SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------------------------
FORM 10-Q
(mark one)
[ X ] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Quarter Ended December 28, 1996.
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
Commission File Number 1-13104
THERMOLASE CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 06-1360302
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10455 Pacific Center Court
San Diego, California 92121-4339
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 622-1000
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 [ ]
Indicate the number of shares outstanding of each of
the issuer's classes of Common Stock, as of the
latest practicable date.
Class Outstanding at January 24, 1997
---------------------------- -------------------------------
Common Stock, $.01 par value 40,562,810
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PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
THERMOLASE CORPORATION
Consolidated Balance Sheet
(Unaudited)
Assets
December 28, September 28,
(In thousands) 1996 1996
------------------------------------------------------------------------
Current Assets:
Cash and cash equivalents $22,230 $ 7,923
Available-for-sale investments, at quoted
market value (amortized cost of $17,207
and $44,205) 17,173 44,132
Accounts receivable, less allowances of
$379 and $319 4,305 4,572
Inventories:
Raw materials and supplies 1,797 1,521
Work in process and finished goods 2,689 2,748
Prepaid expenses 455 408
Prepaid income taxes 3,395 1,882
------- -------
52,044 63,186
------- -------
Property and Equipment, at Cost (Note 2) 30,527 21,343
Less: Accumulated depreciation and amortization 2,621 2,020
------- -------
27,906 19,323
------- -------
Other Assets 4,725 4,679
------- -------
Cost in Excess of Net Assets of Acquired Company 8,273 8,332
------- -------
$92,948 $95,520
======= =======
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THERMOLASE CORPORATION
Consolidated Balance Sheet (continued)
(Unaudited)
Liabilities and Shareholders' Investment
December 28, September 28,
(In thousands except share amounts) 1996 1996
------------------------------------------------------------------------
Current Liabilities:
Accounts payable $ 3,201 $ 5,179
Accrued payroll and employee benefits 1,405 1,008
Deferred revenue 1,776 913
Other accrued expenses 3,357 1,791
Due to parent company and affiliated companies 6,847 7,098
------- -------
16,586 15,989
------- -------
Deferred Lease Liability 764 494
------- -------
Common Stock Subject to Redemption (Note 3) 2,613 -
------- -------
Shareholders' Investment:
Common stock, $.01 par value,
100,000,000 shares authorized;
40,807,932 and 40,803,932 shares issued 408 408
Capital in excess of par value 82,240 85,813
Accumulated deficit (4,905) (3,516)
Treasury stock at cost, 224,058
and 116,570 shares (4,736) (3,621)
Net unrealized loss on
available-for-sale investments (22) (47)
------- -------
72,985 79,037
------- -------
$92,948 $95,520
======= =======
The accompanying notes are an integral part of these consolidated
financial statements.
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THERMOLASE CORPORATION
Consolidated Statement of Operations
(Unaudited)
Three Months Ended
--------------------------
December 28, December 30,
(In thousands except per share amounts) 1996 1995
------------------------------------------------------------------------
Revenues:
Product revenues $ 6,046 $ 7,342
Service revenues 2,564 58
------- -------
8,610 7,400
------- -------
Costs and Operating Expenses:
Cost of product revenues 4,015 4,721
Cost of service revenues 2,812 439
Selling, general and administrative expenses 4,214 2,599
Research and development expenses 909 525
------- -------
11,950 8,284
------- -------
Operating Loss (3,340) (884)
Interest Income 616 938
------- -------
Income (Loss) Before Income Taxes (2,724) 54
Income Tax (Provision) Benefit 1,335 (136)
------- -------
Net Loss $(1,389) $ (82)
======= =======
Loss per Share $ (.03) $ -
======= =======
Weighted Average Shares 40,685 40,091
======= =======
The accompanying notes are an integral part of these consolidated
financial statements.
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THERMOLASE CORPORATION
Consolidated Statement of Cash Flows
(Unaudited)
Three Months Ended
--------------------------
December 28, December 30,
(In thousands) 1996 1995
------------------------------------------------------------------------
Operating Activities:
Net loss $ (1,389) $ (82)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization 691 261
Provision for losses on accounts receivable 60 74
Deferred lease liability 270 -
Changes in current accounts:
Accounts receivable 207 (1,489)
Inventories (217) 14
Other current assets (1,573) 5
Accounts payable (1,978) (252)
Other current liabilities 754 315
-------- --------
Net cash used in operating activities (3,175) (1,154)
-------- --------
Investing Activities:
Purchases of available-for-sale investments - (24,500)
Proceeds from sale and maturities of
available-for-sale investments 26,500 22,500
Purchases of property and equipment (7,386) (961)
Other 443 280
-------- --------
Net cash provided by (used in) investing
activities 19,557 (2,681)
-------- --------
Financing Activities:
Net proceeds from issuance of Company common
stock and sale of put options (Note 3) 384 23
Payment of withholding taxes related to stock
option exercises (280) -
Purchases of Company common stock (2,179) -
-------- --------
Net cash provided by (used in) financing
activities (2,075) 23
-------- --------
Increase (Decrease) in Cash and Cash Equivalents 14,307 (3,812)
Cash and Cash Equivalents at Beginning of Period 7,923 13,146
-------- --------
Cash and Cash Equivalents at End of Period $ 22,230 $ 9,334
======== ========
The accompanying notes are an integral part of these consolidated
financial statements.
