Exhibit 10.1


ASSET
PURCHASE AGREEMENT


 


This Asset Purchase Agreement (“Agreement”) is made as of April 26,
2002, by and between Cutter & Buck (Europe) BV, a Netherlands company based
in Huizen, Netherlands, (“C&B”), and Cutter & Buck Sportswear
(Europe) Limited, an Irish limited company based in County Cork, Ireland
(“Sportswear”).


 


Recitals


 


A.                                   C&B
is a wholly owned subsidiary of Cutter Buck Inc., a Washington corporation
(“Cutter & Buck”).  Cutter &
Buck is the owner of the CUTTER & BUCK trademarks (“Marks”) and the CUTTER
& BUCK trade name (“Name”).  C&B
has been the exclusive distributor of casual wear, sportswear and related items
bearing the Marks in the European Union, Norway and Switzerland (the “Territory”).


 


B.                                     Cutter
& Buck has decided to wind up its direct operating activities in Europe
through C&B effective as of May 1, 2002, and to sell its products in
the Territory through a third party licensee. 
As part of that winding up process, Cutter & Buck will be advancing
funds to C&B to repay its existing operating line and other obligations.


 


C.                                     Contemporaneously
with this Agreement, Cutter & Buck and Sportswear are entering into a
License Agreement (“License Agreement”), pursuant to which Sportswear will
obtain a license to use the Name and will become Cutter & Buck’s sole and
exclusive licensee in the Territory for the products described therein bearing
the Mark (“Products”).


 


D.                                    In
connection with the License Agreement, Sportswear desires to purchase from
C&B the existing inventory products and other fixed assets currently held
by C&B on the terms and conditions of this Agreement.


 


Agreement


 


Therefore, the
parties agree as follows.


 


1.                                       Purchase
and Sale.  Effective as of
May 1, 2002 (“Closing Date”), Sportswear hereby agrees to purchase and
C&B agrees to sell to Sportswear all right, title and interest in and to
C&B’s Inventory, Accounts, FF&E and Trade Fixtures, described below
(collectively, the “Assets”), on the following terms and conditions.


 


2.                                       Inventory.  The “Inventory” will consist of all C&B
Classics, Spring 2002 Fashion and Consignment products as of the Closing Date
as described in this Section 2. 
The total purchase price for the Inventory will be approximately
€1,096,060, in the amounts, subject to the adjustments, and on the terms of this
Section 2.


 


a.                                       CB
Classics.  The purchase price for
“CB Classics” products will be €719,595, based upon 90% of estimated original
landed cost of products having an aggregate


 

















 


estimated landed cost of
€799,549, as set forth by SKU in attached Exhibit A (excluding
€23,379 in products shipped directly to Sportswear but paid for by
C&B).  A physical count of CB
Classics may be conducted as of the Closing Date, in accordance with the
procedure set forth in Section 2.d.  The purchase price for the CB Classics inventory will be adjusted
up or down to reflect the difference between the estimated original landed cost
set forth above and the actual landed value determined by the physical count
(extended by the unit prices set forth in attached Exhibit A);
provided that such adjustment will only be made if the actual landed value of
CB Classics inventory differs from the estimated landed cost by more than three
percent (3%).


 


b.                                      Spring
2002 Fashion.  The purchase price
for the “Spring 2002 Fashion” products will be a sum equal to
(i) €150,465, approximately 50% of the estimated original landed value
based upon an average landed cost of €13.59 per unit times an estimated 22,137
units, as set forth in attached Exhibit B, plus (ii) an
additional payment equal to fifteen percent (15%) of all revenues received by
Sportswear from sales of Spring 2002 Fashion products made between the Closing
Date and July 31, 2002.  Sportswear
will track all sales of Spring 2002 Fashion products, and by no later than
August 31, 2002, Sportswear will deliver to C&B a full sales report,
including all revenues received on all sales made between the Closing Date and
July 31, 2002.  The additional
payment described in clause (ii) of this Section will be reflected in an
adjustment to the payment next due under Section 6.f below.


