EXHIBIT 10.29
AMENDMENT TO OPERATING AGREEMENT
OF THERMOLASE JAPAN L.L.C.
This Agreement is made as of May 1, 1997 by and among
ThermoLase Corporation, a Delaware corporation with offices
located at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000-0000, U.S.A. ("ThermoLase"), Fox River Japan Partners,
L.P., a Delaware limited partnership with offices located at 000
X. Xxxxx Xxxxxx, Xxxxxxx, XX 00000 ("Fox River Japan"), and
ThermoLase Japan L.L.C. a Wyoming limited liability company with
offices c/o Fox River Japan ("ThermoLase Japan").
WHEREAS, the parties entered into an Operating Agreement
effective as of January 22, 1996 (the "Operating Agreement") in
order to commercialize technology licensed to ThermoLase Japan by
ThermoLase in the territory set forth in the Operating Agreement;
and
WHEREAS, ThermoLase, Fox River Japan, and ThermoLase Japan
desire to modify certain terms set forth in the Operating
Agreement to: (i) permit Fox River Japan to withdraw certain
funds contributed to ThermoLase Japan, and (ii) obligate each of
Fox River Japan and ThermoLase to fund equally the expenses
incurred by ThermoLase Japan for the period from May 1, 1997
through the "Review Date" which shall be the earlier of: (a) the
date on which ThermoLase Japan has received all approvals from
relevant Japanese authorities required in order to pursue the
commercialization of the technology subject to the License
Agreement between ThermoLase and ThermoLase Japan, and (b)
October 31, 1998.
NOW THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. ThermoLase Japan shall distribute to Fox River Japan
all funds held in accounts controlled by ThermoLase Japan to the
extent that such funds exceed an amount equal to the sum of: (i)
One Million United States Dollars (US$1,000,000), and (ii) an
amount equal to the accrued and unpaid liabilities of ThermoLase
Japan as of May 1, 1997. The distribution to Fox River Japan of
such funds shall be treated as a distribution to Fox River Japan
of a portion of its initial capital contribution, but the
distribution thereof shall have no impact on the Membership
Interests of ThermoLase and Fox River Japan in ThermoLase Japan.
2. Subject to the limitation in Section 4 below, if the
expenses incurred by ThermoLase Japan to fund activities during
the period from May 1, 1997 through the Review Date exceed Two
Million United States Dollars (US$2,000,000), Fox River Japan
shall promptly contribute to ThermoLase Japan one half of the
amount in excess of Two Million United States Dollars
(US$2,000,000).
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3. Subject to the limitation in Section 4 below,
ThermoLase shall contribute to ThermoLase Japan on a quarterly
basis amounts equal to one half of the expenses incurred by
ThermoLase Japan to fund activities during the period from May 1,
1997 through the Review Date. ThermoLase Japan shall fund such
expenses on an interim basis using funds remaining in accounts
controlled by ThermoLase Japan, and shall notify ThermoLase on a
quarterly basis, beginning not later than October 31, 1997, of
the amount of the expenses incurred by ThermoLase Japan for
activities during the period between May 1, 1997 through the end
of the relevant quarterly period. ThermoLase Japan shall provide
ThermoLase with financial statements showing in detail acceptable
to ThermoLase the expenses incurred during the relevant period,
together with a detailed schedule, in English, of the expenses
incurred. ThermoLase Japan shall provide copies and English
translations of all invoices requested by ThermoLase detailing
the expenses incurred during the relevant quarter. Within thirty
(30) days after receipt of the notice and other materials
described above, ThermoLase shall contribute to an account
controlled by ThermoLase Japan an amount equal to one half of the
expenses supported by the documentation provided to ThermoLase.
4. Neither Fox River Japan nor ThermoLase shall have any
obligation to contribute to ThermoLase Japan an amount in excess
of Xxx Xxxxxxx Xxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars
(US$1,500,000) to fund activities for the period between May 1,
1997 and the Review Date. For purposes of this limitation, the
contributions by Fox River Japan shall include the One Million
United States Dollars (US$1,000,000) previously contributed to
ThermoLase Japan by Fox River Japan which is being retained by
ThermoLase Japan in accordance with Section 1 of this Amendment,
plus any additional funds contributed by Fox River Japan to fund
activities undertaken by ThermoLase Japan during the period
between May 1, 1997 and the Review Date. If reasonably requested
by ThermoLase or Fox River Japan, ThermoLase Japan shall provide
ThermoLase and Fox River Japan with copies of annual audited
financial statements for ThermoLase Japan.
5. Notwithstanding the provisions of Section 10.01.a.v. of
the Operating Agreement, for the period through the Review Date,
ThermoLase Japan shall continue to use its best efforts to pursue
all activities required to obtain all required regulatory
approvals from relevant Japanese authorities in order to pursue
the commercialization of the technology subject to the License
Agreement between ThermoLase and ThermoLase Japan. Without
otherwise limiting Fox River Japan's rights under Section
10.01.a.v. of the Agreement (and notwithstanding the two year
limitation therein), Fox River Japan shall be permitted to
exercise its rights thereunder only by providing written notice
to ThermoLase, within ten (10) business days after the parties
agree on the Review Date as set forth in Section 8 below, of Fox
River Japan's desire to dissolve ThermoLase Japan.
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6. If Fox River Japan does not exercises its rights under
Section 10.01.a.v. as amended hereby, Fox River Japan shall
contribute to ThermoLase Japan, as and when required by
ThermoLase Japan to fund its continuing activities, funds in
amounts aggregating up to the amount distributed to Fox River
Japan in accordance with Section 1 of this Amendment. All such
funds shall be treated as initial capital contributions to
ThermoLase Japan.
7. None of the contributions to ThermoLase Japan
contemplated by this Amendment shall affect the Membership
Interests of Fox River Japan or ThermoLase.
8. To establish the Review Date (which shall be not later
than October 31, 1998), any of the parties hereto may notify the
other parties in writing that in its opinion all approvals from
Japanese authorities which are required to pursue the
commercialization of the technology subject to the License
Agreement between ThermoLase and ThermoLase Japan were obtained
on a particular date, and the other parties shall respond in
writing within five (5) business days after receipt of such
notice either (i) confirming such date, or (ii) identifying the
basis on which such party disagrees with the conclusion that all
required approvals were obtained on such date. The date shall be
determined upon agreement by all parties that the proper date has
been identified.
Except as amended hereby, the Operating Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed by the
parties on the date first written above.
THERMOLASE CORPORATION FOX RIVER JAPAN PARTNERS, L.P.
By: FOX RIVER JAPAN, INC.
its General Partner
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
Name: Xxxx X. Xxxxxx Name: Xxxxxx Xxxxxxx
Title: President and Title: President
Chief Executive Officer
THERMOLASE JAPAN L.L.C.
By its Members
THERMOLASE CORPORATION
By:/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
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FOX RIVER JAPAN PARTNERS, L.P.
By: FOX RIVER JAPAN, INC.
its General Partner
By:/s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President
