3.4.6The
Approved Retailer
shall not sell
Lacoste
Watches
by mail order or by internet, unless the
Approved Retailer
has
received a prior written authorisation from the
Distributor
confirming
that the selection objective criteria set up for these kind of sale are
satisfied.
|
|
3.4.7The
Approved Retailer
shall be free to fix its resale prices according to the laws and
regulations in force. The breakdown of the recommended prices that may be
communicated to the
Approved Retailer
by the
Distributor
are
only indicative.
|
|
3.5Advertising
and promotional activities of the
Approved
Retailer
|
-
|
use
exclusively the visual designs, lettering, emblems and logos approved by
the
Distributor
;
|
-
|
ensure
that the standing and image of the Lacoste trademarks but also personal
reputation of Mr. René Lacoste and his family are
protected.
|
|
6.1Without
prejudice of what is elsewhere provided in the
Contract
, the
Distributor
shall be
entitled to terminate the
Contract
at any time
without having to pay indemnity of any nature to the
Approved
Retailer
:
|
|
6.1.1If
the
Point of Sale
no longer satisfies the
Selection Criteria
, in
which event the
Contract
shall end six
(6) months after notice thereof by the
Distributor
to the
Approved
Retailer
.
|
|
6.1.2In
the event that the
Approved Retailer
fails
to comply with any of its other obligations thirty (30) days after notice
thereof by Distributor and no remedy of the breach having been effected.
This delay of thirty (30) days is reduced to fifteen (15) in case of
payment default.
|
|
6.1.3Without
notice, in case of termination or non-renewal of (a) the master licence
agreement between
Licensee
and
Lacoste Group
, or (b) of
the
Distribution
Agreement
, regardless of
cause.
|
|
6.1.4Without
having to give prior notice should (a) the legal form of the
Approved Retailer
be
modified, (b) the business or part of the business be sold, (c) the
business be leaded, hired, purchased, contributed to another business or
Approved Retailer
,
pledged or subject to a management contract, (d) the
Approved Retailer
be
dissolved, (e) the business be discontinued or the
Point of Sale
of the
Approved Retailer
be closed during a period greater than two (2) months
;
or
|
|
6.1.5Without
prior notice, in the event of the
Approved Retailer
’s
voluntary or compulsory liquidation, bankruptcy, legal settlement or
placement of a receiving order or in any equivalent
situation.
|
|
6.1.6Notwithstanding
anything to the contrary contained herein, with full and immediate
effect:
|
-
|
in
the event the
Approved
Retailer
fails to comply with Articles 3.2.2 or 3.4.5 of the
Contract
;
|
-
|
within
the European economic Area (i.e. European Union + Iceland, Liechtenstein,
and Norway), if the
Approved Retailer
either
purchases or resells
Lacoste Watches
outside
from the selective distribution set up for
Lacoste
Watches
;
|
-
|
if
the
Approved
Retailer
is involved in the manufacturing and/or sale of
counterfeits.
|
|
6.2In
the case of termination or non-renewal, for whatever reason, of the
Distribution Agreement
this
Contract
shall likewise terminate within the same time limits, and the
Approved Retailer
shall
be informed within a reasonable period. The
Lacoste Group
may
nevertheless decide at its sole option to assign the
Contract
to the new
Lacoste exclusive distributor in charge of the distribution of
Lacoste Watches
in the
Territory
.
|
-
|
to
repurchase or to have a third party it may appoint repurchase immediately,
all or part of the stock of
Lacoste Watches
of the
Approved Retailer
at the price paid by the
Approved Retailer
after
deduction of depreciation of the
Lacoste Watches,
and/or,
|
-
|
to
grant the
Approved
Retailer
a period of up to three (3) months to sell such stock. At
the end of the said period of three months the
Approved Retailer
shall
not be entitled to resell the stock, except with the approval of the
Distributor
.
|
|
11.1Neither
party hereto shall be liable for any delay or failure in fulfilling the
obligations hereunder (except for the payment of money) when such delay or
failure is caused by riots, war (declared or not), or hostilities between
any nations; acts of God, fire, storm, flood or earthquake; strikes, labor
disputes, shortage or delay of carriers, or shortage of raw materials,
labor power or other utility services; any governmental restrictions; or
any other unforeseeable contingencies beyond the control of the
party.
|
|
11.2In
view of the fact that this
Contract
has been
entered into because of the confidence that Distributor has in
Approved Retailer
, it is
understood that the terms and conditions hereof shall be performed by
Approved Retailer
from the
Point of
Sale
only and that this Agreement may not be assigned, whether by
operation of law or otherwise, without the prior written approval of
Distributor
which
Distributor
may withhold
or grant in its sole and absolute discretion and any such purported
assignment by
Approved
Retailer
without such approval by
Distributor
shall be
void and of no effect.
|
|
11.3When
interpreting the terms and conditions of this
Contract
, the English
language shall be applied
exclusively.
|
|
11.4This
Contract
,
including the terms and conditions incorporated by reference, constitutes
the entire agreement of the parties with respect to the subject matter
hereof and prevails over and supersedes all prior agreements, whether
written or oral, relating to the subject matter hereof and may not be
altered, waived, modified, or discharged except by an express writing
referring to this
Contract
signed on
behalf of the parties hereto by their duly authorized
representatives.
|
|
11.5The
failure of either party hereto to enforce at any time any of the
provisions or terms of this
Contract
, or any rights
in respect thereof, or the exercise of or failure to exercise by either
party any rights or any of its elections herein provided, shall in no way
be considered to be a waiver of such provisions, terms, rights or
elections or in any way to affect the validity of this
Contract
.
|
|
11.6Should
any provision of this
Contract
held invalid,
incomplete or unenforceable, this will not affect the validity of the
remaining provisions. The parties shall replace the invalid incomplete or
unenforceable provision by provision which comes closest to the commercial
goal that the parties intended to achieve on the conclusion of this
agreement by the invalid, uncompleted and unenforceable provision.