 


c.                                       Consignment.  The purchase price for products on
consignment to third party shops (“Consignment” products) will be €226,000,
based upon an average landed cost of €17.40 per unit times an estimated 13,000
units, subject to adjustment as described below.  The actual number of units will be determined by physical count
as of the Closing Date, in accordance with the procedure set forth in Section 2.d.  C&B will use its best reasonable efforts
to dispose of as much old Consignment inventory as possible prior to the
Closing Date.  The purchase price for
Consignment products will be reduced by an amount equal to 40% of the landed
cost of old Consignment products (generally fashion products from Seasons 11
and earlier, and such other products as the parties may agree) remaining on the
Closing Date.


 


d.                                      Physical
Count.  The purchase prices for the
C&B Classic inventory, Spring 2002 Fashion inventory and the Trade Fixtures
(see  Section 5 below) are based upon estimates as of the date
of this Agreement of available remaining items as of the Closing Date.  C&B shall take a physical count of such
items in its Danzas warehouse, Alphen a/d Rijn, Netherlands (“Holland
Warehouse”) during course of packaging the items for shipment to Sportswear.  The physical count will be compared to and
reconciled with (to the extent possible) the listings maintained by C&B on
its Paragon operating system. 
Sportswear shall participate, at its expense, in the counting of these
items.  If the parties agree upon the
final count, the parties will execute an amendment to this Agreement if any
adjustment to the respective purchase prices is required; if no adjustment is
required, the parties will verify such in writing.  If the parties do not agree upon the final count or any
adjustment to respective purchase prices, the matter will be resolved by
arbitration as provided below.  If for
any reason Sportswear does not to participate in the count, C&B will give
written notice setting forth the final count obtained by C&B and any
adjustment to the purchase prices, which will be binding upon Sportswear.  Any adjustments to the purchase prices based
upon the physical count will be reflected in an adjustment to the payment next
due under Section 6.f below.


 


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3.                                       Accounts
Receivable for Fall 2002 Samples. 
The “Accounts” will consist of C&B’s accounts receivable for product
samples sold to its agents as of the Closing Date, which are listed by agent in
attached Exhibit C.  The
aggregate purchase price for the Accounts will be €29,408, subject to
adjustment as follows.  After the
Closing Date, Sportswear will evaluate whether it wishes to continue using
C&B’s current agents.  If Sportswear
decides not to continue using an agent, C&B will accept return of such
agent’s product samples, and will credit Sportswear for the returned
samples.  Any such credit will be
reflected in an adjustment to the payment next due under Section 6.f
below.


 


4.                                       FF&E.  The “FF&E will consist of the furniture,
fixtures and equipment listed in attached Exhibit D, which are
installed in the field with customers or agents who stock and sell C&B
products.  The aggregate purchase price
for the FF&E will be €78,000.


 


5.                                       Trade
Fixtures.  The “Trade Fixtures” will
consist of the trade fixtures listed in attached Exhibit E, which
are currently stored in the Holland Warehouse. 
The aggregate purchase price for the Trade Fixtures will be
approximately €8,360, subject to adjustment based upon a physical count as of
the Closing Date in accordance with the procedure set forth in Section 2.d
and the unit prices set forth in attached Exhibit E.  Any such adjustment will be reflected in an
adjustment to reflected in an adjustment to the payment next due under Section 6.f
below.


 


6.                                       Payment
Schedule.  In consideration for the
funding provided to C&B by Cutter & Buck, C&B has assigned all
rights to payment under this Agreement to Cutter & Buck.  Accordingly, the total purchase price for
the Assets in the sum of €1,211,828 shall be paid by Sportswear to the order of
Cutter & Buck in Euros at the address set forth in Section 16,
attention Stephen S. Lowber, Chief Financial Officer, subject to adjustments,
as follows:


 


a.                                       €127,800
shall be paid upon execution of this Agreement;


 


b.                                      €114,565
shall be paid on or before July 31, 2002;


 


c.                                       €242,365
shall be paid on or before October 31, 2002;


 


d.                                      €242,365
shall be paid on or before January 31, 2003; and


 


e.                                       €242,365
shall be paid on or before April 30, 2003; and


 


f.                                         The
remaining balance of the Purchase Price (in the nominal amount of €242,368,
subject to adjustments) shall be paid on or before July 31, 2003.


