From: Martin Huberty

From: Martin Huberty To: Jeffery Epstein <[email protected]> Cc: "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 "Eric W. Cowan" < 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." < Subject: FW: Deal from Keith Frankel Ma'am, >, '1 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 D: F: 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 T: 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 The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under the Internal Revenue Code of 1986, as amended. EFTA00763314