Notwithstanding anything to the contrary contained herein, in the event of
any conflict or inconsistency between any term or provision of this
Contract
and the
Distribution Agreement
,
the latter shall control.
|
1.1
|
In
this Agreement, except where the context otherwise requires, the
capitalized terms listed below shall have the respective meanings assigned
to them as follows:
|
“Affiliate”
|
means
as to either party, a person or entity which controls, is under common
control with, or is controlled by such
party.
|
|
“HB”
|
means Hugo
Boss Trademark Management GmbH & Co.,
a
|
|
German
corporation, including any successors and
assigns.
|
“HB
License”
|
means
the license agreement between Supplier and HB, as the same may be amended
from time to time, pursuant to which Supplier has the right to use the
Trademarks in connection with the manufacture, marketing, advertising,
sale and distribution of the
Products.
|
|
“Products”
|
means
watches manufactured by or for Supplier and bearing
one
|
|
or
more of the Trademarks.
|
|
“Territory”
|
means
the United Kingdom.
|
|
“Trademarks”
|
means
all trademarks licensed to Supplier by HB under the
HB
|
“Travel
Retail Accounts”
|
means
accounts whose retail business consists of in-flight duty free
retail sales operations.
|
1.2
|
Unless
otherwise defined herein, each capitalized term used herein shall have the
meaning as set forth in the HB
License.
|
2.
|
APPOINTMENT
|
2.3
|
Subject
to the terms and conditions contained herein, for the term of this
Agreement Supplier hereby appoints Distributor as the exclusive wholesale
distributor for marketing, distribution and sales of the Products in the
Territory (with the exception of sales to Travel Retail Accounts which
shall be serviced exclusively by Supplier), and Distributor hereby accepts
such appointment. Notwithstanding the foregoing, Supplier may
permit Distributor to sell to certain Travel Retail Accounts on a case by
case basis as Supplier may, in its sole and absolute discretion, designate
in writing from time to time.
|
2.2
|
Distributor
shall purchase all Products directly from Supplier, or from one or more
other sources nominated in writing by Supplier, subject to Distributor’s
right to purchase Products (a) from other distributors with which Supplier
has contracted for the distribution of the Products (“Approved
Distributors”) that are located in Switzerland, the European Union, the
European Economic Area or any other country with which the European Union
has concluded a free trade agreement (in the aggregate, the “European
Area”) and (b) from approved retailers that satisfy the conditions set
forth in Section 8.2 hereof (“Approved Retailers”) located in the European
Area (provided that prior to exercising such right Distributor receives
written confirmation from Supplier that each such other distributor is an
Approved Distributor and that each such retailer is an Approved Retailer).
Such Approved Distributors and Approved Retailers, only, are included
within and comprise the HB selective distribution
network.
|
|
2.3 Distributor
shall sell the Products only to Approved Retailers in the Territory and,
within the European Area, only within the HB selective distribution
network. Distributor shall refrain, outside the Territory and
in relation to the Products, from actively soliciting orders, establishing
any branch or maintaining any distribution depots. In no event
will Distributor sell or continue selling Products to any retailer that
does not satisfy the conditions in Section 8.2 of this
Agreement.
|
2.4
|
Distributor
shall use reasonable commercial efforts to advertise, promote, market,
distribute and sell the Products in the Territory. Without
limiting the generality of the foregoing, Distributor shall at all times
maintain adequate stocks of Products to meet demand for the Products in
the Territory by those retailers, if any, not being direct shipped by
Supplier and Distributor will use reasonable efforts to avoid accumulating
excess inventory not in line with its forecasts. Distributor shall
maintain an adequate sales force for the effective distribution and sale
of the Products in the Territory including at least one (1) full time
watch division manager to supervise/manage a dedicated sales manager and
sales executive for the Products, experienced in managing a watch
distribution business and one (1) full time marketing manager working on
the advertising and promotion of the
Products.
|
2.8
|
During
the term of this Agreement Distributor shall not directly or indirectly
distribute any other watch brands which, in the determination of Supplier,
compete with the Products in the Territory. No other brand
licensed to MGI or any Affiliate of MGI shall be deemed to compete with
the Products.