 


7.                                       Delivery
Terms.  On the Closing Date, title
to the CB Classics and Spring 2002 Fashion Inventory, and Trade Fixtures will
pass to Sportswear at C&B’s Holland Warehouse, and title to the Consignment
Inventory and FF&E will pass to Sportswear at the then locations of the
Consignment Inventory and FF&E. 
Sportswear will be responsible for any shipment of any Assets to its
warehouse or other destination, at its expense and risk of loss.


 


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8.                                       Books and Records.  Sportswear shall prepare and maintain, in such manner as
will allow its accountants to audit the same in accordance with generally
accepted accounting principles, complete and accurate books of account and
records covering all transactions arising out of or relating to this
Agreement.  Sportswear shall keep all
such books of account, records and documents available after the termination of
this Agreement for at least six (6) years with respect to tax matters and two
(2) years with respect to all other matters. 
C&B shall be given access during business hours (giving due regard
for the impact of a review on Sportswear’s business) to Sportswear’s books and
records relating to the Assets for the purpose of confirming the calculations
required under this Agreement.


 


9.                                       Representations and
Warranties.


 


a.                                       C&B’s Representations
and Warranties.  C&B represents, warrants
and undertakes to Sportswear as follows:


 


i.                                          C&B has all requisite
power and authority to execute and deliver this Agreement, and this Agreement
is valid and binding on C&B in accordance with its terms.


 


ii.                                       Neither the entering into
of this Agreement nor the consummation of the transaction contemplated hereby
will constitute or result in a violation or breach by C&B of any judgment,
order, writ, injunction or decree issued against or imposed upon it, or the
Assets, or will result in a violation of any applicable law, order, rule or
regulation of any governmental authority.


 


iii.                                    C&B is not engaged in or a party to or, to
the knowledge of C&B, threatened with any dispute, action, suit or other
proceedings relating to the Assets. 
C&B has no knowledge of any investigation threatened or contemplated
by any governmental or regulatory authority.


 


iv.                                   C&B
is, and on the Closing Date will be, the sole and exclusive legal and equitable
owner of all right and interest in and has, and on the Closing Date will have,
good and marketable title to the Assets free and clear of the interests and rights
of any other party.  Except for the
Consignment Inventory, which is subject to interests of the consignees, none of
the Assets is, and on the Closing Date none of the Assets will be, subject to
any lease, license, security interest, mortgage, pledge, lien, option, charge,
encumbrance, claim, covenant or restriction of any kind or character.


 


v.                                      The
items constituting the Inventory are, and on the Closing Date will be, of
merchantable quality and fit for their intended purpose, except for such
defects and variations as would pass without objection in the trade.


 


b.                                      Sportswear’s
Representations and Warranties.  Sportswear
represents and warrants to C&B as follows:


 


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i.                                          Sportswear has all
requisite power and authority to execute and deliver this Agreement, and this
Agreement is valid and binding on Sportswear in accordance with its terms.


 


ii.                                       Neither the entering into
of this Agreement nor the consummation of the transaction contemplated hereby
will constitute or result in a violation or breach by Sportswear of any
judgment, order, writ, injunction or decree issued against or imposed upon it,
or will result in a violation of any applicable law, order, rule or regulation
of any governmental authority.


 


10.                                 Conditions Precedent.  C&B’s obligations under this Agreement are conditioned upon
(a) the License Agreement having been executed by Cutter & Buck and
Sportswear, and (b) the Guaranty and Agreement of even date having been
executed by Eurostyle Ltd..  Sportswear’s
obligations under this Agreement are conditioned upon (a) the License
Agreement having been executed by Cutter & Buck and Sportswear, and
(b) the Guaranty and Agreement of even date having been executed by Cutter
& Buck.


 


11.                                 Default and Remedies.


 


a.                                       Default.  Sportswear shall be in default under this Agreement if any of the
following occurs (each an “Event of Default”):


 


i.                                          Sportswear fails to pay or
perform any obligation under this Agreement which is not cured within twenty
(20) calendar days after notice of default from C&B; or


 


ii.                                       Sportswear fails to pay or
perform any material obligation under the License Agreement when due, which is
not cured within any applicable cure period.


