SETTLEMENT AGREEMENT AND GENERAL RELEASE

 

                                  EXHIBIT 10.48

                                       TO

                                 GARGOYLES, INC.

                                    FORM S-1

"[*]" = confidential information omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.

                    SETTLEMENT AGREEMENT AND GENERAL RELEASE

         THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (the "Agreement") is
entered into as of April 12, 1995, between Gargoyles, Inc. ("G.I.") and [*]
("[*]").

         WHEREAS G.I. has filed Civil Action No. [*] against [*] in the [*]Court
[*] (the "Lawsuit") alleging inter alia, that [*] use of the mark "GARGOYLES" is
an infringement of G.I.'s rights; and

         WHEREAS [*] has denied and continues to deny all claims made by G.I. in
the Lawsuit but is nevertheless prepared to compromise the matter; and

         WHEREAS G.I. and [*] desire to resolve any and all disputes between
them, including but not limited to those raised in the Lawsuit;

         NOW, THEREFORE, in consideration of the promises and conditions set
forth below and other good and valuable consideration, the receipt of which is
hereby acknowledged, G.I. and [*] agree as follows:

1.0      COMPROMISE AND STIPULATION OF DISMISSAL

         1.1 G.I. acknowledges and agrees that this Agreement is the result of a
compromise of disputed claims and shall not be construed as an admission by [*]
of any liability to or wrongful acts against G.I. or any other person. [*]
expressly disclaims any liability to or wrongful conduct against G.I. or any
other person, on the part of itself, its affiliated or related companies, or any
of their respective officers, employees or agents.

         1.2 G.I. and [*] agree to enter into a Stipulation of Dismissal with
prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure in the
form annexed hereto as Attachment D, which may be filed by either party hereto
upon execution of this Agreement and payment of the amount referred to in
paragraph 4.l hereof.

2.0      ASSIGNMENT OF RIGHTS TO G.I.

         2.l [*] hereby assigns to G.I. all its right, title and interest
in the United States and Canada in and to the mark "[*]," the mark "[*]," any

- --------
[*] Confidential Treatment Requested

composite terms including the term "[*]" or "[*]" but not to the extent such
terms include other [*] marks (hereinafter collectively "the Mark"),
U.S. trademark application Serial No. [*] and U.S. Trademark
Registration No. [*], and all goodwill associated with the Mark, such
application and such registration. [*] agrees to execute the Trademark
Assignments attached hereto as Attachment A and, at G.I.'s request, any other
documents, including an amendment to allege use, reasonably required to perfect,
establish or record the transfer of all its right, title and interest in the
Mark.

         2.2 [*] agrees not to directly or indirectly challenge, oppose, or
contest G.I.'s ownership of or rights in the Mark, or G.I.'s efforts to register
or maintain registrations for the Mark anywhere in the world. [*] and G.I. agree
not to directly or indirectly challenge, oppose, or contest the use by the other
of the Mark anywhere in the world.

3.0      TRADEMARK LICENSE TO [*]

         3.1 Upon execution of this Agreement, G.I. agrees to execute and
deliver to [*] the Trademark License Agreement in the form attached to this
Agreement as Attachment B. [*] agrees not to challenge or contest the validity
of the license granted under this Agreement.

4.0      PAYMENT TO G.I.

         4.1 Promptly upon execution of this Agreement by both parties, [*] will
pay or cause to be paid to G.I. one million dollars ($l,000,000).

         4.2 As a material inducement to [*] to enter into this Agreement, G.I.
agrees that it is not entitled to the payment of any royalties or any other
payment of any kind whatsoever with respect to the use, exhibition, performance,
display, exploitation, delivery, transmission, sale or sublicense of [*], works,
or any element thereof in any form or by any method whether now or hereafter
known or devised other than as set forth in paragraph 4.l hereof and in the
Trademark License Agreement referred to in paragraph 3.1 hereof. G.I. agrees
that it does not and shall not have any ownership interest in [*], works, or any
element thereof.

