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EXHIBIT 10.1
May 11, 2000
VIA FACSIMILE AND FEDERAL EXPRESS
Mr. Gerald B. Wasserman
Chairman, President and Chief Executive Officer
The Hockey Company
3500 Blvd. de Maisonneuve Ouest
Suite 800
Westmount, Quebec H3Z 3C1
Canada
Re: PROPOSED NHL LICENSE FOR AUTHENTIC JERSEYS FOR 30 TEAMS AND OTHER PRODUCTS
Dear Gerry:
This letter agreement will confirm our agreement and understanding with respect
to the proposed license agreement between the NHLE entities listed below, on the
one hand (collectively, "NHLE"), and Sport Maska Inc. ("SPORT MASKA"), Maska
U.S., Inc. ("MASKA U.S."), Jofa AB and KHF Finland Oy, on the other hand
(collectively, "THC"), for authentic jerseys for the 30 NHL member teams and
certain other products (the "LICENSE").
The parties acknowledge that pursuant to a letter agreement dated September 25,
1998, as amended on October 27, 1998 (the "1998 LICENSE"), NHLE has previously
granted to Sport Maska and Maska U.S. certain rights to manufacture, sell and
market, among other products, authentic jerseys for 15 NHL member teams (the
"CCM TEAMS"), and that the proposed License described herein will modify the
existing rights of Sport Maska and Maska U.S. under the 1998 License. To the
extent not modified by this letter agreement, the terms and conditions set forth
in the 1998 License shall govern the License described herein.
All amounts set forth herein are in United States dollars.
I. BASIC TERMS OF THE PROPOSED TRANSACTION
1. GRANT OF RIGHTS. NHLE shall grant to THC an exclusive and, with respect to
the headwear products listed in Sections 1.d and 2.c of EXHIBIT A attached
hereto, non-exclusive License to manufacture, sell and market certain NHLE
products (the "PRODUCTS") under three (3) different brand names (CCM, Koho and
Jofa), all as described in such EXHIBIT A, subject to and in accordance with the
terms set forth herein and the terms of NHLE's Standard Terms and Conditions
substantially in the form set forth in EXHIBIT B attached hereto (the "STANDARD
TERMS AND CONDITIONS"). THC's brand names shall be placed on the back in the
upper third of the jersey Products, in a precise location and size to be agreed
upon by the parties.
During the Term, THC shall be the exclusive supplier on-ice of practice jerseys
and of jerseys and pants for NHL officials (i.e., referees and linesmen), all of
which Products shall be produced under the Jofa brand name.
2. TERM. July 1, 2000 through June 30, 2004, or as may be extended pursuant to
this Letter Agreement. Unless otherwise extended pursuant to Paragraph 17
hereof, the Term may be extended through June 30, 2005, (i) by NHLE if Earned
Royalties exceed the Minimum Guarantee (as such terms are defined below) for
each of the second and third years of the Term, and, (ii) by THC if Earned
Royalties are less than the Minimum Guarantee for each of the second and third
years of the Term. Notice of such extension must be delivered in writing by
September 1, 2003. Each period from July 1 of a particular year of the Term
through June 30 of the next succeeding year of the Term shall hereinafter be
referred to as a "License Year."
3. TERRITORY. Worldwide.
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4. TEAM ALLOCATION. All 30 NHL member teams, including the 15 CCM Teams and the
15 remaining NHL member teams (the "ADDITIONAL TEAMS"), as set forth on EXHIBIT
C attached hereto.
5. ROYALTIES. THC shall pay to NHLE as royalties the following percentages of
net sales:
a. authentic and Center Ice products: %
b. named/numbered jerseys: %
c. Licensed Blank Jerseys (as defined in Paragraph 1.a.v
of EXHIBIT A attached hereto): %
d. all other products: %.
THC shall pay Royalties on net sales and submit Royalty reports for each month
during the Term by the 20th day of the following month.
6. MINIMUM GUARANTEES. THC shall pay to NHLE annual Minimum Guarantees in the
following amounts:
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<CAPTION>
<S> <C> <C>
a. Year 1: $
b. Year 2: $
c. Year 3: $
d. Year 4: $
e. Year 5 (if applicable): $ .
