<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 1999 Commission File No. 001-10887
JENNY CRAIG, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 33-0366188
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(State of Incorporation) (I.R.S. Employer Identification No.)
11355 NORTH TORREY PINES ROAD, LA JOLLA, CA 92037
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code(858) 812-7000 Indicate by
check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes [X] No [ ]
Number of shares of common stock, $.000000005 par value, outstanding as of the
close of business on November 10, 1999 - 20,688,971.
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ITEM 1. FINANCIAL STATEMENTS
JENNY CRAIG, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
($ in thousands)
<TABLE>
<CAPTION>
June 30, September 30,
1999 1999
--------- -------------
(unaudited)
<S> <C> <C>
ASSETS
Cash and cash equivalents .......................................................... $ 38,864 35,322
Short-term investments ............................................................. 3,150 3,621
Accounts receivable, net ........................................................... 1,925 2,050
Inventories ........................................................................ 18,036 17,855
Deferred tax assets ................................................................ 13,406 16,669
Prepaid expenses and other assets .................................................. 4,795 2,272
--------- ---------
Total current assets ................................................... 80,176 77,789
Cost of reacquired area franchise rights, net ...................................... 8,078 7,779
Property and equipment, net ........................................................ 24,360 27,256
--------- ---------
$ 112,614 112,824
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable ................................................................... $ 16,393 16,684
Accrued liabilities ................................................................ 15,110 15,407
Accrual for litigation judgment ................................................... 8,203 8,992
Deferred service revenue ........................................................... 10,075 10,158
--------- ---------
Total current liabilities ............................................. 49,781 51,241
Note payable ....................................................................... 5,336 5,289
Obligation under capital lease...................................................... -- 2,100
--------- ---------
Total liabilities ..................................................... 55,117 58,630
Stockholders' equity:
Common stock $.000000005 par value, 100,000,000 shares authorized;
27,580,260 shares issued; 20,688,971 shares
outstanding at June 30, 1999 and September 30, 1999 ........................... -- --
Additional paid-in capital ...................................................... 71,622 71,622
Retained earnings ............................................................... 56,507 52,725
Accumulated other comprehensive income .......................................... 4,130 4,609
Treasury stock at cost, 6,891,289 shares at June 30, 1999 and
September 30, 1999 ........................................................... (74,762) (74,762)
--------- ---------
Total stockholders' equity ............................................. 57,497 54,194
Commitments and contingencies ......................................................
--------- ---------
$ 112,614 112,824
========= =========
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
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JENNY CRAIG, INC. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
($ in thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended
September 30,
--------------------
1998 1999
------- -------
<S> <C> <C>
Revenues:
Company-owned operations:
Product sales ...................................... $74,992 61,501
Service revenue .................................... 4,082 4,153
------- -------
79,074 65,654
------- -------
Franchise operations:
Product sales ...................................... 5,726 5,045
Royalties .......................................... 826 802
Initial franchise fees ............................. -- 10
------- -------
6,552 5,857
------- -------
Total revenues ................................ 85,626 71,511
------- -------
Costs and expenses:
Company-owned operations:
Product ............................................ 68,880 63,945
Service ............................................ 2,740 3,071
------- -------
71,620 67,016
------- -------
Franchise operations:
Product ............................................ 3,930 3,374
Other .............................................. 551 534
------- -------
4,481 3,908
------- -------
9,525 587
General and administrative expenses ....................... 5,958 6,286
Litigation judgment ....................................... -- 789
------- -------
Operating income (loss) ............................ 3,567 (6,488)
Other income, net, principally interest ................... 465 387
------- -------
Income (loss) before taxes ......................... 4,032 (6,101)
Income taxes (benefit) .................................... 1,542 (2,319)
------- -------
Net income (loss) ............................... $ 2,490 (3,782)
======= =======
Basic and diluted net income (loss) per share ... $ .12 (.18)
======= =======
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
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<PAGE> 4
JENNY CRAIG, INC. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
($ in thousands)
<TABLE>
<CAPTION>
Three Months Ended
September 30,
-------------------------
1998 1999
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) .......................................................... $ 2,490 (3,782)
Adjustments to reconcile net income (loss) to net cash provided
by (used in) operating activities:
Depreciation and amortization ............................................ 1,370 1,493
Provision for deferred income taxes (benefit) ............................ 1,863 (3,263)
Loss on write-off of cost of reacquired area franchise rights ............ -- 94
Loss on disposal of property and equipment ............................... 30 4
(Increase) decrease in:
Accounts receivable .............................................. (596) (125)
Inventories ...................................................... (1,394) 181
Prepaid expenses and other assets ................................ (693) 2,523
Increase (decrease) in:
Accounts payable ................................................. (1,763) 291
Accrued liabilities .............................................. 239 (330)
Accrual for litigation judgment .................................. -- 789
Income taxes payable ............................................. 193 --
Deferred service revenue ......................................... (383) 83
-------- --------
Net cash provided by (used in) operating activities ..... 1,356 (2,042)
-------- --------
Cash flows from investing activities:
Purchase of property and equipment .......................................... (969) (1,461)
Purchase of short-term investments .......................................... (3,145) (1,850)
Proceeds from maturity of short-term investments ............................ 952 1,379
-------- --------
Net cash used in investing activities ................... (3,162) (1,932)
-------- --------
Cash flows from financing activities-
Principal payments on note payable .......................................... (47) (47)
-------- --------
Effect of exchange rate changes on cash and cash equivalents ................... (497) 479
-------- --------
Net decrease in cash and cash equivalents ...................................... (2,350) (3,542)
Cash and cash equivalents at beginning of period ............................... 42,124 38,864
-------- --------
Cash and cash equivalents at end of period ..................................... $ 39,774 35,322
======== ========
Supplemental disclosure of cash flow information:
Income taxes paid ........................................................... $ 1,565 1,276
Supplemental disclosure of investing activities:
Equipment acquired under capital lease ...................................... -- 2,727
</TABLE>
See accompanying notes to unaudited consolidated financial statements.
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<PAGE> 5
JENNY CRAIG, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1999
1. The accompanying unaudited consolidated financial statements do not
include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments, consisting only of normal recurring adjustments,
considered necessary for a fair presentation have been included. Operating
results for any interim period are not necessarily indicative of the results for
any other interim period or for the full year. These statements should be read
in conjunction with the June 30, 1999 consolidated financial statements.
2. The weighted average number of shares used to calculate basic net income
(loss) per share was 20,688,971 for the quarters ended September 30, 1998 and
1999. The impact of outstanding stock options during the periods presented did
not create a difference between basic net income (loss) per share and diluted
net income (loss) per share. Stock options had the effect of increasing the
number of shares used in the calculation by application of the treasury stock
method by 5,196 shares for the quarter ended September 30, 1998. The calculation
of diluted net loss per share for the quarter ended September 30, 1999 was not
applicable as inclusion of the effect of 2,167,000 stock options would be
antidilutive.
3. Comprehensive income (loss) for the quarters ended September 30, 1998
and 1999 presented below includes foreign currency translation items. There was
no tax expense or tax benefit associated with the foreign currency items.
<TABLE>
<CAPTION>
Three Months Ended
September 30,
-------------------------
1998 1999
-------- --------
<S> <C> <C>
Net income (loss) $ 2,490 (3,782)
Foreign currency translation adjustments (497) 479
======== ========
Comprehensive income (loss) $ 1,993 (3,303)
======== ========
</TABLE>
4. In November 1999, the Company announced a restructuring plan to reduce
annual operating expenses. The plan includes closing 86 underperforming
Company-owned centres in the United States, which represent 16% of the total
United States Company-owned centres, and a staff reduction of approximately 15%
at the Company's corporate headquarters. The restructuring is expected to result
in a pre-tax charge of approximately $6.4 million in the quarter ending December
31, 1999, principally relating to lease buyouts, fixed asset writeoffs,
severance and other termination costs. The 86 underperforming centres are
scheduled to be closed not later than November 30, 1999. The centres which will
be closed had revenues of approximately $4.5 million and direct operating
expenses of approximately $5.3 million for the quarter ended September 30, 1999.
(Continued)
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<PAGE> 6
JENNY CRAIG, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
5. The Company operates in the weight management industry. Substantially
all revenue results from the sale of weight management products and services,
whether the centre is operated by the Company or its franchisees. The Company's
reportable segments consist of Company-owned operations and franchise
operations, further segmented by geographic area. The following presents
information about the respective reportable segments ($ in thousands):
<TABLE>
<CAPTION>
Three Months
Ended September 30,
----------------------
1998 1999
------- -------
<S> <C> <C>
Revenue:
Company-owned operations:
United States $67,487 52,029
Foreign 11,587 13,625
Franchise operations:
United States 5,101 3,546
Foreign 1,451 2,311
Operating income (loss):
Company-owned operations:
United States 1,074 (10,053)
Foreign 1,421 2,527
Franchise operations:
United States 601 181
Foreign 471 857
Identifiable assets:
United States 95,050 97,529
Foreign 11,426 15,295
</TABLE>
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<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Forward-Looking Statements
Information provided in this Report on Form 10-Q may contain, and the
Company may from time to time disseminate material and make statements which may
contain "forward-looking" information, as that term is defined by the Private
Securities Litigation Reform Act of 1995 (the "Act"). These forward-looking
statements may relate to anticipated financial performance, business prospects
and similar matters. The words "expects," "anticipates," "believes," and similar
words generally signify a "forward-looking" statement. These cautionary
statements are being made pursuant to the provisions of the Act and with the
intention of obtaining the benefit of "safe-harbor" provisions of the Act. The
reader is cautioned that all forward-looking statements are necessarily
speculative and there are certain risks and uncertainties that could cause
actual events or results to differ materially from those referred to in such
forward-looking statements. Among the factors that could cause actual results to
differ materially are: increased competition; technological and scientific
developments, including appetite suppressants and other drugs which can be used
in weight-loss programs; increases in cost of food or services; lack of market
acceptance of additional products and services; legislative and regulatory
restrictions or actions; effectiveness of marketing and advertising programs;
prevailing domestic and foreign economic conditions; and the risk factors set
forth from time to time in the Company's annual reports and other reports and
filings with the SEC. In particular, the Company has estimated various costs in
connection with the restructuring charge to be recorded in the quarter ending
December 31, 1999, including the amount necessary to effect lease and personnel
reductions, which will be dependent on future events and in some cases on the
Company's ability to negotiate satisfactory termination provisions. The reader
should carefully review the cautionary statements contained under the caption
"Forward-Looking Statements" in Item 1 of the Company's Annual Report on Form
10-K for the year ended June 30, 1999.
