UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JANUARY 31, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM _________ TO _________
Commission file number 0-26374
PLAY BY PLAY TOYS & NOVELTIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Texas 74-2623760
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4400 Tejasco
San Antonio, Texas 78218-0267
(Address of principal executive offices and zip code)
(210) 829-4666
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ].
The aggregate number of the Registrant's shares outstanding on March 12, 1998
was 7,253,800 shares of Common Stock, no par value.
<PAGE>
PLAY BY PLAY TOYS & NOVELTIES, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION PAGE
Item 1. Financial Statements:
Consolidated Balance Sheets as of January 31, 1998 (unaudited)
and July 31, 1997 ............................................... 3
Consolidated Statements of Income (unaudited) for the
Three Months and Six Months Ended January 31, 1998 and 1997 ..... 4
Consolidated Statements of Cash Flows (unaudited) for the
Six Months Ended January 31, 1998 and 1997 ...................... 5
Notes to Consolidated Financial Statements (unaudited) ............ 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations .................................... 10
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders ............ 15
Item 6. Exhibits and Reports on Form 8K ................................ 16
SIGNATURES ................................................................ 18
2
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
PLAY BY PLAY TOYS & NOVELTIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
AS OF
------------------------------
JANUARY 31, 1998 JULY 31, 1997
------------- -------------
<S> <C> <C>
CURRENT ASSETS: (UNAUDITED)
Cash and cash equivalents ............................ $ 4,108,110 $ 4,960,612
Accounts and notes receivable, less allowance for
doubtful accounts of $3,647,556 and $3,213,653 .. 28,028,788 37,728,254
Inventories .......................................... 66,522,142 47,239,520
Other current assets ................................. 7,321,688 3,781,724
------------- -------------
Total current assets ............................ 105,980,728 93,710,110
Property and equipment, net ............................... 15,929,385 14,985,887
Goodwill, less accumulated amortization
of $608,203 and $365,433 ............................. 14,169,517 14,412,736
Other assets .............................................. 2,714,117 2,796,841
------------- -------------
Total assets .................................... $ 138,793,747 $ 125,905,574
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Bank overdraft ....................................... $ 4,099,237 $ 461,220
Notes payable to banks and others .................... 1,323,400 22,607,721
Current maturities of long-term debt ................. 3,441,253 3,472,017
Current obligations under capital leases ............. 1,088,385 691,333
Accounts payable, trade .............................. 19,442,174 22,340,182
Other accrued liabilities ............................ 2,764,949 5,831,652
Income taxes payable ................................. 2,112,615 2,437,432
Deferred income tax payable .......................... 430,275 496,431
------------- -------------
Total current liabilities ....................... 34,702,288 58,337,988
------------- -------------
Long-term liabilities:
Long-term debt, net of current maturities ............ 6,069,018 7,320,233
Convertible subordinated debentures .................. 15,000,000 15,000,000
Obligations under capital leases ..................... 1,006,307 917,506
Deferred income tax payable .......................... 572,843 660,918
------------- -------------
Total liabilities ............................... 57,350,456 82,236,645
------------- -------------
Commitments and contingencies
SHAREHOLDERS' EQUITY:
Preferred stock - no par value; 10,000,000 shares
authorized; no shares issued .................... -- --
Common stock - no par value; 20,000,000 shares
authorized; 7,249,400 and 4,901,300 shares issued 1,000 1,000
Additional paid-in capital ........................... 69,758,380 35,006,539
Deferred compensation ................................ (548,333) (618,333)
Cumulative foreign currency translation adjustments .. (2,848,849) (2,303,027)
Retained earnings .................................... 15,081,093 11,582,750
------------- -------------
Total shareholders' equity ...................... 81,443,291 43,668,929
------------- -------------
Total liabilities & shareholders' equity ........ $ 138,793,747 $ 125,905,574
============= =============
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
3
<PAGE>
PLAY BY PLAY TOYS & NOVELTIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JANUARY 31, JANUARY 31,
-------------------------------------- ------------------------------------
1998 1997 1998 1997
------------------ ------------------- ------------------- ----------------
<S> <C> <C> <C> <C>
Net sales .......................................... $ 30,866,868 $ 22,039,390 $ 89,284,424 $ 61,929,911
Cost of sales ...................................... 20,030,085 13,825,327 57,909,615 42,301,198
------------ ------------ ------------ ------------
GROSS PROFIT .................................. 10,836,783 8,214,063 31,374,809 19,628,713
Selling, general and administrative
expenses ......................................... 9,924,853 7,536,477 23,957,908 15,472,513
------------ ------------ ------------ ------------
OPERATING INCOME .............................. 911,930 677,586 7,416,901 4,156,200
Interest expense ................................... (1,153,544) (1,016,746) (2,451,874) (2,104,217)
Interest income .................................... 199,673 57,600 264,149 49,282
Other income (expense) ............................. 105,434 (27,676) 153,252 (40,146)
------------ ------------ ------------ ------------
Income (loss) before income tax ............... 63,493 (309,236) 5,382,428 2,061,119
Income tax benefit (provision) ..................... (22,459) 143,710 (1,884,085) (780,728)
------------ ------------ ------------ ------------
NET INCOME (LOSS) ............................. $ 41,034 $ (165,526) $ 3,498,343 $ 1,280,391
============ ============ ============ ============
INCOME (LOSS) PER SHARE:
Basic ............................................ $ 0.01 $ (0.03) $ 0.62 $ 0.26
------------ ------------ ------------ ------------
Diluted: ......................................... $ 0.01 $ (0.03) $ 0.55 $ 0.26
------------ ------------ ------------ ------------
WEIGHTED AVERAGE SHARES OUTSTANDING:
Basic ............................................ 6,439,982 4,879,781 5,667,337 4,860,335
------------ ------------ ------------ ------------
Diluted .......................................... 6,843,023 4,879,781 7,045,516 4,867,083
------------ ------------ ------------ ------------
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
4
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PLAY BY PLAY TOYS & NOVELTIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JANUARY 31,
---------------------------
1998 1997
------------ -----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income ............................................................ $ 3,498,343 $ 1,280,391
Adjustments to reconcile net income to
net cash provided by (used in) operating activities:
Depreciation and amortization ...................................... 1,128,091 1,011,323
Provision for doubtful accounts receivable ......................... 1,279,299 568,156
Deferred income tax provision (benefit) ............................ (154,231) 328,434
Stock distributed as compensation .................................. 70,000 38,750
Gain on sale of property and equipment ............................. -- (9,923)
Change in operating assets and liabilities (net of TLC acquisition):
Accounts and notes receivable .................................... 8,420,167 7,994,111
Inventories ...................................................... (19,282,622) 5,070,986
Prepaids and other assets ........................................ (3,423,175) (291,618)
Accounts payable and accrued liabilities ......................... (5,966,829) (5,883,364)
Income taxes payable ............................................. (324,817) (461,852)
------------ -----------
Net cash provided by (used in) operating
activities ................................................... (14,755,774) 9,645,394
------------ -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment .................................... (894,763) (512,992)
Investment in TLC, net of cash ........................................ -- 124,083
Payments for intangible assets ........................................ (37,010) (13,981)
------------ -----------
Net cash used in investing activities ......................... (931,773) (402,890)
------------ -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net borrowings (repayments) under Revolving Credit Agreement .......... (21,284,321) (4,988,994)
Proceeds from public offering ......................................... 34,192,088 --
Repayment of long-term debt ........................................... (1,336,272) (2,221,975)
Repayment of capital lease obligations ................................ (388,398) (339,103)
Increase (decrease) in bank overdraft ................................. 3,638,017 (1,076,908)
Proceeds from exercise of stock options ............................... 559,753 --
------------ -----------
Net cash provided by (used in) financing activities ........... 15,380,867 (8,626,980)
------------ -----------
EFFECT OF FOREIGN CURRENCY EXCHANGE RATES ............................... (545,822) (779,765)
------------ -----------
Decrease in cash and cash equivalents ................................... (852,502) (164,241)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD ........................ 4,960,612 531,040
------------ -----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD .............................. $ 4,108,110 $ 366,799
============ ===========
Non-cash financing and investing-activity: capital leases incurred ...... $ 847,251 $ 572,775
============ ===========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
5
<PAGE>
PLAY BY PLAY TOYS & NOVELTIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited consolidated financial statements and related
disclosures have been prepared in accordance with generally accepted accounting
principles applicable to interim financial information and with the instructions
to Form 10-Q and Rule 10-01 of Regulation S-X. The year-end balance sheet data
was derived from audited financial statements, but does not include all
disclosures required by generally accepted accounting principles. Accordingly,
they do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the opinion
of management, all adjustments considered necessary for a fair presentation of
the financial position and interim results of Play By Play Toys & Novelties,
Inc. and Subsidiaries (the "Company") as of and for the periods presented have
been included. Certain amounts in the financial statements for the prior period
have been reclassified to conform with the current year presentation. Because
the Company's business is seasonal, results for interim periods are not
necessarily indicative of those which may be expected for a full year.
The financial information included herein should be read in conjunction
with the Company's consolidated financial statements and related notes in its
Annual Report on Form 10-K for the fiscal year ended July 31, 1997, which is on
file with the United States Securities and Exchange Commission.
2. INVENTORIES
Inventories are comprised of the following:
JANUARY 31, 1998 JULY 31, 1997
---------------- -------------
Purchased for resale ............. $66,147,881 $46,898,557
Operating supplies ............... 374,261 340,963
----------- -----------
Total .................. $66,522,142 $47,239,520
=========== ===========
6
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3. PUBLIC OFFERING
On December 2, 1997, the Company sold 2,300,000 shares of its common stock
in a follow-on public offering at a price of $16.00 per share. The total number
of shares sold includes 300,000 related to the underwriters' over-allotment
option, which was exercised in full. The net proceeds from the issuance and sale
of common stock amounted to approximately $34 million after deducting
underwriters' discounts and other expenses. A portion of the net proceeds was
used to repay indebtedness of approximately $21.3 million outstanding under the
Revolving Credit Term Loan with Letter of Credit Facility (the "Credit
Facility"). Approximately $11.2 million was used to fund the Company's
operations and the remaining balance of approximately $1.5 million has been
invested in short-term, interest bearing instruments.
4. SHAREHOLDERS' EQUITY
Changes in shareholders' equity consist of the following:
<TABLE>
<CAPTION>
CUMULATIVE
FOREIGN
COMMON STOCK ADDITIONAL CURRENCY TOTAL
-------------------- PAID-IN DEFERRED TRANSLATION RETAINED SHAREHOLDERS'
SHARES AMOUNT CAPITAL COMPENSATION ADJUSTMENTS EARNINGS EQUITY
--------- -------- ----------- --------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, AUGUST 1, 1997 ............. 4,901,300 $ 1,000 $35,006,539 $(618,333) $(2,303,027) $11,582,750 $ 43,668,929
Net income .......................... 3,498,343 3,498,343
Foreign currency translation
adjustments ...................... (545,822) (545,822)
Exercise of stock options ........... 48,100 559,753 559,753
Amortization of deferred
compensation ...................... 70,000 70,000
Stock issued in secondary
public offering ................... 2,300,000 34,192,088 34,192,088
--------- -------- ----------- --------- ----------- ----------- ------------
BALANCE, JANUARY 31, 1998 ........... 7,249,400 $ 1,000 $69,758,380 $(548,333) $(2,848,849) $15,081,093 $ 81,443,291
========= ======== =========== ========= =========== =========== ============
</TABLE>
7
<PAGE>
5. EARNINGS PER SHARE
Effective for periods ended January 31, 1998, the Company implemented Statement
of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share", which
establishes standards for computing and presenting earnings per share ("EPS")
for entities with publicly held common stock. SFAS No. 128 simplifies the
standards for computing EPS previously found in Accounting Principles Board
Opinion No. 15, "Earnings Per Share", and makes them comparable to international
EPS standards. It replaces the presentation of primary EPS with a presentation
of basic EPS, which excludes dilution. It also requires dual presentation of
basic and diluted EPS on the face of the income statement for all entities with
complex capital structures. Basic earnings per share were computed by dividing
net income by the weighted average number of shares of common stock outstanding
during the period. Diluted earnings per share differs from basic earnings per
share due to the assumed conversions of dilutive options, warrants and
convertible debt that were outstanding during the period. EPS for periods ended
on or prior to January 31, 1997 have been restated to conform with the
requirements of SFAS No. 128.
<TABLE>
<CAPTION>
THREE MONTHS ENDED JANUARY 31,
---------------------------------------------------------------------------------
1998 1997
------------------------------------ ---------------------------------------
COMMON PER COMMON PER
INCOME SHARES SHARE (LOSS) SHARES SHARE
---------- --------- ----- ----------- --------- ------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS:
As reported ............................... $ 41,034 6,439,982 $0.01 $ (165,526) 4,879,781 $(0.03)
EFFECT OF DILUTIVE SECURITIES:
Options ................................... 374,180
Warrants .................................. 28,861
---------- --------- ----- ----------- --------- ------
DILUTED EPS: .............................. $ 41,034 6,843,023 $0.01 $ (165,526) 4,879,781 $(0.03)
========== ========= ===== =========== ========= ======
<CAPTION>
SIX MONTHS ENDED JANUARY 31,
---------------------------------------------------------------------------------
1998 1997
------------------------------------ ---------------------------------------
COMMON PER COMMON PER
INCOME SHARES SHARE (LOSS) SHARES SHARE
---------- --------- ----- ----------- --------- ------
BASIC EPS:
As reported ............................... $3,498,343 5,667,337 $0.62 $ 1,280,391 4,860,335 $0.26
EFFECT OF DILUTIVE SECURITIES:
Options ................................... 409,222 6,748
Warrants .................................. 31,457
8% Convertible Debentures ................. 393,205 937,500
---------- --------- ----- ----------- --------- ------
DILUTED EPS: .............................. $3,891,548 7,045,516 $0.55 $ 1,280,391 4,867,083 $ 0.26
========== ========= ===== =========== ========= ======
</TABLE>
The 937,500 shares issuable upon conversion of the 8% convertible
debentures were not included in the calculation of diluted EPS for the quarter
ended January 31, 1998 because the effect of adding the shares and the related
interest would have been anti-dilutive.
8
<PAGE>
5. LICENSE AGREEMENTS
Effective January 1, 1998, the Company entered into license agreements
with Warner Bros. to design, manufacturer and distribute Looney Tunes products
in Latin America, Europe, the Middle East, and Africa. The license agreements
require minimum guaranteed royalty amounts, plus a commitment to spend certain
amounts on advertising for the products. In connection with a license agreement
signed in September 1997, the Company issued 100,000 warrants for the purchase
of common stock to Warner Bros. in January 1998.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THE MATTERS
DISCUSSED IN THIS MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS ARE FORWARD LOOKING STATEMENTS THAT INVOLVE RISKS AND
UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY, INCLUDING,
WITHOUT LIMITATION, RELATIONSHIPS WITH LICENSORS, NEW PRODUCT INTRODUCTION,
ABILITY TO MANAGE GROWTH, ABILITY TO SOURCE PRODUCTS, INTERNATIONAL TRADE
RELATIONS AND MANAGEMENT OF QUARTER TO QUARTER RESULTS, AND OTHER RISKS DETAILED
FROM TIME TO TIME IN THE COMPANY'S SEC REPORTS, INCLUDING THE COMPANY'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED JULY 31, 1997 (SEE "RISK FACTORS"
IN SUCH FORM 10-K). UPDATED INFORMATION WILL BE PERIODICALLY PROVIDED BY THE
COMPANY AS REQUIRED BY THE SECURITIES EXCHANGE ACT OF 1934.
RESULTS OF OPERATIONS
The following unaudited table sets forth the Company's results of
operations as a percentage of net sales for the periods indicated below:
THREE MONTHS ENDED SIX MONTHS ENDED
------------------ ----------------
JANUARY 31, JANUARY 31,
---------------- ----------------
1998 1997 1998 1997
------ ------ ------ ------
Net sales .......................... 100.0 % 100.0 % 100.0 % 100.0 %
Cost of sales ...................... 64.9 62.7 64.9 68.3
------ ------ ------ ------
Gross profit ....................... 35.1 37.3 35.1 31.7
Selling, general and
administrative expenses .......... 32.1 34.2 26.8 25.0
------ ------ ------ ------
Operating income ................... 3.0 3.1 8.3 6.7
Interest expense ................... (3.7) (4.6) (2.7) (3.4)
Interest income .................... 0.6 0.3 0.3 0.1
Other income (expense) ............. 0.3 (0.1) 0.2 (0.1)
Net income (loss) .................. 0.1 % (0.8)% 3.9 % 2.1 %
====== ====== ====== ======
THREE MONTHS ENDED JANUARY 31, 1998 AND 1997
NET SALES. Net sales for the fiscal quarter ended January 31, 1998
increased 40.1%, or $8.8 million, to $30.8 million from $22.0 million in the
comparable period in fiscal 1997. The increase in net sales was primarily
attributable to increased domestic and international amusement net sales growth
of 39.4% and 78.6%, respectively, over the comparable period in fiscal 1997.
Domestic net toy sales for the second quarter of fiscal 1998 compared to the
comparable period of fiscal 1997 increased 35.8%, or $6.1 million, to $23.3
million, and international net toy sales increased 66.1%, or $2.7 million, to
$6.8 million.
Net sales of licensed products for the second quarter of fiscal 1998
increased 51.9%, or $5.7 million, to $16.6 million from $10.9 million in the
comparable period of fiscal 1997. The increase in licensed product sales was
primarily attributable to growth of sales of the Company's licensed products to
amusement customers, and the Company's European operations, which accounted for
$3.8 million of the Company's net sales of licensed products for the second
quarter of fiscal 1998, a 55.3% increase from the comparable period of fiscal
1997. Within licensed products, sales of Looney Tunes' characters increased
109.9%, or $6.0
10
<PAGE>
million, to $11.6 million for the second quarter of fiscal 1998 from $5.5
million in the comparable period of fiscal 1997. Net sales of the "TORNADO
TAZ(TM)" accounted for $500,000, or 1.6%, of the Company's net toy sales for the
second quarter of fiscal 1998. Net sales of PLAY-FACES(R) decreased 25.3%, or
$700,000, to $2.1 million, from $2.8 million in the comparable period of fiscal
1997. Net sales of non-licensed products for the second quarter of fiscal 1998
increased 30.9%, or $3.2 million, to $13.5 million from $10.3 million in the
comparable period of fiscal 1997. The increase is primarily attributable to
sales of "TALKIN' TOTS(TM)" of $3.9 million, increased sales of novelty items of
$1.7 million, offset by a decrease in sales of non-license stuffed toys of $2.3
million.
Net toy sales to retail customers for the second quarter of fiscal 1998
and fiscal 1997 accounted for 32.9%, or $10.2 million, and 34.0%, or $7.5
million, respectively, of the Company's net sales. The 35.4%, or $2.7 million
increase in sales to retail customers from the second quarter of fiscal 1997 to
the second quarter of fiscal 1998 is primarily attributable to sales of "TALKIN'
TOTS(TM)" and "TORNADO TAZ(TM)" partially offset by a decrease in sales of
licensed plush toys and PLAY-FACES(R).
Net toy sales to amusement customers for the second quarter of fiscal 1998
and fiscal 1997 accounted for 64.8%, or $19.9 million, and 62.5%, or $13.7
million, respectively, of the Company's net sales. The 45.1%, or $6.2 million,
increase in dollar volume is primarily attributable to the strong increase in
sales of licensed plush toys to amusement customers of $10.4 million, a 197.1%
increase from the comparable period of fiscal 1997, partially, offset by a
decrease in sales of non-licensed plush toys of $2.4 million.