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THERMOLASE CORPORATION
Notes to Consolidated Financial Statements
1. General
The interim consolidated financial statements presented have been
prepared by ThermoLase Corporation (the Company) without audit and, in
the opinion of management, reflect all adjustments of a normal recurring
nature necessary for a fair statement of the financial position at
December 28, 1996, the results of operations for the three-month periods
ended December 28, 1996 and December 30, 1995, and the cash flows for the
three-month periods ended December 28, 1996 and December 30, 1995.
Interim results are not necessarily indicative of results for a full
year.
The consolidated balance sheet presented as of September 28, 1996,
has been derived from the consolidated financial statements that have
been audited by the Company's independent public accountants. The
consolidated financial statements and notes are presented as permitted by
Form 10-Q and do not contain certain information included in the annual
financial statements and notes of the Company. The consolidated financial
statements and notes included herein should be read in conjunction with
the financial statements and notes included in the Company's Annual
Report on Form 10-K for the fiscal year ended September 28, 1996, filed
with the Securities and Exchange Commission.
2. Related Party Transaction
During the three months ended December 28, 1996, the Company
purchased laser systems from Trex Medical Corporation, a publicly traded,
majority-owned subsidiary of ThermoTrex Corporation, at an aggregate cost
of $3,880,000.
3. Common Stock Subject to Redemption
In September 1996, the Company's Board of Directors authorized the
repurchase by the Company of up to $10,000,000 of Company common stock
through August 28, 1997, in market transactions or pursuant to the
exercise by investors of standardized put options written on the
Company's common stock. During the first quarter of fiscal 1997, the
Company repurchased 137,500 shares of its common stock in market
transactions for $2,179,000. As of December 28, 1996, the Company had
contingent obligations under outstanding put options, which are
exercisable only on April 18, 1997, and expire on such date, to
repurchase up to 145,800 shares of its common stock at various prices for
an aggregate price of $2,613,000, which has been reclassified to "Common
stock subject to redemption" in the accompanying balance sheet.
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THERMOLASE CORPORATION
Item 2 - Management's Discussion and Analysis of Financial Condition and
Results of Operations
Forward-looking statements, within the meaning of Section 21E of the
Securities Exchange Act of 1934, are made throughout this Management's
Discussion and Analysis of Financial Condition and Results of Operations.
For this purpose, any statements contained herein that are not statements
of historical fact may be deemed to be forward-looking statements.
Without limiting the foregoing, the words "believes," "anticipates,"
"plans," "expects," "seeks," "estimates," and similar expressions are
intended to identify forward-looking statements. There are a number of
important factors that could cause the results of the Company to differ
materially from those indicated by such forward-looking statements,
including those detailed under the caption "Forward-looking Statements"
in Exhibit 13 to the Company's Annual Report on Form 10-K for the fiscal
year ended September 28, 1996, filed with the Securities and Exchange
Commission.
Overview
The Company has developed a laser-based system called SoftLight(SM)
for the removal of unwanted hair. The SoftLight system uses a low-energy,
dermatology laser in combination with a lotion that absorbs the laser's
energy to disable hair follicles. In April 1995, the Company received
clearance from the U.S. Food and Drug Administration (FDA) to
commercially market services using the SoftLight system. The Company
began earning revenue from the SoftLight system in the first quarter of
fiscal 1996 as a result of opening its first commercial salon (Spa Thira)
in La Jolla, California, in November 1995. The Company opened additional
salons in Dallas in June 1996 and in Houston and Beverly Hills in
September 1996. During the first quarter of fiscal 1997, the Company
opened three new salons: in Denver in October 1996, in Boca Raton in
November 1996, and in suburban Detroit in December 1996. The Company also
opened a spa in suburban Minneapolis in January 1997, and plans to open
salons in Greenwich, Connecticut, and Manhasset, New York in February
1997. In addition, the Company has signed leases for two additional
sites: in Palm Beach, Florida, and Newport Beach, California.
In June 1996, the Company commenced a program to license to doctors
and others the right to perform the Company's patented SoftLight
hair-removal procedure. In this program, the Company licenses its
technology and receives a one-time fee and a per-procedure royalty that
varies depending on the location treated. The Company also provides the
licensees with the lasers and lotion that are necessary to perform the
service.
The Company is marketing the SoftLight system internationally through
joint ventures and other licensing arrangements, including separate joint
ventures established in Japan in January 1996 and in France in November
1996, a licensing arrangement established in Saudi Arabia in November
1996, and a licensing arrangement established in Tunisia and Belgium on
December 31, 1996.
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THERMOLASE CORPORATION
Overview (continued)
The Company also manufactures and markets skin-care, bath, and body
products through its CBI Laboratories, Inc. (CBI) subsidiary, which also
manufactures the lotion used in the SoftLight hair-removal process.