Quarter Ended September 30, 1999 as Compared to Quarter Ended September 30, 1998
The following table presents selected operating results for United States
Company-owned and foreign Company-owned operations for the quarters ended
September 30, 1998 and 1999 (U.S. $ in thousands):
<TABLE>
<CAPTION>
U.S. Company Owned Foreign Company Owned
Operations Operations
Three Months Ended Sept. 30, Three Months Ended Sept. 30,
-------------------------------- ------------------------------
% %
1998 1999 Change 1998 1999 Change
------- ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Product sales $64,094 48,810 -24% 10,898 12,691 16%
Service revenue 3,393 3,219 -5% 689 934 36%
------- ------- ------ ------
Total 67,487 52,029 -23% 11,587 13,625 18%
Costs and expenses 62,064 56,581 -9% 9,556 10,435 9%
General and administrative 4,349 4,712 8% 610 663 9%
Litigation judgment -- 789 -- --
</TABLE>
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<PAGE> 8
(Continued)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
------- ------- ------ ------
Operating income (loss) $ 1,074 (10,053) 1,421 2,527
------- ------- ------ ------
Average number of centres 531 526 -1% 110 110 0%
------- ------- ------ ------
</TABLE>
Revenues from United States Company-owned operations decreased 23% for the
quarter ended September 30, 1999 compared to the quarter ended September 30,
1998 reflecting reduced demand for the Company's products and services at United
States Company-owned centres, which represented 83% of the worldwide
Company-owned centres at September 30, 1999. The overall 23% decrease in
revenues from United States Company-owned operations was the result of a 22%
decrease in the average revenue per United States Company-owned centre, from
$127,000 for the quarter ended September 30, 1998 to $99,000 for the quarter
ended September 30, 1999, and a 1% decrease in the average number of United
States Company-owned centres in operation. Product sales, which consists
primarily of food products, from United States Company-owned operations
decreased 24% principally due to a 24% decrease in the number of active
participants in the program between the periods. Although there was a 31%
decrease in the number of new participants enrolled in the program between the
periods, service revenues from United States Company-owned operations decreased
only 5% principally due to an increase in the average service fee charged per
new participant.
Revenues from foreign Company-owned operations, which is derived from 84
centres in Australia and 26 centres in Canada, increased 18% principally due to
an increase in the number of active participants in the program in Australia.
There was a 7% weighted average increase in the Australian and Canadian
currencies in relation to the U.S. dollar between the periods.
Costs and expenses of United States Company-owned operations decreased
9% for the quarter ended September 30, 1999 compared to the same quarter last
year. This decrease was principally due to the reduced variable costs associated
with the decreased revenues, offset, in part, by a charge of $3,068,000 for
obsolete inventory related to the discontinued On-the-Go program. Costs and
expenses of United States Company-owned operations as a percentage of United
States Company-owned revenues increased from 92% to 109% between the periods
principally due to the aforementioned charge for discontinued inventory and the
higher proportion of fixed costs when compared to the reduced level of revenues.
After including the allocable portion of general and administrative expenses,
United States Company-owned operations had an operating loss of $10,053,000 for
the quarter ended September 30, 1999 compared to operating income of $1,074,000
for the quarter ended September 30, 1998.
Costs and expenses of foreign Company-owned operations increased 9% for
the quarter ended September 30, 1999 compared to the quarter ended September 30,
1998, principally due to the increased variable costs associated with the
increased revenues and the 7% weighted average increase in the Australian and
Canadian currencies in relation to the U.S. dollar between the periods. After
including the allocable portion of general and administrative expenses, foreign
Company-owned operations had operating income of $2,527,000 for the quarter
ended September 30, 1999 compared to operating income of $1,421,000 for the
quarter ended September 30, 1998.
Revenues from franchise operations decreased 11% from $6,552,000 to
$5,857,000 for the quarters ended September 30, 1998 and 1999, respectively.
This decline was principally due to a 13% decrease in the average number of
franchise centres in operation between the periods. The decrease in the average
number of franchise centres reflects the Company's acquisition of 13 centres
from two franchisees and the net closure of six franchised centres between the
periods. As of September 30, 1999 there were 116 franchised centres in
operation, of which 79 were in the United States and 37 were in foreign
countries, principally Australia and New Zealand. Revenues from United States
franchise operations decreased from $5,101,000 to $3,546,000 for the quarters
ended September 30, 1998 and 1999, respectively, while revenues from foreign
franchise operations increased from $1,451,000 to $2,311,000 for the quarters
ended September 30, 1998 and 1999, respectively. The decrease in revenues from
United States franchise operations reflects the 19 fewer centres in operation
and a decrease in the average revenue per centre experienced at United States
franchised centres which resulted in reduced product sales and royalties for the
Company. The increase in revenues from foreign franchise operations reflects an
increase in the average revenue per centre experienced at foreign franchised
centres which resulted in increased product sales and royalties for the Company.
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<PAGE> 9
(Continued)
Costs and expenses of franchised operations, which consist primarily of
product costs, decreased 13% from $4,481,000 to $3,908,000 for the quarters
ended September 30, 1998 and 1999, respectively, principally because of the
reduced level of franchise operations. Franchise costs and expenses as a
percentage of franchise revenues remained relatively constant between the
periods.
General and administrative expenses increased 6% from $5,958,000 to
$6,286,000 and increased from 7.0% to 8.8% of total revenues for the quarters
ended September 30, 1998 and 1999, respectively. The increase in general and
administrative expenses is principally due to increased legal fees.
An additional $789,000 was recorded as a charge in the accompanying
consolidated statement of operations in the quarter ended September 30, 1999
with respect to the previously disclosed litigation judgment arising out of the
dispute concerning the lease at the Company's former headquarters location. This
additional charge consists of attorney fees awarded to the plaintiff and
interest accrued on the judgment pending the appeal which has been filed
seeking to overturn the judgment.
The elements discussed above combined to result in an operating loss of
$6,488,000 for the quarter ended September 30, 1999 compared to operating income
of $3,567,000 for the quarter ended September 30, 1998.
Restructuring
In November 1999, the Company announced a restructuring plan to reduce
annual operating expenses. The plan includes closing 86 underperforming
Company-owned centres in the United States, which represent 16% of the total
United States Company-owned centres, and a staff reduction of approximately 15%
at the Company's corporate headquarters. The restructuring is expected to result
in a pre-tax charge of approximately $6.4 million in the quarter ending December
31, 1999, principally relating to lease buyouts, fixed asset writeoffs,
severance and other termination costs. The 86 underperforming centres are
scheduled to be closed not later than November 30, 1999. The centres which will
be closed had revenues of approximately $4.5 million and direct operating
expenses of approximately $5.3 million for the quarter ended September 30, 1999.
Year 2000
The Company is in the process of remediating both its information
technology ("IT") and non-IT systems with respect to the "year 2000" millenium
change. The Company utilizes two primary IT systems: the corporate office
system, which includes the general ledger and related applications, and the
point-of-sale system, which is used at each of the 549 Company-owned centres in
North America to record sales to customers. With respect to the corporate office
system, the Company determined that its then-current system, implemented in
1991, was not year 2000 compliant. Accordingly, the Company accelerated the
planned replacement of this system by purchasing a new corporate office system
in the first quarter of fiscal 1999. The implementation process for this new
system is substantially complete, with all critical software functions having
been placed in service by June 1, 1999. The cost of the new corporate office
system software of $189,000 was capitalized and is being amortized over the five
year estimated useful life of the new software. The cost of new hardware, which
was purchased in January 1999 for the corporate office system, was $201,000 and
is being depreciated over the five year
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<PAGE> 10
(Continued)
estimated useful life of the new hardware. Application development and
implementation costs, principally fees paid to external consultants, are
estimated to be $920,000, of which $863,000 has been paid as of September 30,
1999, and are being capitalized as incurred.
With respect to the point-of-sale system, there are two basic
components: the software and the hardware. The point-of-sale software has been
assessed, and estimated costs to modify this software to effect year 2000
compliance totaling approximately $400,000, of which $391,000 has been paid as
of September 30, 1999, are being expensed as incurred. The point-of-sale
hardware is essentially a personal computer ("PC") configuration of two to four
PCs at each Company-owned and franchised centre in North America. The Company
completed an analysis of the hardware at these centres and concluded, based upon
a study performed by an independent consultant engaged by the Company, that
substantially all of this hardware required replacement. The estimated cost to
replace and install this hardware is approximately $9,000 per Company-owned
centre, or $4,950,000 in aggregate, which is being leased over a 48 month
period. As of September 30, 1999, the Company had successfully installed the new
hardware in 463 centres, representing 84% of the total Company-owned centres to
be installed. The installation of the new hardware will continue through the
planned completion date of November 30, 1999. Substantially all of these costs
will be capitalized and depreciated over their estimated useful life of four
years.