- --------
[*] Confidential Treatment Requested

5.0      [*] PURCHASE OF G.I. PERFORMANCE EYEWEAR

         5.1 [*] will arrange for representatives of G.I. to meet with
merchandise buyers responsible for purchases of goods for sale at [*]
retail sales locations within [*]. The parties will engage in
meaningful, substantive and good faith discussions concerning the possible
purchase of Gargoyles sunglasses and related products for resale at such stores
and locations. [*], Vice President-Business Affairs of [*], will personally
recommend to the appropriate merchandise buyer executives that such purchase be
seriously considered.

6.0      G.I. PRODUCT

         6.1 If in [*] discretion a [*] [*] by a [*] as a [*] requires the
use of sunglasses in G.I.'s product line, then as such opportunities arise over
the four year period April 1, 1995-April 1, 1999, [*] will accord to G.I. the
opportunity to [*] its products for that use, with no payment by G.I. to [*],
before giving such an opportunity to another party, up to a total of [*].
Products furnished for any specific [*] shall be furnished by G.I. at no
cost to [*]. [*] cannot commit to any given use or any use at all and will
retain all [*] over whether the use of G.I.'s products is
appropriate [*]. Within sixty days of the effective date of the
Agreement, appropriate representatives of [*] and G.I. will meet on this
subject. In addition, [*] will accord G.I. the opportunity to discuss what, if
any, other promotional uses, including [*], may be available at no cost to G.I.
in the instance of a specific [*].

7.0      LICENSE OF [*] FOR USE ON BICYCLE HELMETS

         7.1 [*] agrees to execute a [*]License Agreement for bicycle helmets in
the form annexed to this Agreement as Attachment D.

8.0      GENERAL RELEASE

         8.1 As a material inducement to [*] to enter into this Agreement, G.I.
hereby irrevocably and unconditionally releases, acquits and forever discharges
[*] and each of its owners, stockholders, predecessors, successors, assigns,
agents, directors, officers, employees, representatives, insurers, attorneys,
divisions, subsidiaries, affiliates (and agents, directors, officers, employees,
representatives, insurers and attorneys of such divisions, subsidiaries and
affiliates), and all persons acting by, through, under or in concert with any of
them, all such persons other than

- --------
[*] Confidential Treatment Requested

[*] in their capacities as such relative to [*] and not as private individuals
(collectively, "Releasees"), or any of them, from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
which G.I. now has or claims to have, or which G.I. at any time hereafter may
have or claim to have against [*] or any of the Releasees based upon any act,
event, fact or omission which occurred on or before the date of this Agreement
("Claims"). G.I. expressly waives and relinquishes all rights and benefits
afforded by California Civil Code Section 1542 and does so understanding and
acknowledging the significance of such specific waiver of Section 1542. Section
1542 states as follows:

         A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.

         Thus, notwithstanding the provisions of Section 1542, and for the
purpose of implementing a full and complete release and discharge of the
Releasees, G.I. expressly acknowledges that this Agreement is intended to
include in its effect, without limitation, all Claims that G.I. does not know or
suspect to exist in Releasees' favor at the time of execution hereof, and that
this Agreement contemplates the extinguishment of any such Claims.

         8.2 As a material inducement to G.I. to enter into this Agreement, [*]
hereby irrevocably and unconditionally releases, acquits and forever discharges
G.I. and each of its owners, stockholders, predecessors, successors, assigns,
agents, directors, officers, employees, representatives, insurers, attorneys,
divisions, subsidiaries, affiliates (and agents, directors, officers, employees,
representatives, insurers and attorneys of such divisions, subsidiaries and
affiliates), and all persons acting by, through, under or in concert with any of
them, all such persons other than G.I. in their capacities as such relative to
G.I. and not as private individuals (collectively, "Releasees"), or any of them,
from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including attorneys' fees
and costs actually incurred) of any nature whatsoever, known or

- --------
[*] Confidential Treatment Requested

suspected, which G.I. now has or claims to have, or which [*] at any time
hereafter may have or claim to have against G.I. or any of the Releasees based
upon any act, event, fact or omission which occurred on or before the date of
this Agreement ("Claims").

