Exhibit 10.2
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of January 2, 1997 by and
between QVC, Inc. ("QVC"), a Delaware corporation with its principal place of
business at 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000, and Xxxx Xxxxxxx
Sel-Leb Marketing, Inc. ("Xxxxxxx"), a New York corporation with its principal
place of business at 000 Xxxx Xxxxxxxx, Xxx Xxxx, XX 00000.
BACKGROUND
A. QVC and its affiliates promote, market, sell and distribute (collectively,
"Promote") products through various means and media, including without
limitation, their televised shopping programs (the "Programs").
X. Xxxxxxx distributes and sells women's and men's apparel and accessories
(whether now in existence or developed hereinafter, collectively, the
"Products").
X. Xxxxxxx and QVC desire that QVC Promote the Products through various means
and media, including without limitation, the Programs, and that Xxxxx Xxxxxxx,
an entertainer and consultant to Xxxxxxx ("Xxxxxxx"), appear on the Programs to
assist QVC in promoting the Products.
NOW, THEREFORE, incorporating the foregoing background, and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Grant of License and Other Rights.
(a) Xxxxxxx grants to QVC and its affiliates throughout the term of
this Agreement the following rights worldwide: (i) the exclusive right to
Promote the Products through Direct Response Television (as defined below) and
through the retail stores of QVC and its affiliates; (iii) the right to use,
publish, reproduce and transmit the trademarks, trade names and/or logos used
and/or developed by Xxxxxxx in connection with the Products, including without
limitation, the term "Xxxx Xxxxxxx" (collectively, whether now in existence or
created hereinafter, the "Trademarks") to Promote the Products in accordance
with the terms and conditions of this Agreement. For purposes of this Agreement,
"Direct Response Television" shall mean any electronic transmission (whether now
in existence or developed hereafter) through which a consumer is requested to
purchase any product by mail, telephone or other electronic means, including
without limitation, televised electronic retailing programs, infomercials, and
direct response commercial spots and computerized shopping services, whether
on-line services or otherwise. Notwithstanding the foregoing, nothing in this
Agreement shall prohibit Xxxxxxx from promoting its Products through its retail
stores or through "Xxxx Xxxxxxx" departments in first-class retail stores
(defined as department stores of the first class, specialty stores and
boutiques).
(b) Xxxxxxx grants to QVC the following rights worldwide: (i) the
exclusive right in the to use his name, likeness, image, voice and performance
(the "Endorsement") to Promote the Products, and all other apparel products,
through all means and media, including without limitation, Direct Response
Television, in accordance with the terms and conditions of this Agreement.
(Hereinafter, the rights granted to QVC pursuant to subparagraph (a) of this
paragraph 1 and this subparagraph (b) are collectively referred to as the
"License").
2. Products.
(a) From time to time, QVC may issue to Xxxxxxx a Purchase Order,
the current form of which is attached hereto as Exhibit "A" and incorporated
herein by reference (each, a "Purchase Order"). This paragraph 2, together with
all other terms of each Purchase Order, shall survive the expiration or
termination of this Agreement. In the event that there exist any inconsistencies
between this Agreement and the terms and conditions of any Purchase Order, the
terms and conditions of this Agreement shall govern. Notwithstanding anything to
the contrary contained in this Agreement or otherwise, QVC makes no
representations or warranties with respect to the amount of Products that may be
sold through the Programs, if any, the number of times, if any, the Products may
be offered for sale on the Programs or the amount of revenue, if any, that may
be generated through any sales of Products on the Programs.
(b) During the term, Xxxxxxx shall provide to QVC or its designee,
upon the request of QVC, (i) consulting and advisory services with respect to
QVC's efforts to Promote the Products and (ii) such other creative input as QVC
may reasonably request from time to time, at the sole expense of Xxxxxxx.