Results of Operations
First Quarter Fiscal 1997 Compared With First Quarter Fiscal 1996
Revenues increased 16% to $8,610,000 in the first quarter of fiscal
1997 from $7,400,000 in the first quarter of fiscal 1996. The Company,
which opened three additional spas during the quarter, for a total of
seven Spa Thira salons, earned revenues of $1,485,000 in the first
quarter of fiscal 1997, compared with $58,000 in the first quarter of
fiscal 1996 from the November opening of its first spa. Under the current
pricing structure, the majority of spa clients pay a fixed fee in advance
to receive a series of treatments, as necessary. Consequently, the
Company defers revenue related to such payments, which is recognized over
the anticipated treatment period. As the Company collects further data
concerning the number of treatments required and duration of the
treatment period, the period of revenue recognition may be affected.
In addition, the Company's revenues in the first quarter of fiscal
1997 include $771,000 in SoftLight licensing fees from its licensing
program with 70 physicians and $308,000 of international licensing fees.
No SoftLight licensing fees were earned in the first quarter of fiscal
1996. Revenues at CBI decreased to $6,046,000 in the first quarter of
1997 from $7,342,000 in the first quarter of fiscal 1996, primarily due
to an unusually large order shipped to a single customer in the first
quarter of fiscal 1996. The Company estimates that CBI will continue to
represent a smaller portion of total revenues as revenues from
hair-removal services increase.
The gross profit margin in the first quarter of 1997 was 21%,
compared with 30% in the first quarter of 1996. The decline was primarily
due to the early operations of the Spa Thira business, which has been
operating below maximum capacity as the Company develops a client base
and continues refining its operating procedures, and due to pre-opening
costs incurred in connection with new spa openings. This decrease was
offset in part by the effect of SoftLight licensing fees, which have a
relatively high gross profit margin. As the Company opens additional Spa
Thira locations in fiscal 1997, higher gross profit margins from the more
mature spas will be more than offset by lower margins from the relatively
large number of newly opened spas, each of which operates below maximum
capacity as it develops its client base. In addition, gross profit
margins will be depressed by higher pre-opening costs. The Company's
decline in gross profit margin also resulted from slightly lower margins
on the sale of skin-care and other personal-care products at CBI due to a
shift to lower-margin products.
Selling, general, and administrative expenses as a percentage of
revenues increased to 49% in the first quarter of fiscal 1997 from 35% in
the first quarter of fiscal 1996. The increase was primarily due to costs
related to setting up a personal-care service organization for the Spa
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THERMOLASE CORPORATION
First Quarter Fiscal 1997 Compared With First Quarter Fiscal 1996
(continued)
Thira salons and SoftLight licensing programs, including the hiring of
senior management and administrative staff.
Research and development expenses increased to $909,000 in the first
quarter of fiscal 1997 from $525,000 in the first quarter of fiscal 1996.
The Company expects its research and development expenses to continue to
exceed fiscal 1996 levels, due to increased pre-clinical and clinical
research related to improving the effectiveness of the Company's
hair-removal process and developing its skin-rejuvenation process, and
the investigation of other health and beauty applications for its
proprietary laser technology.
Interest income decreased to $616,000 in the first quarter of fiscal
1997 from $938,000 in the first quarter of fiscal 1996, primarily as a
result of lower average invested balances, which resulted primarily from
property and equipment expenditures for the Company's Spa Thira salons
and SoftLight licensing programs.
The effective tax rate in each period differs from the statutory
federal income tax rate due to nondeductible amortization of cost in
excess of net assets of acquired company, incurred in connection with the
acquisition of CBI, and the impact of state income taxes.
Liquidity and Capital Resources
Working capital was $35,458,000 at December 28, 1996, compared with
$47,197,000 at September 28, 1996. Included in working capital are cash,
cash equivalents, and available-for-sale investments of $39,403,000 at
December 28, 1996, compared with $52,055,000 at September 28, 1996.
Operating activities used $3,175,000 of cash during the first quarter of
fiscal 1997, primarily due to the Company's loss before income taxes.
During the first quarter of fiscal 1997, the Company expended
$7,386,000 for purchases of property and equipment, including the
purchase of laser systems at an aggregate cost of $3,880,000 from Trex
Medical Corporation, a publicly traded, majority-owned subsidiary of
ThermoTrex Corporation (ThermoTrex). The Company has committed to
purchase additional laser systems at an aggregate cost of $2,522,000.
In September 1996, the Company's Board of Directors authorized the
repurchase by the Company of up to $10,000,000 of Company common stock
through August 28, 1997, in market transactions or pursuant to the
exercise by investors of standardized put options written on the
Company's common stock. During the first quarter of fiscal 1997, the
Company repurchased 137,500 shares of its common stock in market
transactions for $2,179,000. As of December 28, 1996, the Company had
contingent obligations under outstanding put options, which are
exercisable only on April 18, 1997, to repurchase up to 145,800 shares of
its common stock for $2,613,000 (Note 3).
In November 1996, the Company entered into a joint venture agreement
to market its SoftLight system in France, as well as its laser-based
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THERMOLASE CORPORATION
Liquidity and Capital Resources (continued)
skin-rejuvenation process, if and when available. In January 1997, the
Company contributed $1,027,000 to the joint venture, and has committed to
provide up to an additional $4,000,000 to fund its working capital
requirements, in exchange for the Company's 50% stake in the joint
venture.