|
2.9
|
The
parties acknowledge that under the Joint Venture Agreement each of Swico
and MGI, as the only shareholders of Distributor, has the right under
section 15.2 of the JV Agreement, to dissolve, or to purchase the other’s
interest in, Distributor. Accordingly, if either Swico or MGI (the
“Non-breaching Party”) elects under the foregoing provision of the JV
Agreement to purchase the other party’s interest in,
Distributor and (a) written notice from Swico and MGI confirming such
election has been provided to Supplier and Distributor and (b) the
Non-breaching Party also notifies Supplier that it wishes this Agreement
to be assigned, then effective upon the date specified in such notice from
the Non-breaching Party (or, absent the specification of any date, then as
soon as reasonably practicable) Supplier shall assign all of Distributor’s
right, title and interest in and under this Agreement to such
Non-breaching Party or to any Affiliate of such Non-Breaching Party as
specified in such notice. Distributor hereby grants Supplier a power of
attorney for purposes of Supplier executing and delivering on behalf of
Distributor any and all documents or other instruments necessary to effect
such assignment.
|
3.3
|
From
time to time Distributor shall submit purchase orders for the Products to
Supplier. All purchase orders shall be subject to acceptance by
Supplier, which acceptance may, at Supplier’s option, be evidenced by the
issuance of written confirmations or acknowledgments. Supplier hereby
reserves the absolute right to reject the whole or any part of any
purchase order for any commercially valid reason, including, without
limitation, Distributor’s credit condition or its accumulation of excess
or non-current inventory or its failure otherwise to adhere to the terms
and conditions of this Agreement, notwithstanding that any such rejection
may prevent Distributor from achieving its Minimum Purchase Requirements.
Subject to Sections 3.2 and 11.1, all purchase orders shall be irrevocable
after acceptance by Supplier; provided, however, that Distributor may
reschedule or cancel that portion of any purchase order pertaining to
Products which Supplier fails to deliver as confirmed within thirty (30)
days after the later of the advised delivery date or shipping date.
Distributor will provide Supplier with a four (4) month rolling forecast
of its anticipated order volume monthly by SKU, for the four (4) month
period. Supplier will use reasonable efforts to deliver the
Products ordered in accordance with the forecast within three (3) months
after acceptance of the purchase order by Supplier and to deliver all
other Product orders within three (3) to five (5) months after acceptance
of the purchase order. As soon as is reasonably practicable
after acceptance of each purchase order, Supplier shall advise Distributor
of the shipping dates applicable to such order. All shipping
dates so advised are estimates only and Supplier shall not have any
liability for failure to actually ship by such dates or to deliver by
Distributor’s requested delivery dates. Supplier shall notify
Distributor in the event of any anticipated delay in shipping dates of
thirty (30) days or more. Each order submitted by Distributor will specify
a “ship to” address which shall be Distributor’s address or the address
for one of Distributor’s customers.
|
3.4
|
The
purchase prices for all Products purchased by Distributor shall be in
Euros and based on Supplier’s recommended retail price in effect in the
European Union as of the date of shipment. Such prices shall be calculated
based on the discount structure as set forth on Schedule A annexed hereto.
Supplier will provide current price lists for the Products to Distributor
from time to time and shall have the right to modify such prices at any
time; provided, however, that no price increase shall become effective
sooner than sixty (60) days after written notice thereof to
Distributor. Supplier will give Distributor prior notice of all
such price changes. For all orders shipped before the effective date of
any price increase, the applicable price shall be the price in effect on
the date of shipment. With respect to orders for the Products
that have been accepted by Supplier but which have not been shipped as of
the effective date of a price increase, the applicable price shall be the
price in effect on the date of shipment; provided that if the price
increase is more than ten percent (10%) of the last applicable price,
Distributor shall have the right within ten (10) days from the effective
date of the price increase to cancel all or any part of the order for the
Products subject to such price increase upon notice to Supplier. All
prices are ex-works Supplier’s distribution
facility.
|
6.
|
MINIMUM
TURNOVER REQUIREMENTS
|
4.1
|
Each
contract year for the duration of this Agreement, Distributor will make
minimum sales of Products in the Territory (“Minimum Turnover
Requirement”) equal to at least sixty percent (60%) of the amount of
Product sales as budgeted in the Business Plan annexed to the JV
Agreement.
|
|
4.2 Sales
in excess of the Minimum Turnover Requirement in any contract year shall
be neither carried over nor credited toward the Minimum Turnover
Requirement of a subsequent contract
year.
|
5.
|
ADVERTISING
AND PROMOTION
|
5.1
|
As
used herein “advertising” means only the publication in print or broadcast
media of advertisements approved by Supplier and “promotion” means all
other forms of Product promotion, other than advertising, approved by
Supplier including, without limitation, point of sale material, co-op
advertising, marketing, public relations, special events and the like. In
no event may Distributor create, place, or in any manner whatsoever
conduct any advertising for the Products, for which, as between the
parties hereto, Supplier has sole responsibility. All promotions
(including, without limitation, the methods, selection, layouts, venue and
timing thereof) shall be subject to the prior written approval of
Supplier. Distributor shall submit all proposed promotion
materials for approval at least four (4) weeks prior to the first
anticipated use thereof and shall not engage in any promotion or use any
such materials without Supplier’s prior written approval. Unless otherwise
expressly approved in writing by Supplier, Distributor will use only such
materials including, without limitation, point of sale material,
packaging, advertising and ancillary material furnished or approved by
Supplier.