GROSS PROFIT. Gross profit increased 31.9% to $10.8 million for the second
quarter of fiscal 1998 from $8.2 million in the comparable period of fiscal
1997, due to the overall increase in the Company's net sales. Gross profit as a
percentage of net sales decreased to 35.1% for the second quarter of fiscal 1998
from 37.3% in the comparable period in fiscal 1997. The decrease is principally
a result of the Company's increased sales to distributors in certain
international markets which typically carry lower profit margins and lower
operating costs.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses increased approximately 31.7% to $9.9 million for the
second quarter of fiscal 1998 from $7.5 million in the comparable period in
fiscal 1997. This increase is primarily attributable to the increase in the
Company's net sales as well as the growth of the Company's infrastructure and
increased expenses related to the expansion of the Company's facilities in Hong
Kong and Spain. As a percentage of net sales, selling, general and
administrative expenses decreased to 32.2% for the second quarter of fiscal 1998
from 34.2% in the comparable period of fiscal 1997.
INTEREST EXPENSE AND OTHER INCOME. Interest expense increased 13.5% or
approximately $137,000, to $1.1 million for the second quarter of fiscal 1998
from $1.0 million in the comparable period in fiscal 1997 primarily due to
convertible subordinated debentures interest expense of $302,000, offset by a
decrease in interest expense on the revolving loans under the Credit Facility.
INCOME TAX EXPENSE. Income tax expense for the second quarter of fiscal
1998 reflects an effective tax rate of approximately 35%, compared to a tax
benefit in the prior year due to a net loss in the second quarter of fiscal
1997.
11
<PAGE>
SIX MONTHS ENDED JANUARY 31, 1998 AND 1997
NET SALES. Net sales for the six months ended January 31, 1998 increased
44.2%, or $27.4 million, to $89.3 million from $61.9 million in the comparable
period of fiscal 1997. The increase in net sales was primarily attributable to
increased domestic and international retail growth of 83.1% and 79.6%,
respectively. Domestic net toy sales for the first half of fiscal 1998 compared
to the first half of fiscal 1997 increased 40.9%, or $21.5 million, to $73.9
million, and international net toy sales increased 75.8%, or $6.0 million, to
$13.9 million.
Net sales of licensed products for the first half of fiscal 1998 increased
46.3%, or $15.5 million, to $48.9 million from $33.3 million in the comparable
period of fiscal 1997. The increase in licensed product sales was primarily
attributable to the growth of sales of the Company's licensed products to both
retail and amusement customers, and the Company's European operations, which
accounted for $8.4 million of the Company's net sales of licensed products for
the first half of fiscal 1998, a 61.8% increase from the comparable period of
fiscal 1997. Within licensed products, sales of Looney Tunes' characters
increased 160.2%, or $23.6 million, to $38.3 million for the first half of
fiscal 1998 from $14.7 million in the comparable period of fiscal 1997. Net
sales of "TORNADO TAZ(TM)" accounted for $8.2 million, or 9.3%, of the Company's
net toy sales for the first half of fiscal 1998. Net sales of PLAY-FACES(R)
decreased 51.3%, or $5.6 million, to $5.3 million, from $10.9 million in the
comparable period of fiscal 1997. Net sales of non-licensed products for the
first half of fiscal 1998 increased 44.5%, or $12.0 million, to $38.9 million
from $26.9 million in the comparable period of fiscal 1997. This increase is
primarily attributable to sales of "TALKIN' TOTS(TM)" of $12.9 million, aNd
increased sales of novelty items of $1.4 million, offset by a decrease in sales
of non-licensed stuffed toys of $2.3 million.
Net toy sales to retail customers for the first half of fiscal 1998 and
fiscal 1997 accounted for 38.5%, or $34.4 million, and 30.5%, or $18.9 million,
respectively, of the Company's net sales. The 82.4%, or $15.5 million increase
in sales to retail customers from the first half of fiscal 1997 to the first
half of fiscal 1998 is primarily attributable to sales of "TALKIN' TOTS(TM)" and
"TORNADO TAZ(TM)", which were partially offset by a decrease in sales of
PLAY-FACES(R).
Net toy sales to amusement customers for the first half of fiscal 1998 and
fiscal 1997 accounted for 59.8%, or $53.4 million, and 67.0%, or $41.5 million,
respectively, of the Company's net sales. The 28.7%, or $11.9 million increase
in dollar volume is primarily attributable the strong increase in domestic sales
of licensed plush toys to amusement customers which accounted for $25.1 million,
of the Company's net sales, a 97.6% increase from the comparable period in
fiscal 1997 and the strong European market, to which amusement sales totaled
$7.8 million, a 73.0% increase from the comparable period in fiscal 1997.
GROSS PROFIT. Gross profit increased 59.8% to $31.4 million for the first
half of fiscal 1998 from $19.6 million in the comparable period in fiscal 1997,
due to the overall increase in the Company's net sales. Gross profit as a
percentage of net sales increased to 35.1% for the first half of fiscal 1998
from 31.7% in the comparable period in fiscal 1997. This increase was
principally a result of higher domestic overall retail margins from the
television promotion of "TALKIN' TOTS(TM)" and "TORNADO TAZ(TM)".
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses increased approximately 54.8% to $24.0 million for the
first half of fiscal 1998 from $15.5 million in the comparable period in fiscal
1997. This increase is primarily attributable to increased television
advertisement costs of $4.1 million, increased payroll and related costs of $2.3
million, product development costs and other expenses associated with the
increased sales volume. As a percentage of net sales, selling, general and
administrative expenses increased to 26.8% for the first half of fiscal 1998
from 25.0% in the comparable period of fiscal 1997.
12
<PAGE>
INTEREST EXPENSE AND OTHER INCOME. Interest expense increased 16.5% or
approximately $348,000, to $2.4 million for the first half of fiscal 1998 from
$2.1 million in the comparable period in fiscal 1997 primarily due to
convertible subordinated debentures interest expense of $603,000, offset by a
decrease in interest expense on the revolving loans under the Credit Facility.
INCOME TAX EXPENSE. Income tax expense for the first half of fiscal 1998
reflects an effective tax rate of approximately 35%, compared to 38% for the
first half of fiscal 1997. The decrease is attributable primarily to lower tax
rates on international earnings.
LIQUIDITY AND CAPITAL RESOURCES
At January 31, 1998, the Company's working capital was $71.3 million
compared to $20.8 million at January 31, 1997. This increase was primarily
attributable to the completion of the Company's follow-on public offering of its
common stock in December 1997 and use of borrowings from convertible
subordinated debentures.
The Company satisfies its capital requirements and seasonal liquidity
shortfalls with cash flow primarily from borrowings and secondarily from
operations. The Company's primary capital needs have consisted of funding for
inventory, customer receivables, letters of credit, licenses and international
expansion.
The Company's operating activities used net cash of $14.8 million in the
first six months of fiscal 1998 and provided net cash of $9.6 million in the
comparable period of fiscal 1997. The cash flow from operations for fiscal 1998
was primarily affected by a significant increase in inventory as the Company
received shipments of its amusement lines earlier this year than in the prior
year.
Net cash used in investing activities during the first six months of
fiscal 1998 was $2.4 million compared to net cash used in investing activities
for the comparable period of fiscal 1997 of $403,000. In the first six months of
fiscal 1998, net cash used in investing activities consisted principally of the
purchase of short-term investments of approximately $1.5 million and purchase of
property and equipment of $895,000. For the first six months of fiscal 1997, net
cash used in investing activities consisted principally of the purchase of
property and equipment of $513,000.
Net cash provided by financing activities during the first six months of
fiscal 1998 was $15.4 million and net cash used in financing activities during
the first six months of fiscal 1997 was $8.6 million. During the first six
months of fiscal 1998, $114.4 million was used in repayment of borrowings
outstanding on the revolving line of credit under the Company's Credit Facility
offset by draw-downs of $93.1 million. In the first six months of fiscal 1997,
cash used in repayment of borrowings outstanding on the revolving loan of $56.7
million was partially offset by draw-downs of approximately $51.7 million.
On December 2, 1997, the Company sold 2,300,000 shares of its common stock
in a follow-on public offering at a price of $16.00 per share. The net proceeds
after deducting underwriters' discounts and other expenses were approximately
$34.2 million. In December, a portion of the net proceeds was used to repay
indebtedness of approximately $21.3 million outstanding under the revolving line
of credit under the Credit Facility. Approximately $11.2 million was used to
fund the Company's operations and the remaining balance of approximately $1.5
million has been invested in short-term, interest bearing instruments.
The Company believes that its current available cash, net cash provided by
operating activities and available borrowings under the Company's Credit
Facility will be sufficient to meet the Company's cash requirements through the
remainder of fiscal 1998.
13
<PAGE>
SEASONALITY
Both the retail and amusement toy industries are inherently seasonal.
Generally, in the past, the Company's sales to the amusement industry have been
highest during the third and fourth fiscal quarters, and collections for those
sales have been highest during the succeeding fiscal quarters. The Company's
sales to the retail toy industry have been highest during its first and fourth
fiscal quarters, and collections from those sales have been highest during the
succeeding fiscal quarters. The Company's working capital needs and borrowings
to fund those needs have been highest during the third and fourth fiscal
quarters. As a result of the Company's increased sales to the amusement industry
and increased penetration of the retail market, the Company anticipates that its
sales, collections and borrowings to fund working capital needs may become more
significant in the third and fourth fiscal quarters.
14
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Shareholders of Play By Play Toys & Novelties, Inc.
was held on December 11, 1997, for the purpose of electing directors, approving
an amendment to the Company's 1994 Incentive Plan, approving the re-pricing of
all options granted to officers of the Company prior to December 9, 1997,
approving the potential future issuance of shares of Common Stock upon
conversion of the Company's outstanding 8% Convertible Debentures and approving
the appointment of independent auditors. Proxies for the meeting were solicited
pursuant to Regulation 14A of the Securities Exchange Act of 1934 and there was
no solicitation in opposition to those nominees of the Board of Directors.
All of the Board of Director's nominees for directors, as listed in the proxy
statement, were elected with the number of votes cast for each nominee as
follows:
FOR WITHHELD
--------- --------
Arturo G. Torres .................. 4,308,963 11,450
Saul Gamoran ...................... 4,309,063 11,350
Berto Guerra, Jr .................. 4,308,963 11,450
The amendment to the Company's 1994 Incentive Plan by allocating 600,000
additional shares of common stock to the plan was approved by the following
vote:
FOR AGAINST ABSTAINED BROKER NON VOTES
--------- ------- --------- ----------------
2,679,251 591,544 2,597 1,247,021
The ratification of the re-pricing of all options granted to the officers of the
Company prior to December 9, 1996 at an exercise price of $11.00 per share, with
Arturo G. Torres' exercise price being $12.10 per share, was approved by the
following vote:
FOR AGAINST ABSTAINED
--------- ------- ---------
3,687,724 630,389 2,300
The approval of the potential future issuance of shares of common stock upon
conversion of the Company's outstanding 8% Convertible Debentures held by
Renaissance Capital Growth & Income Fund III, Inc., Renaissance Capital Growth &
Income Trust PLC and Banc One Capital Partners II, Ltd. was approved by the
following vote:
FOR AGAINST ABSTAINED BROKER NON VOTES
--------- ------- --------- ----------------
3,998,087 71,120 3,185 1,247,021
The proposal to appoint Coopers & Lybrand L.L.P. as independent auditors for the
Company for the fiscal year ending July 31, 1998, was approved by the following
vote:
FOR AGAINST ABSTAINED
--------- ------- ---------
4,311,593 7,200 1,620
15
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
3.1 Amended Articles of Incorporation of the Company (filed as Exhibit 3.1
to the Registration Statement on Form S-1 (File No. 33-92204)
incorporated herein by reference).
3.2 Amended and Restated Bylaws of the Company (filed as Exhibit 3.2 to the
Registration Statement on Form S-1 (File No. 33-92204) incorporated
herein by reference).
4.1 Specimen of Common Stock Certificate (filed as Exhibit 4.1 to the
Registration Statement on Form S-1 (File No. 33-92204) incorporated
herein by reference).
4.2 Form of Warrant Agreement and Form of Warrant (filed as Exhibit 4.2 to
the Registration Statement on Form S-1 (File No. 33-92204) incorporated
herein by reference).
4.3 Form of Play By Play Toys & Novelties, Inc. Grant of Incentive Stock
Option (filed as Exhibit 4.3 to the Registration Statement on Form S-1
(File No. 33-92204) incorporated herein by reference).
4.4 Form of Play By Play Toys & Novelties, Inc. Non-qualified Stock Option
Agreement (filed as Exhibit 4.4 to the Registration Statement on Form
S-1 (File No. 33-92204), incorporated herein by reference).
4.5 Warrant to Purchase Common Stock issued by the Registrant to Ace
Novelty Co., Inc. (filed as Exhibit 4 to Form 8-K (Date of Event: May
1, 1996), incorporated herein by reference).
10.1 Play By Play Toys & Novelties, Inc. 1994 Incentive Plan (filed as
Exhibit 10.1 to the Registration Statement on Form S-1 (File No.
33-92204) incorporated herein by reference).
10.2 Credit Agreement dated June 20, 1996, among the Registrant, Ace Novelty
Acquisition Co., Inc., Newco Novelty, Inc. and Chemical Bank, as agent
for the lenders (filed as Exhibit 10.1 to Form 8-K (Date of Event: May
1, 1996) incorporated herein by reference).
10.3 Promissory Note dated June 20, 1996, of Ace Novelty Acquisition Co.,
Inc. payable to the order of Ace Novelty Co., Inc. in the principal sum
of $2,900,000 (filed as Exhibit 2.1 to Form 8-K (Date of Event: May 1,
1996) incorporated herein by reference).
10.4 Employment agreement dated November 4, 1996, between the Registrant and
Raymond G. Braun, as amended by Amendment No.1 to Employment agreement
dated August 29, 1997 (filed as Exhibit 10.4 to Form 10-K for the year
ended July 31, 1997, and incorporated herein by reference).
10.5 Non-Qualified Stock Option agreement dated November 4, 1996, between
the Registrant and Raymond G. Braun, as amended by Amendment No. 1
dated August 29, 1997 (filed as Exhibit 10.5 to Form 10-K for the year
ended July 31, 1997, and incorporated herein by reference).
16
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (CONTINUED)
10.6 Employment agreement dated May 2, 1996, between the Registrant and Saul
Gamoran, as amended by Amendment No. 1 dated May 16, 1996 (filed as
Exhibit 10.6 to Form 10-K for the year ended July 31, 1997, and
incorporated herein by reference).
10.7 Employment agreement dated June 20, 1997, between the Registrant and
James A. Weisfield (filed as Exhibit 10.7 to Form 10-K for the year
ended July 31, 1997, and incorporated herein by reference).
10.8 Subordinated Convertible Debenture Agreements dated July 3, 1997,
between the Registrant and each of Renaissance Capital Growth and
Income Fund III, Inc., Renaissance U.S. Growth and Income Trust PLC and
Banc One Capital Partners II, Ltd. (the "Convertible Lenders") (filed
as Exhibit 10.8 to Form 10-K for the year ended July 31, 1997, and
incorporated herein by reference).
10.9 Convertible Loan Agreement dated July 3, 1997, among the Registrant,
the Convertible Lenders and Renaissance Capital Group, Inc (filed as
Exhibit 10.9 to Form 10-K for the year ended July 31, 1997, and
incorporated herein by reference).
10.10 License Agreement dated March 22, 1994 by and between Warner Bros., a
division of Time Warner Entertainment, L.P., and the Registrant (as
successor by assignment to Ace Novelty, Inc.) (filed as Exhibit 10.10
to Form 10-K for the year ended July 31, 1997, and incorporated herein
by reference).
10.11 License Agreement dated March 22, 1996 by and between Warner Bros., a
division of Time Warner Entertainment, L.P., and the Registrant (as
successor by assignment to Ace Novelty, Inc.) (filed as Exhibit 10.11
to Form 10-K for the year ended July 31, 1997, and incorporated herein
by reference).
10.12 License Agreement dated September 10, 1997 by and between Warner Bros.,
a division of Time Warner Entertainment, L.P., and the Registrant
(filed as Exhibit 10.12 to Form 10-K for the year ended July 31, 1997,
and incorporated herein by reference).
10.13 License Agreement dated January 1, 1998 by and between Warner Bros., a
division of Time Warner Entertainment, L. P. and the Registrant.
10.14 License Agreement dated January 1, 1998 by and between Warner Bros., a
division of Time Warner Entertainment, L. P. and the Registrant.
10.15 Amendment dated January 14, 1998 to License Agreement dated September
10, 1997 by and between Warner Bros., a division of Time Warner
Entertainment, L.P. and the Registrant.
27.0 Financial Data Schedule (EDGAR filing only)
- ------------
+ Confidential treatment has been requested with respect to a portion of this
Exhibit.
(b) Reports on Form 8-K
None
17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, this 17th day of March 1997.
PLAY BY PLAY TOYS & NOVELTIES, INC.
By: /s/ RAYMOND G. BRAUN
Raymond G. Braun
CHIEF FINANCIAL OFFICER
18
RETAIL LICENSE - EMEA
WARNER BROS. CONSUMER PRODUCTS
#68116
LICENSE AGREEMENT made January 1, 1998 by and between WARNER BROS., A DIVISION
OF TIME WARNER ENTERTAINMENT COMPANY L.P., c/o Warner Bros. Consumer Products, a
Division of Time Warner Entertainment Company L.P., whose address is 4000 Warner
Blvd., Burbank, CA 91522 (hereinafter referred to as "LICENSOR") and PLAY-BY-
PLAY TOYS & NOVELTIES, INC., whose address is 4400 Tejasco, San Antonio, TX
78218-0267, c/o 1000 2nd Avenue, Suite 1401, Seattle, WA 98104, Attention: Saul
Gamoran (hereinafter referred to as "LICENSEE").
W I T N E S S E T H :
The parties hereto mutually agree as follows:
1. DEFINITIONS: As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "LICENSED PROPERTY": As defined in Schedules A-1 through C-13 as set
forth below, attached hereto and incorporated by reference:
(i) PROPERTIES A (ALL ARTICLES):
Schedule A-1: Looney Tunes
Schedule A-2: Animaniacs
(ii) PROPERTIES B (ALL ARTICLES):
Schedule B-3: Scooby Doo
Schedule B-4: Tom & Jerry
Schedule B-5: The Flintstones
Schedule B-6: Yogi Bear
Schedule B-7: Top Cat
Schedule B-8: The Jetsons
Schedule B-9: Wacky Races
In addition, the Licensed Property shall include use of the
Cartoon Network Logo, to be used only in conjunction with one
(1) or more Properties B and subject to Licensor's prior
written approval on a case-by-case basis. It is understood and
agreed that no additional royalties shall be paid to Licensor
for use of the Cartoon Network Logo as set forth herein.
(iii) PROPERTIES C (ARTICLES 4 ONLY):
Schedule C-10: Batman Animated Series/Comics
Schedule C-11: Superman Animated Series/Comics/
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<PAGE>
"Superman V" Motion Picture
Schedule C-12: Baby Looney Tunes
Schedule C-13: Quest for Camelot
(b) "TERRITORY": The regions of Europe, Middle East and Africa, as
defined on the attached Exhibit 3.
(c) "LICENSED PRODUCT(S)":
(i) ARTICLES 1 "STANDARD PLUSH":
*REDACTED*
(ii) ARTICLES 2 "FEATURE PLUSH":
*REDACTED*
(iii) ARTICLES 3 "OTHER PLUSH":
*REDACTED*
(iv) ARTICLES 4 "HOUSEWARES":
*REDACTED*
Articles 1, 2, 3 and 4 as defined above shall be referred to
separately and collectively herein as the "Licensed Product(s)."
