FOURTH AMENDMENT TO THE CONTENT LICENSE, MARKETING AND SALES AGREEMENT
Exhibit
10.3
Portions
of this Exhibit have been omitted pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. The
omissions have been indicated by asterisks (“*****”), and the omitted text has
been filed separately with the Securities and Exchange Commission.
FOURTH
AMENDMENT TO THE CONTENT LICENSE, MARKETING AND SALES AGREEMENT
This
Fourth Amendment (this “Fourth Amendment”) effective as of August 26, 2009
(“Fourth Amendment Effective Date”), by and between Xxxxxxx.xxx, Inc. (“Client”)
and eFashion Solutions, LLC (“EFS”), hereby amends that certain Content License,
Marketing and Sales Agreement entered into by the parties and effective as of
January 15, 2008, as previously amended (collectively, the
“Agreement”). All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Agreement. This
Fourth Amendment is hereby incorporated into the Agreement by
reference.
WHEREAS,
pursuant to Section 14.5 of the Agreement, the parties wish to amend the
Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants herein and for
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, Client and EFS agree as follows:
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1.
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Payments
and Fees.
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1.1 Revised Minimum
Royalty. Exhibit
10 of the Agreement is hereby replaced in its entirety as set forth in
Attachment 1, attached hereto and hereby incorporated by reference.
1.2 Amounts due under the
Agreement. EFS
shall pay to Client the following amounts due and owing to Client under the
Agreement:
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(a)
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Minimum
Royalty payments due and payable through June 30, 2009
(*****);
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(b)
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Holiday
catalog shoot expenses (Invoice #2407 -
*****);
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(c)
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Summer
catalog shoot expenses (Invoice #2420 -
*****);
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(d)
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Magazine
purchases (Invoice #534 - *****);
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(e)
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Magazine
purchases (Invoice #557 - *****);
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(f)
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Magazine
purchases (Invoice #563 - *****);
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(g)
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Magazine
purchases (Invoice #564 - *****);
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(h)
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Magazine
purchases (Invoice #573 - *****);
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(i)
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Playmate
fees for catalog shoot (Invoice #12989 - *****),
and
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(j)
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Playmate
fees for catalog shoot (Invoice #12989A -
*****)
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1.3 Payment
Schedule. The
amount of *****, fifty percent (50%) of all amounts due under Section 1.2.
above, shall be paid by EFS to Client upon execution of this Fourth Amendment
(the “Initial Past Due Payment”), and the remaining fifty percent (50%) due
under Section 1.2 above, in the amount of *****, shall be paid not later than
September 15, 2009.
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2.
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Dismissal
of Litigation; Condition of Settlement and Press
Release.
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2.1 Litigation. Client
agrees to dismiss its lawsuit against EFS, Xxxxxxx.xxx, Inc. v. eFashion
Solutions. LLC, Case No. 09-cv-03657 (N.D. III), without prejudice within
10 days of Client’s receipt of the Initial Past Due Payment. Such
dismissal shall be deemed to be with prejudice, with each Party to bear its own
costs and attorneys fees, so long as the Minimum Royalty payment for 2009 due
under Section 1.1 above is paid by January 5, 2010.
2.2 Condition of
Settlement. In
the event that EFS fails to pay Client any amount due pursuant to this Fourth
Amendment (which will be considered a material breach of the Agreement) and this
Fourth Amendment is terminated by Client pursuant to Section 10.2 of the
Agreement: (i) Section 3.3 of this Fourth Amendment shall remain in
full force and effect; and (ii) other than Section 3.3 of this Fourth Amendment,
all other terms of this Fourth Amendment shall be null and
void. Further, Client may seek from EFS all amounts due Client
pursuant to the Agreement and any damages to which Client would have been
entitled as if this Fourth Amendment had never been executed.
2.3 Press
Release. Upon
Client’s receipt of the Initial Past Due Payment, and dismissal of the
litigation pursuant to Section 2.1 above, the parties will work together to
draft a mutually agreeable joint press release, announcing that the parties have
settled their catalog and ecommerce disputes and will work together moving
forward.