9.0      INDEMNIFICATION

         9.1 G.I. agrees that if any shareholder of G.I. makes any claim or
brings any litigation against G.I. or [*] on account of this settlement or
arising out of any of the terms of the Agreement, G.I. shall indemnify and
defend [*] (including the payment of reasonable attorneys' fees) against any
such claims or in any such litigation.

         9.2 G.I. and [*] each represent that, except for the Lawsuit, it has
neither filed or commenced any charge, claim, complaint or grievance of any kind
against the other or Releasees with any agency or tribunal nor filed or
commenced any proceeding at law or otherwise with respect to any Claims. If G.I.
or [*] violates its promise in paragraph 8.1 or 8.2, respectively, and initiates
any charge, claim, complaint or grievance based upon any claim that it has
released in this Agreement, such violating party will pay for all loss, damages,
costs and expenses, including reasonable attorneys' fees, incurred by the other
party or the Releasees, or any of them in defending against such claim.

         9.3 G.I. represents that it has not heretofore assigned or transferred,
or purported to assign or transfer, to any person or entity, any of the Claims
or portion thereof or interest therein.

10.0     CONFIDENTIALITY

         10.1 G.I. represents and agrees that it will keep the existence, fact,
terms, and amount of this Agreement completely confidential, except (a) as
necessary for the purpose of its enforcement, (b) in response to a court order
or an authorized request from a duly constituted governmental body, or (c) as to
its financial and tax advisors, or prospective investors in G.I. in the course
of their due diligence, provided that any such prospective investor shall first
agree in writing to preserve and maintain the confidentiality pursuant to its
own confidentiality provisions and shall not be used to circumvent the
obligation of confidentiality in this paragraph. Should either party be required
to disclose this Agreement or any term or condition thereof in any court or
administrative proceeding, it will promptly notify the other with reasonable
expedition once the possibility that disclosure may be ordered is known, and in
any event prior to 

- --------
[*] Confidential Treatment Requested

such disclosure, and will use reasonable efforts to preserve the confidentiality
of such disclosure under a suitable protective order. In the event of a media
inquiry made directly to G.I. concerning the Lawsuit, the following may be
disclosed: "The parties have resolved their differences and the Lawsuit has been
terminated." In the event of a customer inquiry made directly to G.I. concerning
the use by [*] of the trademark "GARGOYLES," the following may be disclosed: "We
have a license agreement with [*] for use of the GARGOYLES' trademark." Neither
G.I. nor any of its representatives will make any statement or comment of any
kind about any matters related hereto except for the preceding ones. Other than
those two statements, G.I. and all of its representatives will answer all
inquiries or questions with the words, "No comment." G.I. will not initiate,
invite, or encourage any media, press or other attention to the fact of this
Agreement or any dispute between G.I. and [*], nor shall it disclose any
confidential information acquired pursuant to this Agreement to anyone. G.I.
understands and agrees that any disclosure of information contrary to the terms
of this confidentiality provision by it or its representatives or by any person
with whom it is in privity or acting in concert would be damaging to [*], and
G.I. further agrees that [*] would be irreparably harmed by a violation of this
confidentiality provision and therefore shall be entitled to an injunction
prohibiting G.I. or its representatives or any person with whom it is in privity
or acting in concert from any violation or threatened violation of this
confidentiality provision.

11.0     GENERAL PROVISIONS

         11.1 Headings. Section headings are used in this Agreement for
convenience and reference only and shall not affect the meaning of any provision
of this Agreement.