 


b.                                      Remedies.  Upon the happening of any one or more Event(s) of Default, the
entire unpaid balance of the Purchase Price, all interest accrued thereon and
all other sums due under this Agreement shall, at the sole option of C&B,
become due and payable without notice or demand.


 


12.                                 Cross Default.  C&B and Sportswear agree that an Event of Default under
either this Agreement or the License Agreement shall constitute a default under
both agreements.  Unless such default is
cured within the applicable cure period (if any), the non-defaulting party
shall have the right, in its sole discretion, to terminate either or both
agreements.


 


13.                                 Indemnity.


 


a.                                       Sportswear’s Indemnity.  Sportswear agrees to indemnify, defend and hold harmless
C&B, Cutter & Buck, and their respective officers, directors,
shareholders, agents, and employees (each an “Indemnified Party”), from and
against any and all obligations, liabilities, claims, demands, suits, actions,
causes of action, damages and expenses (including but not limited to reasonable
attorneys’ fees and costs) (collectively, “Claims”) caused by or arising from
(i) Sportswear’s use, marketing, promotion or sale of the Assets after the
Closing Date;


 


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(ii) material
inaccuracy or incorrectness as of the date hereof or the Closing Date of any
representation or warranty made by Sportswear; (iii) an Event of Default
by Sportswear; or (iv) without prejudice to any of the foregoing
provisions, Claims relating to the business carried on or products supplied by
Sportswear and/or Eurostyle at any time after the Closing Date.  Any claim for indemnification will be made
in accordance with the procedure set forth in Section 13.e.


 


b.                                      C&B’s
Indemnity.  C&B agrees to
indemnify, defend and hold harmless Sportswear and its officers, directors,
shareholders, agents, and employees from and against any and all Claims caused
by or arising from (i) C&B’s manufacture, use, marketing, promotion or
sale of the Assets prior to the Closing Date; (ii)  material inaccuracy or
incorrectness as of the date hereof or the Closing Date of any representation
or warranty made by C&B; (iii) C&B’s default in the performance of
any of its obligations under this Agreement which is not cured within twenty
(20) days after notice from Sportswear; (iv) without prejudice to any of
the foregoing provisions, Claims outstanding at the Closing Date relating to
the business carried on by C&B and/or Cutter and Buck in the Territory
prior to the Closing Date or products supplied by Cutter & Buck and/or
C&B prior to the Closing Date.  Any
claim for indemnification will be made in accordance with the procedure set
forth in Section 13.e.


 


c.                                       Agents.  C&B agrees to indemnify, defend and hold Sportswear
harmless from and against any and all Claims arising from  any agreements or
arrangements between C&B and/or Cutter & Buck and any third party
commercial agent relating to the business carried on by C&B and/or Cutter
& Buck in the Territory prior to the Closing Date; and Sportswear agrees to
indemnify, defend and hold C&B and Cutter & Buck harmless from and
against any and all Claims arising from  any agreements or arrangements between
Sportswear and any third party commercial agent relating to the business
carried on by Sportswear in the Territory after the Closing Date.  Notwithstanding the foregoing, each party
will use its best efforts to minimize or mitigate any such Claim.


 


d.                                      Employees.  C&B shall remain fully liable and
responsible for all obligations and liabilities whatsoever arising in respect
of the period up to and including the Closing Date by virtue of any contracts
of employment, employment relationships, collective agreements or enactments or
statutory provisions relating to employees in force at any time prior to the
Closing Date and C&B shall indemnify and hold Sportswear harmless against
any and all Claims arising in respect thereof. 
C&B also agrees to indemnify, defend and hold harmless Sportswear
from and against any and all Claims that it may suffer or incur to any
employees or former employees of C&B and/or Cutter & Buck or either of
them.  Notwithstanding the foregoing,
Sportswear will use its best efforts to minimize or mitigate any such Claim.