In January 1997, the Company filed with the Securities and Exchange
Commission a registration statement related to its intention to offer its
shareholders the opportunity to exchange one share of existing Company
common stock and $3.00 for a new unit consisting of one share of Company
common stock and one redemption right. Shareholders would have the option
to deliver shares of Company common stock in lieu of cash to cover the
$3.00 per share amount. The redemption right would entitle the holder to
sell the related share of common stock to the Company for $20.25 during
the first 20 business days after the fourth anniversary of the closing of
the exchange offer. The redemption right would not detach, or trade
separately, from the related share of common stock. The redemption right
would expire and become worthless if the closing price of Company common
stock has been at least $26.00 for 20 of any 30 consecutive trading days
following the expiration of the exchange offer. If more than 2,000,000
shares of Company common stock are tendered in the exchange offer,
acceptances would be reduced pro rata. The Company's obligations under
the redemption rights would be guaranteed on a subordinated basis by
Thermo Electron Corporation (Thermo Electron), the Company's ultimate
parent corporation. The exchange offer would be subject to several
conditions, including the effectiveness of the registration statement,
listing of the new units by the American Stock Exchange, and acceptance
of the offer by the holders of at least 500,000 shares. A registration
statement relating to these securities has been filed with the Securities
and Exchange Commission but has not yet become effective. These
securities may not be sold nor may offers to buy be accepted prior to the
time the registration statement becomes effective. The above description
of the proposed exchange offer shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any state in which such offer, solicitation, or sale would
be unlawful prior to registration or qualification under the securities
laws of any such state. Copies of the prospectus relating to the offering
may be obtained from the Prospectus Department, NatWest Securities
Limited, 175 Water Street, New York, New York, 10038.
In addition to the suburban Minneapolis, Greenwich, Connecticut, and
Manhasset, New York spas that were under construction as of December 28,
1996, the Company has signed leases in Palm Beach, Florida, and Newport
Beach, California, where it plans to open additional Spa Thiras. In
total, the Company plans to open between 10 and 20 spas in various parts
of the United States during fiscal 1997. Depending on the size of the
spa, each facility will require approximately $1,500,000 to $2,500,000
for such items as leasehold improvements and laser systems. In addition,
the Company expects to expend between $6,000,000 and $8,000,000 during
the remainder of fiscal 1997 for equipment related to its SoftLight
licensing programs. Accordingly, the Company's future capital
expenditures will largely be affected by the number of Spa Thira
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THERMOLASE CORPORATION
Liquidity and Capital Resources (continued)
locations that can be developed and the number of doctors engaged in the
licensing program. The Company expects that it will finance its capital
requirements through a combination of internal funds, additional debt or
equity financing, and/or short-term borrowings from ThermoTrex or Thermo
Electron, although it has no agreement with these companies to ensure
that funds will be available on acceptable terms or at all.
PART II - OTHER INFORMATION
Item 6 - Exhibits
See Exhibit Index on the page immediately preceding exhibits.
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THERMOLASE CORPORATION
SIGNATURES
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 as of the 4th day of February
1997.
THERMOLASE CORPORATION
Paul F. Kelleher
--------------------
Paul F. Kelleher
Chief Accounting Officer
John N. Hatsopoulos
--------------------
John N. Hatsopoulos
Vice President and
Chief Financial Officer
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THERMOLASE CORPORATION
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------------------------------------------------------------------------
10.1* Franchise Agreement with the Effective Date of
December 31, 1996 between the Company and Yves Micheli.
27 Financial Data Schedule.
* Confidential treatment requested as to certain portions of the
document, which portions have been omitted and filed separately with
the Securities and Exchange Commission.
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT 10.1
Franchise Agreement
Franchisee Information:
Name: YVES MICHELI ("Franchisee")
Address: Le Crest
1254 Jussy
Switzerland
Telephone No.: ________________
Fax No. ________________
Effective Date:December 31, 1996
Territory: BELGIUM, TUNISIA
BACKGROUND
ThermoLase Corporation ("ThermoLase") has developed certain proprietary
equipment and processes for the removal of unwanted human hair and the
exfoliation or rejuvenation of skin. ThermoLase desires to operate, or
license others to operate, facilities for the utilization of such
equipment and procedures under the name "Spa Thira". ThermoLase is
prepared to appoint Franchisee as the exclusive Spa Thira franchisee in
the territory identified above (the "Territory") on the terms and
conditions set forth below.
AGREEMENT
ThermoLase and Franchisee hereby agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings when
capitalized herein:
1.1 "Business Day" means a day on which banks are open for business
in San Diego, California and in the Territory
1.2 "Facility" means a "Spa Thira" facility which has been
approved by ThermoLase for the practice of the SoftLight Procedures.
1.3 "Improvement" means any improvement, enhancement or
modification to the Technology, whether developed by ThermoLase,
Franchisee or any third party.
1.4 "Licensed Technology" means the inventions claimed in the
Patents, including Improvements, together with any and all know-how,
trade secrets and other information relating to the SoftLight Procedure
and SoftLight Laser, as described in Exhibit A.