*REDACTED*
(d) "GUARANTEED CONSIDERATION":
(i) The sum of *REDACTED* DOLLARS ($USD *REDACTED*) which shall be
allocated among the Licensed Properties, the Licensed Products
and the Distribution Channels and payable according to the
payment schedules set forth in Schedules A-1 through D-15.
(ii) In addition to the foregoing, the Guaranteed Consideration
shall also include unrecouped balances from Existing Licenses
(as defined below) in the amount of *REDACTED* DOLLARS
($*REDACTED*) (the "Unrecouped Balances"), which shall be
allocated among the Licensed Properties and the Articles as
follows:
*REDACTED*
-2- #68116
<PAGE>
The Royalties payable by Licensee hereunder shall offset the
amounts set forth above for such Property and Article.
Licensor acknowledges that the Unrecouped Balances have been
paid by Licensee.
(iii) It is hereby understood and agreed that:
1. Licensee shall provide Licensor a security instrument in
the form of an irrevocable insurance bond in the amount
of *REDACTED* DOLLARS ($*REDACTED) (the "Security
Instrument") of which (a) *REDACTED* Dollars
($*REDACTED*) shall be security against the Guaranteed
Consideration for this Agreement and (b) *REDACTED*
Dollars ($*REDACTED*) shall be security against the
Guaranteed Consideration for License Agreement #90248
between Licensor and Licensee for the region of Latin
America (including all Guaranteed Consideration amounts
set forth on Schedules A through D-15 attached thereto),
it being expressly understood that there shall be only
one (1) Security Instrument for the two (2) Agreements.
The Security Instrument shall be in a form acceptable to
Licensor and shall be issued from an institution
acceptable to Licensor, such acceptances not to be
unreasonably withheld. Delivery of the Security
Instrument to Licensor shall be no later than thirty
(30) days after Licensee's execution of this Agreement.
The Security Instrument shall have a term concurrent
with the Term of this Agreement and shall be
self-liquidating to the amount of the Guaranteed
Consideration remaining at the conclusion of the Term.
The Security Instrument shall be reduced during the Term
on a dollar for dollar basis as Licensee makes payments
during the Term. Upon payment to Licensor of the total
amount of the Guaranteed Consideration, the Security
Instrument shall terminate;
2. All payments hereunder shall be made in U.S. Dollars;
and
*REDACTED*
(e) "TERM": January 1, 1998 through *REDACTED*.
(f) "MARKETING DATES": "Marketing Date" shall mean the latest date the
Licensed Products shall be made available to the trade or to the
public, whichever applies, as set forth for each Article in Schedule
A, Chart #1.
(g) "ROYALTY RATE": Licensee shall pay to Licensor the following sums as
applicable (the "Royalties"):
*REDACTED*
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<PAGE>
(h) "DISTRIBUTION CHANNELS": Licensee may distribute the Licensed
Products through the Distribution Channels (as defined below)
applicable to each such Licensed Product as set forth below:
*REDACTED*
The Distribution Channels shall be defined as follows:
*REDACTED*
(i) "AUTHORIZED DISTRIBUTORS": Licensee and Licensor agree that Licensee
shall be permitted to utilize third-party distributors within
specific countries in the Territory ("Authorized Distributors"),
which shall have the right, subject to Paragraph 1.(j) below, to
import, manufacture, distribute and/or sell Licensed Products,
subject to Licensor's prior written approval in each case. Licensee
agrees that with each request for such approval it shall submit a
comprehensive annual business plan relating to the distribution and
sales of the Licensed Products. No approval, rejection and/or
modification of such annual business plan required by Licensor shall
constitute a guarantee for economic benefit to Licensee and/or the
Authorized Distributor or shall constitute liability on the part of
Licensor for any aspect of Licensee's business.
(j) "EXISTING LICENSES": It is agreed that the existing licenses between
Licensor and/or its affiliated companies and Licensee and/or its
subsidiary companies as set forth in Exhibit 5 attached hereto shall
be terminated effective December 31, 1997, including any sell-off
periods thereunder, and that Unrecouped Balances shall be payable
under this Agreement as set forth in Paragraph 1.(d)(ii); however,
Licensee agrees that such termination is contingent upon Licensee's
execution of this Agreement.
(k) "THIRD PARTY LICENSES": Licensee acknowledges that all rights
hereunder are subject to the rights of preexisting licensees under
third party licenses as listed in Exhibit 4 hereto (the "Third Party
Licenses") , including but not limited to such pre-existing
licensees which have been granted distribution rights in parts of
the Territory for products identical to Articles 1, 2 and 3.
Licensee agrees that it and its affiliated companies shall not
distribute and sell such Articles 1, 2 and 3 in such parts of the
Territory, subject to the terms of Paragraph 10(c) hereof; however
Licensee shall have the right to negotiate with such licensees with
the purpose of acting as the manufacturer for such licensees.
(1) "RECAPTURE RIGHTS": In the event Licensee fails to market any of the
Licensed Products and/or any of the countries in the Territory
and/or any of the Licensed Properties and or any of the Distribution
Channels three (3) months after the Marketing Date, Licensor shall
have the right to recapture such Licensed Product, country, Licensed
Property and/or Distribution Channel from the rights granted
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<PAGE>
under this Agreement without obligation to Licensee. Such recapture
may take place on a Property-by-Property, Licensed
Product-by-Licensed Product, country-by-country and/or Distribution
Channel-by-Distribution Channel basis.
(m) "LICENSEE'S COMMITMENTS":
(i) PROMOTIONAL COMMITMENT: Licensee agrees that throughout the
Term it shall spend a minimum of *REDACTED* percent
(*REDACTED*%) of its total Net Sales in each of the countries
in the Territory on promotional and advertising activities in
each such country (the "Promotional Commitment"). The
Promotional Commitment shall include, as a minimum, television
advertising for Articles 2 in the following countries:
*REDACTED*, with a total minimum value of *REDACTED* percent
(*REDACTED*%) of the total Promotional Commitment for each
country. Monies spent by Licensee for Trade Fairs (as defined
below) shall not be taken into account to determine the
Promotional Commitment. Licensee shall submit reports on a
quarterly basis as set forth in Paragraph 5.(a) with respect
to the Promotional Commitment and Licensor shall have the
right to inspect and/or audit Licensee's books and records
with respect to the Promotional Commitment under the terms and
conditions of Paragraph 6 hereof.
(ii) STAFFING COMMITMENT: Licensee agrees that it shall:
1. appoint dedicated sales and marketing managers to
oversee the sales and marketing of the Licensed Products
in the Territory; and
2. *REDACTED*
3. appoint dedicated staff to manage and enhance product
development and production control (as such terms are
commonly understood in the industry) of the Licensed
Products.
(iii) TRADE FAIRS: Licensee shall present the Licensed Products at
such trade fairs as are submitted to and approved by Licensor
prior to the Marketing Date (the "Trade Fairs"). Licensee's
affiliates and/or Authorized Distributors shall have sections
of its booth solely dedicated to the Licensed Properties and
the Licensed Products at the Trade Fairs, with the exception
of Trade Fairs in Developing Markets, where Licensee shall
dedicate sections of its booth to the Licensed Properties and
the Licensed Products together with other products.
"Developing Markets" shall be such countries as are submitted
to and approved by Licensor for such definition prior to the
Marketing Date.
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<PAGE>
(n) LICENSOR'S STAFFING COMMITMENT: Licensor shall designate an employee
with primary responsibility for the administration of this License
Agreement.
2. GRANT OF LICENSE:
(a) Subject to the restrictions, limitations, reservations and
conditions and Licensor's approval rights set forth in this
Agreement, and to pre-existing Third Party Licenses in the
Territory, Licensor hereby grants to Licensee and Licensee hereby
accepts for the Term of this Agreement, a license to utilize the
Licensed Property solely on or in connection with the manufacture,
distribution and sale of the Licensed Products as specified above
for the ultimate distribution to the public throughout the Territory
*REDACTED*.
(b) Without limiting any other approval rights of Licensor as contained
herein, no television commercials may be utilized under this
Agreement without the specific prior written approval of Licensor,
such approval not to be unreasonably withheld.
3. RESERVATION OF RIGHTS; PREMIUMS:
(a) Licensor reserves all rights not expressly conveyed to Licensee
hereunder, and Licensor may grant licenses to others to use the
Licensed Property, artwork and textual matter in connection with
other uses, services and products without limitation.
(b) Notwithstanding anything to the contrary stated herein, Licensor
specifically reserves the right, without limitation throughout the
world, to itself use, or license any third party(s) of its choice to
use the Licensed Property for the manufacture, distribution and sale
of products similar or identical to those licensed herein in
Paragraph 1. (c) above for sale through any catalogue(s) produced or
distributed by or on behalf of Licensor or its affiliated companies,
or for sale or distribution in any theaters or arenas, or for sale
or distribution in any retail stores operated by or on behalf of
Licensor, its affiliated companies or franchisees, or for sale or
distribution in any theme/amusement parks operated by or on behalf
of Licensor and its affiliated companies, including without
limitation, the Six Flags and Movie World parks. In addition,
Licensor reserves the right to allow Six Flags Corporation and Movie
World to manufacture (or have manufactured by a third party)
products similar or identical to those licensed herein for
distribution or sale in theme and/or amusement parks owned or
operated by both Six Flags Corporation and Movie World. Further,
Licensor reserves the right to use, or license others to use, and/or
manufacture products similar or identical to those licensed herein
for use as premiums.
(c) Licensee specifically understands and agrees that no rights are
granted herein with respect to the Warner Bros. "shield" logo or
trademark, or any other trademark(s), logo (s) or copyrights owned
by Licensor other than those specifically set forth
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<PAGE>
above in the Licensed Property, it being understood that all rights
in and to said properties are reserved exclusively to Licensor for
use and/or licensing as it deems appropriate to third party(s) of
its choice.
(d) Licensee agrees that it will not use, or knowingly permit the use
of, and will exercise due care that its customers likewise will
refrain from the use of, the Licensed Products as a premium, except
with the prior written consent of Licensor, and that it shall not
actively solicit orders for such use of the Licensed Products.
Notwithstanding the foregoing; Licensor shall notify Licensee of any
opportunities which may arise during the Term for Licensee to bid on
and/or supply a third party promotional partner of Licensor's with
Licensed Products for premium use within the Territory and Licensee
shall have the right to do so hereunder. Subject to Licensor's prior
written approval as aforesaid, Licensee shall pay to Licensor a sum
equal to TWELVE PERCENT (12%) of all premium sales. For purposes of
this paragraph, the term "premium" shall be defined as including,
but not necessarily limited to, combination sales, free or
self-liquidating items offered to the public in conjunction with the
sale or promotion of a product or service, including traffic
building or continuity visits by the consumer/customer, or any
similar scheme or device, the prime intent of which is to use the
Licensed Products in such a way as to promote, publicize and or sell
the products, services or business image of the user of such item.
4. CONSIDERATION:
(a) The Guaranteed Consideration paid by Licensee as set forth above
shall be applied against such Royalties as are, or have become, due
to Licensor. No part of such Guaranteed Consideration shall be
repayable to Licensee. Royalties earned in excess of the Guaranteed
Consideration applicable to the Term hereof shall not offset any
Guaranteed Consideration required in respect of the succeeding
renewal term (if any); likewise, Royalties earned in excess of the
Guaranteed Consideration applicable to the renewal term (if any)
shall not offset any Guaranteed Consideration applicable to any
prior term.
(b) ROYALTY PAYMENTS: Licensee shall pay to Licensor a sum equal to the
Royalty Rate as set forth above of all Net Sales by Licensee of the
Licensed Products covered by this Agreement. The term "Net Sales"
herein shall mean the gross invoice price billed customers, less
(i) actual quantity discounts and actual returns, but no
deductions shall be made for uncollectible accounts and
deductions for actual returns may not exceed five percent (5%)
of total sales; and
(ii) any sales, excise or value added taxes which are separately
stated and which are required to be collected from customers
and which are payable to tax authorities. No deduction shall
be taken in computing Net Sales for
-7- #68116
<PAGE>
taxes not described immediately above, including but not
limited to income taxes, withholding taxes or remittance
taxes.
No costs incurred in the manufacture, sale, distribution,
advertisement, or exploitation of the Licensed Products shall be
deducted from any Royalties payable by Licensee.
(c) Royalties shall be reported and paid as set forth in Paragraph
5.(a), except to the extent offset by Guaranteed Consideration
theretofore remitted. It is a material term and condition of this
Agreement that Royalty reports shall be broken down by (1) Licensed
Product, (2) country, (3) Licensed Property and (4) Distribution
Channel. In the event Licensee fails to do so, Licensor shall have
the right to terminate this Agreement. Licensor shall also have the
right to require Licensee to report on a retailer-by-retailer basis.
Without prejudice to any other rights and remedies that Licensor may
have, it is agreed that any Royalties due by Licensee accruing from
sales of the Licensed Products outside the Territory and/or outside
the applicable Distribution Channels shall not be offset against the
Guaranteed Consideration.
(d) Licensee shall not have the right to cross-collateralize Royalties
earned (1) between the Licensed Properties, (2) between the
Distribution Channels, or (3) between Articles 1, 2 and 3
collectively and Articles 4 (although Licensee may cross-
collateralize between Articles 1, 2 and 3) ; however, Licensee shall
have the right to set off accrued Royalties for a certain Licensed
Property which exceed the portion of the Guaranteed Consideration
allocated to such Licensed Property against the Unallocated Portion
of the Guaranteed Consideration (as set forth in Schedule A, Chart
#1 and in Schedules D-14 and D-15 attached hereto). Royalties so
accrued under any Licensed Property A or Licensed Property C may
only be offset against the Unallocated Portion of the Guaranteed
Consideration for Licensed Properties A and C; and Royalties so
accrued under any Licensed Property B may only be offset against the
Unallocated Portion of the Guaranteed Consideration for Licensed
Properties B.
(e) Licensee will pay all taxes, customs, duties, assessments, excise
except as provided in Subparagraph 4.(b)(ii) , and other charges
levied upon the importation of or assessed against the Licensed
Product under this Agreement, as well as all Licensee's costs of
doing business and Licensor shall have no liability therefor.
(f) In the event Licensee has earned Royalties in currencies, other than
in U.S. Dollars, then Licensee shall convert said amounts into U.S.
Dollars based upon the exchange rate published by the Wall Street
Journal as of the fifteenth (15th) day of the applicable month or if
such day shall fall on a non-business day then as of the first
business day following said fifteenth (15th) day.
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<PAGE>
5. PERIODIC STATEMENTS:
(a) Within thirty (30) days after the initial shipment of the Licensed
Products and promptly on the thirtieth (30th) day of every quarter
thereafter, Licensee shall furnish to Licensor complete and accurate
statements certified to be accurate by Licensee, or if a
corporation, by an officer of Licensee, broken down into the
categories set forth in Paragraph 4. (c) and showing with respect to
all Licensed Products distributed and sold by Licensee during the
preceding calendar quarter the (i) number of units; (ii) country in
which manufactured, sold and/or to which shipped; (iii) Description
(as such term is defined below) of the Licensed Products; (iv) gross
sales price; and (v) itemized deductions from gross sales price, and
net sales price together with any returns made during the preceding
calendar quarter. Such statements shall be furnished to Licensor
whether or not any of the Licensed Products have been sold during
calendar quarters to which such statements refer. Licensee shall
also include with each quarterly statement a statement which shows
the amounts spent during such quarter with respect to the
Promotional Commitment as defined in Paragraph 1. (m) (i). Receipt
or acceptance by Licensor of any of the statements furnished
pursuant to this Agreement or of any sums paid hereunder shall not
preclude Licensor from questioning the correctness thereof at any
time, and in the event that any inconsistencies or mistakes are
discovered in such statements or payments, they shall immediately be
rectified and the appropriate payments made by Licensee. Upon demand
of Licensor, Licensee shall at its own expense, but not more than
once in any twelve (12) month period, furnish to Licensor a detailed
statement by an independent certified public accountant showing the
(i) number of units; (ii) country in which manufactured, sold and/or
to which shipped; (iii) Description of the Licensed Products; (iv)
gross sales price; and (v) itemized deductions from gross sales
price and net sales price of the Licensed Products covered by this
Agreement distributed and/or sold by Licensee up to and including
the date upon which Licensor has made such demand. For purposes of
this subparagraph, the term "Description" shall mean a detailed
description of the Licensed Products including the nature of each of
the Licensed Products, any and all names and likenesses, whether
live actors or animated characters, from the Licensed Property
utilized on the Licensed Products and/or any related packaging
and/or wrapping material, and any other components of the Licensed
Property utilized on the Licensed Products and/or any related
packaging and/or wrapping material. In the event Licensor is
responsible for the payment of any additional third party
participation based on Licensee not reporting by character name and
likeness as provided above, Licensee shall be responsible for
reimbursing Licensor for the full amount of all such third party
claims, including without limitation, the participation itself,
interest, audit and attorneys' fees. Licensee understands and agrees
that it is a material term and condition of this Agreement that
Licensee include the Description on all statements. In the event
Licensee fails to do so, Licensor shall have the right to terminate
this Agreement, in accordance with the provisions of Paragraph 14
herein.
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<PAGE>
(b) The statements and payments required hereunder shall be delivered to:
WARNER BROS. CONSUMER PRODUCTS
4000 Warner Boulevard
Bridge Building, 4th Floor
Burbank, CA 91522
Attention: Accounting Manager, International Accounting
with a copy to:
WARNER BROS. CONSUMER PRODUCTS (U.K.) LTD.
18 Hanover Square
London W1R 9HG
England
Attention: Director of Operations and Planning
(c) Any payments which are made to Licensor hereunder after the due date
required therefore, shall bear interest at the then current prime
rate plus six percent (6%) (or the maximum rate permissible by law,
if less than the current prime rate) from the date such payments are
due to, the date of payment. Licensor's right hereunder to interest
on late payments shall not preclude Licensor from exercising any of
its other rights or remedies pursuant to this Agreement or otherwise
with regard to Licensee's failure to make timely remittances.
(d) Any income taxes, withholding taxes, other taxes and/or fees which
local law requires to be levied against Licensor's Royalty shall be
paid by Licensee on behalf of Licensor within the period of time
required by local law, provided that Licensee shall not make such
payment if Licensor has advised Licensee in writing not to do so,
and has taken appropriate legal action to contest the propriety of
such taxes and/or fees. In such event, Licensor shall indemnify
Licensee against any interest charges or penalties with respect to
such taxes. Any such taxes or fees which Licensee pays on behalf of
Licensor shall be deducted from the Royalty otherwise payable to
Licensor. The original receipt (or a bona fide copy thereof) for
such taxes as may be deducted from Royalties shall accompany the
statements described in Paragraph 5. (a) above for the accounting
period in which such deduction is made. Licensee shall timely file
all necessary tax returns or other government documents on
Licensor's behalf, as required by local law, at Licensee's cost.
(e) Licensee and Licensor agree that each calendar quarter during the
Term they shall mutually review Licensee's performance hereunder.
Such review shall take place in a format to be submitted by licensee
and approved by Licensor prior to the Marketing Date.