The Company believes, based upon inquiries of its franchisees, that a
majority of the franchisees will acquire the point-of-sale hardware being
installed at the Company's centres, and the remainder will acquire their own
year 2000 compliant hardware or operate manually.
With respect to non-IT systems, the Company has assessed its embedded
systems contained in the corporate office building and Company-owned centre
locations. This assessment focused principally on the Company's telephone system
hardware and software. The Company believes that all significant non-IT systems
are year 2000 compliant.
The final area of significance pertaining to the Company's year 2000
planning relates to third parties with whom the Company transacts business. This
includes the Company's food suppliers, banks, advertising agencies,
telecommunications suppliers, and utility providers. The Company has sent
written questionnaires to significant suppliers and vendors in an effort to
assess their year 2000 readiness and the effect these third parties could have
on the Company. The Company plans to maintain communication with significant
suppliers and vendors with respect to this issue.
The Company does not separately track the internal costs, principally
comprised of compensation costs for the Information Systems department, incurred
with respect to the year 2000 project.
Although the Company believes that its planning, as detailed above, will
enable the Company to be adequately prepared for the year 2000, a contingency
plan is also being developed. With respect to the point-of-sale system, the
Company has a manual back-up system which was the Company's primary
point-of-sale system from the Company's inception in 1983 through 1990. The
Company believes that this manual point-of-sale system could be utilized in the
event of a delay in the implementation of the plan to have the point-of-sale
system year 2000 compliant. With respect to the corporate office system, the
Company believes that its newly implemented system is year 2000 compliant.
The statements set forth above relating to the Company's analysis and
plans with respect to the year 2000 issue in many cases constitute
forward-looking statements which are necessarily
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<PAGE> 11
(Continued)
speculative. Actual results may differ materially from those described above.
The factors that could cause actual results to differ materially include,
without limitation, the following: the Company's assessment of the impact of
year 2000 is ongoing and further analysis and study, as well as the testing and
implementation of planned solutions, could disclose additional remedial work,
with the resultant additional time and expense, necessary to permit the
Company's IT and non-IT systems to be year 2000 compliant; third-party
consultants and software and hardware suppliers could fail to meet timetables
and projected cost estimates; third party suppliers of products and services to
the Company could make mistakes in their advice to the Company with respect to
their year 2000 readiness, and their failure to be year 2000 compliant could
have a material adverse effect on the Company; and, the Company's estimates of
the periods of time and costs necessary to complete certain analysis and
implementation could be impacted by future events and conditions such as a
shortage of personnel, including Company employees and outside consultants, to
perform the necessary analysis and remediation work.
Legal Proceedings
The Company, along with other weight loss programs and certain
pharmaceutical companies, has been named as a defendant in an action filed in
the Second Judicial District Court, State of Nevada, Washoe County (the "Nevada
Litigation"). The action was commenced in August 1999 by a group of four
plaintiffs, who are seeking to maintain the action as a class action on behalf
of all persons in the State of Nevada who have purchased and used fenfluramine,
dexfenfluramine and phentermine, alone or in combination, and who have not yet
been diagnosed as having pulmonary heart disease or hypertension and/or valvular
heart disease, but who are allegedly at an increased risk of developing such
illnesses. The complaint includes claims against the Company and other
defendants for alleged breach of express and implied warranties concerning the
safety of using fenfluramine, dexfenfluramine and phentermine, and for alleged
negligence in the advertising, warning, marketing and sale of these drugs. The
complaint seeks a Court-supervised program funded by the defendants through
which class members would undergo periodic medical testing, preventative
screening and monitoring, as well as incidental damages not to exceed $75,000
per each class member, and costs of litigation including expert and attorney's
fees.
The Company has tendered the Nevada Litigation to its insurance
carriers. The claims have not progressed sufficiently for the Company to
estimate a range of possible loss, if any. The Company intends to defend the
matter vigorously.
Financial Condition
At September 30, 1999, the Company had cash, cash equivalents, and
short-term investments totalling $38,943,000 compared to $42,014,000 at June 30,
1999. The decrease in cash, cash equivalents, and short-term investments
resulted principally from $2,042,000 of net cash used in operating activities
and $1,461,000 used for the purchase of property and equipment. The Company
believes that its cash, cash equivalents, and short-term investments and its
cash flow from operations will be adequate for its needs in the foreseeable
future.
Recent Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" ("SFAS 133"), which establishes accounting
and reporting standards for derivative instruments and hedging activities.
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<PAGE> 12
(Continued)
SFAS 133 requires the recognition of all derivative instruments as either assets
or liabilities in the balance sheet and measurement of those derivative
instruments at fair value. SFAS 133, as amended, is effective for all fiscal
quarters of fiscal years beginning after June 15, 2000. The Company does not
currently hold derivative instruments or engage in hedging activities. The
adoption of SFAS 133 is not expected to have a material impact on the Company's
financial position or results of operations.
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<PAGE> 13
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to a variety of risks, including changes in
interest rates affecting the return on its investments and the cost of its debt,
and foreign currency fluctuations.
At September 30, 1999, the Company maintains a portion of its cash and
cash equivalents in financial instruments with original maturities of three
months or less. The Company also maintains a short-term investment portfolio
containing financial instruments with original maturities of greater than three
months but less than twelve months. These financial instruments, principally
comprised of high quality commercial paper, are subject to interest rate risk
and will decline in value if interest rates increase. Due to the short duration
of these financial instruments, an immediate 10 percent increase in interest
rates would not have a material effect on the Company's financial condition or
results of operations. The Company has not used derivative financial instruments
in its investment portfolio.
The Company's long-term debt at September 30, 1999 is comprised of a
note payable to a bank, secured by the Company's corporate office building, with
a total balance of $5,669,000 and a capital lease agreement covering certain
computer hardware with a total balance of $2,727,000. The note payable bears
interest at the London Interbank Offered Rate plus one percent, with quarterly
interest rate adjustments, and the capital lease is at a fixed rate. Due to the
relative immateriality of the long-term debt, an immediate 10 percent change in
interest rates would not have a material effect on the Company's financial
condition or results of operations.
Approximately 22% of the Company's revenues for the quarter ended
September 30, 1999 were generated from foreign operations, located principally
in Australia and Canada. In the quarter ended September 30, 1999, the Company
was subjected to a 7% weighted average increase in the Australian and Canadian
currencies in relation to the U.S. dollar compared to the quarter ended
September 30, 1998. Currently, the Company does not enter into forward exchange
contracts or other financial instruments with respect to foreign currency.
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<PAGE> 14
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
10. Trademark License Agreement dated July 30, 1999 between
Jenny Craig, Inc and Balance Bar Company (1)
27. Financial Data Schedule
(b) No reports on Form 8-K have been filed during the quarter for
which this report is filed.
----------
(1) The Company has requested confidential treatment for portions of this
agreement.
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<PAGE> 15
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JENNY CRAIG, INC.
By: /S/ James S. Kelly
-------------------------------------
James S. Kelly
Vice President,
Chief Financial Officer,
and Treasurer
Date: November 12, 1999
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<PAGE> 1
Exhibit 10
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (this "Agreement") is entered into and
effective as of July 30, 1999, by and between JENNY CRAIG, INC., a Delaware
corporation ("JC"), and BALANCE BAR COMPANY, a Delaware corporation ("BBC"), and
is made with reference to the following facts:
RECITALS
A. JC provides a comprehensive weight management program (the "Program")
through a chain of owned and franchised weight loss centres operating under the
name "Jenny Craig Weight Loss Centres" (the "Centres"). Through these Centres,
JC sells "Jenny Craig Cuisine," its portion and calorie controlled food
products, to participants in the Program. In connection with its business, JC
owns the trademarks set forth on Schedule A hereto (the "Marks").
B. The parties desire that BBC develop and market certain food products
and beverages utilizing the Marks on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, the parties hereto, for good and sufficient
consideration the receipt of which is hereby acknowledged, and intending to be
legally bound, do hereby agree as follows:
AGREEMENT
1. TERM AND OPTIONS
1.1 FIRST TERM. This Agreement shall be effective from the date hereof
to and including December 31, 2019 (the "First Term"), unless extended or sooner
terminated pursuant to the provisions of this Agreement.
1.2 OPTIONS AND EXTENDED TERMS. JC hereby grants to BBC three successive
options (the "Option(s)") to extend the term of this Agreement for additional
ten-year periods (the "Extended Terms"). In order to exercise each Option, BBC
must provide JC with written notice of its intention to exercise each Option and
such written notice must be received by JC at least two months prior to, and no
more than six months prior to, the expiration of the term then in effect. BBC's
performance in each Extended Term shall be pursuant to the same terms and
conditions recited herein for the First Term, except as modified by an agreement
of the parties. In order to exercise an Option, BBC must pay JC the Minimum
Annual Royalty (as defined in Section 4.3 below), for the last Contract Year
prior to the end of the First Term, or Extended Term, as appropriate. A
"Contract Year" shall be any calendar year during the First Term or any Extended
Term.
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<PAGE> 2
2. GRANT OF LICENSE
2.1 LICENSE OF MARKS. JC hereby grants to BBC, and BBC hereby accepts,
the exclusive, worldwide right and license, with the right to grant sublicenses,
to use, reproduce and incorporate the Marks in connection with the production,
packaging, marketing, advertising, sale and distribution of the Licensed
Products (as defined in Section 3) in and through all media and distribution
channels. The rights granted in this Section 2 are hereinafter referred to
collectively as the "License." The License is subject to the limits on
exploitation contained in Section 6 hereof.
