Exhibit 10.1
AMENDMENT TO EARN-OUT AGREEMENT
This AMENDMENT TO EARN-OUT AGREEMENT (this "Amendment"), dated
as of April 10, 2006, is by and between Xxxxxx Xxxxxx, Ltd., a Delaware
corporation ("Madden"), and Xxxxxx X. Xxxxxxxx ("Xxxxxxxx").
RECITALS
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WHEREAS, the parties hereto are party to that certain Earn-Out
Agreement, dated as of February 7, 2006 (the "Earn-Out Agreement"), by and among
Madden, Friedman, Xxxxxx X. Xxxxxxxx & Associates, Inc. and DMF International,
Ltd.; and
WHEREAS, pursuant to Section 10 of the Earn-Out Agreement, the
parties hereto wish to amend the Earn-Out Agreement to make certain changes as
set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. The definition of "EBITDA" set forth in Section 1
(Definitions) of the Earn-Out Agreement is hereby deleted in its entirely and
replaced with the following:
""EBITDA" shall mean the Companies' (a) net sales, less,
without duplication, the sum of (i) cost of sales (including, without
limitation, any amounts which, absent the transactions contemplated by the Stock
Purchase Agreement, would have been payable by Xxxxxx X. Xxxxxxxx & Associates,
Inc. to the Purchaser pursuant to the terms of the License Agreement (as
hereinafter defined) as if, with respect to such amounts, such License Agreement
is coterminous with this Agreement, but excluding any such amounts which would
have been payable in respect of products sold under the `Xxxxxx by Xxxxx Xxxxxx'
brand), (ii) selling and distribution expenses, (iii) design and production
expenses and (iv) general administrative expenses (for the avoidance of doubt,
including in each of the foregoing clauses the net amount payable under the
Services Agreement), plus (b) to the extent included in expenses in clause (a)
of this definition, the sum of (i) interest expense, (ii) fees and expenses
(including prepayment penalties) in connection with financings, (iii) income tax
expense (including payments in respect of any tax sharing or other similar
agreement) other than international VAT or other similar tax, (iv) depreciation
and amortization expense, (v) expenses resulting from FAS 142 or FAS 144, (vi)
amortized expenses related to the closing of the transactions contemplated by
the Stock Purchase Agreement and the 338(h)(10) Election (as defined in the
Stock Purchase Agreement), (vii) any allocation of corporate overhead from
Affiliates of either Company or allocation of profit, loss or expenses from
Affiliates of either Company, other than those allocations specified in the
Services Agreement, (viii) any Losses (as defined in the Stock Purchase
Agreement) of either of the Companies which give rise to an indemnity obligation
pursuant to the indemnification provisions of the Stock Purchase Agreement, to
the extent, and only to the extent, that such indemnity obligations have been
honored, and (ix) any amounts recovered or recoverable by either Company from
insurance, to the extent, and only to the extent, the Loss attributable to such
insurance arose in the same period, plus (c) the amount set forth on Schedule A
attached hereto for the applicable fiscal year; provided that for purposes of
the foregoing, all products of Purchaser sold by the Companies to retail stores
of Purchaser shall be sold at cost. Each figure in clause (a) and clause (b) of
this definition shall be determined on a consolidated basis in accordance with
GAAP consistently applied from the Closing Date."
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2. Except as specifically amended hereby, the Earn-Out
Agreement is hereby ratified and confirmed in all respects and shall remain in
full force and effect.
3. To the extent of any inconsistency between the terms
of the Earn-Out Agreement and this Amendment, the terms of this Amendment will
control.
4. This Amendment shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York including,
without limitation, Sections 5-1401 of the New York General Obligations Law and
New York Civil Practice Laws and Rules 327.
5. For the convenience of the parties, any number of
counterparts hereof may be executed, each such executed counterpart shall be
deemed an original and all such counterparts together shall constitute one and
the same instrument. Facsimile transmission of any signed original counterpart
and/or retransmission of any signed facsimile transmission shall be deemed the
same as the delivery of an original.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
XXXXXX XXXXXX, LTD.
By: /s/ XXXXXXXX X. XXXXXX
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Name: Xxxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
/s/ XXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXXXX
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