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<PAGE>
6. BOOKS AND RECORDS:
(a) Licensee shall keep, maintain and preserve (in Licensee's principal
place of business) for at least two (2) years following termination
or expiration of the Term of this Agreement or any renewal(s) hereof
(if applicable), complete and accurate records of accounts
including, without limitation, purchase orders, inventory records,
invoices, correspondence, banking and financial and other records
pertaining to the various items required to be submitted by Licensee
as well as to ensure Licensee's compliance with its obligations
hereunder, including without limitation (i) Licensee's Commitments
as set forth in Paragraph 1.(m)(ii) local laws as required pursuant
to Paragraph 13.(j) hereof and (iii) the terms and conditions of
Paragraph 19. Such records and accounts shall be available for
inspection and audit at any time or times during or after the Term
of this Agreement or any renewal(s) hereof (if applicable) during
reasonable business hours and upon reasonable notice by Licensor or
its nominees. Licensee agrees not to cause or permit any
interference with Licensor or nominees of Licensor in the
performance of their duties. During such inspections and audits,
Licensor shall have the right to take extracts and/or make copies of
Licensee's records as it deems necessary.
(b) The exercise by Licensor in whole or in part, at any time of the
right to audit records and accounts or of any other right herein
granted, or the acceptance by Licensor of any statement or
statements or the receipt and/or deposit by Licensor, of any payment
tendered by or on behalf of Licensee shall be without prejudice to
any rights or remedies of Licensor and such acceptance, receipt
and/or deposit shall not preclude or prevent Licensor from
thereafter disputing the accuracy of any such statement or payment.
(c) If pursuant to its right hereunder Licensor causes an audit and
inspection to be instituted which thereafter discloses a deficiency
between the amount found to be due to Licensor and the amount
actually received or credited to Licensor, then Licensee shall, upon
Licensor's demand, promptly pay the deficiency, together with
interest thereon at the then current prime rate from the date such
amount became due until the date of payment, and, if the deficiency
is more than five percent (5%) of all Royalties paid by Licensee
during the period covered by the audit, then Licensee shall pay the
reasonable costs and expenses of such audit and inspection.
7. INDEMNIFICATIONS:
(a) During the Term, and continuing after the expiration or termination
of this Agreement, Licensor shall indemnify Licensee and shall hold
it harmless from any loss, liability, damage, cost or expense
arising out of any claims or suits which may be brought or made
against Licensee by reason of the breach by Licensor of the
warranties or representations as set forth in Paragraph 12 hereof,
provided that Licensee shall give prompt written notice, and full
cooperation and assistance to
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<PAGE>
Licensor relative to any such claim or suit and provided, further,
that Licensor shall have the option to undertake and conduct the
defense of any suit so brought. Licensee shall not, however, be
entitled to recover for lost profits. Licensee shall cooperate fully
in all respects with Licensor in the conduct and defense of said
suit and/or proceedings related thereto.
(b) During the Term, and continuing after the expiration or termination
of this Agreement, Licensee shall indemnify Licensor and shall hold
it harmless from any loss, liability, damage, cost or expense
arising out of any claims or suits which may be brought or made
against Licensor by reason of: (i) any breach of Licensee's
covenants and undertakings hereunder; (ii) any unauthorized use by
Licensee of the Licensed Property; (iii) any use of any trademark,
copyright, design, patent, process, method or device, except for
those uses of the Licensed Property that are specifically approved
by Licensor pursuant to the terms of this Agreement; (iv) Licensee's
non-compliance with any applicable federal, state or local laws or
with any other applicable regulations; and (v) any alleged defects
and/or inherent dangers (whether obvious or hidden) in the Licensed
Products or the use thereof.
(c) With regard to 7(b)(v) above, Licensee agrees to obtain, at its own
expense, product liability insurance providing adequate protection
for Licensor and Licensee against any such claims or suits in
amounts no less than THREE MILLION U.S. DOLLARS ($USD 3,000,000) per
occurrence, combined single limits. Simultaneously with the
execution of this Agreement, Licensee undertakes to submit to
Licensor a fully paid policy or certificate of insurance naming
Licensor as an additional insured party and, requiring that the
insurer shall not terminate or materially modify such policy or
certificate of insurance without written notice to Licensor at least
twenty (20) days in advance thereof. Such insurance and delivery of
the policy or certificate are material obligations of Licensee.
8. ARTWORK; COPYRIGHT AND TRADEMARK NOTICES:
(a) The Licensed Property shall be displayed or used only in such form
and in such manner as has been specifically approved in writing by
Licensor in advance and Licensee undertakes to assure usage of the
trademark(s) and character(s) solely as approved hereunder. Licensee
further agrees and acknowledges that any and all Artwork (defined
below) created, utilized, approved and/or authorized for use
hereunder by Licensor in connection with the Licensed Products or
which otherwise features or includes the Licensed Property shall be
owned in its entirety exclusively by Licensor. "Artwork" as used
herein shall include, without limitation, all pictorial, graphic,
visual, audio, audio-visual, digital, literary, animated, artistic,
dramatic, sculptural, musical or any other type of creations and
applications, whether finished or not, including, but not limited
to, animation, drawings, designs, sketches, images, illustrations,
film, video, electronic, digitized or computerized information,
software, object code, source code, on-line elements,
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<PAGE>
music, text, dialogue, stories, visuals, effects, scripts, voice
overs, logos, one-sheets, promotional pieces, packaging, display
materials, printed materials, photographs, interstitials, notes,
shot logs, character profiles and translations, produced by Licensee
or for Licensee, pursuant to this Agreement. Licensor reserves for
itself or its designees all rights to use any and all Artwork
created, utilized and/or approved hereunder without limitation.
(b) (i) Licensee acknowledges that, as between Licensor and
Licensee, the Licensed Property and Artwork and all other
depictions expressions and derivations thereof, and all
copyrights, trademarks and other proprietary rights therein
are owned exclusively by Licensor and Licensee shall have no
interest in or claim thereto, except for the limited right to
use the same pursuant to this Agreement and subject to its
terms and conditions.
(ii) Licensee agrees and acknowledges that any Artwork created by
Licensee or for Licensee hereunder is a "work made for hire"
for Licensor under the U.S. Copyright Act, and any and all
similar provisions of law under other jurisdictions, and that
Licensor is the author of such works for all purposes, and
that Licensor is the exclusive owner of all the rights
comprised in the undivided copyright and all renewals,
extensions and reversions therein, in and to such works in
perpetuity and throughout the universe. Licensee hereby waives
and releases in favor of Licensor all rights (if any) of
"droit moral," rental rights and similar rights in and to the
Artwork (the "Intangible Rights") and agrees that Licensor
shall have the right to revise, condense, abridge, expand,
adapt, change, modify, add to, subtract from, re-title,
re-draw, re-color, or otherwise modify the Artwork, without
the consent of Licensee. Licensee hereby irrevocably grants,
transfers and assigns to Licensor all right, title and
interest, including copyrights, trademark rights, patent
rights and other proprietary rights, it may have in and to the
Artwork, in perpetuity and throughout the universe, and to all
proprietary depictions, expressions or derivations of the
Licensed Property created by or for Licensee. Licensee
acknowledges that Licensor shall have the right to terminate
this Agreement in the event Licensee asserts any rights (other
than those specifically granted pursuant to this Agreement) in
or to the Licensed Property or Artwork.
(iii) Licensee hereby warrants that any and all work created by
Licensee under this Agreement apart from the materials
provided to Licensee by Licensor is and shall be wholly
original with or fully cleared by Licensee and shall not copy
or otherwise infringe the rights of any third parties, and
Licensee hereby indemnifies Licensor and will hold Licensor
harmless from any such claim of infringement or otherwise
involving Licensee's performance hereunder. At the request of
Licensor, Licensee shall execute such form(s) of assignment of
copyright or other papers as Licensor may reasonably request
in order to confirm and vest in Licensor the rights in the
properties
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<PAGE>
as provided for herein. In addition, Licensee hereby appoints
Licensor as Licensee's Attorney-in-Fact to take such actions
and to make, sign, execute, acknowledge and deliver all such
documents as may from time to time be necessary to confirm in
Licensor, its successors and assigns, all rights granted
herein. If any third party makes or has made any contribution
to the creation of Artwork authorized for use hereunder,
Licensee agrees to obtain from such party a full confirmation
and assignment of rights so that the foregoing rights shall
vest fully in Licensor, in the form of the Contributor's
Agreement attached hereto as Exhibit 2 and by this reference
made a part hereof, prior to commencing work, ensuring that
all rights in the Artwork and Licensed Property arise in and
are assigned to Licensor. Promptly upon entering into each
such Agreement, Licensee shall give Licensor a copy of such
Agreement. Licensee assumes all responsibility for such
parties and agrees that Licensee shall bear any and all risks
arising out of or relating to the performance of services by
them and to the fulfillment of their obligations under the
Contributor's Agreement.
(iv) Upon expiration of termination of this Agreement for any
reason, or upon demand by Licensor at any time, Licensee shall
promptly deliver to Licensor all Artwork or Licensed Property,
whether finished or not, including drawings, drafts, sketches,
illustrations, screens, data, digital files and information,
copies or other items, information or things created in the
course of preparing the Licensed Property and all materials
provided to Licensee by Licensor hereunder, or, at Licensor's
option and instruction, shall destroy some or all of the
foregoing and shall confirm to Licensor in writing that
Licensee has done so. Licensee shall not use such Artwork or
Licensed Property, items, information or things, material, for
any purpose other than is permitted under this Agreement.
(c) Licensee shall, within thirty (30) days of receiving an invoice, pay
Licensor for artwork executed for Licensee by Licensor (or by third
parties under contract to Licensor) for use in the development of
the Licensed Products and any related packaging, display and
promotional materials at Licensor's prevailing commercial art rates.
The foregoing shall include any artwork that, in Licensor's opinion,
is necessary to modify artwork initially prepared by Licensee and
submitted for approval. Estimates of artwork charges are available
upon request.
(d) Licensee shall cause to be imprinted, irremovably and legibly on
each Licensed Product manufactured, distributed or sold under this
Agreement, and all advertising, promotional, packaging and wrapping
material wherein the Licensed Property appears, the appropriate
Copyright Notice for each such Licensed Property as set forth on
Schedules A-1 through C-13.
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<PAGE>
(e) In no event shall Licensee use, in respect to the Licensed Products
and/or in relation to any advertising, promotional, packaging or
wrapping material, any copyright or trademark notices which shall
conflict with, be confusing with, or negate, any notices required
hereunder by Licensor in respect to the Licensed Property.
(f) Licensee agrees to deliver to Licensor free of cost six (6) of each
of the Licensed Products together with their packaging and wrapping
material for trademark registration purposes in compliance with
applicable laws, simultaneously upon distribution to the public. Any
copyrights or trademarks with respect to the Licensed Products shall
be procured by and for the benefit of Licensor and at Licensor's
expense. Licensee further agrees to provide Licensor with the date
of the first use of the Licensed Products in interstate and
intrastate commerce.
(g) Licensee shall assist Licensor, at Licensor's expense, in the
procurement, protection, and maintenance of Licensor's rights to the
Licensed Property. Licensor may, in its sole discretion, commence or
prosecute and effect the disposition of any claims or suits relative
to the imitation, infringement and/or unauthorized use of the
Licensed Property either in its own name, or in the name of
Licensee, or join Licensee as a party in the prosecution of such
claims or suits. Licensee agrees to cooperate fully with Licensor in
connection with any such claims or suits and undertakes to furnish
full assistance to Licensor in the conduct of all proceedings in
regard thereto. Licensee shall promptly notify Licensor in writing
of any infringements or imitations or unauthorized uses by others of
the Licensed Property, on or in relation to products identical to
similar to or related to the Licensed Products. Licensor shall in
its sole discretion have the right to settle or effect compromises
in respect thereof. Licensee shall not institute any suit or take
any action on account of such infringements, imitations or
unauthorized uses.
9. APPROVALS AND QUALITY CONTROLS:
(a) Licensee agrees to strictly comply and maintain compliance with the
quality standards, specifications and rights of approval of Licensor
in respect to any and all usage of the Licensed Property on or in
relation to the Licensed Products throughout the Term of this
Agreement and any renewals or extensions thereof (if applicable).
Licensee agrees to furnish to Licensor free of cost for its written
approval as to quality and style, samples of each of the Licensed
Products, together with their packaging, hangtags, and wrapping
material, as follows in the successive stages indicated: (i) rough
sketches/layout concepts; (ii) finished artwork or final proofs;
(iii) pre-production samples or strike-offs; and (iv) finished
products, including packaged samples.
(b) No Licensed Products and no material whatever utilizing the Licensed
Property shall be manufactured, sold, distributed or promoted by
Licensee without prior
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<PAGE>
written approval. Licensee may, subject to Licensor's prior written
approval, use textual and/or pictorial matter pertaining to the
Licensed Property on such promotional, display and advertising
material as may, in its reasonable judgment, promote the sale of the
Licensed Products. All advertising and promotional material relating
to the Licensed Products must be submitted to the Licensor for its
written approval at the following stages appropriate to the medium
used: (i) rough concepts; (ii) layout, storyboard, script; and (iii)
finished materials.
(c) Approval or disapproval shall lie in Licensor's sole discretion. Any
Licensed Products not so approved in writing shall be deemed
unlicensed and shall not be manufactured or sold. If any unapproved
Licensed Products are being sold, Licensor may, together with other
remedies available to it including, but not limited to, immediate
termination of this Agreement, require such Licensed Products to be
immediately withdrawn from the market and to be destroyed, such
destruction to be attested to in a certificate signed by an officer
of Licensee.
(d) Any modification of a Licensed Product must be submitted in advance
for Licensor's written approval as if it were a new Licensed
Product. Approval of a Licensed Product which uses particular
artwork does not imply approval of such artwork for use with a
different Licensed Product.
(e) Licensed Products must conform in all material respects to the final
production samples approved by Licensor. If in Licensor's reasonable
judgement, the quality of a Licensed Product originally approved has
deteriorated in later production runs, or if a Licensed Product has
otherwise been altered, Licensor may, in addition to other remedies
available to it, require that such Licensed Product be Immediately
withdrawn from the market.
(f) Licensee shall permit Licensor to inspect Licensee's manufacturing
operations, testing and payroll records (including those operations
and records of any supplier or manufacturer approved pursuant to
Paragraph 10.(b) below) with respect to the Licensed Products.
(g) If any changes or modifications are required to be made to any
material submitted to Licensor for its written approval in order to
ensure compliance with Licensor's specifications or standards of
quality, Licensee agrees promptly to make such changes or
modifications.
(h) Subsequent to final approval, no fewer than fifty (50) production
samples of Licensed Products will be sent to Licensor, to ensure
quality control simultaneously upon distribution to the public. In
addition, Licensee shall provide Licensor with fifteen (15) catalogs
which display all of Licensee's products, not just the Licensed
Products. Further, Licensor shall have the right to purchase any and
all Licensed Products in any quantity at the maximum discount price
Licensee charges its best customer.
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<PAGE>
(i) To avoid confusion of the public, Licensee agrees not to associate
other characters or properties with the Licensed Property on the
Licensed Products or in any packaging, promotional or display
materials unless Licensee receives Licensor's prior written
approval. Furthermore, Licensee agrees not to use the Licensed
Property (or any component thereof) on any business sign, business
cards, stationery or forms, nor as part of the name of Licensee's
business or any division thereof.
(j) Licensee shall use its best efforts to notify its customers of the
requirement that Licensor has the right to approve all promotional,
display and advertising material pursuant to this Agreement.
(k) It is understood and agreed that any animation used in electronic
media, including but not limited to animation for television
commercials and character voices for radio commercials, shall be
produced by Warner Bros. Animation and/or the Warner/Blanc Audio
Library pursuant to a separate agreement between Licensee and Warner
Bros. Animation and/or the Warner/Blanc Audio Library, subject to
Warner Bros. Animation and/or the Warner/Blanc Audio Library
customary rates. Any payment made to Warner Bros. Animation and/or
the Warner/Blanc Audio Library for such animation or character
voices shall be in addition to and shall not offset the Guaranteed
Consideration set forth in Paragraph 1.(d).
(l) Licensor's approval of Licensed Products (including, without
limitation, the Licensed Products themselves as well as promotional,
display and advertising materials) shall in no way constitute or be
construed as an approval by Licensor of Licensee's use of any
trademark, copyright and/or other proprietary materials not owned by
Licensor.
(m) All Licensed Products must be submitted for approval as set forth
above to Licensor's Brand Assurance Department for the Territory.
Licensor's approval of products licensed under any other agreement
between Licensor and/or its affiliated companies and Licensee and/or
its affiliated companies shall not constitute an approval of any
Licensed Products for distribution in the Territory hereunder.
10. DISTRIBUTION; SUBLICENSE MANUFACTURE:
(a) Within the Distribution Channels set forth in Paragraph 1.(h)
hereof, Licensee shall sell the Licensed Products either to jobbers,
wholesalers, distributors or retailers for sale or resale and
distribution directly to the public. Unless explicitly set forth in
Paragraph 1.(h) hereof, Licensee shall not sell the Licensed
Products through any cable home shopping service or through
electronic media, including on any on- line network or service. If
Licensee sells or distributes the Licensed Products at a special
price, directly or indirectly, to itself, including without
limitation, any subsidiary of Licensee or to any other person, firm,
or corporation affiliated with Licensee or its officers, directors
or major stockholders, for ultimate sale to
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<PAGE>
unrelated third parties, Licensee shall pay Royalties with respect
to such sales or distribution, based upon the price generally
charged the trade by Licensee.
(b) Except as specifically permitted hereunder, Licensee shall not be
entitled to sublicense any of its rights under this Agreement. In
the event Licensee is not the manufacturer of the Licensed Products,
Licensee shall, subject to the prior written approval of Licensor,
which approval shall not be unreasonably withheld, be entitled to
utilize a third party manufacturer in connection with the
manufacture and production of the Licensed Products, provided that
such manufacturer shall execute a letter in the form of Exhibit 1
attached hereto and by this reference made a part hereof. In such
event, Licensee shall remain primarily obligated under all of the
provisions of this Agreement and any default of this Agreement by
such manufacturer shall be deemed a default by Licensee hereunder.
In no event shall any such third party manufacturer agreement
include the right to grant any rights to subcontractors.
(c) In the event the Territory or part thereof, now or hereafter, is a
member state of the European Economic Area (the "EEA"), nothing in
this Agreement shall prevent Licensee from supplying unsolicited
orders from customers having registered offices outside the
Territory and/or outside the Distribution Channels but in the EEA,
provided that Licensee shall not pursue an active policy of selling
or marketing the Licensed Products and/or Licensed Property outside
the Territory and/or Distribution Channels but in the EEA.
11. GOOD WILL: Licensee recognizes the great value of the publicity and good
will associated with the Licensed Property and, acknowledges that: (i)
such good will is exclusively that of Licensor; and (ii) the Licensed
Property has acquired a secondary meaning as Licensor's trademarks and/or
identifications in the mind of the purchasing public. Licensee further
recognizes and acknowledges that a breach by Licensee of any of its
covenants, agreements or undertakings hereunder will cause Licensor
irreparable damage, which cannot be readily remedied in damages in an
action at law, and may, in addition thereto, constitute an infringement of
Licensor's copyrights, trademarks and/other proprietary rights in, and to
the Licensed Property, thereby entitling Licensor to equitable remedies
and costs.
12. LICENSOR'S WARRANTIES AND REPRESENTATIONS:
Licensor represents and warrants to Licensee that:
(a) It has, and will have throughout the Term of this Agreement, the
right to license the Licensed Property to Licensee in accordance
with the terms and provisions of this Agreement; and
(b) The making of this Agreement by Licensor does not violate any
agreements, rights or obligations of any person, firm or
corporation.