(c) QVC shall not liquidate the Products through any channel of
distribution other than the Programs or the retail stores of QVC and its
affiliates without the consent of Xxxxxxx. In the event that QVC requests such
consent with respect to any such Products (which request must be made in
writing) (each, a "Liquidation Request") and Xxxxxxx refuses to provide such
consent with respect to any Products, Xxxxxxx shall purchase from QVC the
Products subject to such Liquidation Request with respect to which Xxxxxxx
refused to provide consent, no later than sixty (60) days following the date of
the applicable Liquidation Request. In the event that Xxxxxxx fails to purchase
such Products within such specified time period, then QVC shall have the right
to liquidate such Products as QVC deems appropriate, in its sole and absolute
discretion.
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3. Term.
(a) The initial term (the "Initial Term") of this Agreement shall
commence on the date hereof and shall terminate three (3) years following the
date of Xxxxxxx'x first Appearance after that date. Upon the expiration of the
Initial Term, this Agreement shall automatically, continually renew for
additional three (3) year terms, in perpetuity (each, a "Renewal Term"), unless
(i) Xxxxxxx notifies QVC in writing, at least thirty days (30) prior to the end
of the Initial Term or any Renewal Term, of its intent to terminate the
Agreement, and (ii) during the Initial Term or any Renewal Term, as the case may
be, Net Purchases (as defined below) during that term are less than the Minimum
Amount. For purposes of this Agreement, "Minimum Amount" shall mean Seven
Million Dollars ($7,000,000) with respect to the Initial Term and each Renewal
Term and "Net Purchases" shall mean the aggregate cost to QVC of all Products
purchased by QVC pursuant to all Purchase Orders issued for Products during the
applicable period less returns, chargebacks and allowances. Following the
expiration or termination of this Agreement, QVC shall have the right for as
long as necessary to Promote the Products, and to use the License in connection
with such Promotion, to sell off any of its remaining inventory of Products and
to place additional orders for Products to fulfill any remaining unfilled
customer orders for Products (the "Sell-Off Period").
(b) Xxxxxxx shall have the right, but not the obligation, to
terminate this Agreement, in the event that Net Purchases are less than (i) Two
Million Dollars ($2,000,000), with respect to the period commencing upon the
date of this Agreement and ending one (1) year following the date of Xxxxxxx'x
first Appearance after that date (the "First Interim") or (ii) Two Million Five
Hundred Thousand Dollars ($2,500,000), with respect to the period commencing
upon the day following the last day of the First Interim and ending one (1) year
thereafter (the "Second Interim"), by notifying QVC in writing, at least thirty
days (30) prior to the end of The First Interim or the Second Interim, as the
case may be, of its intention to terminate this Agreement.
4. Appearances. If requested by QVC, Xxxxxxx shall cause Xxxxxxx to make,
and Xxxxxxx agrees to make, at least eight (8) Appearances on the Programs
during each one (1) year period in which this Agreement remains in effect. For
purposes of this Agreement, an "Appearance" shall mean a one (1) to three (3)
day period during which the Products may be offered for sale on the Programs,
from time to time. [QVC shall provide Xxxxxxx and Xxxxxxx with written notice of
any scheduled Appearance at least ninety (90) days in advance of such scheduled
Appearance (each, a "Notice of Scheduled Appearance"). In the event that Xxxxxxx
is unable to make any scheduled Appearance, Xxxxxxx shall notify QVC of the same
and shall identify at least two (2) alternate date(s) for such Appearance (which
date(s) shall be no later than ___ days following the date for which such
Appearance was originally scheduled), no later than ___ days following the date
the applicable Notice of Scheduled Appearance was sent to Xxxxxxx and Xxxxxxx.]
Xxxxxxx agrees to appear in promotional announcements featuring the Programs, at
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dates and times determined by QVC, which dates and times shall coincide with the
Appearances, subject to his reasonable availability. Unless otherwise determined
by QVC, all Appearances and promotional announcements shall take place at QVC's
studios in West Chester, Pennsylvania. Xxxxxxx shall bear any costs and expenses
of Xxxxxxx that may arise in connection with all Appearances and promotional
announcements, including without limitation, travel, lodging and food. QVC makes
no representations or warranties with respect to the number of Appearances, if
any, that it may request Xxxxxxx to make.
5. Non-Compete. Without the prior written consent of QVC, neither Xxxxxxx
nor Xxxxxxx shall, during the term of this Agreement or the one (1) year period
following the expiration or termination of this Agreement, promote, advertise,
endorse or sell any products or items by means of Direct Response Television.