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As security for THC's obligation to pay the Minimum Guarantees, THC shall
deliver to NHLE on or before June 15, 2000 an irrevocable standby letter of
credit for the benefit of NHLE in the amount of $ in a form acceptable to
NHLE and THC's bank, acting reasonably (the "LETTER OF CREDIT"). The Letter
of Credit (or a replacement letter of credit in a form identical to, and
subject to the same terms as, the Letter of Credit) shall remain open for the
Term or such longer period as may be necessary to satisfy THC's obligations
under the License. In the event that THC defaults by failing to pay in full
when due any Minimum Guarantee, or installment thereof, and fails to cure
such default in full within twenty (20) days of receipt of notice from NHLE,
NHLE may draw upon the Letter of Credit to satisfy such obligation of THC. In
the event that NHLE draws upon the Letter of Credit, THC shall be obligated
to replenish the Letter of Credit immediately. If THC shall fail to replenish
the Letter of Credit as required, NHLE shall have the right to terminate the
License. Notwithstanding anything to the contrary contained in the 1998
License, player pants shall be deemed to have been included in such 1998
License as one of the equipment categories under the Jofa brand name for
which THC shall pay the aggregate annual On-Ice Fee set forth in Paragraph
9.E of the 1998 License.
Royalties earned and paid to NHLE on sales during a particular License Year of
the Products listed in Paragraphs 5.a, 5.b and 5.d hereof shall be credited
towards the Minimum Guarantee due for such License Year. No other amounts
(including without limitation royalties earned on sales of the Products set
forth in Paragraph 5.c hereof and all fees ("ON-ICE FEES") paid by THC for the
right to supply NHL players with equipment on-ice bearing THC brand names during
NHL games) shall be credited towards the Minimum Guarantees due hereunder. The
parties agree that the payment of On-Ice Fees by THC shall continue to be
governed by Paragraph 9.E of the 1998 License.
THC shall be obligated to pay no less than the full amount of the annual Minimum
Guarantee for each License Year. If at the end of the Term (whether or not such
Term was shortened as a result of a Change of Control (as defined below)) there
have been both License Years in which THC has sold Products resulting in
Royalties ("EARNED ROYALTIES") which exceeded the Minimum Guarantee for such
year ("OVERAGES") and License Years in which Earned Royalties were less than the
Minimum Guarantee for such year ("SHORTFALLS"), then: (i) if the aggregate
amount of the Overages exceeds the aggregate amount of the Shortfalls, NHLE
shall refund to THC the aggregate amount of the Shortfalls; or (ii) if the
aggregate amount of the Shortfalls exceeds the aggregate amount of the Overages,
NHLE shall refund to THC the aggregate amount of the Overages.
7. ADDITIONAL PAYMENT FOR INSUFFICIENT SALES. If during the 2001-2002 License
Year Earned Royalties amount to less than fifty percent (50%) of the Minimum
Guarantee for such year, NHLE shall receive an immediate cash payment from
THC of $ , which shall be in addition to, and shall not be credited towards,
the Royalties, Minimum Guarantees or any other obligations of THC under the
License; PROVIDED, HOWEVER, that this provision shall not apply in the event
that the Minimum Guarantee due for either the 2001-2002 or the 2002-2003
License Year is reduced pursuant to Paragraph 17 hereof.
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8. GENERAL LEAGUE MARKETING COMMITMENT. During each License Year, THC shall
spend a minimum of $ on NHL marketing, as mutually agreed by NHLE and THC (the
"LEAGUE MARKETING COMMITMENT"), which shall be in addition to, and shall not be
credited towards, the Royalties, Minimum Guarantees or any other obligations of
THC under the License.
9. TEAM MARKETING COMMITMENTS. During each License Year, THC shall spend a
minimum of $ with each team on team marketing, as mutually agreed with each
such team (each, a "TEAM MARKETING COMMITMENT," and together, the "TEAM
MARKETING COMMITMENTS"). The Team Marketing Commitments shall be in addition
to, and shall not be credited towards, the Royalties, Minimum Guarantees or
any other obligations of THC under the License. An amount equal to $ of the
consideration payable under the annual Team Marketing Commitment for each
team (or more, if agreed with such team) may be paid in kind in THC hockey
equipment (as calculated at THC's wholesale price), to be used by such team
and its affiliates. The remainder of the consideration payable under the
annual Team Marketing Commitment for each team shall be paid in cash. THC's
marketing agreement with each team shall provide, unless otherwise agreed
with such team, that THC shall deliver the full amount of the annual Team
Marketing Minimum to such team, in the case of cash consideration, on or
before October 1 of each License Year, and, in the case of consideration in
kind, in accordance with purchase orders issued by such team, subject to
product availability and reasonable lead times.