 


e.                                       Indemnification Procedure.  All claims for indemnification will be asserted and
resolved as follows:


 


i.                                          In
the event any Claim in respect of which an indemnified party might seek
indemnity is asserted against or sought to be collected from such indemnified
party, the indemnified party shall deliver a notice (a “Claim Notice”) with
reasonable promptness to the indemnifying party.  The indemnifying party shall notify the indemnified party as soon
as


 


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practicable, but not
longer than ten (10) days after receipt of a Claim Notice (“Notice Period”),
whether the indemnifying party disputes its liability to the indemnified party,
and whether the indemnifying party desires, at its sole cost and expense, to
defend the indemnified party against such Claim.


 


ii.                                       If
the indemnifying party notifies the indemnified party within the Notice Period
that the indemnifying party desires to defend the indemnified party with
respect to the Claim, then the indemnifying party will have the right to
defend, with counsel reasonably satisfactory to the indemnified party, at the
sole cost and expense of the indemnifying party, such Claim by all appropriate
proceedings, which proceedings must be vigorously and diligently prosecuted by
the indemnifying party to a final conclusion or may be settled at the
discretion of the indemnifying party; provided, however, that the indemnifying
party shall not be permitted to effect any settlement without the written
consent of the indemnified party unless (A) the sole relief provided in
connection with such settlement is monetary damages that are paid in full by
the indemnifying party, (B) such settlement involves no finding or
admission of any wrongdoing, violation or breach by any indemnified party of
any right of any other person or entity, or any laws, contracts or governmental
permits, and (C) such settlement has no effect on any other claims that
may be made against or liabilities of any indemnified party.  After giving the notice referred to in the
first sentence of this clause ii, the indemnifying party will have full
control of such defense and proceedings, including any compromise or settlement
thereof (except as provided in the preceding sentence); provided, however, that
the indemnified party may, at its sole cost and expense, at any time prior to
the indemnifying party’s delivery of the notice referred to in the first sentence
of this clause ii, file any motion, answer or other pleadings or take any
other action that the indemnified party reasonably believes to be necessary or
appropriate to protect its interests; and provided further, that if requested
by the indemnifying party, the indemnified party shall, at the sole cost and
expense of the indemnifying party, provide reasonable cooperation to the
indemnifying party in contesting any Claim that the indemnifying party elects
to contest.  The indemnified party may
participate in, but not control, any defense or settlement of any Claim
controlled by the indemnifying party pursuant to this clause ii and except
as provided in the first sentence of this clause ii and the preceding
sentence, the indemnified party will bear its own costs and expenses with
respect to such participation. 
Notwithstanding the foregoing, the indemnified party may take over the
control of the defense or settlement of a Claim at any time if it irrevocably
waives its right to indemnity with respect to such Claim.


 


iii.                                    If
the indemnifying party fails to notify the indemnified party within the Notice
Period that the indemnifying party desires to defend the Claim pursuant to this
Section or if the indemnifying party gives such notice but fails to prosecute
vigorously and diligently or settle the Claim (in each case in accordance with
clause ii above), then the indemnified party will have the right to
defend, at the sole cost and expense of the indemnifying party, the Claim by
all appropriate proceedings, which proceedings will be prosecuted by the
indemnified party in a reasonable manner and in good faith or will be settled
at the discretion of the indemnified party (with the consent of the
indemnifying party, which consent will not be unreasonably withheld).  Subject to the immediately preceding
sentence, the indemnified party will have full control of such defense and
proceedings, including any compromise or settlement thereof, provided, however,
that if requested by the indemnified party, the indemnifying party


 


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will, at the sole cost
and expense of the indemnifying party, provide reasonable cooperation to the
indemnified party and its counsel in contesting any Claim which the indemnified
party is contesting.  The indemnifying
party may participate in, but not control, any defense or settlement controlled
by the indemnified party pursuant to this clause iii, and the indemnifying
party will bear its own costs and expenses with respect to such participation.


 


f.                                         Limitation on Liability.  Notwithstanding any other provision of this Agreement, to the
fullest extent permitted by applicable law, each party’s liability for
Claims, whether in contract, tort (including negligence) or otherwise, under
this Agreement, the License Agreement, or otherwise, regardless of the cause of
the Claim or the nature of the legal or equitable right claimed to have been
violated, shall not exceed: 
(i) €3,500,000 per Claim for Claims covered by insurance; and
(b) $1,000,000 in the aggregate for Claims not covered by insurance
(excluding any Claims for the Purchase Price payable under this Agreement or
the License Fees payable under the License Agreement).