|
|
5.2 Distributor
shall conduct all promotion of the Products in the Territory at its own
expense, and Supplier will contribute towards the advertising and the
promotion of the Products in the Territory as hereinafter provided. At a
minimum, Distributor shall expend, for approved promotion, an amount equal
to (a) * of Distributor’s budgeted sales of Products
for such contract year; plus (b) that portion of Supplier’s A/P Amount
(defined below) allocated by Supplier to promotion. Distributor’s budgeted
sales of Products for the first through the fifth contract years are set
forth in Annex D to the JV Agreement and Distributor’s budgeted sales each
contract year thereafter shall be as contained in the annual business plan
and budget as adopted in accordance with the provisions of the JV
Agreement at or before the beginning of each contract year, or, at such
time, if any, that the JV Agreement is no longer in effect, then as
approved by Distributor in good faith consultation with Supplier, and may
be adjusted in the same manner quarterly. So long as Distributor satisfies
its obligation in respect of promotion set forth in this section 5.2 each
contract year, then Supplier will spend - on advertising and/or
promotion for the Products - an amount equal to * of the Net
Invoiced Cost of Distributor’s Product purchases in such year (“Supplier’s
A/P Amount”), of which, an amount equal to at
least * of the Net Invoiced Cost of Distributor’s
Product purchases in
|
|
such
year will be spent by Supplier for media advertising of the Products in
the Territory (“Media Component of Supplier’s A/P Amount”). Distributor
acknowledges that the way the Media Component of Supplier’s A/P Amount,
will be spent by Supplier is that Supplier will pay such amount directly
to HB or its Affiliates under the HB License; Supplier will not pay such
amount as a reimbursement to Distributor. For purposes of this Agreement,
“Net Invoiced Cost” means the invoiced price actually paid by Distributor
to Supplier net of all discounts, all costs referred to in Section 3.3
hereof, all credits for returns and all uncollected amounts. Any portion
of Supplier’s A/P Amount allocated by Supplier to promotion shall be
credited to Distributor’s account semi-annually, provided that within
thirty (30) days after the end of each such period, Distributor submits a
statement to Supplier setting out and showing Distributor’s promotion
expenditures incurred during such period (supported by invoices and other
documents reasonably acceptable to Supplier, substantiating the
expenditures for Distributor’s approved promotion); and provided further
that such costs are no less, on a proportionate basis, than the minimum
required expenditures set forth in this Section 5.2. In the event
Distributor’s actual Product sales for any contract year (other than the
final contract year of this Agreement) exceed the total budgeted sales for
such year on which its promotion expenditures for such year were based,
then Distributor shall spend an amount equal to six percent (6.0%) of such
excess in each contract year
thereafter.
|
6.
|
MARKETING
|
6.1
|
Quarterly
(beginning with the quarter ending July 31, 2007 and from time to time at
the reasonable request of Supplier, Distributor shall furnish Supplier
with a comprehensive written report in reasonable detail regarding (i) the
advertising, promotions, distribution and sales of the Products for the
immediately proceeding quarter or such other relevant period as Supplier
may reasonably request; (ii) Distributor’s market analysis; and (iii) such
other matters as Supplier shall
request.
|
6.2
|
Distributor
will consult with Supplier, as Supplier shall reasonably request for
purposes of determining a marketing plan for distribution of the Products
in the Territory each year. Such plan shall be followed by
Distributor.
|
6.3
|
Distributor
shall promptly notify Supplier of any significant changes in Distributor’s
sales forecasts and shall furnish Supplier such information related to
sales, sales forecasts, warranty claims and inventories of Products as may
be reasonably requested from time to time by
Supplier.
|
7.1
|
Distributor
shall establish and maintain, at its expense, such number of authorized
service facilities for the service and repair of the Products in the
Territory (the “Service Center(s)”) as Supplier may reasonably request, it
being understood that initially there shall be one (1) such Service
Center. Distributor shall accept all Products for service,
returned by any consumer or retailer in the Territory for service whether
covered by the applicable consumer warranty (“warranty repairs”) or not
covered by said warranty (“out-of-warranty repairs”). Distributor shall
purchase from Supplier, or from one or more parts distributors designated
in writing by Supplier, and maintain an adequate stock of component parts
and materials and employ at each Service Center such number of qualified
service technicians necessary to perform such service in a timely manner.
All shipping charges, including any duty, or Customs brokerage fees, for
such parts shall be paid by Distributor. Supplier shall have
the right to furnish parts to Distributor in the form of finished watches.
Within sixty (60) days after the end of each contract year, provided
Distributor has complied with all its obligations hereunder, Supplier will
issue a credit to Distributor equal to one percent (1%) of the Net
Invoiced Cost of the Products purchased by Distributor in such prior
contract year; provided that Supplier will review this amount annually in
light of the actual average incidence of warranty
repairs.
|
7.2
|
Within
thirty (30) days after the Effective Date, Distributor will furnish
Supplier with Distributor’s initial price list for all out of warranty
repairs. Distributor will give Supplier no less than ninety (90) days
prior written notice of any change to any such
prices. Distributor shall submit to Supplier quarterly, a
statement summarizing all out of warranty repairs and all warranty repairs
performed in the immediately preceding quarter indicating for each watch
repaired the:
|
(b)
|
Correct
style number;
|
(c)
|
Complete
description of work performed; and
|
7.3
|
Distributor
will use only those parts (excluding batteries) for service on the
Products which are supplied directly by or otherwise approved in writing
by Supplier as original equipment for the
Products.
|
8.