10. ADDITIONAL PAYMENTS FOR KOHO SALES. At the end of each License Year, THC
shall pay to NHLE percent ( %) of the amount by which THC's gross revenues in
North America for Koho products other than the Products ("KOHO GROSS REVENUES")
for such year exceeded the Koho Gross Revenues for the twelve-month period ended
June 30, 2000. Such payments shall be in addition to, and shall not be credited
towards, the Royalties, Minimum Guarantees or any other obligations of THC under
the License.
11. PRODUCT PRODUCTION AND DELIVERY, AND MAINTENANCE OF PRODUCT INVENTORIES. For
each License Year, THC shall meet the Product production deadlines set forth in
EXHIBIT D attached hereto and the Product delivery deadlines set forth on
EXHIBIT E attached hereto, and shall maintain the Product inventories set forth
on EXHIBIT F attached hereto, subject to the conditions set forth in each such
exhibit.
12. HOT MARKET PRODUCTS. NHLE and THC shall negotiate in good faith to conclude,
during the Term, a separate, non-exclusive license authorizing THC to produce
one or more "hot market" products (e.g., for the 2002 NHL All-Star game).
13. OBLIGATION TO NEGOTIATE. The parties shall negotiate in good faith for a
period not to continue past December 31, 2000, unless otherwise agreed, to amend
the License and transfer some or all of the rights granted to THC pursuant
thereto to a joint venture entity to be owned by THC and NHLE. The basic terms
of such transaction, as agreed between the parties, are outlined on EXHIBIT G
attached hereto. In the event that the parties do not reach agreement on such an
amendment, the License shall remain in full force and effect.
14. QUALITY CONTROL, ETC. The Products and their manufacture, sale and
marketing, as well as certain other terms and conditions, shall be subject to
the Standard Terms and Conditions.
15. CHANGE OF CONTROL.
a. THC shall, in the event of a proposed Change of Control (as
defined below), request the prior written consent of NHLE, which
consent shall not be unreasonably withheld. NHLE shall, within
ten (10) business days of its receipt of a written request for
such consent, either: (i) grant such consent in writing; or (ii)
provide written reasons explaining its refusal to grant such
consent. In the event that THC or the entity acquiring control
is unable, within a reasonable period of time, to address such
written reasons to the satisfaction of NHLE, acting reasonably,
and the Change of Control is consummated, NHLE shall have the
right to terminate the License.
b. Change of Control shall mean: (i) any assignment, transfer or
sublicense of any or all of the rights granted in the License to
any third party; or (ii) any transaction or series of
transactions or any reorganization or similar event that results
in any entity or person other than an entity or person presently
having Effective Control (as defined below) (including without
limitation Wellspring Capital Management LLC) (x) acquiring more
than 49% of the equity interest, voting power or economic
interest of THC, or otherwise acquiring effective control of THC
(whether by contract, operation of law or otherwise)
(collectively,
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"EFFECTIVE CONTROL"), or (y) acquiring a substantial portion of
the operating assets of THC necessary to carry on its business
as presently conducted.
c. NHLE agrees that in exercising its right to consent or withhold
consent to any Change of Control, NHLE shall consider such
factors as the following, all of which are included by way of
illustration only, and further agrees that its consideration of
such factors shall be made at all times in good faith:
i. the compatibility of the proposed action and the
proposed assignee, transferee, sublicensee, pledgee or
purchaser, as the case may be (any such person being
referred to herein as the "PROPOSED PARTY"), with the
reasonable business objectives of NHLE and its
affiliates; PROVIDED, HOWEVER, that NHLE shall not
consider the compatibility of the Proposed Party with
the business objectives of any NHLE licensee other than
THC;
ii. the reputation of the Proposed Party within the Proposed
Party's business or industry for offering quality and
reliable services or products or both (as the case may
be);
iii. the financial strength of the Proposed Party; and
iv. the ability of the Proposed Party to fulfill or cause
THC to fulfill the obligations of THC under this letter
agreement, the License and the New Jofa License (as
defined below).