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13. LICENSEE'S WARRANTIES AND REPRESENTATIONS:
Licensee represents and warrants to Licensor that, during the Term and
thereafter:
(a) It will not attack the title of Licensor (or third parties that have
granted rights to Licensor) in and to the Licensed Property or any
copyright or trademarks pertaining thereto, nor will it attack the
validity of the license granted hereunder;
(b) It will not harm, misuse or bring into disrepute the Licensed
Property, but on the contrary, will maintain the value and
reputation thereof to the best of its ability;
(c) It will manufacture, sell, promote and distribute the Licensed
Products in an ethical manner and in accordance with the terms and
intent of this Agreement, and in compliance with all applicable
government regulations and industry standards;
(d) It will not create any expenses chargeable to Licensor without the
prior written approval of Licensor in each and every instance. It
will not cause or allow any liens or encumbrances to be placed
against the Licensed Property;
(e) It will protect to the best of its ability its right to manufacture,
sell, promote, and distribute the Licensed Products hereunder;
(f) It will at all times comply with all government laws and
regulations, including but not limited to product safety, food,
health, drug, cosmetic, sanitary or other similar laws, and all
voluntary industry standards relating or pertaining to the
manufacture, sale, advertising or use of the Licensed Products, and
shall maintain its appropriate customary high quality standards
during the Term hereof. It shall comply with any regulatory agencies
which shall have jurisdiction over the Licensed Products and shall
procure and maintain in force any and all permissions,
certifications and/or other authorizations from governmental and/or
other official authorities that may be required in response thereto.
Each Licensed Product and component thereof distributed hereunder
shall comply with all applicable laws, regulations and voluntary
industry standards. Licensee shall follow reasonable and proper
procedures for testing that all Licensed Products comply with such
laws, regulations and standards. Licensee shall permit Licensor or
its designees to inspect testing records and procedures with respect
to the Licensed Products for compliance. Licensed Products that do
not comply with all applicable laws, regulations and standards shall
automatically be deemed unapproved and immediately taken off the
market;
(g) It shall, upon Licensor's request, provide credit information to
Licensor including, but not limited to, fiscal year-end financial
statements (profit-and-loss statement and balance sheet) and
operating statements;
-19- #68116
<PAGE>
(h) It will, pursuant to Licensor's instructions, duly take any and all
necessary steps to secure execution of all necessary documentation
for the recordation of itself as user of the Licensed Property in
any jurisdiction where this is required or where Licensor reasonably
requests that such recordation shall be effected. Licensee further
agrees that it will at its own expense cooperate with Licensor in
cancellation of any such recordation at the expiration of this
Agreement or upon termination of Licensee's right to use the
Licensed Property. Licensee hereby appoints Licensor its
Attorney-in-Fact for such purpose;
(i) It will not deliver or sell Licensed Products outside the Territory
or knowingly sell Licensed Products to a third party for delivery
outside the Territory, subject to Paragraph 10.(c) hereof;
(j) It will not use any labor that violates any local labor laws,
including all wage and hour laws, laws against discrimination and
that it will not use prison, slave or child labor in connection with
the manufacture of the Licensed Products;
(k) It shall at all times comply with all manufacturing, sales,
distribution, retail and marketing policies and strategies
promulgated by Licensor from time-to-time; and
(1) If requested by Licensor to do so, it will utilize specific design
elements of the Licensed Property provided to Licensee by Licensor
on hangtags, labels, and other materials.
14. TERMINATION BY LICENSOR:
(a) Licensor shall have the right to terminate this Agreement without
prejudice to any rights which it may have, whether pursuant to the
provisions of this Agreement, or otherwise in law, or in equity, or
otherwise upon the occurrence of any one or more of the following
events (herein called "defaults"):
(i) Licensee defaults in the performance of any of its obligations
provided for in this Agreement; or
(ii) Licensee shall have failed to deliver to Licensor or to
maintain in full force and effect the insurance referred to in
Paragraph 7.(c) hereof; or
(iii) Licensee shall fail to make any payments due hereunder on the
date due; or
(iv) Licensee shall fail to deliver any of the statements required
herein or to give access to the premises and/or license
records pursuant to the provisions hereof to Licensor's
authorized representatives for the purposes permitted
hereunder; or
-20- #68116
<PAGE>
(v) Licensee shall fail to comply with any laws, regulations or
voluntary industry standards as provided in Paragraph 13.(f)
or any governmental agency or other body, office or official
vested with appropriate authority finds that the Licensed
Products are harmful or defective in any way, manner or form,
or are being manufactured, sold or distributed in
contravention of applicable laws, regulations or standards, or
in a manner likely to cause harm; or
(vi) Licensee shall be unable to pay its debts when due, or shall
make any assignment for the benefit of creditors, or shall
file any petition under the bankruptcy or insolvency laws of
any jurisdiction, county or place, or shall have or suffer a
receiver or trustee to be appointed for its business or
property, or be adjudicated a bankrupt or an insolvent; or
(vii) Licensee does not commence in good faith to manufacture,
distribute and sell each Licensed Products and utilize each
character set forth in the Licensed Property ("Character")
throughout the Territory and the Distribution Channels on or
before the Marketing Date and thereafter fails to diligently
and continuously manufacture, distribute and sell each of the
Licensed Products and utilize each Character throughout the
Territory. Such default and Licensor's resultant right of
termination (or recapture) shall only apply to the specific
Character(s), the specific Licensed Products, the specific
country of the Territory and/or the specific Distribution
Channel, which or wherein Licensee fails to meet said
Marketing Date requirement; or
(viii) Licensee shall manufacture, sell or distribute, whichever
first occurs, any of the Licensed Products(s) without the
prior written approval of Licensor as provided in Paragraph 9
hereof. Notwithstanding the foregoing, in the event Licensee
has manufactured product without Licensor's approval and has
not sold or otherwise distributed such unapproved product,
this Agreement shall not terminate provided that all such
unapproved product is immediately destroyed and Licensee
provides a certificate of destruction to Licensor; or
(ix) Saul Gamoran is no longer an executive officer of Licensee; or
(x) A manufacturer approved pursuant to Paragraph 10.(b) hereof
shall sell Licensed Products to parties other than Licensee or
engage in conduct, which conduct if engaged in by Licensee
would entitle Licensor to terminate this Agreement; or
(xi) Licensee delivers or sells Licensed Products outside the
Territory or knowingly sells Licensed Products(s) to a third
party who Licensee knows intends to, or who Licensee
reasonably should suspect intends to, sell or
-21- #68116
<PAGE>
deliver such Licensed Products outside the Territory, except
as provided for in Paragraph 10.(c) above; or
(xii) Licensee uses any labor that violates any local labor laws
and/or it uses prison, slave or child labor in connection with
the manufacture of the Licensed Products; or
(xiii) Licensee has made a material misrepresentation or has omitted
to state a material fact necessary to make the statements not
misleading.
(b) In the event any of these defaults occur Licensor shall give notice
of termination in writing to Licensee by facsimile and certified
mail. Licensee shall have the number of days specified as follows
from the date of giving notice in which to correct the default
(except subdivisions (vii), (viii), (xi) and (xiii) above which are
not curable): for subdivisions (iii), (iv) (x) and (xii): ten (10)
days; for subdivisions (ii) , (v) and (vi) : fifteen (15) days; for
all other subdivisions: thirty (30) days; and failing such, this
Agreement shall thereupon immediately terminate, and any and all
payments then or later due from Licensee hereunder (including
Guaranteed Consideration) shall then be promptly due and payable in
full and no portion of those prior payments shall be repayable to
Licensee.
15. FINAL STATEMENT UPON TERMINATION OR EXPIRATION: Licensee shall
deliver, as soon as practicable, but not later than thirty (30) days
following expiration or termination of this Agreement, a statement
indicating the number and description of Licensed Products on hand
together with a description of all advertising and promotional materials
relating thereto. Following expiration or termination of this Agreement,
Licensee shall immediately cease any and all manufacturing of the Licensed
Product. However, if Licensee has complied with all the terms of this
Agreement, including, but not limited to, complete and timely payment of
the Guaranteed Consideration and Royalty Payments, then Licensee may
continue to distribute and sell its remaining inventory for a period not
to exceed ninety (90) days following such termination or expiration (the
"Sell-Off Period"), subject to payment of applicable Royalties thereto. In
no event, however, may Licensee distribute and sell during the Sell-off
Period an amount of Licensed Products that exceeds the average amount of
Licensed Products sold during any consecutive ninety (90) day period
during the Term. In the event this Agreement is terminated by Licensor for
any reason under this Agreement, Licensee shall be deemed to have
forfeited its Sell-Off Period. If Licensee has any remaining inventory of
the Licensed Products following the Sell-Off Period, Licensee shall, at
Licensor's option, make available such inventory to Licensor for purchase
at or below cost, deliver up to Licensor for destruction said remaining
inventory or furnish to Licensor an affidavit attesting to the destruction
of said remaining inventory. Licensor shall have the right to conduct a
physical inventory in order to ascertain or verify such inventory and/or
statement. In the event that Licensee refuses to permit Licensor to
conduct such physical inventory, Licensee shall forfeit its right to the
Sell-Off Period hereunder or any other rights to dispose of such
inventory. In addition to the forfeiture, Licensor shall have recourse to
all other legal remedies available to it.
-22- #68116
<PAGE>
16. NOTICES: Except as otherwise specifically provided herein, all notices
which either party hereto is required or may desire to give to the other
shall be given by addressing the same to the other at the address set
forth above, with a copy to WBCP (U.K.) LTD. at the address set forth in
Paragraph 5.(b) above, or at such other address as may be designated in
writing by any such party in a notice to the other given in the manner
prescribed in this paragraph. All such notices shall be sufficiently given
when the same shall be deposited so addressed, postage prepaid, in the
United States mail and/or when the same shall have been delivered, so
addressed, by facsimile or by overnight delivery service and the date of
transmission by facsimile, receipt of overnight delivery service or two
business days after mailing shall for the purposes of this Agreement be
deemed the date of the giving of such notice.
17. NO PARTNERSHIP, ETC.: This Agreement does not constitute and shall not be
construed as constitution of a partnership or joint venture between
Licensor and Licensee. Neither party shall have any right to obligate or
bind the other party in any manner whatsoever, and nothing herein
contained shall give, or is intended to give, any rights of any kind to
any third persons.
18. NO SUBLICENSING/NON-ASSIGNABILITY: This Agreement shall bind and inure to
the benefit of Licensor, its successors and assigns. This Agreement is
personal to Licensee. Licensee shall not sublicense, franchise or delegate
to third parties its rights hereunder (except as set forth in Paragraph
10.(b) hereof). Neither this Agreement nor any of the rights of Licensee
hereunder shall be sold, transferred or assigned by Licensee and no rights
hereunder shall devolve by operation of law or otherwise upon any
receiver, liquidator, trustee or other party.
19. *REDACTED*
20. CONSTRUCTION: This Agreement shall be construed in accordance with the
laws of the State of California of the United States of America without
regard to its conflicts of laws provisions.
21. WAIVER, MODIFICATION ETC.: No waiver, modification or cancellation of any
term or condition of this Agreement shall be effective unless executed in
writing by the party charged therewith. No written waiver shall excuse the
performance of any acts other than those specifically referred to therein.
The fact that the Licensor has not previously insisted upon Licensee
expressly complying with any provision of this Agreement shall not be
deemed to be a waiver of Licensor's future right to require compliance in
respect thereof and Licensee specifically acknowledges and agrees that the
prior forbearance in respect of any act, term or condition shall not
prevent Licensor from subsequently requiring full and complete compliance
thereafter. If any term or provision of this Agreement is held to be
invalid or unenforceable by any court of competent jurisdiction or any
other authority vested with jurisdiction, such holding shall not affect
the validity or enforceability of any other term or provision hereto and
this Agreement shall be interpreted and construed as if such term or
provision, to the extent the same shall have
-23- #68116
<PAGE>
been held to be invalid, illegal or unenforceable, had never been
contained herein. Headings of paragraphs herein are for convenience only
and are without substantive significance.
22. ACCEPTANCE BY LICENSOR: This instrument when signed by Licensee shall be
deemed an application for license and not a binding agreement unless and
until accepted by Warner Bros. Consumer Products by signature of a duly
authorized officer and the delivery of such a signed copy to Licensee. The
receipt by Warner Bros. Consumer Products of any check or other
consideration given by Licensee and/or delivery of any material by Warner
Bros. Consumer Products to Licensee shall not be deemed an acceptance by
Warner Bros. Consumer Products of this application. The foregoing shall
apply to any documents relating to renewals or modifications hereof.
This Agreement shall be of no force or effect unless and until it is signed by
all of the parties listed below:
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
LICENSOR: LICENSEE:
WARNER BROS. CONSUMER PRODUCTS, PLAY-BY-PLAY TOYS
A DIVISION OF TIME WARNER ENTERTAINMENT NOVELTIES, INC.
COMPANY L.P., ON BEHALF OF ITSELF AND AS
AGENT FOR WARNER BROS., A DIVISION OF
TIME WARNER ENTERTAINMENT COMPANY L.P.
By:/s/ GARY R. SIMON By:/s/ SAUL GAMORAN
Gary R. Simon Saul Gamoran
Vice President, Legal Affairs Executive Vice President
and General Counsel
Date: 1/27/98 Date: 1/27/98
-24- #68116
<PAGE>
#68116 - EXHIBIT 1
WARNER BROS. CONSUMER PRODUCTS
4000 Warner Blvd.
Triangle Bldg. - 3rd Floor
Burbank, CA 91522
RE: APPROVAL OF THIRD PARTY MANUFACTURER
Gentlemen:
This letter will serve as notice to you that pursuant to Paragraph 10.(b) of
the License Agreement dated _____________________, between WARNER BROS., A
DIVISION OF TIME WARNER ENTERTAINMENT COMPANY L.P. and PLAY-BY-PLAY TOYS &
NOVELTIES, INC. ("Licensee"), we have been engaged as the manufacturer for
Licensee in connection with the manufacture of Licensed Products as defined in
the aforesaid License Agreement. We hereby acknowledge that we may not
manufacture Licensed Products for, or sell or distribute Licensed Products to,
anyone other than Licensee. We hereby further acknowledge that we have received
a copy and are cognizant of the terms and conditions set forth in said License
Agreement and hereby agree to observe those provisions of said License Agreement
which are applicable to our function as manufacturer of the Licensed Products.
It is expressly understood that we are obligated to comply with all local laws,
including without limitation, labor laws, wage and hour laws and
anti-discrimination laws and that you or your representatives shall, at anytime,
have the right to inspect our facilities and review our records to ensure
compliance therewith. It is understood that this engagement is on a royalty free
basis and that we may not subcontract any of our work without your prior written
approval.
We understand that our engagement as the manufacturer for Licensee is subject
to your written approval. We request, therefore, that you sign in the space
below, thereby showing your acceptance of our engagement as aforesaid.
-25- #68116
<PAGE>
Very truly yours,
Manufacturer/Company Name
By:
signature
printed name
AGREED TO AND ACCEPTED:
address
WARNER BROS. CONSUMER PRODUCTS,
A DIVISION OF TIME WARNER
ENTERTAINMENT COMPANY, L.P.
dated
By: product(s) manufacturing
Gary R. Simon
Vice President, Legal Affairs
dated
-26- #68116
<PAGE>
#68116 - EXHIBIT 2
CONTRIBUTOR'S AGREEMENT
I, __________________________________, the undersigned ("Contributor"), have
been engaged by _________________________ ("Licensee") to work on or contribute
to the creation of Licensed Products, described as
__________________________________________, by Licensee under an agreement
between Licensee and Warner Bros., a division of Time Warner Entertainment
Company L.P., c/o Warner Bros. Consumer Products, a division of Time Warner
Entertainment Company L.P. ("Warner"), dated ________________________.
I understand and agree that the Licensed Products, and all artwork or other
results of my services for Licensee in connection with such Licensed Products
("Work") is a "work made for hire" for Warner and that all right, title and
interest in and to the Work shall vest and remain with Warner. I reserve no
rights therein. Without limiting the foregoing, I hereby assign and transfer to
Warner all other rights whatsoever, in perpetuity throughout the universe which
I may have or which may arise in me or in connection with the Work. I hereby
waive all moral rights in connection with such Work together with any other
rights which are not capable of assignment. I further agree to execute any
further documentation relating to such transfer or waiver or relating to such
Work at the request of Warner or Licensee, failing which Warner is authorized to
execute same as my Attorney-in-Fact.
CONTRIBUTOR:
By:
Date:
WARNER BROS. CONSUMER PRODUCTS:
By:
Date:
-27- #68116
<PAGE>
EXHIBIT 3
LICENSE AGREEMENT #68116
EUROPE, MIDDLE EAST AND AFRICA:
United Kingdom, Eire, France, Germany, Italy, Spain, Portugal, Belgium, The
Netherlands, Luxembourg, Greece, Denmark, Sweden, Finland, Austria, Norway,
Iceland, Liechtenstein, Switzerland, Turkey, Poland, Czech Republic, Slovak
Republic, Hungary, Bulgaria, Romania, Albania, Croatia, Slovenia,
Bosnia-Herzegovina, Montenegro, Kosovo, Macedonia, Serbia, Vojvodina Latvia,
Estonia, Lithuania, Russia, Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgystan, Moldova, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Bahrain,
Cyprus, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Oman, Qatar,
Republic of Yemen, South Yemen, Saudi Arabia, Syria, United Arab Emirates,
Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Central
African Republic, Chad, Congo, Djibouti, Egypt, Equatorial Guinea, Ethiopia,
Gabon, Gambia, Ghana, Guinea, Guinea Bissau, Ivory Coast, Kenya, Lesotho,
Liberia, Libya, Malawi, Mali, Mauritania, Morocco, Mozambique, Namibia, Niger,
Rwanda, Senegal, Sierra Leone, Somalia, South Africa, Sudan, Swaziland,
Tanzania, Togo, Tunisia, Uganda, Western Sahara, Zaire, Zambia, Zimbabwe.
-28- #68116
RETAIL LICENSE - LATIN AMERICA
WARNER BROS. CONSUMER PRODUCTS
#90248
LICENSE AGREEMENT made January 1, 1998 by and between WARNER BROS., A DIVISION
OF TIME WARNER ENTERTAINMENT COMPANY L.P., c/o Warner Bros. Consumer Products, a
Division of Time Warner Entertainment Company L.P., whose address is 4000 Warner
Blvd., Burbank, CA 91522 (hereinafter referred to as "LICENSOR") and
PLAY-BY-PLAY TOYS & NOVELTIES, INC., whose address is 4400 Tejasco, San Antonio,
TX 78218-0267, c/o 1000 2nd Avenue, Suite 1401, Seattle, WA 98104, Attention:
Saul Gamoran (hereinafter referred to as "LICENSEE").
W I T N E S S E T H :
The parties hereto mutually agree as follows:
1. DEFINITIONS: As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "LICENSED PROPERTY": As defined in Schedules A-1 through C-13 as set
forth below, attached hereto and incorporated by reference:
(i) PROPERTIES A (ALL ARTICLES):
Schedule A-1: Looney Tunes
Schedule A-2: Animaniacs
(ii) PROPERTIES B (ALL ARTICLES):
Schedule B-3: Scooby Doo
Schedule B-4: Tom & Jerry
Schedule B-5: The Flintstones
Schedule B-6: Yogi Bear
Schedule B-7: Top Cat
Schedule B-8: The Jetsons
Schedule B-9: Wacky Races
In addition, the Licensed Property shall include use of the
Cartoon Network Logo, to be used only in conjunction with one
(1) or more Properties B and subject to Licensor's prior
written approval on a case-by-case basis. It is understood and
agreed that no additional royalties shall be paid to Licensor
for use of the Cartoon Network Logo as set forth herein.
-1- #90248
<PAGE>
(iii) PROPERTIES C (ARTICLES 4 ONLY):
Schedule C-1: Batman Animated Series/Comics
Schedule C-1: Superman Animated
Series/Comics/
"Superman V" Motion Picture
Schedule C-1: Baby Looney Tunes
Schedule C-1: Quest for Camelot
(b) "TERRITORY": The region of Latin America, as defined on the attached
Exhibit 3.