1.5 "Patents" means (i) the patents and patent applications listed
on Exhibit A attached hereto, (ii) any subsequent patent application by
ThermoLase having one or more claims covering Improvements, (iii) any
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divisions, reissues, continuations, renewals and extensions of any of
said patents or patent applications, and (iv) any patent issuing upon any
of the foregoing.
1.6 "SoftLight Laser" means a laser designed by ThermoLase for use
with a lotion in the removal of unwanted human hair and the exfoliation
or rejuvenation of skin.
1.7 "SoftLight Lotion" means the lotion approved by ThermoLase for
use in the SoftLight Procedures.
1.8 "SoftLight Marks" means ThermoLase's SoftLight and Spa Thira
service marks and the trade name "ThermoLase".
1.9 "SoftLight Procedures" means the removal of unwanted human hair
and the exfoliation or rejuvenation of skin using one or more SoftLight
Lasers and the SoftLight Lotion.
1.10 "User Manual" means the SoftLight manual provided by ThermoLase
to Franchisee (or to Franchisee's Subfranchisee), setting forth, among
other things, the protocols for the SoftLight Procedures, procedures to
be followed with respect to the use and operation of the SoftLight
Lasers, guidelines for personnel training, operation and maintenance
procedures for a Facility, and procedures for establishing and
maintaining a common "look and feel" between each Facility and other
locations at which ThermoLase permits the operation of SoftLight Lasers
under the name Spa Thira , as such User Manual may be amended by
ThermoLase from time to time. In the event that Franchisee believes that
compliance with any provision of the User Manual would be in violation of
local law, Franchisee may provide ThermoLase with an opinion of local
counsel to such effect and ThermoLase will consider in good faith the
modification of the User Manual applicable to Franchisee to avoid such
violation.
2. GRANT OF FRANCHISE; FACILITIES
2.1 Grant of Franchise. ThermoLase grants to Franchisee an
exclusive license and franchise to practice the SoftLight Procedures in
the Territory at one or more Facilities. Franchisee shall have the right
to appoint one or more subfranchisees (the "Subfranchisees") to practice
the SoftLight Procedures in the Territory at the Facilities pursuant to a
Subfranchise Agreement in a form approved by ThermoLase, provided that
Franchisee shall guaranty and be liable to ThermoLase for any violation
by Subfranchisee of the terms of such Subfranchise Agreement or the terms
of this Agreement applicable to Subfranchisee.
2.2 Facilities. Each Facility established by Franchisee or
Subfranchisee in accordance with this Agreement shall conform to the
designs and specifications of a Spa Thira as determined by ThermoLase in
its sole discretion, and shall contain furnishings and fixtures
appropriate to said standards. Franchisee agrees at all times to
operate and maintain each Facility in accordance with the User Manual or,
in the case of Subfranchisee, to ensure that Subfranchisee complies with
such restrictions. ThermoLase shall have the right to inspect and approve
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each Facility before equipping it with SoftLight Lasers and allowing such
Facility to perform the SoftLight Procedures, and the right to inspect
any and all Facilities at any time during the term of this Agreement to
ensure that they are being operated in accordance with the User Manual
and the designs and specifications established by ThermoLase.
2.3 Procedures. Franchisee acknowledges and understands that the
safety and efficacy of the SoftLight Procedures are dependent upon strict
compliance with the provisions of the User Manual. Franchisee covenants
and agrees to ensure that the SoftLight Procedures are performed in a
safe and appropriate manner by properly trained personnel in full
compliance with the User Manual and all applicable laws, rules, orders,
ordinances and regulations of any governmental or other public authority.
2.4 Client Consents. Franchisee agrees to obtain, directly or
through Subfranchisee, a signed Informed Consent Release, in a form
reasonably satisfactory to ThermoLase, from each client on whom the
SoftLight Procedures are performed. Franchisee will establish and
enforce procedures to ensure that proper and complete confidential
medical records are maintained in the manner required by applicable law
and regulations with respect to all persons on whom the SoftLight
Procedures are performed, and, in the event of Subfranchise, Franchisee
shall inspect and confirm that Subfranchisee complies with this provision
to the extent permitted by local law and professional rules of conduct.
3. LICENSE AND OWNERSHIP OF TECHNOLOGY
3.1 Grant of License: ThermoLase grants to Franchisee, upon the
terms and subject to the conditions set forth in this Agreement, an
exclusive, non-transferable license, under the Patents and all other
ThermoLase intellectual property in the Licensed Technology, to perform
the SoftLight Procedures at Facilities in The Territory in accordance
with the protocols set forth in the User Manual. Franchisee shall have
the right to sublicense the foregoing rights to the Subfranchisee
pursuant to the Subfranchise Agreement.
3.2 Ownership of Licensed Technology. Franchisee acknowledges that
ThermoLase owns all right, title and interest in and to the Patents and
the Licensed Technology, and Franchisee agrees that it will not, at any
time, do or cause to be done any act or thing contesting or in any way
impairing or tending to impair the Patents or Licensed Technology or any
part of such right, title or interest of ThermoLase. Franchisee shall
not in any manner represent that Franchisee has ownership of the Licensed
Technology or Patents, and acknowledges that Franchisee's use of the
Licensed Technology shall not create in Franchisee any right, title or
interest in or to the Licensed Technology, except for the rights granted
to Franchisee by the express terms of this Agreement.