Notwithstanding the foregoing, THC shall not engage in or permit
to occur a Change of Control if the Proposed party has publicly
documented connections to legal or illegal gambling activity or
if any of the principal owners or officers of the Proposed Party
has been convicted in a criminal action.
d. In the event that NHLE withholds its consent to a proposed
Change of Control and a dispute arises as to whether such
consent was unreasonably withheld, THC may elect to have such
dispute settled on an expedited basis by binding arbitration. In
such an event, THC shall send written notice to NHLE of its
desire to arbitrate, and NHLE and THC shall jointly select an
arbitrator. If an arbitrator is not selected within ten (10)
days after NHLE's receipt of such notice from THC, the American
Arbitration Association in New York, New York shall select the
arbitrator. The arbitrator shall have financial or marketing
expertise in sports marketing and licensing. The arbitration
shall take place in New York, New York. The arbitrator shall
adopt the rules and procedures for commercial arbitration of the
American Arbitration Association. The arbitrator shall endeavor
to render a final decision within thirty (30) days of the
selection of the arbitrator. The arbitrator's judgment shall be
final and binding on the parties. Judgment on the arbitrator's
award may be entered in any court having jurisdiction. In the
event that THC does not elect to have such dispute settled by
binding arbitration, THC may proceed with any other legal
remedies it may have.
16. LICENSE FEE. THC shall pay to NHLE the sum of $ (the "LICENSE FEE") in five
(5) annual installments of $ each, which shall be delivered to NHLE on or
before June 15 of each year beginning with June 15, 2000 until the full License
Fee has been paid. The License Fee shall be in addition to, and shall not be
credited towards, the Royalties, Minimum Guarantees or any other obligations of
THC under the License.
17. WORK STOPPAGE. In the event that during a License Year any regular season or
playoff NHL games are not played as the result of a player strike, management
lockout or comparable work stoppage league-wide (a "WORK STOPPAGE"), the
following provisions shall apply (and there shall be no adjustment to any
amounts due hereunder other than as explicitly set forth in this Paragraph 17):
a. for purposes of this Paragraph 17: (i) the License Year during
which the Work Stoppage commences shall be referred to as the
"Work Stoppage License Year;" (ii) the regular season and
playoff NHL games not played as the result of a Work Stoppage
shall be referred to as the "Missed Regular Season Games" and
the "Missed Playoff Games," respectively; (iii) the total number
of regular season NHL games and playoff NHL games originally
scheduled for a particular License Year shall be deemed to be
one thousand two hundred thirty (1230) games and seventy-five
(75) games, respectively; (iv) each playoff series (i.e., a
two-team matchup) not played as the result of a Work Stoppage
shall count as five (5) Missed Playoff Games; and (vi) the
shortening of the maximum number of scheduled games for a
particular round of the playoffs from
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seven (7) to five (5) games shall count as one and one-half (1
1/2) Missed Playoff Games, and from seven (7) to three (3) games
shall count as three (3) Missed Playoff Games;
b. subject to Paragraph 17.h hereof, if there occur four hundred
sixty four (464) or fewer Missed Regular Season Games during the
Work Stoppage License Year, there shall be no adjustment to the
Minimum Guarantees, League Marketing Commitment or any other
amounts due hereunder;
c. if there occur four hundred sixty five (465) or more Missed
Regular Season Games during the Work Stoppage License Year, THC
shall be obligated to pay the full amount of the Minimum
Guarantee and the League Marketing Commitment due for such Work
Stoppage License Year, and the Minimum Guarantee and League
Marketing Commitment due for the License Year immediately
following the Work Stoppage License Year (the "POST WORK
STOPPAGE LICENSE YEAR") shall each be reduced by an amount equal
to the Minimum Guarantee or League Marketing Commitment, as
applicable, due for the Work Stoppage License Year multiplied by
a fraction, the numerator of which shall be the number of Missed
Regular Season Games in the Work Stoppage License Year and the
denominator of which shall be the total number of regular season
NHL games originally scheduled for the Work Stoppage License
Year;
d. if the Term has not been extended through June 30, 2005 pursuant
to Paragraph 2 hereof and (i) there occur four hundred sixty
five (465) or more Missed Regular Season Games during Year 4
(the 2003-2004 License Year) or (ii) a Work Stoppage is in
effect on February 28, 2004, THC shall have the right to extend
the Term through June 30, 2005, upon written notice to NHLE
within thirty (30) days after the termination of such Work
Stoppage has been formally announced by the NHL, but in no event
later than February 28, 2004;
e. if the Term has been extended for an additional License Year
(the "EXTENSION LICENSE YEAR") pursuant to Paragraph 2 hereof or
this Paragraph 17 and (i) there occur four hundred sixty
five (465) or more Missed Regular Season Games during the
Extension License Year or (ii) a Work Stoppage is in effect on
February 28 of the Extension License Year, THC shall have the
