Exhibit 10.1
FIFTH AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT, dated this 5th day of May, 2003,
between UNITED FEATURE SYNDICATE, INC., d.b.a. UNITED MEDIA, a New York
corporation with its principal office at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("UM"), as exclusive worldwide licensing representative of
PRECIOUS MOMENTS, INCORPORATED, an Illinois corporation with its principal
office at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000 ("Licensor"),
and ENESCO GROUP, INC., a Massachusetts corporation with its principal office at
000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 ("Licensee"), is to evidence:
WHEREAS, pursuant to an agreement dated July 1, 1993, Licensor
granted Enesco Corporation, an Ohio corporation ("Enesco Ohio"), certain rights
with respect to the PRECIOUS MOMENTS property; and
WHEREAS, said agreement was amended by amendments dated December 29,
1997, and January 22, 1999 (said agreement, as amended, being hereinafter
referred to as the "Agreement"); and
WHEREAS, Enesco Ohio assigned the Agreement to Licensee effective
January 21, 2000; and
WHEREAS, since the Agreement was signed UM has become exclusive
worldwide licensing representative of Licensor; and
WHEREAS, the Agreement was further amended by amendments dated July
30, 2001, and December 19, 2002; and
WHEREAS, the parties wish to amend the Agreement further in certain
respects;
NOW, THEREFORE, the Agreement is amended as follows:
1. Exhibits B-1 and B-2 are deleted and new Exhibits B-1 and B-2,
attached hereto and made a part hereof, substituted therefor.
2. The following new paragraph 35 is added:
"35. Extension of Cosmetic Product Side Letter. The October 22,
2002, side letter relating to this Agreement and dealing with Licensee's
marketing of COSMETIC PRODUCTS to the toy department of Walgreen's (the
`Cosmetic Products Side Letter') is hereby extended through January 31,
2004. The first date in paragraph 3 of the Cosmetic Products Side Letter
is hereby changed from June 6, 2003, to February 6, 2004, and the second
date in paragraph 3 of the Cosmetic Products Side Letter is hereby changed
from June 30, 2003, to January 31, 2004. Except as expressly modified by
this paragraph 35, all terms and conditions of the Cosmetic Products Side
Letter shall remain in full force and effect."
3. The following new paragraph 36 is added:
"36. Sales to Sam's Club; Possible Extension of Channels of
Distribution to Include Sam's Club and/or Wholesale Clubs.
"(a) Sam's Club Test Market. Notwithstanding the channels of
distribution specified elsewhere in this Agreement, Licensee shall have
the right to market selected Licensed Products to Sam's Club on a test
market basis. Licensee shall not market any Licensed Product manufactured
of porcelain bisque to Sam's Club as part of said test market unless such
Licensed Product has been on the market for at least two years prior to
Licensee's delivery of such Licensed Product to Sam's Club.
"(b) Percentage Royalties; Possible Extension of Licensee's Channels
of Distribution. Notwithstanding the provisions of subparagraph 4(a) of
this Agreement, the percentage royalty payable by Licensee with respect to
the Licensed Products sold to Sam's Club shall be 12% of the Net Wholesale
Sales Price or FOB Sales Price, as applicable. Royalties payable by
Licensee on sales of the Licensed Products to Sam's Club shall be credited
against the Guaranteed Minimum Royalties payable by Licensee under this
Agreement; however, Licensee acknowledges that if it wishes to go forward
with the sale of the Licensed Products to Sam's Club and/or other
warehouse clubs following the expiration of the authorization contained in
this paragraph 36, it shall so notify UM and PMI in writing on or before
December 31, 2003. If UM and PMI decide, in their sole discretion, that
they are interested in adding Sam's Club and/or other warehouse clubs to
Licensee's channels of distribution under this Agreement, the parties
shall negotiate in good faith with respect to the terms and conditions of
a possible amendment to this Agreement or a separate license agreement to
cover Licensee's distribution of the Licensed Products to Sam's Club
and/or other warehouse clubs after December 31, 2003, which terms and
conditions may include, but will not be limited to, the term of Licensee's
rights with respect to sales via said channel, a separate guarantee with
respect to Licensee's sales via said channel, a separate marketing plan
with respect to Licensee's sales via said channel, and such other terms
and conditions as the parties deem necessary.
"(c) Test Market Period. The test market period authorized by this
paragraph 36 shall commence on the date of execution of the fifth
amendment to this Agreement and remain in effect through December 31,
2003. Whether or not the Sam's Club and/or warehouse club channel of
distribution will be added to Licensee's channels of distribution under
this Agreement or made the subject of a separate license agreement after
that date shall be in UM/PMI's sole discretion and contingent on the
parties' negotiating and executing an amendment with respect to the
addition of said channel of distribution under this Agreement or a
separate license agreement with respect to said channel of distribution,
as contemplated by subparagraph 36(b).
"(d) UM and PMI Approval Necessary for Future Presentations to
Retailers. Licensee agrees that it will not make any future presentation
to any retailer with respect to a channel of distribution it does not
possess under this Agreement without first obtaining the prior written
approval of UM and PMI."
4. Except as expressly modified by this amendment, all terms and
conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this fifth amendment
to agreement as of the date set forth above.
UNITED FEATURE SYNDICATE, INC.,
d.b.a. UNITED MEDIA, as exclusive
worldwide licensing representative
of PRECIOUS MOMENTS,
INCORPORATED
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxx Title
Senior Vice President
ENESCO GROUP, INC.
By /s/ Xxxxxx XxxxxXxxxx
-----------------------------------------
Xxxxxx XxxxxXxxxx Title
President and CEO
