From: Martin Huberty
To: Jeffery Epstein <Jeevacation@gmail.com>
Cc: "Eric W. Cowan" <
"Glynna K. Christian"
Subject: Fwd: Deal from Keith Frankel
Date: Wed, 03 Mar 2010 17:55:56 +0000
Attachments: Agreement_wtih_SFDY.DOC; Agreement_wtih_SFDY(1).DOC
Dear Jeffery,
The Duchess asked I pass on to you the Deal between Keith Frankel and the Duchess.
Please also see the attached notes on this document from Glynna, (she works with Eric Cowan in legally
representing
the Duchess.)
Best,
Martin
Begin forwarded message:
From: "Christian, Glynna K." <I
Date: March 3 2010 5:51:10 PM GMT
To:
Cc: "Cowan, Eric W." < >, '1
Subject: FW: Deal from Keith Frankel
Ma'am,
Per your request, below please find the high level comments I forwarded to Eric earlier. I'm happy to discuss
any time.
Glynna K. Christian
Partner
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Original Message
From: Christian, Glynna K.
Sent: Wednesday, March 03, 2010 12:42 PM
To: Cowan, Eric W.
Cc: Tucker, Erin
Subject: FW: Deal from Keith Frankel
Eric,
My initial thoughts on high level issues are below:
EFTA00763312
I. Parties -- First, the marketing company is listed as NEWCO. It would be useful to have more information
regarding this entity to see whether any guarantees or other assurances will be needed. Second, the Ferguson
parties would be an LLC and the Duchess personally. May be preferable to have the Duchess personally
guarantee rather than be a party.
2. Scope -- The exhibit listing the products that would be marketed under the "House of Ferguson" trademark
is blank. In addition to the list of products, the Duchess should see the Product Plans for each of those products
because when the agreement is executed she will be deemed to have consented to the plans and moving
forward with those products. The agreement also would allow NEWCO to add new products from time to
time. This should be subject to mutual agreement since this is an exclusive deal.
3. Exclusivity -- This is an exclusive deal during the Term (initially 3 years subject to NEWCO's right to
extend annually) and for 12 months thereafter prohibiting "endorsement or representing any line of Products in
any medium." Not sure why she should be restricted during the 12 months after termination. In addition, need
to understand the Products covered and should clarify "any medium" to avoid conflicts with the licenses to
S&S, Handmade, Dupree/Miller and any others.
4. Marketing Obligations -- There are no specific marketing obligations of NEWCO. The agreement
specifically states that NEWCO is not obligated to use the Duchess' endorsement. In addition, it specifically
permits NEWCO to discontinue or modify the Products containing her endorsement. Completely reasonable
for NEWCO to make decisions regarding its products but if it does not use her endorsement or discontinues the
Products, then the agreement should terminate or the exclusivity should terminate. NEWCO also should obtain
her consent prior to making any material modifications to the Product because she might have decided not to
endorse the Product.
5. Royalty -- The exhibit with the proposed royalty amount is blank. There is no minimum guarantee or
minimum number of Products.
6. Distribution Medium -- This is not limited to QVC. NEWCO would be allowed to distribute the Products
"anywhere in the world via electronic retail." Although this should be ok, may need to revise so it doesn't
conflict with any right of S&S to distribute through Amazon, etc.
7. Endorsement -- NEWCO has to seek the Duchess' input with respect to Product Plans, but has sole right to
make decisions regarding packaging, advertising, promotion and marketing. The Duchess should have the
ability to not endorse the Product if she has rejected the Product Plans. There also should be some parameters
or reasonableness around her endorsement obligations. As drafted, the Duchess must be made available "as
needed for the successful promotion of the Products."
8. License -- NEWCO presumably intends to use the Duchess' likeness, name and trademarks in its
promotions. Therefore, the agreement should have an intellectual property license from the Duchess to
NEWCO with standard terms and restrictions.
9. Miscellaneous -- Governing law should be NY, not NJ. The Duchess need the right to assign the agreement
to affiliates and to assign income, etc.
Warmest regards,
Glynna
Glynna K. Christian
Partner
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D:
F:
EFTA00763313
http://www.winston.com
Original Message
From: Martin Huberty [mailto:
Sent: Tuesday, March 02, 2010 11:22 AM
To: Cowan, Eric W.; Christian, Glynna K.
Subject: Deal from Keith Frankel
Eric and Glynna,
We have just received this - the Duchess asked that you review it asap.
Thanks,
Martin
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EFTA00763314