2.2 RIGHT OF FIRST REFUSAL. If JC proposes to enter into any agreement
with any person or entity other than BBC which provides for the license of any
of the Marks for use in connection with the sale of any food or beverage product
through any distribution channel (other than through the Centres), JC shall
first provide BBC with a written notice setting forth the identity of such other
person or entity together with a copy of the proposed agreement. Upon written
notice to JC delivered within sixty (60) days after its receipt of the notice
and agreement from JC, BBC may elect to require JC to enter into such agreement
with BBC rather then such other person or entity. If BBC does not so elect, then
JC may, within thirty (30) days thereafter, enter into an agreement with such
other person or entity on terms no more favorable to such person or entity than
those in the agreement provided to BBC. If JC does not enter into an agreement
with such person or entity within such thirty-day period, then the provisions of
this Section shall again apply to any subsequent proposed agreement.
2.3 SUBLICENSING. The License permits BBC to enter into agreements with
third parties for the sublicensing of the rights granted to BBC herein. All
references herein to "BBC" shall be deemed to include sub-licensees as well. Any
sublicense agreement entered into hereunder by BBC shall impose the same duties
and obligations on the sub-licensee as those imposed on BBC herein.
2.4 LOSS OF EXCLUSIVITY. The License shall cease to become exclusive,
and may be terminated under Section 14.2, if BBC fails to pay JC the Minimum
Annual Royalty with respect to any Contract Year.
2.5 RESERVATION OF RIGHTS. No license as to any products, other than
with respect to the Licensed Products, is being granted hereunder and JC
reserves for its use, as it may determine, all rights of any kind other than the
rights herein granted to BBC.
3. LICENSED PRODUCTS
3.1 DEFINITION. As used in this Agreement, the term "Licensed Products"
shall mean and include (i) those JC-branded food and beverage products set forth
on Schedule B to this Agreement (the "Initial Licensed Products"), (ii) the
additional JC-branded food and beverage products contemplated by Section 3.2
below, and (iii) any variations, modifications, enhancements and additional
flavors or styles of any of the foregoing.
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<PAGE> 3
3.2 ADDITIONAL LICENSED PRODUCTS.
3.2.1 The parties agree to negotiate in good faith to establish,
no later than June 30, 2000, a reasonable timetable for the introduction of
additional food and beverage products through distribution channels other than
through the Centres, which products will include frozen entrees, ice cream and
ice cream novelties.
3.2.2 BBC shall have the right to present additional product
concepts or finished products to JC for inclusion as Licensed Products.
Inclusion will be subject to the approval of JC, which approval will not be
unreasonably withheld.
3.2.3 The additional products contemplated by this Section will
become Licensed Products upon introduction or inclusion as set forth above (the
"Additional Licensed Products").
4. ROYALTY CALCULATION; MINIMUM ROYALTY PROVISIONS
4.1 ROYALTY. BBC agrees to pay JC a Royalty of ( * ) of the Net Sales,
as defined below, during the First and any Extended Term of this Agreement and
any post-termination inventory disposal period, as provided for below (the
"Royalty"). The Royalty shall be calculated for each calendar quarter ending
March 31, June 30, September 30 and December 31 (each known as a "Royalty
Period") during each Contract Year, commencing January 1, 2001. Such Royalty
shall accrue when Net Sales of Licensed Products are actually recognized by BBC,
in accordance with generally accepted accounting principles and the accounting
policies used by BBC on non-licensed product sales, provided that no Royalty
shall accrue or be payable to JC with respect to any sales of Licensed Products
prior to January 1, 2001.
4.2 DEFINITION OF NET SALES. "Net Sales" shall mean the Gross Sales
recognized by BBC with respect to the Licensed Products less (i) sales tax,
value added tax, and similar governmental taxes or charges, if any, (ii) actual
sales returns, (iii) discounts off list prices, (iv) prompt payment discounts
actually offered, (v) sales price allowances actually given, whether or not
reflected on the relevant invoice, (vi) retailer pickup allowances, and (vii)
import duties and fees and international freight billed to retailers outside of
the United States and Canada. "Gross Sales" shall mean sales of the Licensed
Products, priced at BBC's list price. Net Sales shall not include any Licensed
Products given at no charge to potential customers or to retailers, brokers,
spokespersons or others.
4.3 MINIMUM ANNUAL ROYALTY. For the purposes of Section 1.2 and 14.2 of
this Agreement, the minimum Royalty to be paid to JC by BBC with respect to a
given Contract Year (the "Minimum Annual Royalty") shall be as follows:
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<PAGE> 4
4.3.1 For the calendar years 2001 through 2004, the Minimum
Annual Royalty shall be:
<TABLE>
<S> <C> <C>
2001 ( * )
2002 ( * )
2003 ( * )
2004 ( * )
</TABLE>
4.3.2 For each year after 2004, the Minimum Annual Royalty for
such year shall be the Minimum Annual Royalty for the preceding year, increased
or decreased by a percentage to be determined by the good faith negotiation of
the parties in light of the rate of growth in the respective markets for the
Licensed Products; provided, however, that such percentage shall not be greater
than the average percentage of price inflation for products in such markets
generally.
4.4 FOREIGN TAX WITHHOLDING. If BBC is obligated to withhold foreign
taxes in connection with any payment of the Royalty, it may do so as long as BBC
promptly provides to JC certified tax receipts evidencing the payment thereof to
the proper foreign tax authorities.
5. ROYALTY STATEMENTS, PAYMENTS AND AUDIT RIGHTS
5.1 SUBMISSION OF ROYALTY STATEMENTS. BBC shall provide JC, within
thirty (30) days after the end of each Royalty Period, a statement (the
"Statement") of Net Sales and Royalty owing for the applicable Royalty Period.
Such Statement shall include information as to the Gross Sales of Licensed
Products and a reconciliation of Gross Sales to Net Sales. Statements shall be
furnished to JC, whether or not any Licensed Products have been shipped,
distributed and/or sold and whether or not Royalties have accrued during the
Royalty Period. The Statement shall be broken down by country for each country
in which Licensed Products have been sold, and all Net Sales shall be stated in
the currency in which the Net Sales were billed, followed by the equivalent
amount for such Net Sales in United States currency, followed by the exchange
rate applied. The exchange rate applied shall be updated monthly and shall be
the exchange rate quoted in the Wall Street Journal on the last day of the prior
month.
5.2 PAYMENT OF ROYALTIES. Simultaneously with the submission of each
Statement, BBC shall pay the Royalties shown on the Statement as being due. Such
payments shall be made by check (drawn on a U.S. bank) or wire transfer, in U.S.
Dollars to an account designated by JC. Statements shall be submitted by
facsimile transmission or overnight courier to JC as specified in Section 18.7.
5.3 JC'S ACCEPTANCE OF STATEMENTS AND PAYMENTS. Unless notice to the
contrary is given within six months of JC's receipt of any Statement, or 60 days
after the commencement of an audit by JC as provided herein, whichever occurs
first, the receipt and/or acceptance by JC of any Statement furnished or
Royalties paid hereunder to JC (or the cashing of any Royalty checks paid
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<PAGE> 5
hereunder) shall preclude JC from questioning the correctness thereof at any
time thereafter. In the event that any inconsistencies or mistakes are
discovered in such statements or payments, and communicated to BBC within the
appropriate period, they shall immediately be rectified by BBC and the
appropriate payment shall be made by BBC within 30 days of JC's demand therefor,
unless a good faith objection is made by BBC. JC will likewise repay or credit
any overpayments made by BBC. The election as to repayment or crediting of
overpayments shall be at BBC's discretion.
5.4 MAINTENANCE OF RECORDS. BBC shall keep, at its principal office,
true, accurate and complete books and records ("Records") relating to the
performance of this Agreement. Accounting procedures shall conform to generally
accepted accounting principles consistently applied by BBC for non-Licensed
Products. BBC shall retain Records for a period of at least two years from the
date of the transactions to which they relate.
5.5 AUDIT RIGHTS. JC shall be entitled, at JC's sole expense, to audit
BBC's Records relating to the sale of the Licensed Products. JC may make such
audit for the purposes of verifying Gross Sales and Net Sales, the calculations
and Records used to arrive at Net Sales, the accuracy of related calculations,
and the calculation and payment of Royalties. JC shall give written notice to
BBC at least thirty (30) days prior to the date the audit is to commence. The
audit shall be conducted by JC's usual independent accounting firm in such a
manner so as not to unreasonably disrupt BBC's business operations and shall be
completed promptly. The audit shall be conducted only during BBC's usual
business hours and at the place where it keeps the Records. The auditors shall
agree to be bound by the confidentiality provisions set forth in Section 13.
5.6 RESOLUTION OF DISCREPANCIES FOUND DURING AUDIT. If any audit of
BBC's books or records, discloses that BBC's payment were less than the amount
that should have been paid, all payments required to be made to eliminate the
discrepancy shall be made promptly, unless a good faith objection to the audit
results is made by BBC. If the discrepancy, as agreed to by the auditors and
BBC, is ( * ) or more of the amount actually paid for the subject period, BBC
promptly shall reimburse JC for the cost and expense of the audit. In addition,
if a discrepancy of ( * ) or more is disclosed in more than one audit or a
discrepancy of ( * ) ( * ) or more is disclosed in any one audit, JC may
terminate this Agreement by written notice to BBC given within thirty (30) days
after the receipt of the audit report disclosing the second such discrepancy.
Subject to the following paragraph, such termination will become effective sixty
(60) days after receipt of such written notice by BBC.
Nothing herein shall be deemed to prohibit BBC from disputing the
results of any such audit. If JC gives BBC a notice of termination based on a
discrepancy disclosed in an audit and BBC notifies JC that it disputes the
results of the audit within twenty (20) business days after receipt of the
notice of termination, the notice of termination shall be stayed, pending the
resolution of the dispute, so long as BBC's independent auditors confirm that
they believe that BBC has a reasonable basis for its position. The Parties agree
to have each Party's independent auditors meet as soon as reasonably practicable
to attempt to resolve the dispute using generally accepted accounting
principles. If the auditors are not able to reach a resolution to the dispute,
then the Parties agree to binding arbitration to resolve the dispute.