(c) "LICENSED PRODUCT(S)":
(i) ARTICLES 1 "STANDARD PLUSH":
*REDACTED*
(ii) ARTICLES 2 "FEATURE PLUSH":
*REDACTED*
(iii) ARTICLES 3 "OTHER PLUSH":
*REDACTED*
(iv) ARTICLES 4 "HOUSEWARES":
*REDACTED*
Articles 1, 2, 3 and 4 as defined above shall be referred to
separately and collectively herein as the "Licensed Product(s)."
*REDACTED*
(d) "GUARANTEED CONSIDERATION":
(i) The sum of *REDACTED* U.S. Dollars ($USD *REDACTED*), which
shall be allocated among the Licensed Properties, the Licensed
Products and the Distribution Channels and payable according
to the payment schedules set forth in Schedules A-1 through
D-15.
*REDACTED*
-2- #90248
07978 00004 CORP 187184
<PAGE>
The Royalties payable by Licensee hereunder shall offset the
amounts set forth above for such Property and Article.
Licensor acknowledges that the Unrecouped Balances have been
paid by Licensee.
(ii) It is hereby understood and agreed that:
1. Licensee shall provide Licensor a security instrument in
the form of an irrevocable insurance bond in the amount
of *REDACTED* DOLLARS ($*REDACTED*) (the "Security
Instrument") of which (a) *REDACTED* Dollars
($*REDACTED*) shall be security against the Guaranteed
Consideration for this Agreement and (b) *REDACTED*
Dollars ($*REDACTED*) shall be security against the
Guaranteed Consideration for License Agreement #68116
between Licensor and Licensee for the region of Europe,
Middle East and Africa (including all Guaranteed
Consideration amounts set forth on Schedules A through
D-15 attached thereto), it being expressly understood
that there shall be only one (1) Security Instrument for
the two (2) Agreements. The Security Instrument shall be
in a form acceptable to Licensor and shall be issued
from an institution acceptable to Licensor, such
acceptances not to be unreasonably withheld. Delivery of
the Security Instrument to Licensor shall be no later
than thirty (30) days after Licensee's execution of this
Agreement. The Security Instrument shall have a term
concurrent with the Term of this Agreement and shall be
self- liquidating to the amount of the Guaranteed
Consideration remaining at the conclusion of the Term.
The Security Instrument shall be reduced during the Term
on a dollar for dollar basis as Licensee makes payments
during the Term. Upon payment to Licensor of the total
amount of the Guaranteed Consideration, the Security
Instrument shall terminate;
2. All payments hereunder shall be made in U.S. Dollars;
and
3. *REDACTED*
(e) "TERM": January 1, 1998 through *REDACTED*.
(f) "MARKETING DATES": "Marketing Date" shall mean the latest date the
Licensed Products shall be made available to the trade or to the
public, whichever applies, as set forth for each Article in
Schedules A, Chart #1.
(g) "ROYALTY RATE": Licensee shall pay to Licensor the following sums as
applicable (the "Royalties"): *REDACTED*
-3- #90248
07978 00004 CORP 187184
<PAGE>
(h) "DISTRIBUTION CHANNELS": Licensee may distribute the Licensed
Products through the Distribution Channels (as defined below)
applicable to each such Licensed Product as set forth below:
*REDACTED*
The Distribution Channels shall be defined as follows:
*REDACTED*
(i) "AUTHORIZED DISTRIBUTORS": Licensee and Licensor agree that Licensee
shall be permitted to utilize third-party distributors within
specific countries in the Territory ("Authorized Distributors"),
which shall have the right to import, manufacture, distribute and/or
sell Licensed Products, subject to Licensor's prior written approval
in each case. Licensee agrees that with each request for such
approval it shall submit a comprehensive annual business plan
relating to the distribution and sales of the Licensed Products. No
approval, rejection and/or modification of such annual business plan
required by Licensor shall constitute a guarantee for economic
benefit to Licensee and/or the Authorized Distributor or shall
constitute liability on the part of Licensor for any aspect of
Licensee's business.
(j) "THIRD PARTY LICENSES": Licensee acknowledges that all rights
hereunder are subject to the rights of pre-existing licensees under
third party licenses as listed in Exhibit 4 hereto (the "Third Party
Licenses"), including but not limited to such pre-existing licensees
which have been granted distribution rights in parts of the
Territory for products identical to Articles 1, 2 and 3. Licensee
agrees that it and its affiliated companies shall not distribute and
sell such Articles 1, 2 and 3 in such parts of the Territory;
however Licensee shall have the right to negotiate with such
licensees with the purpose of acting as the manufacturer for such
licensees.
(k) "RECAPTURE RIGHTS": In the event Licensee fails to market any of the
Licensed Products and/or any of the countries in the Territory
and/or any of the Licensed Properties and or any of the Distribution
Channels three (3) months after the Marketing Date, Licensor shall
have the right to recapture such Licensed Product, country, Licensed
Property and/or Distribution Channel from the rights granted under
this Agreement without obligation to Licensee. Such recapture may
take place on a Property-by-Property, Licensed Product-by-Licensed
Product, country- by-country and/or Distribution
Channel-by-Distribution Channel basis.
-4- #90248
07978 00004 CORP 187184
<PAGE>
(l) "LICENSEE'S COMMITMENTS":
(i) PROMOTIONAL COMMITMENT: Licensee agrees that throughout the
Term it shall spend a minimum of *REDACTED* percent
(*REDACTED*%) of its total Net Sales in each of the countries
in the Territory on promotional and advertising activities in
each such country (the "Promotional Commitment"). The
Promotional Commitment shall include, as a minimum, television
advertising for Articles 2 in the following countries:
*REDACTED*, with a total minimum value of *REDACTED* percent
(*REDACTED*%) of the total Promotional Commitment for each
country. Monies spent by Licensee for Trade Fairs (as defined
below) shall not be taken into account to determine the
Promotional Commitment. Licensee shall submit reports on a
quarterly basis as set forth in Paragraph 5.(a) with respect
to the Promotional Commitment and Licensor shall Have the
right to inspect and/or audit Licensee's books and records
with respect to the Promotional Commitment under the terms and
conditions of Paragraph 6 hereof.
(ii) STAFFING COMMITMENT: Licensee agrees that it shall:
1. appoint dedicated sales and marketing managers to
oversee the sales and marketing of the Licensed Products
in the Territory; and
*REDACTED*
3. appoint dedicated staff to manage and enhance product
development and production control (as such terms are
commonly understood in the industry) of the Licensed
Products.
(iii) TRADE FAIRS: Licensee shall present the Licensed Products at
such trade fairs as are submitted to and approved by Licensor
prior to the Marketing Date (the "Trade Fairs"). Licensee's
affiliates and/or Authorized Distributors shall have sections
of its booth solely dedicated to the Licensed Properties and
the Licensed Products at the Trade Fairs, with the exception
of Trade Fairs in Developing Markets, where Licensee shall
dedicate sections of its booth to the Licensed Properties and
the Licensed Products together with other products.
"Developing Markets" shall be such countries as are
submitted-to and approved by Licensor for such definition
prior to the Marketing Date.
(m) LICENSOR'S STAFFING COMMITMENT: Licensor shall designate an employee
with primary responsibility for the administration of this License
Agreement.
-5- #90248
07978 00004 CORP 187184
<PAGE>
2. GRANT OF LICENSE:
(a) Subject to the restrictions, limitations, reservations and
conditions and Licensor's approval rights set forth in this
Agreement and to pre-existing Third Party Licenses in the Territory,
Licensor hereby grants to Licensee and Licensee hereby accepts for
the Term of this Agreement, a license to utilize the Licensed
Property solely on or in connection with the manufacture,
distribution and sale of the Licensed Products as specified above
for the ultimate distribution to the public throughout the Territory
*REDACTED*.
(b) Without limiting any other approval rights of Licensor as contained
herein, no television commercials may be utilized under this
Agreement without the specific prior written approval of Licensor,
such approval not to be unreasonably withheld.
3. RESERVATION OF RIGHTS; PREMIUMS:
(a) Licensor reserves all rights not expressly conveyed to Licensee
hereunder, and Licensor may grant licenses to others to use the
Licensed Property, artwork and textual matter in connection with
other uses, services and products without limitation.
(b) Notwithstanding anything to the contrary stated herein, Licensor
specifically reserves the right, without limitation throughout the
world, to itself use, or license any third party(s) of its choice to
use the Licensed Property for the manufacture, distribution and sale
of products similar or identical to those licensed herein in
Paragraph 1.(c) above for sale through any catalogue(s) produced or
distributed by or on behalf of Licensor or its affiliated companies,
or for sale or distribution in any theaters or arenas, or for sale
or distribution in any retail stores operated by or on behalf of
Licensor, its affiliated companies or franchisees, or for sale or
distribution in any theme/amusement parks operated by or on behalf
of Licensor and its affiliated companies, including without
limitation, the Six Flags and Movie World parks. In addition,
Licensor reserves the right to allow Six Flags Corporation and Movie
World to manufacture (or have manufactured by a third party)
products similar or identical to those licensed herein for
distribution or sale in theme and/or amusement parks owned or
operated by both Six Flags Corporation and Movie World. Further,
Licensor reserves the right to use, or license others to use, and/or
manufacture products similar or identical to those licensed herein
for use as premiums.
(c) Licensee specifically understands and agrees that no rights are
granted herein with respect to the Warner Bros. "shield" logo or
trademark, or any other trademark(s), logo(s) or copyrights owned by
Licensor other than those specifically set forth above in the
Licensed Property, it being understood that all rights in and to
said
-6- #90248
07978 00004 CORP 187184
<PAGE>
properties are reserved exclusively to Licensor for use and/or
licensing as it deems appropriate to third party(s) of its choice.
(d) Licensee agrees that it will not use, or knowingly permit the use
of, and will exercise due care that its customers likewise will
refrain from the use of, the Licensed Products as a premium, except
with the prior written consent of Licensor, and that it shall not
actively solicit orders for such use of the Licensed Products.
Notwithstanding the foregoing, Licensor shall notify Licensee of any
opportunities which may arise during the Term for Licensee to bid on
and/or supply a third party promotional partner of Licensor's with
Licensed Products for premium use within the Territory and Licensee
shall have the right to do so hereunder. Subject to Licensor's prior
written approval as aforesaid, Licensee shall pay to Licensor a sum
equal to TWELVE PERCENT (12%) of all premium sales. For purposes of
this paragraph, the term "premium" shall be defined as including,
but not necessarily limited to, combination sales, free or
self-liquidating items offered to the public in conjunction with the
sale or promotion of a product or service, including traffic
building or continuity visits by the consumer/customer, or any
similar scheme or device, the prime intent of which is to use the
Licensed Products in such a way as to promote, publicize and or sell
the products, services or business image of the user of such item.
4. CONSIDERATION:
(a) The Guaranteed Consideration paid by Licensee as set forth above
shall be applied against such Royalties as are, or have become, due
to Licensor. No part of such Guaranteed Consideration shall be
repayable to Licensee. Royalties earned in excess of the Guaranteed
Consideration applicable to the Term hereof shall not offset any
Guaranteed Consideration required in respect of the succeeding
renewal term (if any); likewise, Royalties earned in excess of the
Guaranteed Consideration applicable to the renewal term (if any)
shall not offset any Guaranteed Consideration applicable to any
prior term.
(b) ROYALTY PAYMENTS: Licensee shall pay to Licensor a sum equal to the
Royalty Rate as set forth above of all Net Sales by Licensee of the
Licensed Products covered by this Agreement. The term "Net Sales"
herein shall mean the gross invoice price billed customers, less
(i) actual quantity discounts and actual returns, but no
deductions shall be made for uncollectible accounts and
deductions for actual returns may not exceed five percent (5%)
of total sales; and
(ii) any sales, excise or value added taxes which are separately
stated and which are required to be collected from customers
and which are payable
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to tax authorities. No deduction shall be taken in computing
Net Sales for taxes not described immediately above, including
but not limited to income taxes, withholding taxes or
remittance taxes.
No costs incurred in the manufacture, sale, distribution,
advertisement, or exploitation of the Licensed Products shall be
deducted from any Royalties payable by Licensee.
(c) Royalties shall be reported and paid as set forth in Paragraph
5.(a), except to the extent offset by Guaranteed Consideration
theretofore remitted. It is a material term and condition of this
Agreement that Royalty reports shall be broken down by (1) Licensed
Product, (2) country, (3) Licensed Property and (4) Distribution
Channel. In the event Licensee fails to do so, Licensor shall have
the right to terminate this Agreement. Licensor shall also have the
right to require Licensee to report on a retailer-by-retailer basis.
Without prejudice to any other rights and remedies that Licensor may
have, it is agreed that any Royalties due by Licensee accruing from
sales of the Licensed Products outside the Territory and/or outside
the applicable Distribution Channels shall not be offset against the
Guaranteed Consideration.
(d) Licensee shall not have the right to cross-collateralize Royalties
earned (1) between the Licensed Properties, (2) between the
Distribution Channels, or (3) between Articles 1, 2 and 3
collectively and Articles 4 (although Licensee may cross-
collateralize between Articles 1, 2 and 3); however, Licensee shall
have the right to set off accrued Royalties for a certain Licensed
Property which exceed the portion of the Guaranteed Consideration
allocated to such Licensed Property against the Unallocated Portion
of the Guaranteed Consideration (as set forth in Schedule A, Chart
#1 and in Schedules D-14 and D-15 attached hereto). Royalties so
accrued under any Licensed Property A or Licensed Property C may
only be offset against the Unallocated Portion of the Guaranteed
Consideration for Licensed Properties A and C; and Royalties so
accrued under any Licensed Property B may only be offset against the
Unallocated Portion of the Guaranteed Consideration for Licensed
Properties B.
(e) Licensee will pay all taxes, customs, duties, assessments, excise
except as provided in Subparagraph 4.(b)(ii), and other charges
levied upon the importation of or assessed against the Licensed
Product under this Agreement, as well as all Licensee's costs of
doing business and Licensor shall have no liability therefor.
(f) In the event Licensee has earned Royalties in currencies other than
in U.S. Dollars, then Licensee shall convert said amounts into U.S.
Dollars based upon the exchange rate published by the Wall Street
Journal as of the fifteenth (15th) day of
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the applicable month or if such day shall fall on a non-business day
then as of the first business day following said fifteenth (15th)
day.
5. PERIODIC STATEMENTS:
(a) Within thirty (30) days after the initial shipment of the Licensed
Products and promptly on the thirtieth (30th) day of every quarter
thereafter, Licensee shall furnish to Licensor complete and accurate
statements certified to be accurate by Licensee, or if a
corporation, by an officer of Licensee, broken down into the
categories set forth in Paragraph 4.(c) and showing with respect to
all Licensed Products distributed and sold by Licensee during the
preceding calendar quarter the (i) number of units; (ii) country in
which manufactured, sold and/or to which shipped; (iii) Description
(as such term is defined below) of the Licensed Products; (iv) gross
sales price; and (v) itemized deductions from gross sales price, and
net sales price together with any returns made during the preceding
calendar quarter. Such statements shall be furnished to Licensor
whether or not any of the Licensed Products have been sold during
calendar quarters to which such statements refer. Licensee shall
also include with each quarterly statement a statement which shows
the amounts spent during such quarter with respect to the
Promotional Commitment as defined in Paragraph 1.(m)(i). Receipt or
acceptance by Licensor of any of the statements furnished pursuant
to this Agreement or of any sums paid hereunder shall not preclude
Licensor from questioning the correctness thereof at any time, and
in the event that any inconsistencies or mistakes are discovered in
such statements or payments, they shall immediately be rectified and
the appropriate payments made by Licensee. Upon demand of Licensor,
Licensee shall at its own expense, but not more than once in any
twelve (12) month period, furnish to Licensor a detailed statement
by an independent certified public accountant showing the (i) number
of units; (ii) country in which manufactured, sold and/or to which
shipped; (iii) Description of the Licensed Products; (iv) gross
sales price; and (v) itemized deductions from gross sales price and
net sales price of the Licensed Products covered by this Agreement
distributed and/or sold by Licensee up to and including the date
upon which Licensor has made such demand. For purposes of this
subparagraph, the term "Description" shall mean a detailed
description of the Licensed Products including the nature of each of
the Licensed Products, any and all names and likenesses, whether
live actors or animated characters, from the Licensed Property
utilized on the Licensed Products and/or any related packaging
and/or wrapping material, and any other components of the Licensed
Property utilized on the Licensed Products and/or any related
packaging and/or wrapping material. In the event Licensor is
responsible for the payment of any additional third party
participations based on Licensee not reporting by character name and
likeness as provided above, Licensee shall be responsible for
reimbursing Licensor for the full amount of all such third party
claims, including without limitation, the participation itself,
interest, audit and attorneys, fees.
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Licensee understands and agrees that it is a material term and
condition of this Agreement that Licensee include the Description on
all statements. In the event Licensee fails to do so, Licensor shall
have the right to terminate this Agreement, in accordance with the
provisions of Paragraph 14 herein.
(b) The statements and payments required hereunder shall be delivered
to:
WARNER BROS. CONSUMER PRODUCTS
4000 Warner Boulevard
Bridge Building, 4th Floor
Burbank, CA 91522
Attention: Accounting Manager, International Accounting
(c) Any payments which are made to Licensor hereunder after the due date
required therefore, shall bear interest at the then current prime
rate plus six percent (6%) (or the maximum rate permissible by law,
if less than the current prime rate) from the date such payments are
due to the date of payment. Licensor's right hereunder to interest
on late payments shall not preclude Licensor from exercising any of
its other rights or remedies pursuant to this Agreement or otherwise
with regard to Licensee's failure to make timely remittances.
(d) Any income taxes, withholding taxes, other taxes and/or fees which
local law requires to be levied against Licensor's Royalty shall be
paid by Licensee on behalf of Licensor within the period of time
required by local law, provided that Licensee shall not make such
payment if Licensor has advised Licensee in writing not to do so,
and has taken appropriate legal action to contest the propriety of
such taxes and/or fees. In such event, Licensor shall indemnify
Licensee against any interest charges or penalties with respect to
such taxes. Any such taxes or fees which Licensee pays on behalf of
Licensor shall be deducted from the Royalty otherwise payable to
Licensor. The original receipt (or a bona fide copy thereof) for
such taxes as may be deducted from Royalties shall accompany the
statements described in Paragraph 5.(a) above for the accounting
period in which such deduction is made. Licensee shall timely file
all necessary tax returns or other government documents on
Licensor's behalf, as required by local law, at Licensee's cost.
(e) Licensee and Licensor agree that each calendar quarter during the
Term they shall mutually review Licensee's performance hereunder.
Such review shall take place in a format to be submitted by Licensee
and approved by Licensor prior to the Marketing Date.
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6. BOOKS AND RECORDS:
(a) Licensee shall keep, maintain and preserve (in Licensee's principal
place of business) for at least two (2) years following termination
or expiration of the Term of this Agreement or any renewal(s) hereof
(if applicable), complete and accurate records of accounts
including, without limitation, purchase orders, inventory records,
invoices, correspondence, banking and financial and other records
pertaining to the various items required to be submitted by Licensee
as well as to ensure Licensee's compliance with its obligations
hereunder, including without limitation (i) Licensee's Commitments
as set forth in Paragraph 1.(m), (ii) local laws as required
pursuant to Paragraph 13.(j) hereof and (iii) the terms and
conditions of Paragraph 19. Such records and accounts shall be
available for inspection and audit at any time or times during or
after the Term of this Agreement or any renewal(s) hereof (if
applicable) during reasonable business hours and upon reasonable
notice by Licensor or its nominees. Licensee agrees not to cause or
permit any interference with Licensor or nominees of Licensor in the
performance of their duties. During such inspections and audits,
Licensor shall have the right to take extracts and/or make copies of
Licensee's records as it deems necessary.