 


g.                                      Survival.  The provisions of this Section 13 shall
survive the expiration, termination, breach or alleged breach of this
Agreement.


 


14.                                 Default Interest.  If Sportswear fails to pay any amount when due under this
Agreement, such unpaid amount shall thereafter bear interest, until paid in
full, at the rate of one percent (1%) per month, or the maximum rate allowed by
applicable law, whichever is less.


 


15.                                 Expenses.  Each party to this Agreement will bear its
respective expenses, costs and fees incurred in connection with the preparation
and execution of this Agreement and the contemplated transactions, including
all fees and expenses of agents, representatives, counsel, and accountants.


 


16.                                 Notices.  All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt),
or (b) sent by facsimile transmission (with written confirmation of
receipt), or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service or mailed by registered mail (in each
case, return receipt requested), to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):


 


	
  C&B:

  	
   

  	
  Cutter & Buck
  (Europe) BV

  
	
   

  	
   

  	
  c/o Cutter & Buck
  Inc.

  
	
   

  	
   

  	
  Attention:  President

  
	
   

  	
   

  	
  2701 First Avenue,
  Suite 500

  
	
   

  	
   

  	
  Seattle, Washington
  98121

  
	
   

  	
   

  	
  Facsimile:  (206) 448-0589

  



 


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  With copy to:

  	
   

  	
  Michael E. Morgan

  
	
   

  	
   

  	
  Lane Powell Spears Lubersky LLP

  
	
   

  	
   

  	
  1420 Fifth Avenue, Suite 4100

  
	
   

  	
   

  	
  Seattle, Washington  98101-2338

  
	
   

  	
   

  	
  Facsimile:  (206) 223-7107

  
	
   

  	
   

  	
   

  
	
  Sportswear:

  	
   

  	
  Cutter &
  Buck Sportswear (Europe) Limited

  
	
   

  	
   

  	
  Attention:  Alan Dwyer

  
	
   

  	
   

  	
  Fitz’s Boreen, Mallow
  Road

  
	
   

  	
   

  	
  Cork, Ireland

  
	
   

  	
   

  	
  Facsimile:  353-21-4211166

  
	
   

  	
   

  	
   

  
	
  With copy to:

  	
   

  	
  John Dwyer

  
	
   

  	
   

  	
  Ronan Daly Jermyn

  
	
   

  	
   

  	
  12 South Mall

  
	
   

  	
   

  	
  Cork, Ireland

  
	
   

  	
   

  	
  Facsimile:  353-21-4802790

  



 


17.                                 Confidentiality.  The parties understand and agree that all
financial information and other information provided by either party to the
other is proprietary and confidential information.  Each party agrees to keep all such information in strict
confidence and not to disclose it to any third party without the prior written
consent of the other party.  Each party
further agrees that all information and materials which result from obligations
performed hereunder shall be and remain the property of the disclosing party
and, upon termination of this Agreement or earlier request, shall be delivered
to the disclosing party.


 


18.                                 Further Cooperation.  C&B and Sportswear further agree they will execute such other
documents and take such other actions as may be necessary or desirable to
complete the transfer of the Assets, and to satisfy the obligations described in
this Agreement, and that this Agreement and the transactions and undertakings
contemplated by this Agreement may and will be carried out and consummated in
the most expeditious and convenient manner.


 


19.                                 Assignment.  Subject to the balance of this
Section, this Agreement binds and inures to the benefit of the parties, their
successors and assigns.  Sportswear may
not assign or delegate any right or duty under this Agreement (voluntarily,
involuntarily, by operation of law, by transfer of control or otherwise)
without C&B’s prior written consent. 
Sportswear agrees that C&B may assign to Cutter & Buck its
rights under this Agreement (including without limitation its right to receive
payment of the Purchase Price), and Cutter & Buck may further assign such
rights to any subsidiary or affiliate entity, at any time without further
consent from Sportswear.