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<PAGE> 6
6. EXPLOITATION BY BBC
6.1 PRODUCT FORMULATION. BBC will be solely responsible for the
formulation and specifications of the Licensed Products. BBC will use
commercially reasonable efforts to ensure that all Licensed Products (i) conform
to JC's published nutritional philosophy in terms of macronutrient proportion,
integrity of ingredients and vitamin and mineral fortification, (ii) comply with
all relevant government standards including, without limitation, the regulations
of the federal Food and Drug Administration, if any, and (iii) meet any and all
claims set forth on their respective labels at the time of production and until
the expiration date set forth thereon. JC acknowledges and agrees that the
Licensed Products may be produced, manufactured, packaged and transported by
third parties at BBC's sole discretion.
6.2 PRODUCT INTRODUCTION. BBC will use commercially reasonable efforts
to introduce the Initial Licensed Products by the respective Estimated
Introduction Dates set forth in Schedule B hereto. BBC will also use
commercially reasonable efforts to introduce the Additional Licensed Products by
the respective dates established by the agreement of the parties.
6.3 PROMOTIONAL AND PACKAGING MATERIAL. BBC will be solely responsible
for the design, preparation and production of all advertising, promotional
literature and goods, and packaging material which include any of the Marks (the
"Promotional and Packaging Material"), subject to JC's approval as set forth in
Section 7.2.
6.4 SALES CHANNELS. BBC is entitled to produce, package, market,
advertise, sell and distribute Licensed Products to individual consumers,
retailers, wholesalers, distributors and institutional accounts in and through
all media and distribution channels. The foregoing notwithstanding, BBC shall
not distribute Licensed Products to weight loss centers (other than the Centres)
without the prior approval of JC. BBC's distribution of Licensed Products to the
Centres shall be permitted as set forth in Section 6.6.
6.5 TARGET PRICING. BBC will use commercially reasonable efforts, to the
extent legally permitted, to cause the Licensed Products to be priced
competitively with leading products in their respective markets.
6.6 SALES TO CENTRES. JC and BBC will negotiate in good faith toward an
agreement that would permit BBC (i) to sell Licensed Products to the Centres as
soon as practicable, and (ii) to sell its other products, including Balance Bars
and Total Balance, to the Centres commencing in 2000. JC shall make the final
determination as to which BBC products, if any, may be sold to the Centres. The
parties will also negotiate in good faith toward coordinated promotions of the
Centres and the Licensed Products.
6.7 MINIMUM LICENSED PRODUCT SUPPORT REQUIREMENTS. In order to support
the sales of Licensed Products, BBC agrees to spend the following minimum
amounts with respect to each Contract Year during the term of this Agreement:
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<PAGE> 7
6.7.1 an amount equal to ( * ) of Gross Sales of Licensed
Products for advertising expenditures with respect to the Licensed Products;
6.7.2 an amount equal to ( * ) of Gross Sales of Licensed
Products for trade allowances and market development funding (including coop
advertising, store promotions, price discounts, payment terms and co-sponsored
events) with respect to the Licensed Products; and
6.7.3 an amount equal to ( * ) of Gross Sales of Licensed
Products for marketing (including promotions, couponing, in-store displays,
free-standing newspaper inserts and so on) with respect to the Licensed
Products.
The foregoing notwithstanding, if BBC fails to meet the minimum spending
requirements in any of Sections 6.7.1, 6.7.2 or 6.7.3 for any Contract Year, it
shall not be deemed to be in violation of this Section 6.7 if, during such
Contract Year, it has spent an aggregate amount equal to at least ( * ) of Gross
Sales of Licensed Products for such Contract Year for the purposes set forth in
Section 6.7.1, 6.7.2 and 6.7.3 taken together.
6.8 REINVESTMENT OF PROFITS PRIOR TO 2001. BBC will monitor its net
income or loss from the Licensed Products from the date hereof until September
30, 2000. If BBC has net income from the Licensed Products during such period,
or if it should reasonably expect to have net income from the Licensed Products
for the period from the date hereof to December 31, 2000, then BBC shall expend
an amount equal to such net income in additional promotion of the Licensed
Products. BBC shall make such expenditure as promptly as reasonably prudent
under the circumstances, but in any event no later that December 31, 2001. For
the purposes of this Section, "net income" shall be computed in accordance with
BBC's normal accounting practices.
6.9 COOPERATION AND INFORMATION SHARING. The parties agree to cooperate
in the development of strategies relating to the introduction and marketing of
Licensed Products. In addition, subject to Section 13, the parties will exchange
their consumer and market research information relating to Licensed Products and
the Centres on a quarterly basis.
7. JC APPROVALS
7.1 LICENSED PRODUCT APPROVAL. Prior to the introduction of any Licensed
Product, BBC will provide JC with reasonable sample quantities of such Licensed
Product together with a nutritional analysis thereof. Such Licensed Product will
be deemed approved for introduction by JC unless JC objects to such introduction
in writing within ten (10) days after receipt of such samples and analysis. Any
such objection must be reasonable in light of all the circumstances related to
such Licensed Product and must set forth, in reasonable detail, the grounds for
such objection. In the event of any objection, the parties will meet immediately
and will negotiate in good faith to resolve the objection in order to permit the
introduction of the Licensed Product as soon as possible. In the event that JC
objects to the introduction of a Licensed Product and such objection meets the
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standards set forth above, BBC will not introduce such Licensed Product unless
and until the parties resolve such objection.
7.2 APPROVAL OF PROMOTIONAL AND PACKAGING MATERIAL. Prior to the first
use of any materially new or different item of Promotional and Packaging
Material, BBC will provide JC with a reasonable sample of such item. Such item
Material will be deemed approved for use by JC unless JC objects to such use in
writing within ten (10) days after receipt of such sample. Any such objection
must be reasonable in light of all the circumstances related to such item of
Promotional and Packaging Material and must set forth, in reasonable detail, the
grounds for such objection. In the event of any objection, the parties will meet
immediately and will negotiate in good faith to resolve the objection in order
to permit the use of the item as soon as possible. In the event that JC objects
to the first use of a new or different item of Promotional and Packaging
Material, and such objection meets the standards set forth above, BBC will not
use such item unless and until the parties resolve such objection.
7.3 QUALITY STANDARDS. BBC shall maintain an average standard of quality
of the Licensed Products, as well as of the Promotional and Packaging Material,
at a level at least as high as that set forth in the samples provided to JC in
Sections 7.1 and 7.2.
8. OWNERSHIP OF INTELLECTUAL PROPERTY
8.1 OWNERSHIP OF MARKS; GOOD WILL. BBC recognizes the value of the good
will associated with the Marks and acknowledges that the Marks, including the
good will pertaining thereto, belong exclusively to JC, subject to the rights
granted to BBC in this Agreement. Except as provided in Section 17, JC will not
transfer, assign or encumber the Marks.
8.2 INTELLECTUAL PROPERTY NOTICES. BBC agrees that all Licensed Products
and all Promotional and Packaging Material shall contain appropriate legends,
markings and/or notices as reasonably required from time to time by JC, to give
appropriate notice to the consuming public of JC's right, title and interest in
the Marks. Additionally, the following legend shall appear at least once on each
piece of Promotional and Packaging Material:
[Mark] [ ] is a registered trademark of Jenny Craig, Inc. and is under
license to [BBC, its permitted assignee or sublicensee]
8.3 WORLDWIDE LICENSE. The License grants BBC the right to use the Marks
throughout the world on the terms set forth in this Section. The parties
acknowledge that the Marks are currently registered only in the jurisdictions
set forth on Schedule A hereto. If BBC proposes to market, sell or distribute
Licensed Products in any other jurisdictions, it will so notify JC. JC will
promptly use all commercially reasonable efforts to cause the Marks to be
registered in such other jurisdictions. If JC, for valid commercial reasons,
notifies BBC, within 30 days of BBC's request, that it does not desire to
register the marks in the jurisdiction nor does it want BBC to register the
marks, then the marks shall not be registered. If JC does not notify BBC that it
will not allow the marks to be registered in the jurisdiction, and if JC does
not commence efforts to obtain any such registration
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within one month after receipt of BBC's notice, or if JC discontinues such
efforts at any time, then BBC shall be entitled (but not obligated) to use
commercially reasonable efforts to obtain such registration, in JC's name and at
JC's expense. JC hereby constitutes BBC as JC's attorney-in-fact for such
purpose. The License will extend to all such subsequent registrations. In
addition, JC will promptly use all commercially reasonable efforts (i) to
register or record this Agreement in any jurisdiction where such registration or
recordation is required, and (ii) to assist BBC in becoming a registered user of
the Marks in any jurisdiction where such registration is required. BBC shall not
use the Marks in any country in which the marks have not theretofore been
registered in the applicable trademark class or an application to register the
Marks in such class has not theretofore been filed, until an appropriate
trademark search has been conducted and an application to register the Marks for
the Licensed Products has been filed in such country or JC has determined that
it would be preferable not to seek to register the Marks for the Licensed
Products in such country but that there is no material impediment to the use of
the Marks therein.
8.4 COMPLIANCE WITH TRADEMARK LAWS. The License granted hereunder is
conditioned upon BBC's compliance with the provisions of the trademark laws of
the United States and the foreign country or countries in which it sells
Licensed Products. BBC agrees to keep records of and advise JC when each of the
Licensed Products is first sold in each country other than the United States.