right to extend the Term through June 30 of the year immediately
following the Extension License Year, upon written notice to
NHLE within thirty (30) days after the termination of such Work
Stoppage has been formally announced by the NHL, but in no event
later than February 28 of the Extension License Year, on the
same terms as are provided hereunder for the 2004-2005 License
Year (and the Minimum Guarantee and the League Marketing
Commitment due for the year immediately following the Extension
License Year shall be reduced as set forth in this Paragraph
17);
f. if during the Post Work Stoppage License Year there occur four
hundred sixty five (465) or more Missed Regular Season Games,
THC shall be obligated to pay the full amount of the Minimum
Guarantee and League Marketing Commitment due for such Post Work
Stoppage License Year, as reduced pursuant to Paragraph 17.c
hereof, and the reduction in the Minimum Guarantee and the
League Marketing Commitment due for the License Year immediately
following such Post Work Stoppage License Year shall be
calculated as set forth in such Paragraph 17.c using such
reduced Minimum Guarantee or League Marketing Commitment, as
applicable, for such Post Work Stoppage License Year;
g. if there occur four hundred sixty five (465) or more Missed
Regular Season Games during each of two (2) consecutive License
Years, THC shall have the right, upon written notice to NHLE
within thirty (30) days after the termination of such Work
Stoppage has been formally announced by the NHL, but in no event
later than February 28 of the second of such two License Years,
to:
i. extend the Term by an additional year through June 30,
2005, or June 30, 2006 or June 30, 2007 on the same
terms as are provided hereunder for the 2004-2005
License Year, as applicable, in each case with no
obligation to pay Minimum Guarantees or the League
Marketing Commitment for such additional year; or
ii. elect to receive, in any one (1) of the five (5) years
following the Term, as THC shall decide in its sole
discretion, a semi-exclusive one-year license from NHLE
to be one of up to three (3) suppliers licensed to
manufacture, sell and market authentic jerseys. Ten (10)
NHL member teams shall be allocated to THC under such
license. The terms of such license shall consist of
terms substantially
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similar to the terms of this License; PROVIDED, HOWEVER,
that THC shall have no obligation under such license to
pay Minimum Guarantees or the League Marketing
Commitment.
h. if there occur four hundred sixty four (464) or fewer Missed
Regular Season Games during each of two (2) consecutive License
Years such that the total of such Missed Regular Season Games
over such two years is equal to or greater than four hundred
sixty five (465) Missed Regular Season Games, THC shall be
obligated to pay the full amount of the Minimum Guarantee and
the League Marketing Commitment due for the Work Stoppage
License Year (the first of such two years), and the Minimum
Guarantees and the League Marketing Commitment due for the Post
Work Stoppage License Year (the second of such two years) and
the License Year immediately following the Post Work Stoppage
License Year shall be reduced as set forth in Paragraphs 17.c
and 17.f hereof, respectively; PROVIDED, HOWEVER, that if in
such event the Post Work Stoppage License Year is the final year
of the Term, THC shall have the right to extend the Term through
June 30 of the year immediately following the Post Work Stoppage
License Year, upon written notice to NHLE within thirty (30)
days after the termination of the Work Stoppage in the Post Work
Stoppage License Year has been formally announced by the NHL,
but in no event later than February 28 of the Post Work Stoppage
License Year, on the same terms as are provided hereunder for
the 2004-2005 License Year (and the Minimum Guarantee and the
League Marketing Commitment due for the year immediately
following the Post Work Stoppage License Year shall be reduced
as set forth in this Paragraph 17);
i. if there occur any Missed Playoff Games in only one round of the
NHL playoffs during the Work Stoppage License Year, there shall
be no adjustments to the Minimum Guarantees, the League
Marketing Commitment or any other amounts due hereunder, other
than as provided in this Paragraph 17 in the event that there
occur Missed Regular Season Games; and
j. if there occur any Missed Playoff Games in more than one round
of the NHL playoffs during the Work Stoppage License Year, the
Minimum Guarantee and the League Marketing Commitment due for
the Post Work Stoppage License Year shall be reduced by an
amount equal to fifteen percent (15%) of the Minimum Guarantee
or the League Marketing Commitment, as applicable (in each case,
before any reduction pursuant to this Paragraph 17), due for the
Work Stoppage License Year, multiplied by a fraction, the
numerator of which shall be the number of Missed Playoff Games
during the Work Stoppage License Year, and the denominator of
which shall be the total number of playoff NHL games originally
scheduled for the Work Stoppage License Year. Any reduction in
Minimum Guarantees and the League Marketing Commitment pursuant
to this Paragraph 17.j shall be in addition to any reduction in
Minimum Guarantees and the League Marketing Commitment provided
for elsewhere in this Paragraph 17 in the event that there occur
Missed Regular Season Games.