 


20.                                 Governing Law.  This Agreement shall be governed and construed in accordance with
the laws of the State of Washington without giving effect to any choice or
conflict of law provision or rule (whether of the State of Washington or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Washington.


 


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21.                                 Dispute Resolution.  The parties agree that it is in their mutual interest to
settle any dispute between themselves by the most efficient means available to
them.  To this end, either party may
demand arbitration of a dispute by notice to the other party. Arbitration shall
be the exclusive remedy, shall be binding and shall not be subject to appeal
under any circumstances.  Within thirty
(30) days of receipt of such notice, the receiving party shall complete and
submit to the Seattle Office of Judicial Arbitration & Mediation Services,
Inc. (“J.A.M.S.”), on behalf of both parties, the Submission Agreement then
used by J.A.M.S. setting forth the agreement of the parties as to the rules and
procedures to be followed at the arbitration hearing.  Should the parties fail to agree on the content of the Submission
Agreement, the arbitration shall nonetheless proceed under the direction of a
single arbitrator designated by the Seattle Office of J.A.M.S. and according to
the rules for binding arbitration then followed b the Seattle Office of
J.A.M.S.  In the arbitral award, the
arbitrator shall award special damages to a party if the other party has, in
the judgment of the arbitrator, protracted resolution of the dispute.  The prevailing party (as determined by the
arbitrator) shall be entitled to recovery of its reasonable costs and
attorneys’ fees from the other party. 
Otherwise, the parties shall divide the costs of the arbitration
equally.  The arbitration award may be
entered as a final judgment and enforced in any court having jurisdiction.  C&B and Sportswear specifically waive
any rights they might otherwise have to contest entry and enforcement of the
arbitration award in any jurisdictions selected by the prevailing party.


 


22.                                 Attorneys’ Fees and Costs.  In the event of any
dispute arising out of or relating to this Agreement, whether suit or other
proceeding is commenced or not, and whether in mediation, arbitration, at
trial, on appeal, in administrative proceedings or in bankruptcy (including
without limitation any adversary proceeding or contested matter in any
bankruptcy case), the prevailing party shall be entitled to recover its costs
and expenses incurred, including reasonable attorneys’ fees.  If there
is a lawsuit, Sportswear agrees to submit to the jurisdiction of the Superior
Court of Washington for King County.


 


23.                                 Severability.  If any portion of this Agreement shall be
held invalid or inoperative, then, so far as is reasonable and possible, the
remainder of this Agreement shall be considered valid and operative, and effect
shall be given to the intent manifested by the portion held invalid or
inoperative.


 


24.                                 Entire Agreement. 
This Agreement, including the attached Exhibits, constitutes the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all previous agreements by and between the parties as well as all
prior proposals, oral or written, and all prior negotiations, conversations or
discussions between the parties related to this Agreement.  Each of the parties acknowledges that it has
not been induced to enter into this Agreement by any representations or
statements, oral or written, not expressly contained herein.


 


25.                                 Execution
in Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute the same document, whether or not all parties execute
each counterpart.


 


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26.                                 Delivery by Facsimile.  The
parties agree that counterparts of this Agreement may be executed and delivered
by facsimile, followed by personal or other delivery of original signed
counterparts.


 


27.                                 General.  Each party is an independent
contractor.  Neither party is an agent
of the other, and neither party has any right to bind or obligate the
other.  This Agreement may not be
amended or modified except in writing signed by authorized officers of C&B
and Sportswear.  If any provision of
this Agreement is held invalid, all other provisions shall remain in full force
and effect.  The headings used in this
Agreement are for convenience only, and do not affect, limit or control the
meaning, effect or application of any provision of this Agreement.  No consent or waiver (express or implied) by
any party to or of any breach or nonperformance will be deemed to be a consent
or waiver to or of any other breach or nonperformance of the same or any other
obligation under this Agreement.  This
Agreement may be executed in counterparts.


 


ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.


 


EXECUTED as of the date first written above.


 


	
  CUTTER & BUCK (EUROPE) BV

  	
   

  	
  CUTTER & BUCK SPORTSWEAR (EUROPE) LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
  Its

  	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Its

  	
   

  
							



 


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