8.5 USE OF TRADEMARK IN NAME OF BBC. BBC shall not have the right to use
the Marks as part of a trade name, fictitious business name, or name of a
corporation or partnership unless it first obtains JC's written consent. JC
reserves the right to specify the terms and conditions under which the Marks may
be used in such instances. BBC shall have the right to use the letters "JC" or
any variation thereon as part of a trade name, fictitious business name, or in
the name of an affiliated or subsidiary corporation, partnership or other entity
without JC's consent.
8.6 OWNERSHIP OF RIGHTS TO LICENSED PRODUCTS. BBC will own all right,
title and interest in and to (i) all formulations, ingredient specifications and
other product information of or relating to the Licensed Products, (ii) all
Promotional and Packaging Material (excluding the use of the Marks therein),
(iii) any trademarks, copyrights or similar intellectual property rights
obtained or used by BBC in connection with the sale of Licensed Products
(excluding the Marks, any trademarks that are derivatives of the Marks, and any
intellectual property rights relating thereto), and (iv) all marketing plans,
marketing and sales data, financial information and customer lists and
preferences of used by BBC in connection with the manufacturing, marketing, sale
or distribution of the Licensed Products.
9. INFRINGEMENT
9.1 ALLEGED INFRINGEMENT AGAINST RIGHTS OF THIRD PARTIES. In the event a
third party asserts that the Marks, the License or the sale of Licensed Products
under the terms of this Agreement (collectively, the "Rights") infringe upon
such third party's rights in any jurisdiction in which the Marks are registered
(as set forth on Schedule A or pursuant to any subsequent registration
contemplated by Section 8.3), JC, at its sole expense, shall immediately take
such action as is
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necessary to protect and validate the Rights including, without limitation,
arbitration, mediation and litigation. If it is determined that the Rights do
infringe on such third party's rights, then JC will promptly procure for BBC, at
JC's expense, the right to continue the manufacturing, marketing, sale and
distribution of the Licensed Products in such jurisdiction as contemplated by
this Agreement.
9.2 INFRINGEMENT BY THIRD PARTIES. In the event a third party is
infringing or threatens to infringe the Rights in any jurisdiction in which the
Marks are registered (as set forth on Schedule A or pursuant to any subsequent
registration contemplated by Section 8.3), as determined by BBC or JC, JC shall
take such action as is necessary to protect the Rights and end such infringement
including, without limitation, arbitration, mediation and litigation. In the
event JC fails to take such action(s) against the infringing third party within
20 days of JC becoming aware that an actual or threatened infringement is or may
be taking place, BBC shall have the right to waive JC's obligation to take
action, and instead may take such action against the infringing third party as
it deems necessary or desirable. In the event JC pursues any action: (i) all
costs and expenses, including attorneys' fees, incurred in connection therewith
shall be paid by JC, (ii) BBC shall be entitled to receive and retain all
amounts awarded as compensatory damages (including lost profits relating to
sales of Licensed Products) in connection with such action, but such amounts
shall be deemed part of Net Sales for Royalty purposes, and (iii) JC shall be
entitled to receive and retain all amounts awarded as punitive, exemplary,
statutory or other similar damages in connection with such action. In the event
BBC pursues any action: (x) all costs and expenses, including attorneys' fees,
incurred in connection therewith shall be paid by BBC, and (y) BBC shall be
entitled to receive and retain all amounts awarded as damages, profits or
otherwise in connection with such action, and such amounts shall not be deemed
part of Net Sales for Royalty purposes.
9.3 NOTICE OF INFRINGEMENT. The parties shall be vigilant in detecting
possible infringements, including imitations by third parties of the Rights and
shall immediately inform the other of any known actual or threatened
infringement.
9.4 COOPERATION. Subject to the preceding provisions of this Section,
the parties agree to assist one another to the extent necessary to protect any
and all of each party's respective interest in the Rights. The parties may, with
the consent of the other party, prosecute such infringement in their own name,
in the name of JC or BBC, or may join the other party as a party thereto.
10. REPRESENTATIONS AND WARRANTIES
10.1 JC'S REPRESENTATIONS AND WARRANTIES. JC represents and warrants to
BBC as follows:
10.1.1 JC has the corporate power and authority to enter into and
perform this Agreement. JC's execution and delivery of, and its performance of
all of its obligations under, this Agreement have been duly and validly
authorized by all necessary corporate action on the part of JC. This Agreement
is a valid and binding agreement of JC enforceable against JC in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization,
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<PAGE> 11
moratorium and other similar laws and equitable principles relating to or
limiting creditors rights generally.
10.1.2 JC's execution, delivery and performance of this Agreement
does not and will not violate, breach or constitute a default under, or require
the consent of any third party under, (i) any provision of any contract,
understanding or court order to which JC is a party or by which it is or the
Marks are bound or (ii) any law, rule, regulation or other provision or
restriction of any kind or character to which JC or the Marks are subject.
10.1.3 JC is the exclusive equitable and record owner of the
trademark registrations of, and the registration applications for, the Marks in
the jurisdictions set forth on Schedule A. JC owns the Marks for the Licensed
Products in all jurisdictions in which a registration for the Marks has issued
in the applicable class. The Marks are properly registered in each of such
jurisdictions as indicated on Schedule A. JC does not use the Marks by consent
of any other person and is not required to and does not make any payments to
others with respect thereto. There are no liens, claims, or encumbrances on the
Marks. There are no prior users of any of the Marks in any of such jurisdictions
such that the use of the Marks by BBC as contemplated by this Agreement would
give rise to a likelihood of confusion. To the best knowledge of JC, without any
duty of investigation, the Marks have not been registered by any person in any
jurisdiction other than those set forth on Schedule A.
10.1.4 The use of the Marks as contemplated by this Agreement
will not infringe upon or violate the copyright, trademark rights, or any other
intellectual property rights, of any person or entity within any jurisdiction
set forth on Schedule A. No complaint or claim alleging any infringement with
respect to the Marks, is currently pending or, to the best knowledge of JC,
threatened or asserted by any governmental body or third party in any country,
and to the best knowledge of JC, there exists no valid basis for such a claim.
To the knowledge of JC, no third party has interfered with, infringed upon,
misappropriated, or violated any of the Marks in any material respect.
10.2 BBC'S REPRESENTATIONS AND WARRANTIES. BBC represents and warrants
to JC as follows:
10.2.1 BBC has the corporate power and authority to enter into
and perform this Agreement. BBC's execution and delivery of, and its performance
of all of its obligations under, this Agreement have been duly and validly
authorized by all necessary corporate action on the part of BBC. This Agreement
is a valid and binding agreement of BBC enforceable against BBC in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditors rights generally.
10.2.2 BBC's execution, delivery and performance of this
Agreement does not and will not violate, breach or constitute a default under,
or require the consent of any third party under, (i) any provision of any
contract, understanding or court order to which BBC is a party or by which
-11-
<PAGE> 12
it is bound or (ii) any law, rule, regulation or other provision or restriction
of any kind or character to which BBC is subject.
10.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the parties made in, pursuant to, or in connection with this
Agreement shall survive the execution and delivery of this Agreement,
notwithstanding any investigation by the parties. All statements contained in
any certificate, document, instrument or other writing delivered by a party to
this Agreement, or in connection with the transactions contemplated by this
Agreement, constitute representations and warranties under this Agreement.
11. INDEMNIFICATION
11.1 JC'S INDEMNITY. JC shall indemnify and hold harmless BBC, its
directors, officers, stockholders, employees, attorneys, agents, insurers,
affiliates, successors and assigns from and against any claim, cause of action,
loss, damage, cost or liability (a "Loss") and reasonable attorneys' fees and
expenses and all other reasonable out-of-pocket expenses (an "Expense") incurred
by any such person to the extent that such Loss or Expense arises from (i) any
breach by JC of any representation or warranty of JC contained in this Agreement
or contemplated hereby, (ii) the default under, or failure to perform, any
covenant or agreement of JC contained in this Agreement or contemplated hereby,
or (iii) the Marks or the use thereof in accordance with this Agreement.
11.2 BBC'S INDEMNITY. BBC shall indemnify and hold harmless JC, its
directors, officers, stockholders, employees, attorneys, agents, insurers,
affiliates, successors and assigns from and against any Loss or Expense incurred
by any such person to the extent that such Loss or Expense arises from (i) any
breach by BBC of any representation or warranty of BBC contained in this
Agreement or contemplated hereby, (ii) the default under, or failure to perform,
any covenant or agreement of BBC contained in this Agreement or contemplated
hereby, or (iii) the manufacturing, sale or distribution of the Licensed
Products (except for any Loss or Expense for which BBC is entitled to
indemnification from JC under Section 11.1).
11.3 INDEMNIFICATION PROCEDURE.
11.3.1 Upon obtaining knowledge thereof, the party to be
indemnified hereunder (the "indemnified person") shall promptly notify the
indemnifying party hereunder (the "indemnifying person") in writing of any
Losses which the indemnified person has determined has given or could give rise
to a claim for which indemnification rights are granted hereunder (such written
notice is referred to as the "Notice of Claim"). The Notice of Claim shall
specify, in all reasonable detail, the nature and estimated amount of any such
Losses giving rise to a right of indemnification, to the extent the same can
reasonably be estimated. Any failure on the part of an indemnified person to
give timely notice to the indemnifying person of a Loss shall not affect the
right of the indemnified person to obtain indemnification from the indemnifying
person with respect to such Loss unless the indemnifying person is actually
harmed by such failure to notify, and only to the extent of such actual harm.