|
TRADE
PRACTICES
|
8.1
|
Distributor
shall sell the Products at competitive levels, at wholesale in accordance
with generally accepted customs in the trade and shall refrain from using
selling methods or practices which shall be harmful to the reputation of
the Products, Supplier or the Trademarks. Distributor’s right
to determine the prices of reselling and to employ conditions of trade at
its exclusive discretion remains
unaffected.
|
8.4
|
Distributor
may sell Products only to those specialty shops, department stores and
retail
outlets (including
those that sell directly to the consumer) that satisfy Supplier’s
objective criteria for approved retailer status as set forth on Schedule B
annexed hereto, such satisfaction to be evidenced by written approval to
Distributor from Supplier as provided in this Section 8.2. Upon execution
of this Agreement, and prior to the opening of each selling season (and
whenever Distributor wishes to sell Products to retail customers not
previously approved by Supplier), Distributor must submit a list of such
proposed retail customers (not including previously approved retail
customers) for Supplier’s written approval. Supplier has the right to
withdraw any such approval on written notice to Distributor, provided,
however, that Supplier will not withdraw approval of a retail customer
that is then authorized to carry and carrying any HB products unless
Supplier is reasonably dissatisfied with the display, delivery or
inventory model of Products of such retail customer. After such notice,
Distributor may not accept additional orders for Products from such retail
customer, but may fill any existing order. Once each quarter, Distributor
shall provide Supplier with a list of the retailers in the Territory that
purchased Products in the immediately preceding quarter containing the
addresses of their sales outlets, it being understood that such list is of
a confidential nature and shall be for the sole use of Supplier and, if
requested, HB and shall be kept confidential by Supplier and shall not be
disclosed by Supplier to any person whatsoever, other than employees of
Supplier and HB whose performance of their duties require the disclosure
of such list to them.
|
8.5
|
Except
as expressly permitted by Supplier in writing, Distributor may not (a)
sell Products directly to the public in retail stores; (b) use Products as
giveaways, prizes or premiums, except for promotional programs which have
received the prior written approval of Supplier; or (c) sell Products to
any Affiliate of Distributor or any of its directors, officers, employees
or any person having an equity participation in or any other affiliation
to Distributor, other than to Distributor’s employees or other
representatives for their personal use, without the prior written approval
of Supplier. Supplier may, at Distributor’s expense, purchase any Products
found in the marketplace that Distributor has sold to unapproved customers
in violation of this Section 8.3 or Section 2.3. Distributor
shall include and enforce the following on all invoices to its retail
customers: “Limitations on Sale by Buyer: Seller expressly reserves the
right to limit the amount of merchandise delivered to only such quantities
as are necessary to meet the reasonably expected demand at Buyer’s store
locations. This Merchandise is sold to Buyer for resale to the ultimate
consumer and/or within the HB selective distribution network and only from
such store locations as have been approved in writing by
Seller. Buyer shall be expressly prohibited from selling the
merchandise purchased hereunder to a retailer or other dealer in like
merchandise, or to any party who Buyer knows, or has reason to know,
intends to resell the merchandise and is not a member of the HB selective
distribution network . The merchandise purchased hereunder may not be sold
by Buyer from any store locations which Seller has advised Buyer do not
qualify as an acceptable location”.
|
9.
|
PROTECTION
OF INTERESTS; TRADEMARKS
|
9.5
|
Distributor
shall protect and at all times seek to promote Supplier’s best interests
in the Territory and shall immediately notify Supplier of any fact or
situation which may be or may be reasonably presumed to become detrimental
to Supplier or to its good will, copyrights, patents, or to the Trademarks
or other intellectual property rights of Supplier or
HB. Distributor shall have the exclusive right to use the
Trademarks in connection with distribution of the Products in the
Territory for the term hereof and solely for the limited purpose of and
only to the extent necessary for performing its obligations hereunder and
for no other purpose. Distributor agrees that it shall have no
rights with respect to the Trademarks in connection with the Products
except only as expressly and specifically set forth herein and that its
every use shall inure exclusively to the benefit of HB and that
Distributor shall not, at any time, acquire any rights therein or
challenge the validity thereof. Distributor further agrees at
no time to use any of the Trademarks or other intellectual property rights
owned by or licensed to Supplier in a manner not authorized by Supplier.
Distributor shall not apply to register, nor shall Distributor use or
permit the use of, any name, logo, mark or tradedress which is confusingly
similar to any of the Trademarks or do any act or thing, or permit any act
or thing to be done, which may in any way impair, dilute, reduce the value
of the Trademarks or damage the goodwill relating to the
Trademarks
|
9.6
|
If
requested by Supplier, in writing, the Distributor shall assist and
cooperate with Supplier, its counsel and agents as so requested, in
connection with any matters involving any of Supplier’s intellectual
property rights in the Territory including without limitation, in any
legal proceedings and any out-of-pocket expenses incurred by the
Distributor in connection with litigation in which the Distributor
participates at the request of Supplier shall be reimbursable to the
Distributor and any recoveries from any such litigation or the settlement
thereof shall belong exclusively to Supplier; provided, however, that
Supplier shall have the exclusive right (but not the obligation) to take
such action against third parties in the respect of the Trademarks and all
other intellectual property rights of
Supplier.