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3.
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Term
and Termination.
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3.1 Section
5 of the First Amendment to the Agreement is hereby deleted in its
entirety.
3.2 Termination for Revenue
Shortfall. Section
10.1 of the Agreement is hereby amended such that Client shall have the option,
exercisable within forty-five (45) days following Client’s receipt of the report
due under Section 6.5 of the Agreement for the end of each Year of the Term, to
terminate the Agreement upon not less than four (4) months written notice in the
event that EFS has not achieved a minimum of eighty percent (80%) of projected
Net Merchandise Sales For such Year as set forth in Attachment 2, attached
hereto and hereby incorporated by reference.
3.3 Effects of
Termination.
(a) The
parties agree that Client will no longer have any obligation to buy Merchandise
held by EFS pursuant to the Agreement upon termination or expiration of the
Agreement. However, Client will have the right, in its sole
discretion, to purchase any or all of such remaining Merchandise either (i) at
the cost paid to Client by EFS for Merchandise initially purchased from Client
under the Agreement; or (ii) at EFS’s cost paid to any third party other than
Client for such merchandise.
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(b) Or
the condition that the Agreement has not been terminated pursuant to Section
10.2 of the Agreement as a result of a breach by EFS, in order to allow EFS to
recoup its wholesale cost for any remaining Merchandise not repurchased by
Client as set Forth above, unless otherwise agreed by the parties in writing,
for a maximum period of eighteen (18) months after expiration of the Agreement,
the remaining inventory may be sold by EFS via a Client website, as chosen by
Client, and/or other third party online mechanism(s) that is approved in advance
in writing by Client (e.g., sale/clearance
webpages); provided however that any such third party online mechanism must
include a direct link to the XxxxxxxXxxxx.xxx Website home page. Any amounts
received by EFS in connection with the sale of such Merchandise shall be
included in Net Merchandise Sales and subject to the Royalty.
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4.
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Miscellaneous.
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4.1 No Replacement.
Except as
expressly set forth herein, no provision of this Fourth Amendment shall be
interpreted to replace or delete any provision of the Agreement (including any
amendments thereto). All provisions of the Agreement (including any
amendments thereto) which are not expressly replaced or deleted by this Fourth
Amendment shall remain in full force and effect and shall, where appropriate,
apply to the terms of this Fourth Amendment. In the event of any
conflict between the Agreement and this Fourth Amendment, the terms of this
Fourth Amendment shall control.
4.2 Counterparts. This
Fourth Amendment may be executed in any number of counterparts. Any
counterpart may be executed by facsimile, unless notarization is required under
applicable law. All counterparts shall collectively constitute one
and the same agreement.
4.3 Entire
Agreement. The
terms and conditions contained in this Fourth Amendment and the Agreement
(including the exhibits and/or schedules attached thereto and any amendments
thereof) constitute the entire agreement between the parties relating to the
subject matter hereof and shall supersede all previous communications between
the parties with respect to the subject matter of this Fourth Amendment or of
the Agreement.
IN
WITNESS WHEREOF, the parties hereto, intending this Fourth Amendment to be
effective as of the Fourth Amendment Effective Date, have caused this Fourth
Amendment to he executed by their respective duly authorized
officers.
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EFASHION
SOLUTIONS, LLC
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XXXXXXX.XXX,
INC.
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By:
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/s/ Xxxxxx Xxx
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By:
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/s/ Xxxxxx Xxxxxxx
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Name:
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Xxxxxx Xxx
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Name:
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Xxxxxx Xxxxxxx
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Title:
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CEO
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Title:
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Vice President
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Date:
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August 21, 2009
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Date:
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August 26, 2009
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3
ATTACHMENT
1
Exhibit
10
Minimum
Royalty
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Year
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Minimum
Royalty
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2009
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*****
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2010
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*****
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2011
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*****
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2012
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*****
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2013
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*****
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ATTACHMENT
2
Projected
Net Merchandise Sales by Year
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Year
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Projected
Net
Merchandise
Sales
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2010
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*****
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2011
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*****
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2012
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*****
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2013
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*****
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