k. The following examples are provided by way of illustration only
and each assumes that the 2002-2003 License Year is the Work
Stoppage License Year:
i. if, in the Work Stoppage License Year, the first round
of the playoffs is not played, or if the maximum number
of scheduled playoff games for each series in such first
round is reduced (e.g., from seven (7) games to five (5)
games), there shall be no adjustments to the Minimum
Guarantees, the League Marketing Commitment or any other
amounts due hereunder;
ii. if, in the Work Stoppage License Year, both the first
and second rounds of the playoffs are not played due
to a Work Stoppage, the number of Missed Playoff
Games shall be sixty (60) games, which is calculated
as follows: 8 first round series multiplied by 5
games for a total of 40 games, plus 4 second round
series multiplied by 5 games for a total of 20 games,
for an aggregate total of 60 games. Accordingly, the
Minimum Guarantee, for example, for the Post Work
Stoppage License Year shall be reduced by $ , which
is calculated as follows: 15% multiplied by $
million (the Minimum Guarantee due for the Work
Stoppage License Year without reduction) multiplied
by 0.8 (which is equal to the quotient of 60 Missed
Playoff Games divided by 75 total playoff games
originally scheduled for the Work Stoppage License
Year). After such reduction, the Minimum Guarantee
for the Post Work Stoppage License Year shall be
equal to $ million;
iii. if, due to a Work Stoppage, the maximum number of
scheduled playoff games for each series in each of the
second and third rounds of the playoffs is reduced to
five (5) games, the number of
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Missed Playoff Games shall be nine (9) games, which
is calculated as follows: 4 second round series
multiplied by 1.5 games for a total of 6 games, plus
2 third round series multiplied by 1.5 games for a
total of 3 games, for an aggregate total of 9 games.
Accordingly, the League Marketing Commitment, for
example, for the Post Work Stoppage License Year
shall be reduced by $ , which is calculated as
follows: 15% multiplied by $ (the League Marketing
Commitment due for the Work Stoppage License Year
without reduction) multiplied by 0.12 (which is equal
to the quotient of 9 Missed Playoff Games divided by
75 total playoff games originally scheduled for such
Work Stoppage License Year). After such reduction,
the League Marketing Commitment for the Post Work
Stoppage License Year shall be equal to $ .
18. NEW JOFA LICENSE. Promptly following the execution of this letter agreement,
NHLE and THC shall execute a license agreement which shall grant to THC certain
rights to manufacture, sell and market Jofa hockey equipment using certain NHL
trademarks and/or indicia, which license agreement shall incorporate the terms
set forth in EXHIBIT H attached hereto (the "NEW JOFA LICENSE").
19. PRO PLAYER INVENTORY. NHLE agrees that, without the prior consent of THC,
which consent shall not be unreasonably withheld, NHLE shall not, except as may
be provided in the Stipulation and Consent Order (as defined below), grant a
license for the sale of the Pro Player Inventory (as defined below) other than
to the Permitted Purchasers (as defined below), or entities selling such Pro
Player Inventory to the Permitted Purchasers, and, in the event of such a
proposed sale of the Pro Player Inventory, NHLE shall request that THC be
granted a first opportunity to purchase the Pro Player Inventory. The
Stipulation and Consent Order shall mean the Stipulation and Consent Order
Regarding the Rejection of Certain Executory Contracts with NHL Enterprises,
dated March 21, 2000, filed in connection with the Chapter 11 proceedings of Pro
Player, Inc. and its affiliates. The Pro Player Inventory shall mean the
finished NHLE-licensed inventory which, at the time of execution of this letter
agreement, is in the possession of entities other than Pro Player which are
located outside of the United States. The Permitted Purchasers shall mean the
entities permitted to purchase inventory from Pro Player under the Stipulation
and Consent Order and other related agreements.