3.3 Franchisee Improvements. Franchisee shall disclose promptly to
ThermoLase any and all Improvements to the Licensed Technology developed
or discovered by Franchisee or Subfranchisee or their officers, employees
or agents. Subject to locally applicable rules or requirements, all such
Improvements shall be the property of ThermoLase, and Franchisee hereby
assigns all right, title and interest in and to such Improvements, and
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all patent, copyright, trademark, trade secret and other intellectual
property rights therein, to ThermoLase, as they are developed. Franchisee
shall, at ThermoLase's request, execute and deliver all certificates,
waivers, applications, assignments and other instruments as ThermoLase
may reasonably request in order to effectuate the assignment of
Improvements to ThermoLase as described above. All employees of
Franchisee shall waive all moral rights with respect to works of
authorship constituting Improvements created by them. To the extent
permitted by local law, Franchisee will enter into, and cause
Subfranchisee to enter into, agreements with its employees to ensure
compliance with the provisions of this Section 3.3. If such assignment
is not possible under local law, the parties shall agree in good faith on
an arrangement to enable ThermoLase to benefit from the full economic and
technical value of such improvements at no cost to ThermoLase.
3.4 ThermoLase Improvements. In the event that ThermoLase develops
or acquires Improvements that it provides to its franchisees generally,
it shall provide such Improvements to Franchisee at its then prevailing
charges. Such Improvements shall be deemed to constitute Licensed
Technology for all purposes hereunder.
3.5 Future Patents. ThermoLase shall have the exclusive right, at
its sole expense, to make all decisions and take all actions relating to
the filing and prosecution of additional patent applications relating to
the Licensed Technology and the Improvements. If Franchisee requests
ThermoLase to pursue particular patent protection in The Territory
relating to the Licensed Technology, then, notwithstanding ThermoLase's
exclusive ownership of such patent, Franchisee shall be responsible for
all costs of preparing, prosecuting and maintaining such patent in The
Territory.
4. SOFTLIGHT EQUIPMENT AND SUPPLIES
4.1 SoftLight Lasers.
a. ThermoLase agrees to rent to Franchisee up to ten (10)
SoftLight Lasers for use in Facilities in the Territory on ThermoLase's
standard rental terms and conditions and at its standard rental rates.
Franchisee acknowledges that ownership of and title to such SoftLight
Lasers shall remain with ThermoLase, and Franchisee shall take no action
adverse to ThermoLase's title to and interest in such SoftLight Lasers.
Franchisee shall not directly or indirectly create or suffer to exist any
mortgage, security interest, attachment, writ or other lien or
encumbrance on the SoftLight Lasers, and will promptly, at its own
expense, discharge any such lien or encumbrance that may arise.
Franchisee agrees, and agrees to cause Subfranchisee, not to remove,
obscure or otherwise alter any labeling present on any SoftLight Laser at
the time of delivery thereof. Franchisee, at its expense, shall take all
steps necessary to record the SoftLight Lasers as owned by ThermoLase, so
as to avoid potential attachment by third party creditors.
b. After Franchisee or Subfranchisee, if designated by
Franchisee, has successfully completed ThermoLase's training course
relating to the performance of the SoftLight Procedures, ThermoLase shall
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use commercially reasonable efforts to complete shipment of the SoftLight
Lasers to a Facility within thirty (30) days after Franchisee's request
for such shipment, provided that Franchisee has completed or, in the
event of subfranchise, supervised, all of the modifications necessary to
the Facility to prepare the Facility as a Spa Thira in accordance with
the specifications established by ThermoLase. Franchisee agrees to pay
all costs and expenses associated with the shipment of such SoftLight
Lasers from ThermoLase to the Facilities, including without limitation
freight, insurance, customs duties and related charges and taxes.
4.2 Installation. As soon as reasonably practicable after delivery
of the SoftLight Lasers, ThermoLase shall install, or cause to be
installed, at no additional charge to Franchisee or Subfranchisee, as the
case may be, the SoftLight Lasers at the Facilities; provided, however,
that ThermoLase shall have no obligation to install the SoftLight Lasers
unless the installation site (i) meets the specifications approved by
ThermoLase, (ii) remains accessible to ThermoLase throughout the period
of installation and (iii) is otherwise safe and appropriate for
installation of the SoftLight Lasers. ThermoLase, or its designated
agent or subcontractor, shall perform all unpacking of the SoftLight
Lasers at the Facility. Upon installation thereof, ThermoLase, or its
designated agent or subcontractor, shall perform ThermoLase's standard
acceptance test procedures to confirm that the SoftLight Lasers operate
in substantial conformance with the applicable specifications.