|
9.3
|
In
the event that Distributor sells any Products outside the Territory in
violation of Section 2.3 hereof, then Supplier may, at its sole option, in
addition to all other rights and remedies available to it, repurchase all
or any portion of such Products. Within ten (10) days after
receipt of a statement from the Supplier listing all such Products
purchased, together with a list of the model numbers, and setting forth
Supplier’s out-of-pocket costs incurred in connection with such purchase,
Distributor shall reimburse Supplier such out-of-pocket
costs Distributor acknowledges that such payment is not a
penalty but fair compensation to Supplier’s for breach of this Agreement
and damage to Supplier goodwill and
tradename.
|
10.
|
TERM
AND TERMINATION
|
|
10.2In
the event (a) this Agreement is assigned to Swico, MGI or to an Affiliate
of Swico or MGI in accordance with Section 2.6 hereof, or (b) either Swico
or MGI purchases all of the other’s interest in Distributor under Section
15.2.2 of the JV Agreement or (c) Swico, its Affiliates or Permitted
Transferees (as such term is defined in the JV Agreement) otherwise
acquire control of Distributor, then this Agreement shall continue from
the date of such assignment, purchase and/or acquisition, as the case may
be, until the third anniversary of such date at which time this Agreement
shall expire and neither party shall have any further obligation to the
other hereunder except as to those obligations which by their express
terms survive beyond the expiration or termination of this Agreement.
Following any assignment, purchase or acquisition referred to in Section
10.1, this Agreement may be terminated by either party hereto upon prior
written notice to the other party:
|
|
(i)
|
in
the event such other party shall have breached any of the terms and
conditions hereof and, if remediable shall have failed to remedy such
breach within sixty (60 ) days after the notification of the
breach by the non-breaching party;
or
|
10.5
|
In
addition to any other rights of termination provided hereunder, Supplier
may terminate this Agreement immediately by notice to Distributor if
Distributor (i) fails to satisfy the Minimum Turnover Requirement for any
contract year; (ii) fails to satisfy its minimum promotion expenditures in
Section 5.2 in any contract year; (iii) fails to comply with the payment
terms in Section 3.3; (iv) breaches any of the covenants contained in
Article 8 or Article 9 hereof or (v) transfers or attempts to transfer a
substantial part of its business to a third party or attempts to assign
this Agreement to a third party (or relinquishes control of any previously
approved assignee under Section 13.5) or has its business merged or
consolidated with a third party without the prior written consent of
Supplier.
|
|
11.
|
EFFECTS
OF TERMINATION
|
|
11.1
|
Upon
the expiration of this Agreement or its termination by Supplier, Supplier
may, at its sole discretion, reject all or part of any outstanding orders
received or accepted by Supplier.
|
|
11.2
|
Upon
expiration or termination of this Agreement for any
reason:
|
|
(i)
|
Any
sums due and owing by either party to the other shall become immediately
due and payable, and such sums shall be paid
forthwith.
|
|
(ii)
|
Supplier
may immediately appoint a successor to Distributor in the Territory and
announce the change of its distributorship to the
public.
|
|
(iii)
|
Distributor
shall take a physical inventory of all Products in stock and submit a
report of such inventory to Supplier. Supplier shall have the
right to have a representative present to verify such
inventory. Supplier shall be entitled but not obligated to take
over any portion or all Products remaining in stock from Distributor at
the price in currency originally paid by Distributor to Supplier, plus the
cost of shipping and insurance. Upon notice to Distributor of Supplier’s
election to buy back any or all such inventory, Distributor shall
cooperate as requested by Supplier for the packing and shipping of such
inventory. Distributor may sell any Products not taken over by
Supplier for six (6) months after the termination of this Agreement or
such shorter period as notified by Supplier subject to all the provisions
hereof, including, without limitation, Article
8.
|
|
(iv)
|
Distributor
shall immediately cease all use of the Trademarks; provided, however, that
Distributor may continue to use the Trademarks solely in connection with
the sale of the Products pursuant to Section 11.2(iii) above and in such a
way as not to impair, dilute, reduce the value of or damage the goodwill
relating to the Trademarks.
|
|
(v)
|
Any
advertising or promotion must be at the discretion of Supplier and must be
approved by Supplier.
|
(viii)
|
Distributor,
at its expense, will return to Supplier all materials belonging to
Supplier and all proprietary data or confidential information furnished to
Distributor by Supplier during the term
hereof.
|
11.3
|
The
rights of termination granted herein are absolute and each party
acknowledges that it has considered and assumed as its own exclusive risk
the possibility of making expenditures of money and time in preparing for
the performance of this Agreement and possible loss or damage on account
of the loss of prospective profits or anticipated sales or on account of
expenditures, investments, leases, property improvements or commitments in
connection with the good will or business of the parties or otherwise
resulting from the proper termination hereof and that it is the express
intent and agreement of the parties that neither party properly
terminating this Agreement in accordance with the terms hereof (the
“terminating party”) shall be liable to the other for any claim, cost or
damages solely by reason of such termination. In the event of
such termination or expiration of this Agreement in accordance with the
terms hereof, the terminating party shall have no obligation or liability
to pay to the other, and such other party hereby expressly waives, any
statutory termination fee, any other right to compensation provided by law
arising solely as a consequence of such termination, and consequential
damages and lost profits arising solely on account of such termination or
expiration.
|
14.
|
INDEMNIFICATION
|
|
13.
