AMENDMENT TO EXCLUSIVE LICENSE AGREEMENT
This Amendment to Exclusive License Agreement ("Agreement") is made and
entered into as of this 28th day of March 2001, by and between International
Cosmetics Marketing Co., a Florida corporation with its principal place of
business at 0000 XX Xxxx xx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000 doing business as Xxxxxxx Xxxxxxx & Co. ("ICM"), Xxxxxxx Xxxxxxx, an
individual having an address of X.X. Xxx 000000, Xxxxxx, Xxxxxxx 00000 ("X.
Xxxxxxx"), Xxxx Xxxxxxx, an individual having an address of X.X. Xxx 000000,
Xxxxxx, Xxxxxxx 00000 ("X. Xxxxxxx"), and Xxxxxxx Xxxxxxx International, L.L.C.,
a Florida limited liability company whose principal address is X.X. Xxx 000000,
Xxxxxx, Xxxxxxx 00000 ("BSI"). ICM, X. Xxxxxxx, X. Xxxxxxx and BSI are
hereinafter individually referred to as a "Party" and collectively referred to
as the "Parties." The capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings given such terms in the License Agreement
(as defined below).
RECITALS
WHEREAS, the Parties entered into that certain Exclusive License
Agreement effective as of August 19, 1999 (the "License Agreement"), a copy of
which is attached hereto as Exhibit A and incorporated herein by such reference.
WHEREAS, the Parties have agreed to amend certain terms of the License
Agreement related to the payment of a royalty to BSI by ICM, and now wish to
memorialize such amendment as hereinafter set forth.
WHEREAS, the Parties hereto also wish to further amend the terms and
conditions of the License Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings, and other valuable consideration received by each of the Parties,
the receipt of which is hereby acknowledged, the Parties agree as follows:
1. The above recitals are true, correct, and are herein
incorporated by reference.
2. Section 2b of the License Agreement is hereby amended in its
entirety to read as follows:
"x. X. Xxxxxxx and X. Xxxxxxx each xxxxx to ICM an exclusive, worldwide
license (the "ICM Sassoon License"), with the right to grant sub-licenses, to
use the names "Xxxxxxx Xxxxxxx" and/or "Elan Sassoon" or any variation thereof,
as well as the image, voice, likeness, signature and/or picture of either X.
Xxxxxxx or X. Xxxxxxx, and any trademarks, trade names, copyrights or other
intellectual property related thereto, through or by way of any media known now
or in the future, in connection with the advertising, merchandising, promotion,
manufacture, sale and distribution of any and all consumer products including
but not limited to all products manufactured, marketed or distributed by, or
books, articles or information published by, third parties with whom ICM
transacts business (collectively the "ICM Sassoon Products"). The ICM Sassoon
License and the ICM Manufacturing License (as defined in Section 2c) shall
sometimes collectively be referred to herein as the "ICM Licenses."
3. Section 3 of the License Agreement is hereby amended in its
entirety to read as follows:
"3. Intentionally Omitted."
4. Section 4 of the License Agreement is hereby amended in its
entirety to read as follows:
"4. Promotional Activities.
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a. In addition to the obligations of X. Xxxxxxx and X. Xxxxxxx
described elsewhere herein, X. Xxxxxxx and X. Xxxxxxx will each cooperate in all
manner of advertising, promotion and publicity of the ICM Sassoon Products as
may reasonably be determined by ICM, and shall devote their respective full time
and attention to the development of the ICM Sassoon Products and the promotion
thereof during the Promotional Period (as defined in Section 4c hereof). Upon
the request of ICM, X. Xxxxxxx and X. Xxxxxxx will each furnish, or cooperate
with ICM in obtaining, a record of each of their voices, photographs, cuts, and
slides, and a specimen or reproduction of their signatures or such other actions
as ICM shall reasonably request. Each of X. Xxxxxxx and X. Xxxxxxx acknowledge
such items will be used in connection with the ICM Sassoon Products including,
but not limited to, use with endorsements and testimonials by X. Xxxxxxx and X.
Xxxxxxx exclusively for ICM with respect to the advertising, merchandising,
promotion, sale or distribution of ICM Sassoon Products. X. Xxxxxxx and X.