4.3 Unauthorized Installation, Reinstallation or Relocation. Any
installation or reinstallation of any SoftLight Laser performed by any
person other than ThermoLase, or its designated agent or subcontractor,
without the prior written consent of ThermoLase, shall constitute a
breach of this Agreement by Franchisee. Franchisee shall not relocate,
and shall not permit Subfranchisee to relocate, the SoftLight Lasers
installed in the Facility without the prior written consent of
ThermoLase. Any such relocation consented to by ThermoLase shall be
performed by ThermoLase, or its designated agent or subcontractor.
Franchisee hereby irrevocably releases ThermoLase from all liability for
any and all claims, losses, costs and damages to the extent arising from
or in connection with the unauthorized installation, reinstallation or
relocation of any SoftLight Laser.
4.4 Technical Assistance. During the first year of the term of
this Agreement, ThermoLase shall provide to Franchisee (or to
Subfranchisee, if so designated by Franchisee) up to an aggregate of one
hundred (100) person hours of support and assistance in connection with
the establishment and operation of the Facilities. ThermoLase shall not
charge for such support services, except that Franchisee shall be
responsible for all travel and out of pocket expenses incurred by
ThermoLase and its personnel in providing such services. Any direct
costs and expenses for additional support and assistance shall be borne
by the Franchisee.
4.5 Service and Maintenance.
(a) During the warranty period for each SoftLight Laser,
ThermoLase agrees, provided it is promptly notified of the discovery of
any defect, to repair or replace, at ThermoLase's option, such defective
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SoftLight Laser or any component thereof, so as to cause the same to
operate in substantial conformance with the User Manual when subjected to
normal, proper and intended usage by properly trained personnel, all in
accordance with the Use Manual. Such repair or replacements shall be at
ThermoLase's expense, except that Franchisee shall pay all costs and
expenses associated with the shipment of such SoftLight Lasers, including
without limitation freight, insurance, customs duties and related charges
and taxes. Franchisee agrees to make SoftLight Lasers installed in the
Facility available to ThermoLase for inspection at any reasonable time
and to cooperate reasonably with ThermoLase in the performance of its
obligations hereunder. Because of the importance of safe and effective
operation of the SoftLight Lasers in compliance with applicable laws and
regulations, it is understood and agreed that Franchisee shall not
undertake to provide, or contract with any party other than ThermoLase
(or ThermoLase's designated agent or subcontractor) to provide,
maintenance or other services of any nature with respect to any SoftLight
Laser. ThermoLase shall have the right to subcontract its obligations
under this Section 4.5.
(b) ThermoLase shall not be responsible for costs of service
or maintenance with respect to SoftLight Lasers that is necessitated by
or related to (i) misuse, fault or negligence of or by Franchisee or its
Subfranchisee, agents, employees, representatives or contractors, or (ii)
use of the SoftLight Lasers in an operating environment inconsistent with
the User Manual or in combination with equipment, software or other
products not supplied by ThermoLase.
(c) ThermoLase shall furnish reasonable levels of off-site
telephone support, in the form of consultations, assistance and advice on
the use and maintenance of SoftLight Lasers. As required, in
ThermoLase's discretion, ThermoLase may replace or repair malfunctioning
SoftLight Lasers. Replacement parts may be new or refurbished, at the
election of ThermoLase. If, at any time after arrival at the Facility,
ThermoLase's service representatives are unable to proceed with the
performance of service or maintenance requested hereunder due to delays
caused by Franchisee, its agents, employees, representatives or
contractors, Franchisee shall reimburse ThermoLase upon demand for such
delays at ThermoLase's then prevailing rates.
4.6 Replacement SoftLight Lasers. ThermoLase shall have the right
to substitute modified or replacement versions of the SoftLight Laser for
any SoftLight Laser then installed in a Facility. In such event,
ThermoLase shall arrange for the delivery and installation of a new
SoftLight Laser at, and removal of the replaced SoftLight Laser from, the
Facility at ThermoLase's expense, except that Franchisee shall pay all
costs and expenses associated with the shipment of such SoftLight Lasers,
including without limitation freight, insurance, customs duties and
related charges and taxes.
4.7 SoftLight Lotion. ThermoLase will sell to Franchisee (or to
the Subfranchisee, if designated by Franchisee) SoftLight Lotion for use
in connection with the performance of the SoftLight Procedures under the
terms of this Agreement pursuant to the Supply Agreement. Franchisee
acknowledges and understands that the composition of the SoftLight Lotion
has been carefully developed in order to maximize the safety and
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
effectiveness of the SoftLight Procedures in compliance with applicable
laws and regulations, and Franchisee covenants and agrees not to (i)
modify the same in any manner or (ii) use a SoftLight Laser in the
absence of the SoftLight Lotion or otherwise in conjunction with any
lotion, gel, compound or other substance which has not been approved in
advance and in writing by ThermoLase as complying with applicable laws
and regulations and satisfying ThermoLase's safety and efficacy standards
with respect to the use of SoftLight Lasers. ThermoLase reserves the
right to modify, from time to time during the term of this Agreement, the
SoftLight Lotion supplied to Franchisee (or to Subfranchisee designated
by Franchisee) hereunder.