(b) The exercise by Licensor in whole or in part, at any time of the
right to audit records and accounts or of any other right herein
granted, or the acceptance by Licensor of any statement or
statements or the receipt and/or deposit by Licensor, of any payment
tendered by or on behalf of Licensee shall be without prejudice to
any rights or remedies of Licensor and such acceptance, receipt
and/or deposit shall not preclude or prevent Licensor from
thereafter disputing the accuracy of any such statement or payment.
(c) If pursuant to its right hereunder Licensor causes an audit and
inspection to be instituted which thereafter discloses a deficiency
between the amount found to be due to Licensor and the amount
actually received or credited to Licensor, then Licensee shall, upon
Licensor's demand, promptly pay the deficiency, together with
interest thereon at the then current prime rate from the date such
amount became due until the date of payment, and, if the deficiency
is more than five percent (5%) of all Royalties paid by Licensee
during the period covered by the audit, then Licensee shall pay the
reasonable costs and expenses of such audit and inspection.
7. INDEMNIFICATIONS:
(a) During the Term, and continuing after the expiration or termination
of this Agreement, Licensor shall indemnify Licensee and shall hold
it harmless from any loss, liability, damage, cost or expense
arising out of any claims or suits which
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may be brought or made against Licensee by reason of the breach by
Licensor of the warranties or representations as set forth in
Paragraph 12 hereof, provided that Licensee shall give prompt
written notice, and full cooperation and assistance to Licensor
relative to any such claim or suit and provided, further, that
Licensor shall have the option to undertake and conduct the defense
of any suit so brought. Licensee shall not, however, be entitled to
recover for lost profits. Licensee shall cooperate fully in all
respects with Licensor in the conduct and defense of said suit
and/or proceedings related thereto.
(b) During the Term, and continuing after the expiration or termination
of this Agreement, Licensee shall indemnify Licensor and shall hold
it harmless from any loss, liability, damage, cost or expense
arising out of any claims or suits which may be brought or made
against Licensor by reason of: (i) any breach of Licensee's
covenants and undertakings hereunder; (ii) any unauthorized use by
Licensee of the Licensed Property; (iii) any use of any trademark,
copyright, design, patent, process, method or device, except for
those uses of the Licensed Property that are specifically approved
by Licensor pursuant to the terms of this Agreement; (iv) Licensee's
non-compliance with any applicable federal, state or local laws or
with any other applicable regulations; and (v) any alleged defects
and/or inherent dangers (whether obvious or hidden) in the Licensed
Products or the use thereof.
(c) With regard to 7(b)(v) above, Licensee agrees to obtain, at its own
expense, product liability insurance providing adequate protection
for Licensor and Licensee against any such claims or suits in
amounts no less than THREE MILLION U.S. DOLLARS ($USD 3,000,000) per
occurrence, combined single limits. Simultaneously with the
execution of this Agreement, Licensee undertakes to submit to
Licensor a fully paid policy or certificate of insurance naming
Licensor as an additional insured party and, requiring that the
insurer shall not terminate or materially modify such policy or
certificate of insurance without written notice to Licensor at least
twenty (20) days in advance thereof. Such insurance and delivery of
the policy or certificate are material obligations of Licensee.
8. ARTWORK; COPYRIGHT AND TRADEMARK NOTICES:
(a) The Licensed Property shall be displayed or used only in such form
and in such manner as has been specifically approved in writing by
Licensor in advance and Licensee undertakes to assure usage of the
trademark(s) and character(s) solely as approved hereunder. Licensee
further agrees and acknowledges that any and all Artwork (defined
below) created, utilized, approved and/or authorized for use
hereunder by Licensor in connection with the Licensed Products or
which otherwise features or includes the Licensed Property shall be
owned in its entirety exclusively by Licensor. "Artwork" as used
herein shall include, without
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limitation, all pictorial, graphic, visual, audio, audio-visual,
digital, literary, animated, artistic, dramatic, sculptural, musical
or any other type of creations and applications, whether finished or
not, including, but not limited to, animation, drawings, designs,
sketches, images, illustrations, film, video, electronic, digitized
or computerized information, software, object code, source code,
on-line elements, music, text, dialogue, stories, visuals, effects,
scripts, voiceovers, logos, one-sheets, promotional pieces,
packaging, display materials, printed materials, photographs,
interstitials, notes, shot logs, character profiles and
translations, produced by Licensee or for Licensee, pursuant to this
Agreement. Licensor reserves for itself or its designees all rights
to use any and all Artwork created, utilized and/or approved
hereunder without limitation.
(b) (i) Licensee acknowledges that, as between Licensor and
Licensee, the Licensed Property and Artwork and all other
depictions expressions and derivations thereof, and all
copyrights, trademarks and other proprietary rights therein
are owned exclusively by Licensor and Licensee shall have no
interest in or claim thereto, except for the limited right to
use the same pursuant to this Agreement and subject to its
terms and conditions.
(ii) Licensee agrees and acknowledges that any Artwork created by
Licensee or for Licensee hereunder is a "work made for hire"
for Licensor under the U.S. Copyright Act, and any and all
similar provisions of law under other jurisdictions, and that
Licensor is the author of such works for all purposes, and
that Licensor is the exclusive owner of all the rights
comprised in the undivided copyright and all renewals,
extensions and reversions therein, in and to such works in
perpetuity and throughout the universe. Licensee hereby waives
and releases in favor of Licensor all rights (if any) of
"droit moral," rental rights and similar rights in and to the
Artwork (the "Intangible Rights") and agrees that Licensor
shall have the right to revise, condense, abridge, expand,
adapt, change, modify, add to, subtract from, re-title,
re-draw, re-color, or otherwise modify the Artwork, without
the consent of Licensee. Licensee hereby irrevocably grants,
transfers and assigns to Licensor all right, title and
interest, including copyrights, trademark rights, patent
rights and other proprietary rights, it may have in and to the
Artwork, in perpetuity and throughout the universe, and to all
proprietary depictions, expressions or derivations of the
Licensed Property created by or for Licensee. Licensee
acknowledges that Licensor shall have the right to terminate
this Agreement in the event Licensee asserts any rights (other
than those specifically granted pursuant to this Agreement) in
or to the Licensed Property or Artwork.
(iii) Licensee hereby warrants that any and all work created by
Licensee under this Agreement apart from the materials
provided to Licensee by Licensor
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is and shall be wholly original with or fully cleared by
Licensee and shall not copy or otherwise infringe the rights
of any third parties, and Licensee hereby indemnifies Licensor
and will hold Licensor harmless from any such claim of
infringement or otherwise involving Licensee's performance
hereunder. At the request of Licensor, Licensee shall execute
such form(s) of assignment of copyright or other papers as
Licensor may reasonably request in order to confirm and vest
in Licensor the rights in the properties as provided for
herein. In addition, Licensee hereby appoints Licensor as
Licensee's Attorney-in-Fact to take such actions and to make,
sign, execute, acknowledge and deliver all such documents as
may from time to time be necessary to confirm in Licensor, its
successors and assigns, all rights granted herein. If any
third party makes or has made any contribution to the creation
of Artwork authorized for use hereunder, Licensee agrees to
obtain from such party a full confirmation and assignment of
rights so that the foregoing rights shall vest fully in
Licensor, in the form of the Contributor's Agreement attached
hereto as Exhibit 2 and by this reference made a part hereof,
prior to commencing work, ensuring that all rights in the
Artwork and Licensed Property arise in and are assigned to
Licensor. Promptly upon entering into each such Agreement,
Licensee shall give Licensor a copy of such Agreement.
Licensee assumes all responsibility for such parties and
agrees that Licensee shall bear any and all risks arising out
of or relating to the performance of services by them and to
the fulfillment of their obligations under the Contributor's
Agreement.
(iv) Upon expiration of termination of this Agreement for any
reason, or upon demand by Licensor at any time, Licensee shall
promptly deliver to Licensor all Artwork or Licensed Property,
whether finished or not, including drawings, drafts, sketches,
illustrations, screens, data, digital files and information,
copies or other items, information or things created in the
course of preparing the Licensed Property and all materials
provided to Licensee by Licensor hereunder, or, at Licensor's
option and instruction, shall destroy some or all of the
foregoing and shall confirm to Licensor in writing that
Licensee has done so. Licensee shall not use such Artwork or
Licensed Property, items, information or things, material, for
any purpose other than is permitted under this Agreement.
(c) Licensee shall, within thirty (30) days of receiving an invoice, pay
Licensor for artwork executed for Licensee by Licensor (or by third
parties under contract to Licensor) for use in the development of
the Licensed Products and any related packaging, display and
promotional materials at Licensor's prevailing commercial art rates.
The foregoing shall include any artwork that, in Licensor's opinion,
is
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necessary to modify artwork initially prepared by Licensee and
submitted for approval. Estimates of artwork charges are available
upon request.
(d) Licensee shall cause to be imprinted, irremovably and legibly on
each Licensed Product manufactured, distributed or sold under this
Agreement, and all advertising, promotional, packaging and wrapping
material wherein the Licensed Property appears, the appropriate
Copyright Notice for each such Licensed Property as set forth on
Schedules A-1 through C-13.
(e) In no event shall Licensee use, in respect to the Licensed Products
and/or in relation to any advertising, promotional, packaging or
wrapping material, any copyright or trademark notices which shall
conflict with, be confusing with, or negate, any notices required
hereunder by Licensor in respect to the Licensed Property.
(f) Licensee agrees to deliver to Licensor free of cost six (6) of each
of the Licensed Products together with their packaging and wrapping
material for trademark registration purposes in compliance with
applicable laws, simultaneously upon distribution to the public. Any
copyrights or trademarks with respect to the Licensed Products shall
be procured by and for the benefit of Licensor and at Licensor's
expense. Licensee further agrees to provide Licensor with the date
of the first use of the Licensed Products in interstate and
intrastate commerce.
(g) Licensee shall assist Licensor, at Licensor's expense, in the
procurement, protection, and maintenance of Licensor's rights to the
Licensed Property. Licensor may, in its sole discretion, commence or
prosecute and effect the disposition of any claims or suits relative
to the imitation, infringement and/or unauthorized use of the
Licensed Property either in its own name, or in the name of
Licensee, or join Licensee as a party in the prosecution of such
claims or suits. Licensee agrees to cooperate fully with Licensor in
connection with any such claims or suits and undertakes to furnish
full assistance to Licensor in the conduct of all proceedings in
regard thereto. Licensee shall promptly notify Licensor in writing
of any infringements or imitations or unauthorized uses by others of
the Licensed Property, on or in relation to products identical to
similar to or related to the Licensed Products. Licensor shall in
its sole discretion have the right to settle or effect compromises
in respect thereof. Licensee shall not institute any suit or take
any action on account of such infringements, imitations or
unauthorized uses.
9. APPROVALS AND QUALITY CONTROLS:
(a) Licensee agrees to strictly comply and maintain compliance with the
quality standards, specifications and rights of approval of Licensor
in respect to any and
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all usage of the Licensed Property on or in relation to the Licensed
Products throughout the Term of this Agreement and any renewals or
extensions thereof (if applicable). Licensee agrees to furnish to
Licensor free of cost for its written approval as to quality and
style, samples of each of the Licensed Products, together with their
packaging, hangtags, and wrapping material, as follows in the
successive stages indicated: (i) rough sketches/layout concepts;
(ii) finished artwork or final proofs; (iii) pre-production samples
or strike-offs; and (iv) finished products, including packaged
samples.
(b) No Licensed Products and no material whatever utilizing the Licensed
Property shall be manufactured, sold, distributed or promoted by
Licensee without prior written approval. Licensee may, subject to
Licensor's prior written approval, use textual and/or pictorial
matter pertaining to the Licensed Property on such promotional,
display and advertising material as may, in its reasonable judgment,
promote the sale of the Licensed Products. All advertising and
promotional material relating to the Licensed Products must be
submitted to the Licensor for its written approval at the following
stages appropriate to the medium used: (i) rough concepts; (ii)
layout, storyboard, script; and (iii) finished materials.
(c) Approval or disapproval shall lie in Licensor's sole discretion. Any
Licensed Products not so approved in writing shall be deemed
unlicensed and shall not be manufactured or sold. If any unapproved
Licensed Products are being sold, Licensor may, together with other
remedies available to it including, but not limited to, immediate
termination of this Agreement, require such Licensed Products to be
immediately withdrawn from the market and to be destroyed, such
destruction to be attested to in a certificate signed by an officer
of Licensee.
(d) Any modification of a Licensed Product must be submitted in advance
for Licensor's written approval as if it were a new Licensed
Product. Approval of a Licensed Product which uses particular
artwork does not imply approval of such artwork for use with a
different Licensed Product.
(e) Licensed Products must conform in all material respects to the final
production samples approved by Licensor. If in Licensor's reasonable
judgement, the quality of a Licensed Product originally approved has
deteriorated in later production runs, or if a Licensed Product has
otherwise been altered, Licensor may, in addition to other remedies
available to it, require that such Licensed Product be immediately
withdrawn from the market.
(f) Licensee shall permit Licensor to inspect Licensee's manufacturing
operations, testing and payroll records (including those operations
and records of any supplier or manufacturer approved pursuant to
Paragraph 10.(b) below) with respect to the Licensed Products.
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(g) If any changes or modifications are required to be made to any
material submitted to Licensor for its written approval in order to
ensure compliance with Licensor's specifications or standards of
quality, Licensee agrees promptly to make such changes or
modifications.
(h) Subsequent to final approval, no fewer than fifty (50) production
samples of Licensed Products will be sent to Licensor, to ensure
quality control simultaneously upon distribution to the public. In
addition, Licensee shall provide Licensor with fifteen (15) catalogs
which display all of Licensee's products, not just the Licensed
Products. Further, Licensor shall have the right to purchase any and
all Licensed Products in any quantity at the maximum discount price
Licensee charges its best customer.
(i) To avoid confusion of the public, Licensee agrees not to associate
other characters or properties with the Licensed Property on the
Licensed Products or in any packaging, promotional or display
materials unless Licensee receives Licensor's prior written
approval. Furthermore, Licensee agrees not to use the Licensed
Property (or any component thereof) on any business sign, business
cards, stationery or forms, nor as part of the name of Licensee's
business or any division thereof.
(j) Licensee shall use its best efforts to notify its customers of the
requirement that Licensor has the right to approve all promotional,
display and advertising material pursuant to this Agreement.
(k) It is understood and agreed that any animation used in electronic
media, including but not limited to animation for television
commercials and character voices for radio commercials, shall be
produced by Warner Bros. Animation and/or the Warner/Blanc Audio
Library pursuant to a separate agreement between Licensee and Warner
Bros. Animation and/or the Warner/Blanc Audio Library, subject to
Warner Bros. Animation and/or the Warner/Blanc Audio Library
customary rates. Any payment made to Warner Bros. Animation and/or
the Warner/Blanc Audio Library for such animation or character
voices shall be in addition to and shall not offset the Guaranteed
Consideration set forth in Paragraph 1.(d).
(l) Licensor's approval of Licensed Products (including, without
limitation, the Licensed Products themselves as well as promotional,
display and advertising materials) shall in no way constitute or be
construed as an approval by Licensor of Licensee's use of any
trademark, copyright and/or other proprietary materials not owned by
Licensor.
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(m) All Licensed Products must be submitted for approval as set forth
above to Licensor's Brand Assurance Department for the Territory.
Licensor's approval of products licensed under any other agreement
between Licensor and/or its affiliated companies and Licensee and/or
its affiliated companies shall not constitute an approval of any
Licensed Products for distribution in the Territory hereunder.
10. DISTRIBUTION; SUBLICENSE MANUFACTURE:
(a) Within the Distribution Channels set forth in Paragraph 1.(h)
hereof, Licensee shall sell the Licensed Products either to jobbers,
wholesalers, distributors or retailers for sale or resale and
distribution directly to the public. Unless explicitly set forth in
Paragraph 1.(h) hereof, Licensee shall not sell the Licensed
Products through any cable home shopping service or through
electronic media, including on any on- line network or service. If
Licensee sells or distributes the Licensed Products at a special
price, directly or indirectly, to itself, including without
limitation, any subsidiary of Licensee or to any other person, firm,
or corporation affiliated with Licensee or its officers, directors
or major stockholders, for ultimate sale to unrelated third parties,
Licensee shall pay Royalties with respect to such sales or
distribution, based upon the price generally charged the trade by
Licensee.
(b) Except as specifically permitted hereunder, Licensee shall not be
entitled to sublicense any of its rights under this Agreement. In
the event Licensee is not the manufacturer of the Licensed Products,
Licensee shall, subject to the prior written approval of Licensor,
which approval shall not be unreasonably withheld, be entitled to
utilize a third party manufacturer in connection with the
manufacture and production of the Licensed Products, provided that
such manufacturer shall execute a letter in the form of Exhibit 1
attached hereto and by this reference made a part hereof. In such
event, Licensee shall remain primarily obligated under all of the
provisions of this Agreement and any default of this Agreement by
such manufacturer shall be deemed a default by Licensee hereunder.
In no event shall any such third party manufacturer agreement
include the right to grant any rights to subcontractors.
11. GOOD WILL: Licensee recognizes the great value of the publicity and good
will associated with the Licensed Property and, acknowledges that:(i) such
good will is exclusively that of Licensor; and (ii) the Licensed Property
has acquired a secondary meaning as Licensor's trademarks and/or
identifications in the mind of the purchasing public. Licensee further
recognizes and acknowledges that a breach by Licensee of any of its
covenants, agreements or undertakings hereunder will cause Licensor
irreparable damage, which cannot be readily remedied in damages in an
action at law, and may, in addition thereto, constitute an infringement of
Licensor's copyrights, trademarks and/other proprietary rights in, and to
the Licensed Property, thereby entitling Licensor to equitable remedies
and costs.
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12. LICENSOR'S WARRANTIES AND REPRESENTATIONS:
Licensor represents and warrants to Licensee that:
(a) It has, and will have throughout the Term of this Agreement, the
right to license the Licensed Property to Licensee in accordance
with the terms and provisions of this Agreement; and
(b) The making of this Agreement by Licensor does not violate any
agreements, rights or obligations of any person, firm or
corporation.
13. LICENSEE'S WARRANTIES AND REPRESENTATIONS:
Licensee represents and warrants to Licensor that, during the Term and
thereafter:
(a) It will not attack the title of Licensor (or third parties that have
granted rights to Licensor) in and to the Licensed Property or any
copyright or trademarks pertaining thereto, nor will it attack the
validity of the license granted hereunder;
(b) It will not harm, misuse or bring into disrepute the Licensed
Property, but on the contrary, will maintain the value and
reputation thereof to the best of its ability;
(c) It will manufacture, sell, promote and distribute the Licensed
Products in an ethical manner and in accordance with the terms and
intent of this Agreement, and in compliance with all applicable
government regulations and industry standards;
(d) It will not create any expenses chargeable to Licensor without the
prior written approval of Licensor in each and every instance. It
will not cause or allow any liens or encumbrances to be placed
against the Licensed Property;
(e) It will protect to the best of its ability its right to manufacture,
sell, promote, and distribute the Licensed Products hereunder;
(f) It will at all times comply with all government laws and
regulations, including but not limited to product safety, food,
health, drug, cosmetic, sanitary or other similar laws, and all
voluntary industry standards relating or pertaining to the
manufacture, sale, advertising or use of the Licensed Products, and
shall maintain its appropriate customary high quality standards
during the Term hereof. It shall comply with any regulatory agencies
which shall have jurisdiction over the Licensed Products and shall
procure and maintain in force any and all permissions,
certifications and/or other authorizations from governmental and/or
other official authorities that may be required in response thereto.