-12-
<PAGE> 13
11.3.2 With respect to any matter set forth in a Notice of Claim
relating to a third party claim, the indemnifying person shall defend, in good
faith and at its expense, any such claim or demand, and the indemnified person,
at its expense, shall have the right to participate in the defense of any such
third party claim. So long as indemnifying person is defending, in good faith,
any such third party claim, the indemnified person shall not settle or
compromise such third party claim. The indemnified person shall make available
to the indemnifying person or its representatives all records and other
materials reasonably required by them for use in contesting any third party
claim and shall cooperate fully with the indemnifying person in the defense of
all such claims. If the indemnifying person does not defend any such third party
claim or if the indemnifying person does not provide the indemnified person with
prompt and reasonable assurances that the indemnifying person will satisfy the
third party claim, the indemnified person may, at its option, elect to defend
any such third party claim, at the indemnifying person's expense. An
indemnifying person may not settle or compromise any claim without consent of
the indemnified person, unless such settlement or compromise requires solely the
payment of money damages.
12. INSURANCE
12.1 COVERAGE. BBC shall, throughout the Term of this Agreement, obtain
and maintain, at its own expense, products liability insurance policies from
recognized insurers with at least a ( * ) limit on liability, which policy will
reflect JC as an additional insured. Copies of such policy and certificates for
such insurance will be provided to BBC within thirty (30) days of the date of
execution hereof.
13. CONFIDENTIAL INFORMATION
13.1 CONFIDENTIAL INFORMATION. The parties acknowledge that each may
receive information from the other party which is designated in writing as
confidential by such other party or its representatives in connection with the
transactions contemplated by this Agreement ("Confidential Information"). The
parties expressly acknowledge that the formulations, ingredient specifications
and other product information of or relating to the Licensed Products constitute
trade secrets of BBC and are BBC's Confidential Information for the purposes of
this Agreement. Each party acknowledges that all marketing plans, marketing and
sales data, financial information and customer lists and preferences of the
other party constitute trade secrets of such other party and are Confidential
Information for the purposes of this Agreement.
13.2 OBLIGATION TO MAINTAIN CONFIDENTIALITY. Each party agrees to
preserve and protect the confidentiality of all Confidential Information that is
furnished by the other party. Each party agrees to use any such Confidential
Information only for the purposes contemplated by this Agreement and not to
disclose such Confidential Information to any third party other than its
representatives with a need to know such Confidential Information in connection
with the performance of this Agreement. Each party will be responsible for
ensuring that its respective representatives adhere to this confidentiality
obligation. The obligations of the parties under this Section shall continue for
a period of five years after the expiration or termination of this Agreement.
-13-
<PAGE> 14
13.3 UPON TERMINATION. Upon termination or expiration of this Agreement,
each party shall return to the other party, or destroy, all Confidential
Information of the other party including, but not limited to, all copies of
documents provided or made which refer, relate or contain any Confidential
Information.
13.4 EXCLUSIONS. The obligations contained in this Section will not
apply to information which (a) which the receiving party can establish was in
possession of, or was known by, the receiving party prior to its receipt from
the disclosing party; (b) is received without restriction on disclosure by the
receiving party from a source other than the disclosing party who received the
information not in violation of any confidentiality restriction; (c) is or
becomes available on an unrestricted basis to a third party from the disclosing
party or someone acting under its control; (d) is publicly known or becomes
publicly known through no fault of the receiving party or (e) is revealed
pursuant to an order of a court of competent jurisdiction requiring such
disclosure, provided the party revealing such information promptly notifies the
other party to allow the other party to take appropriate protective measures.
13.5 SECURITIES LAW DISCLOSURES. The parties agree that each may be
required to include a copy of this Agreement as an exhibit to one or more
filings with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and to describe the terms of this Agreement in one or more such
filings. Any such filings will be available to the general public. Upon request
of the other party, each party will use its reasonable efforts to obtain
confidential treatment from the SEC for key provisions of the Agreement to the
extent feasible and will cooperate with the other party so that both parties
obtain confidential treatment for the same provisions.
13.6 PRESS RELEASE. The parties agree to issue a joint press release
announcing the existence of this Agreement on or about October 15, 1999 subject
to approval by JC of Licensed Products and Promotional and Packaging Material.
If the launch of the Licensed Products is postponed past the 1999 Natural Foods
Expo East trade show in Baltimore, then the parties agree to issue a joint press
release not less than five days prior to the initial launch of the Licensed
Products. The parties will cooperate in drafting a press release that is
acceptable to both parties.
14. EXPIRATION AND TERMINATION
This Agreement will expire, as provided in Section 1, or may be
terminated as set forth below.
14.1 MUTUAL AGREEMENT. This Agreement may be terminated by mutual
written agreement, at any time.
14.2 TERMINATION FOR BREACH. Upon the material breach of any provision
of this Agreement by a party, the non-breaching party shall have the right to
terminate this Agreement upon 60 days prior written notice and such notice,
which shall specify the nature of the breach, shall become effective unless the
breaching party shall, within the 60-day notice period, cure the breach, or
satisfy the non-breaching party that such breach will be cured in a period
acceptable to the
-14-
<PAGE> 15
non-breaching party. BBC's failure to pay JC the Minimum Royalties with respect
to a Contract Year shall be deemed a material breach by BBC; provided, however,
that JC's sole remedy for such failure shall be to terminate the Agreement
pursuant to this Section. Within thirty (30) days of such termination, BBC shall
be obligated to pay to JC all unpaid royalties due and payable as of the date of
termination. Notwithstanding termination, JC and BBC shall have, and hereby
reserve, all rights and remedies which they have or which are granted by
operation of law, (a) to enjoin the unlawful or unauthorized use of the Marks or
sale of the Licensed Products or any breach by the other Party of any of the
obligations hereunder, (b) for JC to collect royalties and both Parties to
collect other sums payable by the other Party, and (c) to recover damages for
breach of this Agreement, including breach of its provisions under paragraph 14.
14.3 BANKRUPTCY. This Agreement may be terminated by a party, at its
option, if the other party files a petition in bankruptcy or is adjudicated
bankrupt or insolvent, or makes an assignment for the benefit of creditors, or
an arrangement pursuant to any bankruptcy law, or if such other party
discontinues its business or if a receiver is appointed for such other party or
its business and such receiver is not discharged within 60 days.
14.4 TERMINATION UPON NOTICE BY BBC. BBC may terminate this Agreement at
any time (with or without cause) upon six (6) months written notice to JC (the
"Termination Notice Period"). During such Termination Notice Period, BBC shall
be required to pay JC at least the Minimum Royalty relating to the Contract Year
(or portions thereof) which contain such Termination Notice Period, prorated
based on the portion of such Contract Year(s) included in the Termination Notice
Period. If JC waives the payment of the Minimum Royalty contemplated by the
preceding sentence, JC may, at its option, require BBC to sell Licensed Products
to JC, ( * ) ( * ), during the Termination Notice Period.
15. PROCEDURES AND APPLICATION OF AGREEMENT UPON TERMINATION
Upon the expiration or termination of this Agreement the following
provisions shall govern:
15.1 REVERSION OF RIGHTS. Except as set forth in this Section, after the
expiration or termination of this Agreement, the License to the Marks granted to
BBC shall immediately revert to JC who shall be free to license others to use
the Marks. BBC shall thereafter refrain from further use of the Marks in
connection with the marketing of BBC's products.
15.2 POST-TERMINATION STATEMENT. Within 45 days after termination or
expiration of this Agreement, as the case may be, BBC shall deliver to JC a
statement (collectively, "Post-Termination Statement") indicating the number and
description of the Licensed Products which, as of the date of expiration or
termination, BBC has on hand, are ordered from the manufacturers, are in transit
from the point of manufacture, or are subject to customer purchase orders which
(i) have already been accepted by BBC or (ii) are the subject of an issued
letter of credit which has been received by the payee (collectively,
"Inventory"). Simultaneously with the submission of the Post Termination
Statement, BBC shall pay the Royalties shown therein as being due for the period
since the previous Royalty Period. Such payments shall be made in accordance
with this Agreement.
-15-
<PAGE> 16
15.3 DISPOSAL OF INVENTORY UPON TERMINATION. Upon termination or
expiration of this Agreement under any provision other than Section 14.4,
provided that the Post Termination Statement and Royalties with respect to that
preceding Royalty Period have been paid, BBC shall be entitled to sell the
Inventory in conformity with this Agreement. BBC shall use its reasonable
efforts to complete the sale of all such Inventory as promptly as possible, but
in any event within six (6) months of the date of the Post-Termination
Statement. BBC shall continue to pay Royalties on all such sales in accordance
with this Agreement.
15.4 LIMITATION OF LIABILITY. Neither party shall be liable to the other
for any loss of present or prospective profits from lost sales, investments, or
loss of goodwill, or other consequential damages resulting from the termination
of this Agreement.
16. RELATIONSHIP CREATED
The parties acknowledge that in performing their obligations hereunder,
each is acting as an independent contractor. The parties do not intend to create
any employment relationship, partnership or agency, and nothing in this
Agreement shall be construed to create a partnership, agency, joint venture,
franchise or other similar arrangement between the parties. Neither party has
the authority to enter into any agreement, make any warranty or representation
on behalf of, or otherwise bind the other party, except where and to the extent
specifically authorized to do so in writing.
17. ASSIGNMENT
The rights and duties granted in this Agreement are personal to JC and
BBC and neither party may assign any of its rights or delegate any of its duties
under this Agreement without prior written consent of the other party, which
consent will not be unreasonably withheld. The foregoing notwithstanding, BBC
may assign its rights hereunder to any subsidiary or affiliate of BBC without
the consent of JC (it being understood and agreed that no such assignment by BBC
pursuant to this proviso shall relieve BBC of any of its obligations hereunder).