         11.2 Entire Agreement; Amendments. The parties represent and
acknowledge in executing this Agreement that they do not rely and have not
relied upon any representation or statement not expressly contained herein made
by either party to the other with respect to the subject matter, basis or effect
of this Agreement or otherwise. This Agreement (including its attachments) sets
forth the entire agreement between the parties hereto and fully supersedes any
and all prior agreements or understandings between the parties hereto pertaining
to the subject matter hereof. This Agreement shall not be amended except by a
written agreement subsequent to the date of this Agreement and signed on behalf
of the parties by their respective authorized representatives.

- --------
[*] Confidential Treatment Requested

         11.3 Binding Effect. This Agreement shall be binding upon G.I., [*],
and their respective predecessors, successors, affiliates, subsidiaries, related
companies, and in the case of G.I., all companies owned or controlled by the
owner, chairman, or president of G.I. This Agreement shall inure to the benefit
of [*], the Releasees and G.I., and to their predecessors, successors,
affiliates, subsidiaries, related companies, divisions, officers, directors,
employees, assigns, heirs, administrators, representatives, and executors.

         11.4 Severability. Should any provision in this Agreement be declared
or determined by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be a part of
this Agreement.

         11.5 Governing Law. This Agreement is made and entered into in the
State of California and shall in all respects be construed, enforced and
governed under the laws of the State of California, excluding choice of law
rules.

         11.6 Agreement Jointly Drafted. The parties acknowledge that they both
have participated in the drafting of this Agreement, and the language of all
parts of this Agreement shall in all cases be construed as a whole, according to
its fair meaning, and not strictly for or against any of the parties.

         11.7 Signers Authorized. The undersigned persons hereby represent that
they are vested with the authority to execute and enter into this Agreement on
behalf of the respective parties.

         11.8 No Partnership. Neither this Agreement, nor any terms and
conditions contained herein, shall be construed as creating a partnership, joint
venture or agency relationship or as granting a franchise.

         11.9 No Waiver. Failure of either party to enforce any provision of
this Agreement shall not constitute a waiver of any prior, concurrent or
subsequent breach of the same or any other provision hereof, and no waiver shall
be effective unless made in writing and signed by an authorized representative
of the waiving party.

         11.10 Signed in Counterparts. This Agreement may be signed in two
counterparts, each of which shall (when the Agreement is or counterparts have
been signed by all parties) be an original, to the same effect as if all
signatures were on the same instrument.

- --------
[*] Confidential Treatment Requested

         11.11 Attachments. This Agreement includes the following attachments
which are hereby incorporated by reference:

         Attachment A - Trademark Assignments (2)
         Attachment B - Trademark License Agreement
         Attachment C - [*]License Agreement for Helmets
         Attachment D - Stipulation for Dismissal

         This Agreement is effective as of April 12, 1995.

                                       GARGOYLES, INC.

Date:   April 12, 1995                  By  /s/  Douglas B. Hauff
        ------------------                  ------------------------

                                                President
                                            ------------------------
                                                (Print or type name and title)

                                        [*]

Date:   April 11, 1995                  By  /s/ [*]
                                            ------------------------

                                                 [*]
                                            ------------------------
                                          (Print or type name and  title)

- --------
[*] Confidential Treatment Requested

 

Basic Info X:

Name: SETTLEMENT AGREEMENT AND GENERAL RELEASE
Type: Settlement Agreement and General Release
Date: July 3, 1996
Company: GARGOYLES INC
State: Washington

Other info:

Date:

  • April 1 , 1995-April 1 , 1999
  • April 12 , 1995
  • April 11 , 1995

Organization:

  • Securities and Exchange Commission
  • Gargoyles , Inc
  • Civil Action No
  • Federal Rules of Civil Procedure
  • the State of California

Location:

  • United States
  • Canada
  • U.S.
  • G.I.
  • State of California

Money:

  • one million dollars
  • $ l,000,000

Person:

  • Douglas B. Hauff