Xxxxxxx each expressly authorize ICM to send out sales and promotion literature
and advertisements using their names.
x. X. Xxxxxxx and X. Xxxxxxx will cooperate on all sales and all
merchandising, promotional advertising and publicity ideas and campaigns (the
"Appearances"). If either X. Xxxxxxx or X. Xxxxxxx make any personal appearance
for ICM, they shall be paid for their actual traveling in business class, food
and lodging expenses, but shall not receive a separate appearance fee. ICM shall
not be liable for any cost or expense under this Section unless such cost or
expense is approved in writing by ICM in advance of its being incurred.
c. As used in this Section 4, the term "Promotional Period" shall mean
(i) with regard to X. Xxxxxxx, the earlier to occur of (A) death (B) disability
or (C) March 31, 2006 and (ii) with regard to X. Xxxxxxx, the earlier to occur
of (A) death (B) disability or (C) March 31, 2020."
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5. Section 6d of the License Agreement is hereby amended in its
entirety to read as follows:
"d. pay BSI the greater of (i) a royalty payment of $68,250 for each
ICM fiscal quarter (the "Minimum Payment") in six equal installments on the 1st
and 15th of each month; or (ii) a royalty payment within 5 days after ICM files
each quarterly or annual report with the Securities and Exchange Commission (the
"Estimated Quarterly Payment") equal to (A) 2% of Annual Gross Revenues (as
defined below) up to $22,500,000, plus (B) 1.25% of Annual Gross Revenues from
$22,500,000 up to $45,000,000, plus (C) .75% of Annual Gross Revenues exceeding
$45,000,000. Notwithstanding the foregoing, the Minimum Payment shall be
automatically increased to $75,000 for each fiscal quarter in which ICM's
Financial Statements report net income before depreciation and taxes. For the
purposes of this Agreement, "Financial Statements" shall mean ICM's financial
statements prepared in accordance with generally accepted accounting principals
(including without limitation ICM's financial statements filed with the
Securities and Exchange Commission prepared in accordance with generally
accepted accounting principles for interim financial information and with the
instructions to Form 10-QSB and Article 10 of Regulation S-X of the Securities
Exchange Act of 1934, as amended). Annual Gross Revenues shall mean the total
revenues, monies and consideration actually received by ICM during each of ICM's
fiscal years (as reported in ICM's Financial Statements) from the ICM Sassoon
Products and the BSI Skin Care Products which are marketed or distributed
pursuant to the terms of this Agreement less rebates (which include any money
ICM returns to a buyer after a sale is completed), discounts (which include any
lowering of prices from ICM's list prices) and returns. The Estimated Quarterly
Payment shall be calculated by estimating the Annual Gross Revenues as of the
date of the Estimated Quarterly Payment is made. Any under or overpayments made
or received pursuant to this section will be reconciled at the end of each of
ICM's fiscal years. Any disagreement between the Parties on the calculation of
the Estimated Quarterly Payment shall be resolved by a qualified independent
third party accountant jointly selected by the Parties. The determination of
such qualified independent third party accountant shall be binding and
conclusive on the Parties and each Party will pay 50% of the fees of the
qualified independent third party accountant for such determination."
6. Section 6f of the License Agreement is hereby deleted in its
entirety and the provisions of such section are void.
7. Section 10f of the License Agreement is hereby amended in its
entirety to read as follows:
"x. Xxxxxxx has the full right and authority to grant the ICM Sassoon
License and to perform their obligations thereunder. The ICM Sassoon License, in
whole or in part, does not infringe upon or violate the rights of any person or
entity, including but not limited to, any copyrights, trademark rights, trade
secrets or any other proprietary rights; and Sassoon has not executed any
agreement in conflict herewith, and has not granted to any other person, firm or
corporation any right, license or privilege under or in any manner relating to,
directly or indirectly, the ICM Sassoon License, other than the BSI License
which is being assigned hereunder."
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8. Section 20 of the License Agreement is hereby amended in its
entirety to read as follows:
"20. Consulting Services. BSI is hereby retained by ICM to provide
consulting services to ICM, as said services relate to the advertising,
merchandising, marketing, promotion, manufacture, sale and distribution of the
products under the ICM License. BSI agrees to provide such consulting services
on an exclusive basis and as reasonably requested by and at the direction of ICM
during the Promotional Period (as defined in Section 4 of this Agreement, and to
cause X. Xxxxxxx and X. Xxxxxxx to devote substantially all of their time and
attention to rendering such consulting services during the Promotional Period,
subject to performance of their other duties under this Agreement. Unless
otherwise agreed to by ICM, all services hereunder shall be performed by BSI at
its principal place of business or other offices."