In addition, either party may assign its rights and duties hereunder without the
consent of the other party to any person or entity that acquires all or
substantially all of the business of the assigning party whether by asset sale,
stock sale or merger or similar means, provided that such person or entity
assumes in writing and agrees to pay, perform and discharge all of the assigning
party's obligations hereunder. Changes in the securities ownership of a party
hereto shall not be deemed to be an assignment of this Agreement. Any attempted
assignment or delegation in violation of this provision shall be void. This
Agreement shall inure to the benefit of the permitted successors and assigns
hereunder.
18. GENERAL PROVISIONS
18.1 AMENDMENTS; WAIVERS. This Agreement may be amended only by
agreement in writing of all parties. No waiver of any provision nor consent to
any exception to the terms of this Agreement shall be effective unless in
writing and signed by the party to be bound and then only to the specific
purpose, extent and instance so provided.
-16-
<PAGE> 17
18.2 INTEGRATION. This Agreement, together with its schedules and
exhibits, constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements and understandings of
the parties in connection therewith.
18.3 GOVERNING LAW. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of California applicable to contracts made and performed in such State.
Any action with respect to this Agreement may be brought in any state or federal
court having jurisdiction over the County of Santa Barbara, State of California.
Each party accepts, for itself and its permitted successors and assigns, the
jurisdiction of the aforesaid courts.
18.4 NO THIRD PARTY BENEFICIARIES. This Agreement is made solely for the
benefit of the parties signatory hereto and their respective successors and
permitted assigns. Nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties to it and their respective successors and permitted assigns.
18.5 HEADINGS. The descriptive headings of the articles, sections and
subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
18.6 COUNTERPARTS. This Agreement and any amendment hereto or any other
agreement (or document) delivered pursuant hereto may be executed in one or more
counterparts and by different parties in separate counterparts. All of such
counterparts shall constitute one and the same agreement (or other document) and
shall become effective (unless otherwise therein provided) when one or more
counterparts have been signed by each party and delivered to the other party.
18.7 NOTICES. Any notice or other communication hereunder must be given
in writing and either (a) delivered in person, (b) transmitted by telex, telefax
or telecommunications mechanism provided that any notice so given is also mailed
as provided in clause (c) or (c) mailed by certified or registered mail, postage
prepaid and return receipt requested, as follows:
IF TO JC ADDRESSED TO:
Jenny Craig, Inc.
11355 N. Torrey Pines Road
La Jolla, CA 92038-7910
Attention: President
Facsimile No. (619) 812-2724
With a copy to:
-17-
<PAGE> 18
Jenny Craig, Inc.
11355 N. Torrey Pines Road
La Jolla, CA 92038-7910
Attention: Vice President and General Counsel
Facsimile No. (619) 812-2799
IF TO BBC ADDRESSED TO:
Balance Bar Company
1015 Mark Avenue
Carpinteria, CA 93013
Attention: President and Chief Executive Officer
Facsimile No. (805) 566-0235
With a copy to:
Seed, Mackall & Cole LLP
1332 Anacapa Street, Suite 200
Santa Barbara, CA 93101
Attention: Thomas N. Harding, Esq.
Facsimile No. (805) 962-1404
or to such other address or to such other person as either party shall have last
designated by such notice to the other party. Each such notice or other
communication shall be effective (i) if given by telecommunication, when
transmitted to the applicable number so specified in (or pursuant to) this
Section 18.7 and an appropriate answerback is received, (ii) if given by mail,
three days after such communication is deposited in the mails addressed as
aforesaid or (iii) if given by any other means, when actually delivered at such
address.
18.8 ATTORNEY'S FEES. Should any action or proceeding be brought to
construe or enforce the terms and conditions of this Agreement or the rights of
the parties hereunder, the losing party shall pay to the prevailing party all
court costs and reasonable attorneys' fees and costs (at the prevailing party's
attorneys then-current rates) incurred in such action or proceeding. A party
that voluntarily dismisses an action or proceeding shall be considered a losing
party for purposes of this provision. Attorneys fees incurred in enforcing any
judgment in respect of this Agreement are recoverable as a separate item. The
preceding sentence is intended to be severable from the other provisions of this
Agreement and to survive any judgment and, to the maximum extent permitted by
law, shall not be deemed merged into any such judgment.
18.9 SEVERABILITY. If any provision of this Agreement is determined to
be invalid, illegal or unenforceable by any governmental entity, the remaining
provisions of this Agreement to the extent permitted by law shall remain in full
force and effect.
-18-
<PAGE> 19
18.10 TIME. Time is of the essence in the performance of and compliance
with each of the provisions and conditions of this Agreement.
18.11 LEGAL REPRESENTATION AND CONSTRUCTION. Each party hereto has been
represented by legal counsel in connection with the negotiation and drafting of
this Agreement and any related documents. The parties acknowledge that each
party and its counsel have reviewed and revised this Agreement and related
documents, and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any related documents.
18.12 FURTHER ASSURANCES AND COOPERATION. Each party agrees that it will
prepare, execute, acknowledge, file, record, publish, and deliver to the other
party hereto such other instruments, documents, and statements, including
without limitation instruments and documents of recordation, assignment,
transfer, and conveyance, and take such other action as may be reasonably
necessary or convenient in the discretion of the requesting party to carry out
more effectively the purposes of this Agreement. Unless otherwise provided
herein, any consent or approval provided for in this Agreement shall not be
unreasonably withheld or delayed.
18.13 FORCE MAJEURE. Neither party to this Agreement shall be held
liable for failure to comply with any of the terms of this Agreement when such
failure is caused solely by earthquake, fire, labor dispute, strike, war,
insurrection, government restrictions, act of God, or other force majeure beyond
the control of the party involved, provided such party uses due diligence to
remedy such default.
18.14 LIMITATION OF ACTIONS. No action or proceeding at law, in equity,
or in arbitration shall be brought under this Agreement or otherwise, unless
commenced within two years from the date the cause of action or proceeding is
alleged to have arisen.
-19-
<PAGE> 20
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
on the day and year first above written.
JENNY CRAIG, INC.,
a Delaware corporation
By /s/ Philip Voluck
----------------------------------
Philip Voluck
President and Chief Operating
Officer
By
----------------------------------
Name:
Title:
BALANCE BAR COMPANY,
a Delaware corporation
By /s/ James A. Wolfe
-----------------------------------
James A. Wolfe
President and Chief Executive
Officer
By
----------------------------------
Name:
Title:
-20-
<PAGE> 21
Schedule A
MARKS
<TABLE>
<CAPTION>
Registration Date of
Mark Jurisdictions Number Registration Class
---- ------------- ------ ------------ -----
<S> <C> <C> <C> <C>
Signature of Jenny Craig Australia 639398 8/31/94 30
Signature of Jenny Craig Canada 470592 2/5/97 Not listed
Signature of Jenny Craig Egypt 95391 4/18/95 30
Signature of Jenny Craig India 663605 4/25/95 30
Signature of Jenny Craig Iran 81844 4/13/97 16/30/35
Signature of Jenny Craig Israel 98044 4/11/95 30
Jenny Craig & Device Japan 2154504 7/31/89 26
Signature of Jenny Craig Jordan 38504 7/6/95 30
Signature of Jenny Craig Kuwait 35537 12/30/96 30
Signature of Jenny Craig Lebanon 733/366086 6/7/95 16/30/42
Signature of Jenny Craig Libya 7893 11/18/95 30
Signature of Jenny Craig Mexico 491764 9/15/94 30
Signature of Jenny Craig New Zealand 240509 8/31/94 30
Signature of Jenny Craig Oman 11409 4/15/95 30
Signature of Jenny Craig Pakistan 130513 6/13/95 30
Signature of Jenny Craig Puerto Rico 35314 10/13/94
Signature of Jenny Craig Qatar 13256 4/19/95 30
Signature of Jenny Craig Saudi Arabia 371/18 8/2/95 30
Signature of Jenny Craig Un Arab Emirates 8637 11/14/95 30
Signature of Jenny Craig United Kingdom 2115251 11/8/96 16/30/42
Signature of Jenny Craig in
rectangular design United States 1774337 6/1/93 29/30/42
Signature of Jenny Craig United States 1967798 4/16/96 9/16/30
</TABLE>
<PAGE> 22
Schedule B
INITIAL LICENSED PRODUCTS
<TABLE>
<CAPTION>
Product Estimated Introduction Date
------- ---------------------------
<S> <C>
Nutrition bar November 1999
Ready to drink beverage ( * )
Powdered drink mix ( * )
Nutritional cookie ( * )
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AND CONSOLIDATED STATEMENT OF OPERATIONS FOR THE
THREE MONTHS ENDED SEPTEMBER 30, 1999 INCLUDED IN THE COMPANY'S FORM 10-Q FOR
THE QUARTER ENDED SEPTEMBER 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 35,322
<SECURITIES> 3,621
<RECEIVABLES> 2,050<F1>
<ALLOWANCES> 0
<INVENTORY> 17,855
<CURRENT-ASSETS> 77,789
<PP&E> 27,256<F1>
<DEPRECIATION> 0
<TOTAL-ASSETS> 112,824
<CURRENT-LIABILITIES> 51,241
<BONDS> 7,389
0
0
<COMMON> 0
<OTHER-SE> 54,194
<TOTAL-LIABILITY-AND-EQUITY> 112,824
<SALES> 66,546
<TOTAL-REVENUES> 71,511
<CGS> 67,319
<TOTAL-COSTS> 70,924
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 90
<INCOME-PRETAX> (6,101)
<INCOME-TAX> (2,319)
<INCOME-CONTINUING> (3,782)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,782)
<EPS-BASIC> (.18)
<EPS-DILUTED> (.18)
<FN>
<F1>THE ASSET VALUES FOR RECEIVABLES AND PP & E REPRESENT AMOUNTS NET OF
ALLOWANCES AND DEPRECIATION, RESPECTIVELY.
</FN>
</TABLE>