6. Representations, Warranties and Covenants.
(a) Xxxxxxx represents, warrants and covenants, which
representations, warranties and covenants shall continue during the term of this
Agreement and shall survive the expiration or termination of this Agreement,
that: (i) it possesses the full power and exclusive right to grant the License
to QVC; (ii) the execution, delivery and performance of this Agreement by
Xxxxxxx does not violate any agreement, instrument, judgment, order or award of
any court or arbitrator or any law, rule or regulation; and (iii) there exist no
agreements, or other arrangements, for Xxxxxxx to endorse, promote, advertise,
or sell any products through Direct Response Television. Xxxxxxx shall provide
QVC with any and all documents reasonably required or requested by QVC at any
time and from time to time to support the representations and warranties herein
contained.
(b) Xxxxxxx represents, warrants and covenants, which
representations, warranties and covenants shall continue during the term of this
Agreement and shall survive the expiration or termination of this Agreement,
that: (i) he possesses the full power and exclusive right to grant the
Endorsement to QVC; (ii) the execution, delivery and performance of this
Agreement by Xxxxxxx does not violate any agreement, instrument, judgment, order
or award of any court or arbitrator or any law, rule or regulation; (iii) there
exist no agreements, or other arrangements, for Xxxxxxx to endorse, promote,
advertise, or sell any Products through Direct Response Television, except other
agreements to which QVC is a party; and (iv) any testimonials made by Xxxxxxx
will be based upon the personal experiences of Xxxxxxx. Xxxxxxx acknowledges
that the compensation provided to him by Xxxxxxx is adequate consideration for
the obligations of Xxxxxxx under this Agreement and the rights granted to QVC
pursuant to paragraph 1(b) of this Agreement. Xxxxxxx shall provide QVC with any
and all documents reasonably required or requested by QVC at any time and from
time to time to support the representations and warranties herein contained.
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(c) QVC represents, warrants and covenants, that it is duly
authorized to enter into this Agreement and that its execution of this Agreement
does not violate any agreement, judgment, instrument, order or award of any
court or arbitrator or any law, rule or regulation. QVC acknowledges that the
trademark "Xxxx Xxxxxxx" is the exclusive property of Xxxxxxx and that all
goodwill in such trademark is the property of Xxxxxxx.
7. Confidentiality. Xxxxxxx and Xxxxxxx each acknowledge and agree that
any and all information regarding QVC or its operations disclosed to them in
conjunction with this Agreement, and any information regarding the sale and
promotion of Products and/or products by QVC, will be treated as confidential
information and will not be disclosed to any third party at any time during the
term of this Agreement, including any Renewal Term(s), and thereafter. Xxxxxxx
and Xxxxxxx further agree that any such information will not be used for any
purposes by Xxxxxxx or Xxxxxxx other than for purposes contemplated by this
Agreement. Confidential information shall not be deemed to include information
which (a) is public knowledge or becomes generally available to the public other
than as a result of disclosure by Xxxxxxx or Xxxxxxx; (b) becomes available to
Xxxxxxx or Xxxxxxx, on a non-confidential basis, from a source (other than QVC
or its agents) who is not bound by a confidentiality agreement with QVC; or (c)
is in the possession of Xxxxxxx or Xxxxxxx prior to disclosure by QVC, provided
that the source was not bound by a confidentiality agreement with QVC.
Notwithstanding the foregoing, Xxxxxxx and Xxxxxxx may disclose Confidential
Information (i) to their respective attorneys, accountants, bankers and
financial advisors, provided that the same agree to the terms of this
confidentiality provision in writing and in advance; (ii) to comply with any
court order or applicable law, provided that Xxxxxxx or Xxxxxxx notify QVC in
writing and in advance of any intention to disclose such information; or (iii)
in any action to enforce this Agreement.. Xxxxxxx and Xxxxxxx each agree that in
the event of a breach or threatened breach of the terms of this paragraph 7
and/or the provisions of paragraph 5, QVC shall be entitled to seek from any
court of competent jurisdiction, preliminary and permanent injunctive relief
which remedy shall be cumulative and in addition to any other rights and
remedies to which QVC may be entitled. Xxxxxxx and Xxxxxxx each acknowledge and
agree that the confidential information and other information referred to in
this paragraph 7 and the prohibitions provided in paragraph 5 above, are
valuable and unique and that such breach of such provisions will result in
immediate irreparable injury to QVC. The rights and obligations of the parties
set forth in this paragraph 7 shall survive and continue after the termination
or expiration of this Agreement.