|
GENERAL
TERMS AND CONDITIONS
|
|
13.1
|
Supplier
may, from time to time, designate in writing an Affiliate of Supplier to
exercise any of the rights or perform any of the obligations of Supplier
hereunder.
|
|
13.2
|
Neither
party shall have the power to represent the other party. For
purposes of this Agreement, Distributor is an independent contractor and
neither the agent nor the representative of Supplier or any of its
affiliated companies. Distributor, its employees, contractors
and Affiliates shall not act or represent themselves as agents or
representatives of, or as having the right, power or authority, express or
implied to assume or create any obligation or liability on behalf of
Supplier or any of its affiliated
companies.
|
|
13.3
|
Neither
party hereto shall be liable for any delay or failure in fulfilling the
obligations hereunder (except for the payment of money) when such delay or
failure is caused by riots, war (declared or not), or hostilities between
any nations; acts of God, fire, storm, flood or earthquake; strikes, labor
disputes, shortage or delay of carriers, or shortage of raw materials,
labor power or other utility services; any governmental restrictions; or
any other unforeseeable contingencies beyond the control of the
party.
|
13.6
|
Any
notice to be given pursuant to this Agreement shall be written in English
and shall be deemed duly given when sent by reputable overnight
international courier including FedEx, UPS or DHL to the respective
address first set forth above or by facsimile to the respective facsimile
number set forth below confirmed by letter as aforesaid, or to such other
address and/or facsimile number as a party hereto may designate by like
notice.
|
To
Supplier:
|
Fax: (
41 ) 32 9 123 101
|
|
Attn:
Mr. Xavier Gauderlot, General Manager – Hugo Boss
Watches
|
To
Distributor:
|
Fax:
|
|
Attn.:
|
|
Supplier’s
designated Affiliate under Section 13.1 shall be designated by notice to
Distributor, which notice shall include the address and facsimile number
of such Affiliate for purposes of giving notice
hereunder. Notice to Supplier’s designated Affiliate shall be
made and deemed duly given in the same manner as for notice to
Supplier.
|
13.7
|
In
view of the fact that this Agreement has been entered into because of the
confidence that Supplier has in Distributor, it is understood that the
terms and conditions hereof shall be performed by Distributor only and
that, except as expressly permitted in Section 2.6 hereof, this
Agreement may not be assigned, whether by operation of law or otherwise,
without the prior written approval of Supplier which Supplier may withhold
or grant in its sole and absolute discretion and any such purported
assignment by Distributor without such approval by Supplier shall be void
and of no effect. Following any such assignment, Distributor shall remain
obligated as a guarantor for all the payment obligations of the approved
assignee hereunder and any change in control of the approved assignee
without the approval of Supplier shall constitute a breach of this Section
13.5 and shall entitle Supplier to terminate the Agreement as provided
under Section 10.3.
|
|
13.6
|
The
captions of this Agreement are inserted solely for ease of reference and
are not deemed to form a part of or to modify the terms and conditions of
this Agreement.
|
|
13.7
|
This
Agreement shall be governed exclusively by the law of Switzerland without
reference to its conflict of laws rules and to the exclusion of the United
Nations Convention on Contracts for the International Sale of
Goods. Any dispute, controversy or difference which may arise
out of, in relation to, or in connection with this Agreement shall be
finally settled by arbitration in Geneva, Switzerland under the Rules of
Arbitration of the International Chamber of Commerce by three (3)
Arbitrators appointed in accordance with said rules. Each party
hereto shall be bound by any arbitration award so rendered and any
judgment upon such award may be entered as a non-appealable final, foreign
judgment in any court having jurisdiction thereon. The language
of the proceedings shall be
English.
|
|
13.8
|
When
interpreting the terms and conditions of this Agreement, the English
language shall be applied
exclusively.
|
13.11
|
This
Agreement, including the terms and conditions incorporated by reference in
Section 3.3 hereof, constitutes the entire agreement of the parties with
respect to the subject matter hereof and prevails over and supersedes all
prior agreements, whether written or oral, relating to the subject matter
hereof and may not be altered, waived, modified, or discharged except by
an express writing referring to this Agreement signed on behalf of the
parties hereto by their duly authorized representatives. In the event of
any conflict or inconsistency between this Agreement and the JV Agreement,
the latter shall control.
|
13.10
|
The
failure of either party hereto to enforce at any time any of the
provisions or terms of this Agreement, or any rights in respect thereof,
or the exercise of or failure to exercise by either party any rights or
any of its elections herein provided, shall in no way be considered to be
a waiver of such provisions, terms, rights or elections or in any way to
affect the validity of this
Agreement.
|
13.11
|
In
connection with this Agreement, the parties may from time to time exchange
proprietary data or confidential information. The parties agree
to keep in confidence all such proprietary data or confidential
information received in accordance with this Agreement and to use the same
only in connection with the performance of this Agreement. This
provision shall survive the termination or expiration of this
Agreement.
|
13.12
|
Should
any provision of this contract held invalid, incomplete or unenforceable,
this will not affect the validity of the remaining
provisions. Supplier and Distributor undertake to replace the
invalid incomplete or unenforceable provision by provision which comes
closest to the commercial goal that the parties intended to achieve on the
conclusion of this agreement by the invalid, uncompleted and unenforceable
provision. Notwithstanding anything to the contrary contained herein, in
the event of any conflict or inconsistency between any term or provision
of this Agreement and the HB License, the latter shall
control.