9. The parties hereto acknowledge and agree that the word
"Sassoon" as used in the License Agreement includes Xxxxxxx Xxxxxxx and Elan
Sassoon, jointly and severally; provided, however, that the word "Sassoon" as
used in Section 21 of the License Agreement shall mean Xxxxxxx Xxxxxxx and Xxxx
Xxxxxxx, severally but not jointly. The use of a particular pronoun in the
License Agreement is not restrictive as to gender or number but is to be
interpreted in all cases as the context may require. The parties hereto also
acknowledge and agree that notwithstanding anything to the contrary in the
License Agreement, Elan Sassoon executed the License Agreement in his capacity
as a member, managing member and voting member of BSI and in his individual
capacity and is bound by the terms and conditions of the License Agreement in
both such capacities.
10. Each Party hereby individually represents and warrants to the
other Parities and each of their respective officers, directors, shareholders,
affiliates and agents, if any, that each of such Party has full legal right,
corporate power and authority to enter into this Agreement and to consummate the
transactions provided for in such agreement and that this Agreement has been
duly and properly authorized, executed and delivered by each Party and such
agreement constitutes a legal, valid and binding agreement of each Party
enforceable against it in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting
creditors' rights generally, and (ii) that the remedies of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings may be
brought.
11. This Agreement amends the License Agreement only to the extent
expressly provided herein. To the extent provisions of the License Agreement are
not expressly modified or amended by this Agreement, such unamended provisions
of the License Agreement shall continue in full force and effect and shall be
construed together with the amendments set forth herein as the entire agreement
of the parties hereto. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unless the same is evidenced by a written
instrument, executed by the party against which such modification, waiver,
amendment, discharge, or change is sought.
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12. All notices, demands or other communications given hereunder
shall be in writing and shall be deemed to have been duly given on the day when
delivered in person or transmitted by confirmed facsimile transmission or on the
third calendar day after being mailed by United States registered or certified
mail, return receipt requested, postage prepaid, to the addresses herein above
first mentioned or to such other address as any party hereto shall designate to
the other for such purpose in the manner herein set forth.
13. The License Agreement, as modified by this Agreement, contains
all of the understandings and agreements of the parties with respect to the
subject matter discussed herein. All prior agreements, whether written or oral,
are merged herein and shall be of no force or effect (with the exception that
paragraphs 1, 2, 5 and 7 of the letter agreement between the parties dated
October 13, 2000, shall remain in full force and effect and the statements and
covenants made in such paragraphs of such letter agreement are restated and
re-affirmed on the date hereof). In the event of a conflict between any terms of
the License Agreement and this Agreement, the terms and conditions of this
Agreement shall govern.
14. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
15. This Agreement shall be construed in accordance with the laws
of the State of Florida, without and application of the principles of conflicts
of laws. If it becomes necessary for any party to institute legal action to
enforce the terms and conditions of this Agreement, and such legal action
results in a final judgment in favor of such party ("Prevailing Party"), then
the party or parties against whom said final judgment is obtained shall
reimburse the Prevailing Party for all direct, indirect or incidental expenses
incurred, including, but not limited to, all attorneys' fees, court costs and
other expenses incurred throughout all negotiations, trials or appeals
undertaken in order to enforce the Prevailing Party's rights hereunder. Any
case, dispute, action or controversy arising out of or relating to this
agreement, shall be settled in arbitration pursuant to the commercial rules of
the American Arbitration Association, the venue for which shall be in Palm Beach
County Florida. Notwithstanding the foregoing, should any party to this
agreement request any form of extraordinary relief including an injunction, such
matter may be filed and heard before any court of competent jurisdiction, the
venue for which shall be in Palm Beach County Florida. Any findings from such
proceedings shall be admissible in the arbitration forum.
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16. The terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties, and their respective successors
and assigns, and is made solely and specifically for their benefit. No other
person shall have any rights, interest or claims hereunder or be entitled to any
benefits under or on account of this Agreement as a third-party beneficiary or
otherwise.
17. This Agreement may be executed in any number of counterparts,
including facsimile signatures which shall be deemed as original signatures. All
executed counterparts shall constitute one Agreement, notwithstanding that all
signatories are not signatories to the original or the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INTERNATIONAL COSMETICS MARKETING, CO.
By:
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Name: Xxxxx Xxxxxx
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Title: Chief Financial Officer
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XXXXXXX XXXXXXX INTERNATIONAL, LLC
By:
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Elan Sassoon, Managing Member
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XXXXXXX XXXXXXX
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ELAN SASSOON
EXHIBIT A
EXCLUSIVE LICENSE AGREEMENT DATED AUGUST 19, 1999