Each Licensed Product and
-19- #90248
07978 00004 CORP 187184
<PAGE>
component thereof distributed hereunder shall comply with all
applicable laws, regulations and voluntary industry standards.
Licensee shall follow reasonable and proper procedures for testing
that all Licensed Products comply with such laws, regulations and
standards. Licensee shall permit Licensor or its designees to
inspect testing records and procedures with respect to the Licensed
Products for compliance. Licensed Products that do not comply with
all applicable laws, regulations and standards shall automatically
be deemed unapproved and immediately taken off the market;
(g) It shall, upon Licensor's request, provide credit information to
Licensor including, but not limited to, fiscal year-end financial
statements (profit-and-loss statement and balance sheet) and
operating statements;
(h) It will, pursuant to Licensor's instructions, duly take any and all
necessary steps to secure execution of all necessary documentation
for the recordation of itself as user of the Licensed Property in
any jurisdiction where this is required or where Licensor reasonably
requests that such recordation shall be effected. Licensee further
agrees that it will at its own expense cooperate with Licensor in
cancellation of any such recordation at the expiration of this
Agreement or upon termination of Licensee's right to use the
Licensed Property. Licensee hereby appoints Licensor its
Attorney-in-Fact for such purpose;
(i) It will not deliver or sell Licensed Products outside the Territory
or knowingly sell Licensed Products to a third party for delivery
outside the Territory;
(j) It will not use any labor that violates any local labor laws,
including all wage and hour laws, laws against discrimination and
that it will not use prison, slave or child labor in connection with
the manufacture of the Licensed Products;
(k) It shall at all times comply with all manufacturing, sales,
distribution, retail and marketing policies and strategies
promulgated by Licensor from time-to-time; and
(l) If requested by Licensor to do so, it will utilize specific design
elements of the Licensed Property provided to Licensee by Licensor
on hangtags, labels, and other materials.
14. TERMINATION BY LICENSOR:
(a) Licensor shall have the right to terminate this Agreement without
prejudice to any rights which it may have, whether pursuant to the
provisions of this Agreement, or otherwise in law, or in equity, or
otherwise, upon the occurrence of any one or more of the following
events (herein called "defaults"):
-20- #90248
07978 00004 CORP 187184
<PAGE>
(i) Licensee defaults in the performance of any of its obligations
provided for in this Agreement; or
(ii) Licensee shall have failed to deliver to Licensor or to
maintain in full force and effect the insurance referred to in
Paragraph 7.(c) hereof; or
(iii) Licensee shall fail to make any payments due hereunder on the
date due; or
(iv) Licensee shall fail to deliver any of the statements required
herein or to give access to the premises and/or license
records pursuant to the provisions hereof to Licensor's
authorized representatives for the purposes permitted
hereunder; or
(v) Licensee shall fail to comply with any laws, regulations or
voluntary industry standards as provided in Paragraph 13.(f)
or any governmental agency or other body, office or official
vested with appropriate authority finds that the Licensed
Products are harmful or defective in any way, manner or form,
or are being manufactured, sold or distributed in
contravention of applicable laws, regulations or standards, or
in a manner likely to cause harm; or
(vi) Licensee shall be unable to pay its debts when due, or shall
make any assignment for the benefit of creditors, or shall
file any petition under the bankruptcy or insolvency laws of
any jurisdiction, county or place, or shall have or suffer a
receiver or trustee to be appointed for its business or
property, or be adjudicated a bankrupt or an insolvent; or
(vii) Licensee does not commence in good faith to manufacture,
distribute and sell each Licensed Products and utilize each
character set forth in the Licensed Property ("Character")
throughout the Territory and the Distribution Channels on or
before the Marketing Date and thereafter fails to diligently
and continuously manufacture, distribute and sell each of the
Licensed Products and utilize each Character throughout the
Territory. Such default and Licensor's resultant right of
termination (or recapture) shall only apply to the specific
Character(s), the specific Licensed Products, the specific
country of the Territory and/or the specific Distribution
Channel, which or wherein Licensee fails to meet said
Marketing Date requirement; or
(viii) Licensee shall manufacture, sell or distribute, whichever
first occurs, any of the Licensed Products(s) without the
prior written approval of Licensor as provided in Paragraph 9
hereof. Notwithstanding the foregoing, in the
-21- #90248
07978 00004 CORP 187184
<PAGE>
event Licensee has manufactured product without Licensor's
approval and has not sold or otherwise distributed such
unapproved product, this Agreement shall not terminate
provided that all such unapproved product is immediately
destroyed and Licensee provides a certificate of destruction
to Licensor; or
(ix) Saul Gamoran is no longer an executive officer of Licensee; or
(x) A manufacturer approved pursuant to Paragraph 10.(b) hereof
shall sell Licensed Products to parties other than Licensee or
engage in conduct, which conduct if engaged in by Licensee
would entitle Licensor to terminate this Agreement; or
(xi) Licensee delivers or sells Licensed Products outside the
Territory or knowingly sells Licensed Products(s) to a third
party who Licensee knows intends to, or who Licensee
reasonably should suspect intends to, sell or deliver such
Licensed Products outside the Territory; or
(xii) Licensee uses any labor that violates any local labor laws
and/or it uses prison, slave or child labor in connection with
the manufacture of the Licensed Products; or
(xiii) Licensee has made a material misrepresentation or has omitted
to state a material fact necessary to make the statements not
misleading.
(b) In the event any of these defaults occur, Licensor shall give notice
of termination in writing to Licensee by facsimile and certified
mail. Licensee shall have the number of days specified as follows
from the date of giving notice in which to correct the default
(except subdivisions (vii), (viii), (xi) and (xiii) above which are
not curable): for subdivisions (iii), (iv) (x) and (xii): ten (10)
days; for subdivisions (ii), (v) and (vi): fifteen (15) days; for
all other subdivisions: thirty (30) days; and failing such, this
Agreement shall thereupon immediately terminate, and any and all
payments then or later due from Licensee hereunder (including
Guaranteed Consideration) shall then be promptly due and payable in
full and no portion of those prior payments shall be repayable to
Licensee.
15. FINAL STATEMENT UPON TERMINATION OR EXPIRATION: Licensee shall
deliver, as soon as practicable, but not later than thirty (30) days
following expiration or termination of this Agreement, a statement
indicating the number and description of Licensed Products on hand
together with a description of all advertising and promotional materials
relating thereto. Following expiration or termination of this Agreement,
Licensee shall immediately cease any and all manufacturing of the Licensed
Product. However, if Licensee has complied with all the terms of this
Agreement, including, but not limited to,
-22- #90248
07978 00004 CORP 187184
<PAGE>
complete and timely payment of the Guaranteed Consideration and Royalty
Payments, then Licensee may continue to distribute and sell its remaining
inventory for a period not to exceed ninety (90) days following such
termination or expiration (the "Sell-Off Period"), subject to payment of
applicable Royalties thereto. In no event, however, may Licensee
distribute and sell during the Sell-Off Period an amount of Licensed
Products that exceeds the average amount of Licensed Products sold during
any consecutive ninety (90) day period during the Term. In the event this
Agreement is terminated by Licensor for any reason under this Agreement,
Licensee shall be deemed to have forfeited its Sell-off Period. If
Licensee has any remaining inventory of the Licensed Products following
the Sell-Off Period, Licensee shall, at Licensor's option, make available
such inventory to Licensor for purchase at or below cost, deliver up to
Licensor for destruction said remaining inventory or furnish to Licensor
an affidavit attesting to the destruction of said remaining inventory.
Licensor shall have the right to conduct a physical inventory in order to
ascertain or verify such inventory and/or statement. In the event that
Licensee refuses to permit Licensor to conduct such physical inventory,
Licensee shall forfeit its right to the Sell-Off Period hereunder or any
other rights to dispose of such inventory. In addition to the forfeiture,
Licensor shall have recourse to all other legal remedies available to it.
16. NOTICES: Except as otherwise specifically provided herein, all notices
which either party hereto is required or may desire to give to the other
shall be given by addressing the same to the other at the address set
forth above, with a copy to WBCP (U.K.) LTD. at the address set forth
above, or at such other address as may be designated in writing by any
such party in a notice to the other given in the manner prescribed in this
paragraph. All such notices shall be sufficiently given when the same
shall be deposited so addressed, postage prepaid, in the United States
mail and/or when the same shall have been delivered, so addressed, by
facsimile or by overnight delivery service and the date of transmission by
facsimile, receipt of overnight delivery service or two business days
after mailing shall for the purposes of this Agreement be deemed the date
of the giving of such notice.
17. NO PARTNERSHIP, ETC.: This Agreement does not constitute and shall not be
construed as constitution of a partnership or joint venture between
Licensor and Licensee. Neither party shall have any right to obligate or
bind the other party in any manner whatsoever, and nothing herein
contained shall give, or is intended to give, any rights of any kind to
any third persons.
18. NO SUBLICENSING/NON-ASSIGNABILITY: This Agreement shall bind and inure to
the benefit of Licensor, its successors and assigns. This Agreement is
personal to Licensee. Licensee shall not sublicense, franchise or delegate
to third parties its rights hereunder (except as set forth in Paragraph
10.(b) hereof). Neither this Agreement nor any of the rights of Licensee
hereunder shall be sold, transferred or assigned by Licensee and no rights
hereunder shall devolve by operation of law or otherwise upon any
receiver, liquidator, trustee or other party.
-23- #90248
07978 00004 CORP 187184
<PAGE>
19. *REDACTED*
20. CONSTRUCTION: This Agreement shall be construed in accordance with the
laws of the State of California of the United States of America without
regard to its conflicts of laws provisions.
21. WAIVER, MODIFICATION ETC.: No waiver, modification or cancellation of any
term or condition of this Agreement shall be effective unless executed in
writing by the party charged therewith. No written waiver shall excuse the
performance of any acts other than those specifically referred to therein.
The fact that the Licensor has not previously insisted upon Licensee
expressly complying with any provision of this Agreement shall not be
deemed to be a waiver of Licensor's future right to require compliance in
respect thereof and Licensee specifically acknowledges and agrees that the
prior forbearance in respect of any act, term or condition shall not
prevent Licensor from subsequently requiring full and complete compliance
thereafter. If any term or provision of this Agreement is held to be
invalid or unenforceable by any court of competent jurisdiction or any
other authority vested with jurisdiction, such holding shall not affect
the validity or enforceability of any other term or provision hereto and
this Agreement shall be interpreted and construed as if such term or
provision, to the extent the same shall have been held to be invalid,
illegal or unenforceable, had never been contained herein. Headings of
paragraphs herein are for convenience only and are without substantive
significance.
22. ACCEPTANCE BY LICENSOR: This instrument when signed by Licensee shall be
deemed an application for license and not a binding agreement unless and
until accepted by Warner Bros. Consumer Products by signature of a duly
authorized officer and the delivery of such a signed copy to Licensee. The
receipt by Warner Bros. Consumer Products of any check or other
consideration given by Licensee and/or delivery of any material by Warner
Bros. Consumer Products to Licensee shall not be deemed an acceptance by
Warner Bros. Consumer Products of this application. The foregoing shall
apply to any documents relating to renewals or modifications hereof.
-24- #90248
07978 00004 CORP 187184
<PAGE>
This Agreement shall be of no force or effect unless and until it is signed by
all of the parties listed below:
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
LICENSOR: LICENSEE:
WARNER BROS. CONSUMER PRODUCTS, PLAY-BY-PLAY TOYS &
a Division of Time Warner NOVELTIES, INC.
Entertainment Company L.P., on
behalf of itself and as Agent
for Warner Bros., a Division of
Time Warner Entertainment
Company L.P.
By: /s/ GARY R. SIMON By:/s/ SAUL GAMORAN
Gary R. Simon Saul Gamoran
Vice President, Legal Affairs Executive Vice President
and General Counsel
Date: 1/27/98 Date: 1/27/98
-25- #90248
07978 00004 CORP 187184
<PAGE>
EXHIBIT 1
#90248
WARNER BROS. CONSUMER PRODUCTS
4000 Warner Blvd.
Triangle Bldg. - 3rd Floor
Burbank, CA 91522
RE: APPROVAL OF THIRD PARTY MANUFACTURER
Gentlemen:
This letter will serve as notice to you that pursuant to Paragraph 10.(b)
of the License Agreement dated ___________, between WARNER BROS., A DIVISION OF
TIME WARNER ENTERTAINMENT COMPANY L.P. and PLAY-BY-PLAY TOYS & NOVELTIES, INC.
("Licensee"), we have been engaged as the manufacturer for Licensee in
connection with the manufacture of Licensed Products as defined in the aforesaid
License Agreement. We hereby acknowledge that we may not manufacture Licensed
Products for, or sell or distribute Licensed Products to, anyone other than
Licensee. We hereby further acknowledge that we have received a copy and are
cognizant of the terms and conditions set forth in said License Agreement and
hereby agree to observe those provisions of said License Agreement which are
applicable to our function as manufacturer of the Licensed Products. It is
expressly understood that we are obligated to comply with all local laws,
including without limitation, labor laws, wage and hour laws and
anti-discrimination laws and that you or your representatives shall, at anytime,
have the right to inspect our facilities and review our records to ensure
compliance therewith. It is understood that this engagement is on a royalty free
basis and that we may not subcontract any of our work without your prior written
approval.
We understand that our engagement as the manufacturer for Licensee is
subject to your written approval. We request, therefore, that you sign in the
space below, thereby showing your acceptance of our engagement as aforesaid.
Very truly yours,
Manufacturer/Company Name
By:
signature
-26- #90248
07978 00004 CORP 187184
<PAGE>
printed name
address
AGREED TO AND ACCEPTED
dated
WARNER BROS. CONSUMER PRODUCTS,
A DIVISION OF TIME WARNER
ENTERTAINMENT COMPANY, L.P. product(s) manufacturing
By:
Gary R. Simon
Vice President, Legal Affairs
dated
-27- #90248
07978 00004 CORP 187184
<PAGE>
EXHIBIT 2
#90248
CONTRIBUTOR'S AGREEMENT
I, ______________________________________ the undersigned ("Contributor"), have
been engaged by _________________________________________ ("Licensee") to work
on or contribute to the creation of Licensed Products, described as
____________________________________, by Licensee under an agreement between
Licensee and Warner Bros., a division of Time Warner Entertainment Company L.P.,
c/o Warner Bros. Consumer Products, a division of Time Warner Entertainment
Company L.P. ("Warner"), dated ___________________.
I understand and agree that the Licensed Products, and all artwork or other
results of my services for Licensee in connection with such Licensed Products
("Work") is a "work made for hire" for Warner and that all right, title and
interest in and to the Work shall vest and remain with Warner. I reserve no
rights therein. Without limiting the foregoing, I hereby assign and transfer to
Warner all other rights whatsoever, in perpetuity throughout the universe which
I may have or which may arise in me or in connection with the Work. I hereby
waive all moral rights in connection with such Work together with any other
rights which are not capable of assignment. I further agree to execute any
further documentation relating to such transfer or waiver or relating to such
Work at the request of Warner or Licensee, failing which Warner is authorized to
execute same as my Attorney-in-Fact.
CONTRIBUTOR:
By:
Date:
WARNER BROS. CONSUMER PRODUCTS:
By:
Date:
-28- #90248
07978 00004 CORP 187184
<PAGE>
EXHIBIT 3
LICENSE AGREEMENT #90248
LATIN AMERICA
NORTH AMERICA:
Mexico
CARIBBEAN ISLANDS:
Bermuda
British West Indies
Cayman
Jamaica
Bahamas
Virgin Islands (British)
Trinidad/Tobago
Dominican Republic/Haiti
French West Indies
Guadalupe
Martinique
Netherland Antilles
Puerto Rico
Aruba
Bonaire
Curacao
CENTRAL AMERICA:
Belize
Costa Rica
El Salvador
Guatemala
Honduras
Nicaragua
Panama
SOUTH AMERICA:
Argentina
Bolivia
Brazil
Chile
Colombia
Ecuador
French Guyana
Guyana
Paraguay
Peru
Suriname
Uruguay
Venezuela
-29- #90248
07978 00004 CORP 187184
EXHIBIT 10.15
January 14, 1998
PLAY-BY-PLAY TOYS & NOVELTIES, INC.
4400 Tejasco
San Antonio, TX 78218-0267
Attention: Saul Gamoran
Re: WARNER BROS. LICENSE AGREEMENT #8700-BLT - AMENDMENT #1
Dear Mr. Gamoran:
This letter when fully executed shall formally amend the above-referenced
License Agreement, dated September 10, 1997, relative to certain rights owned
and controlled by our client Warner Bros., a division of Time Warner
Entertainment Company L.P. (the "Agreement").
By our mutual execution hereof, it is agreed as follows:
PARAGRAPH 1 DEFINITIONS is hereby amended by adding the following subparagraph
thereto:
"(i) "Promotional Commitment": Licensee commits to spend a minimum of *REDACTED*
dollars ($*REDACTED*) on television advertising to promote the Licensed
Products during the Term. Licensor shall have the right to audit Licensee's
books and records under the terms and conditions of Paragraph 6 herein in
order to verify compliance with Licensee's obligations hereunder."
In all other respects, other than as noted above, the subject License Agreement
and all of its terms and conditions shall continue to govern our relationship.
Please show your concurrence with the above by signing all three (3) copies of
this document and returning them to this office. Upon final execution, one copy
will be sent to you for your files. This letter shall have no legal effect
unless and until signed by all parties noted below.
LICENSOR: AGREED AND ACCEPTED:
LICENSEE:
WARNER BROS. CONSUMER
PRODUCTS, ON BEHALF OF ITSELF AND PLAY-BY-PLAY TOYS &
AS AGENT FOR WARNER BROS., A DIVISION NOVELTIES, INC.
OF TIME WARNER ENTERTAINMENT
COMPANY L.P.
By:/s/ GARY R. SIMON By:/s/ SAUL GAMORAN
Gary R. Simon
Vice President, Legal Affairs
Date: 1/30/98 Date: 1/21/98
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE CONDENSED CONSOLIDATED BALANCE SHEETS AND THE CONDENSED STATEMENTS OF
OPERATIONS FOUND ON PAGES F-3 AND F-4 OF THE COMPANY'S FORM 10-Q FOR THE SIX
MONTHS ENDED January 31, 1998, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUL-31-1998
<PERIOD-END> JAN-31-1998
<CASH> 4,108,110
<SECURITIES> 0
<RECEIVABLES> 31,676,344
<ALLOWANCES> 3,647,556
<INVENTORY> 66,522,142
<CURRENT-ASSETS> 105,980,728
<PP&E> 20,248,291
<DEPRECIATION> 4,318,906
<TOTAL-ASSETS> 138,793,747
<CURRENT-LIABILITIES> 34,702,288
<BONDS> 0
0
0
<COMMON> 1,000
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 138,793,747
<SALES> 89,284,424
<TOTAL-REVENUES> 89,284,424
<CGS> 57,909,615
<TOTAL-COSTS> 57,909,615
<OTHER-EXPENSES> 23,957,908
<LOSS-PROVISION> 1,379,299
<INTEREST-EXPENSE> 2,451,874
<INCOME-PRETAX> 5,382,428
<INCOME-TAX> 1,884,085
<INCOME-CONTINUING> 3,498,343
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,498,343
<EPS-PRIMARY> 0.62
<EPS-DILUTED> 0.55
</TABLE>