|
13.13
|
Supplier
shall have the right to injunctive relief to enforce the covenants,
agreements and obligations of Distributor hereunder in addition to any
other relief to which Supplier may be entitled at law or in
equity.
|
13.16
|
Each
order deliverable under this Agreement shall be deemed sold under a
separate contract. Non-delivery or default by Supplier as to
any order shall not be deemed a breach of the
entire
|
13.15
|
Distributor
shall comply with all applicable laws, rules and regulations in the
Territory, including, without limitation, the provisions of Directive
2002/96/EC
,
which governs waste electrical and electronic equipment, including all
related amendments and all laws, rules and regulations in the Territory
related thereto. Distributor shall provide Supplier with
evidence of any such compliance upon
request.
|
Title:
__________________________
|
Title:
_____________________________
|
Name:
_________________________
|
Name:
____________________________
|
|
SCHEDULE
A
|
|
DISTRIBUTOR
DISCOUNT SCHEDULE
|
|
SCHEDULE
B
|
|
OBJECTIVE
CRITERIA FOR APPROVED RETAILER
STATUS
|
13.
|
EXTERNAL
ELEMENTS
|
A.
|
Location/Street
|
B.
|
Appearance
|
C.
|
Shop
Windows
|
(iii)
|
Windows
provide sufficient space to display a representative selection of HB brand
products
|
(iv)
|
Professionally
maintained and attractive window
decoration
|
14.
|
INTERNAL
ELEMENTS
|
A.
|
General
Outfitting
|
B.
|
Presentation
Showcases
|
|
(iv)
|
HB
products are grouped together and displayed separately from other
brands
|
15.
|
OTHER
PRODUCTS
|
A.
|
Premises
used solely for the retail sale of quality watches, jewelry, fashion
accessories and/or fashion apparel.
|
B.
|
HB
products displayed to prevent confusion with any other brands
products.
|
C.
|
Retailer
also sells at least two (2) Swiss watch brands or any three (3) of the
following fashion/designer/prestige watch brands: Emporio
Armani, Diesel, DKNY, Kenneth Cole, Versace, Puma, D&G, CK, Sector,
Briel, Guess, Lacoste
|
16.
|
PRESENTATION/PROMOTION
|
A.
|
Visual/Collateral
|
(i)
|
Brand
visuals properly presented and changed out seasonally or whenever
requested by brand
|
B.
|
Advertising
|
(i)
|
Dealer’s
advertising is consistent with the quality requirements of the
brand
|
(ii)
|
Dealer
agrees to conduct co-op advertising on the basis of an agreed and shared
budget and media plan
|
C.
|
Personnel/Customer
Service
|
(i)
|
Sales
staff with good knowledge of HB brand and
products
|
(ii)
|
Available
for regular training on brand and new
products
|
(iii)
|
Well
dressed, groomed and polite
|
(iv)
|
Capacity
to advise customer on how to operate products
correctly
|
(v)
|
Able
to carry out simple adjustments (e.g. sizing metal
bracelets)
|
17.
|
REPORTING
|
A.
|
Provides
clear and comprehensive information
|
B.
|
Provides
information on sales and stock
situation
|
C.
|
Provides
monthly sales reports by sku
|
D.
|
Provides
immediate information on problems with
products
|
18.
|
FINANCES
|
A.
|
Good
payment record
|
B.
|
Creditworthy
|
C.
|
Sound
finances
|
1)
|
that
proper and reasonable notice of the meeting and of the proposal to
conduct it in accordance with this Clause shall have been given
to all persons who are entitled to attend meetings of Directors;
and
|
2)
|
that
written minutes of and the transcripts of all resolutions of the Directors
at all meetings of Directors which shall be conducted in accordance with
this Clause shall be certified in writing by all the participating
Directors by electronic communication or otherwise to be
correct. The reference to “resolutions” in this sub-clause b)
means any proposed resolution which to be valid requires proper
certification in accordance with this
Clause.
|
1)
|
I
have reviewed this annual report on Form 10-K of Movado Group,
Inc.;
|
2)
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3)
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
4)
|
The
registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
a)
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
b)
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
c)
|
Evaluated
the effectiveness of the registrant's disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
d)
|
Disclosed
in this report any change in the registrant's internal control over
financial reporting that occurred during the registrant's most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial
reporting; and
|
5)
|
The
registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent
functions):
|
a)
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information;
and
|
b)
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
|
1)
|
I
have reviewed this annual report on Form 10-K of Movado Group,
Inc.;
|
2)
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3)
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
4)
|
The
registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
a)
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
b)
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
c)
|
Evaluated
the effectiveness of the registrant's disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
d)
|
Disclosed
in this report any change in the registrant's internal control over
financial reporting that occurred during the registrant's most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial
reporting; and
|
5)
|
The
registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent
functions):
|
a)
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information;
and
|
b)
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
|
Date: April
9, 2009
|
/s/ Efraim Grinberg
|
Efraim
Grinberg
Chairman
of the Board of Directors, President and
Chief
Executive Officer
|
Date: April
9, 2009
|
/s/ Sallie A.
DeMarsilis
|
Sallie
A. DeMarsilis
Senior
Vice President,
Chief
Financial Officer and
Principal
Accounting Officer
|
|