II. CONFIDENTIALITY
Due to the confidential nature of this transaction, no party will make any
announcement or disclosure regarding this transaction (including without
limitation the details of the negotiations and the terms of the transaction and
any details in connection with or associated with its implementation) without
the prior written consent of the other, unless and except as required by
applicable law, except that NHLE shall be entitled to provide such details
pursuant to its Right to Match obligation to a third party (the "OFFEREE"), as
described below.
If the transactions contemplated by this letter agreement are not consummated
for any reason, neither party shall disclose to any third party (other than to
the Offeree) any documents or other information provided to it by the other
party, except that the foregoing restriction will not apply to any information
that (i) was or since the time of disclosure has become part of the public
domain through no act or failure by the recipient party, (ii) was already in the
possession of any receiving party when initially disclosed, (iii) is or was
received from a third party before or after the time of disclosure (so long as
such information was not disclosed by such third party in violation of any
confidentiality agreement of which the receiving party had knowledge), or (iv)
may be required to be disclosed by law or legal process.
III. BINDING AGREEMENT
It is understood that this letter agreement includes a summary description only,
but that it constitutes a binding agreement to consummate the transactions
contemplated herein and to enter into a definitive agreement to do so.
Notwithstanding the foregoing, NHLE's obligation is subject to the Offeree's
right to match the terms contained herein regarding the additional (as compared
to the 1998 License) rights and obligations being agreed to in this letter
agreement (the "RIGHT TO MATCH"). NHLE hereby confirms to THC that the terms of
the offer which will be presented to the Offeree will be substantially similar
to the terms of the License, except as such terms reflect THC's unique status as
a party to the 1998 License and the Jofa Licenses. NHLE shall, within fifteen
(15) days of the execution of this letter agreement, notify THC in writing
whether the Offeree has exercised the Right to Match. In the event that (a) the
Offeree exercises the Right to Match, or (b) THC shall have notified NHLE in
writing of NHLE's failure to notify THC as provided in the immediately preceding
sentence and NHLE shall not
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have so notified THC within three (3) days of NHLE's receipt of such notice from
THC, then this letter agreement shall terminate immediately and shall not be
binding upon any of the parties hereto, and the 1998 License shall in such
circumstances remain in full force and effect. In the event that the Offeree
does not exercise the Right to Match, the parties hereto shall proceed promptly
with the negotiation and preparation of definitive documentation embodying the
terms of this letter agreement. If for any reason such definitive agreement is
not executed, this letter agreement is intended to be, and shall be, fully
binding upon the parties.
To the extent that any conflict exists between the terms of this letter
agreement and the Standard Terms and Conditions, the terms of this letter
agreement shall govern.
This letter agreement shall be governed by the internal laws of the State of New
York, and the United States District Court for the Southern District of New York
and the state courts of New York in the county of Manhattan shall have exclusive
jurisdiction over any issues arising out of or relating to this letter agreement
and the License.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
If the foregoing accurately sets forth our agreement and understanding, please
so indicate by signing and dating, and returning to us a copy of this letter
agreement prior to 5:00 P.M. on May 21, 2000, at which time if not fully
executed this letter agreement shall expire and be of no effect.
Sincerely yours,
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<S> <C>
NHL ENTERPRISES, L.P. NHL ENTERPRISES B.V.
By: NHL Enterprises, Inc., its general partner By: NHL Enterprises, Inc., its Managing Director
By: ______________________________ By: ____________________________________
Name: Brian P. Jennings Name: Brian P. Jennings
Title: Vice President, Title: Vice President,
Consumer Products Marketing Consumer Products Marketing
NHL ENTERPRISES CANADA, L.P.
By: National Hockey League Enterprises Canada,
Inc., its general partner
By: _______________________________
Name: Brian P. Jennings
Title: Vice President,
Consumer Products Marketing
AGREED AND ACCEPTED this ___ day of May, 2000:
SPORT MASKA INC. MASKA U.S., INC.
By: _______________________________ By:_______________________________
Name: Gerald B. Wasserman Name: Gerald B. Wasserman
Title: Chairman, President Title: Chairman, President
and Chief Executive Officer and Chief Executive Officer
JOFA AB KHF FINLAND OY
By: _______________________________ By:_______________________________
Name: Name:
Title: Title:
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