8. Publicity. Except for incidental non-derogatory remarks necessitated by
the services provided hereunder, neither Xxxxxxx nor Xxxxxxx shall issue any
publicity or press release regarding their contractual relations with QVC or
otherwise make any oral or written reference to the other regarding their
activities hereunder, without obtaining QVC's prior written consent, and
approval of the contents thereof. Neither Xxxxxxx nor Xxxxxxx shall utilize any
trade name, service xxxx, trademark, or copyright belonging to QVC without the
prior written consent of QVC, which consent shall not be unreasonably withheld.
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9. Miscellaneous.
(a) Amendment. This Agreement may not be varied, amended, or
modified unless in writing signed by the parties hereto.
(b) No Assignment. This Agreement and the rights and obligations
hereunder are not assignable, except to wholly-controlled entities of the
parties hereto, respectively, and any such assignment shall be null and void.
(c) Governing Law. This Agreement shall be construed according to
the internal laws of the Commonwealth of Pennsylvania without regard to conflict
of laws principles. QVC, Xxxxxxx and Xxxxxxx each hereby consent to the
exclusive jurisdiction of the state courts of the Commonwealth of Pennsylvania,
Xxxxxxx County, and the United States District Court for the Eastern District of
Pennsylvania, in all matters arising out of this Agreement. QVC, Xxxxxxx and
Xxxxxxx each consent to service of process by certified mail, return receipt
requested, at the address indicated in the opening paragraph hereof.
(d) Notices. All notices provided for hereunder shall be sent via
certified mail, return receipt requested, or by reputable overnight carrier, to
the addresses indicated below:
If to QVC: QVC, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Executive Vice President
Electronic Retailing
With a copy to: QVC, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
If to Xxxxxxx: Xxxx Xxxxxxx Sel-Leb
Marketing, Inc.
000 Xxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
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With a copy to: Xxxxxxxxx, Roshco & Xxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esquire
and
Xxxxxxx Xxxxxx Agency, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Executive Vice President
and Director
(e) Entire Agreement. This Agreement supersedes all prior
communications between the parties regarding the subject matter hereof, whether
oral or written, and constitutes the entire understanding of the parties.
(f) Waiver. No delay or failure on the part of any party hereto in
exercising any right or remedy under this Agreement, and no partial or single
exercise thereof, shall constitute a waiver of such right or remedy or of any
other right or remedy.
(g) Severability. If any term or condition of this Agreement or the
application thereof shall be illegal, invalid or unenforceable, all other
provisions hereof shall continue in full force and effect as if the illegal,
invalid or unenforceable provision were not a part hereof. The headings used in
this Agreement are for the convenience of the parties only and shall not be
construed in the interpretation of any provisions of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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(h) No Joint Venture. Nothing herein contained shall be construed to
place the parties in the relationship of partners or joint venturers, and
neither QVC nor Xxxxxxx shall have the power to obligate or bind the other in
any manner whatsoever. QVC and Xxxxxxx agree that in performing their duties
under this Agreement they shall be in the position of independent contractors.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto
have executed this Agreement on the date first above written.
Xxxx Xxxxxxx Sel-Leb Marketing, Inc. QVC, Inc.
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ G. Xxxxxx Xxx
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G. Xxxxxx Xxx
Its: Chairman of the Board Vice President
I, Xxxxx Xxxxxxx, hereby acknowledge and agree to the terms and conditions set
forth in the above Agreement, and, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, agree to be personally bound by the provisions set forth
in paragraphs 1(b), 4, 5, 6(b), 7, 8 and 9 of the above Agreement.
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Xxxxx Xxxxxxx
Date:
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