4.8. Other Supplies. All other supplies required in connection with
the performance of the SoftLight Procedures at the Facilities shall be
provided by Franchisee or Subfranchisee at their sole cost and expense,
including without limitation, smoke evacuator filters, waxing equipment
and supplies, and lotions and cleansers; provided, however, that
ThermoLase reserves the right to inspect such supplies and to impose
minimum standards with respect to such supplies, which ThermoLase
considers, in its reasonable discretion, to be necessary in order to
satisfy ThermoLase's safety and efficacy standards with respect to the
use of SoftLight Lasers.
5. PAYMENT OF FEES AND ROYALTIES
5.1 Fees and Royalties.
(a) In consideration of the rights and licenses granted to
Franchisee pursuant to this Agreement, Franchisee shall pay to
ThermoLase: (i) a one-time, non-refundable fee of One Million United
States Dollars (US$1,000,000), due at the time of execution of this
Agreement, and (ii) percentage royalties as provided in paragraph (b)
below (the "Royalties").
(b) Royalties shall be payable quarterly within 45 days
following the end of each calendar quarter in the amount of ******
*********************************************************************
****************. The Royalty shall be increased by ********************
***************for any Facility in a country in which ThermoLase has
filed a patent application covering the Licensed Technology. Each
payment of Royalties shall be accompanied by a written report, in detail
reasonably satisfactory to ThermoLase, specifying the method of
calculation of the Royalties for the applicable quarter. Any fees or
Royalties that are not paid when due shall bear interest from the due
date until paid at the lesser of (i) the rate of 1.5% per month or (ii)
the maximum rate allowed by applicable law.
(c) It is understood and agreed that Franchisee shall have the
right to determine, in its sole discretion, the fees to be charged by
Franchisee to its clients in connection with the performance of the
SoftLight Procedures, and the sublicense fees to be charged to the
Subfranchisee, if any.
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(d) The Royalties, fees and all other amounts payable pursuant
to this Agreement are exclusive of any and all present and future
federal, national, state, local, municipal and other excise, sales, use,
property, value-added or similar taxes and fees, all of which shall be
paid by Franchisee. Franchisee shall obtain and provide to ThermoLase
any certificate of exemption or similar document required to exempt any
transaction under this Agreement from any such tax or fee.
(e) The Royalties, fees and all other amounts payable pursuant
to this Agreement shall be payable in United States Dollars. To the
extent that revenues generated at a Facility are in a currency other than
United States Dollars, such revenues shall be converted into United
States Dollars, for the purposes of calculating Royalties payable to
ThermoLase hereunder, at the average exchange rate during the relevant
quarter as published in the New York edition of the Wall Street Journal.
5.2 Financial Records. Franchisee shall keep and maintain, or
shall cause its Subfranchisee to keep and maintain, with respect to each
Facility and for a period of not less than five (5) years after the
expiration or earlier termination of this Agreement, complete and
accurate books and records (collectively, the "Financial Records")
covering all financial and other information required in connection with
the determination of the Royalties payable hereunder. Franchisee's
computation of and booking of revenue shall be in accordance with United
States generally accepted accounting principles, consistently applied;
all other books and records of Franchisee must be maintained in
accordance with accounting principles generally accepted in the relevant
jurisdiction of the Territory, consistently applied. Franchisee shall
engage an internationally recognized accounting firm to provide an annual
audit and accounting of the business to ThermoLase.
5.3 Audit Rights. At any time during normal business hours and
upon reasonable notice, ThermoLase, or an independent certified public
accountant designated by ThermoLase, shall have the right, at
ThermoLase's expense, to audit and inspect the Financial Records at the
offices of Franchisee for the purpose of verifying the accuracy thereof
and the payment of Royalties required to be made by Franchisee under the
terms of this Agreement. If, as a result of such audit or inspection,
ThermoLase shall determine that the Royalties paid by Franchisee to
ThermoLase with respect to the period covered by such audit or inspection
are less than the Royalties payable hereunder by Franchisee to ThermoLase
with respect to said period, ThermoLase shall promptly furnish to
Franchisee a copy of such audit or inspection report (the "Deficiency
Report") setting forth the amount of the deficiency (the "Deficiency")
and showing, in reasonable detail, the basis upon which the Deficiency
was determined. Franchisee shall pay to ThermoLase, within thirty (30)
days following receipt of the Deficiency Report a sum equal to the
Deficiency together with interest thereon at the lesser of 1.5% per month
or the maximum rate allowed by applicable law, calculated from the date
when such amount was originally due through the date of payment. If the
Deficiency is an amount equal to or greater than five percent (5%) of the
amounts payable by Franchisee to ThermoLase with respect to the period
covered by such audit or inspection, Franchisee shall promptly reimburse
ThermoLase upon demand for the reasonable cost of such audit or
inspection. ThermoLase shall exercise the same degree of care to
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safeguard the confidentiality of the Financial Records as ThermoLase
would exercise in safeguarding its own similar confidential information;
provided, however, that ThermoLase shall be entitled to use the Financial
Records in any proceeding to enforce its rights pursuant to this
Agreement or as may be otherwise required by law.
6. USE OF SOFTLIGHT AND SPA THIRA SERVICE MARKS
6.1 Promotional Activities.
(a) Franchisee agrees to use its best efforts, to the extent
permitted by applicable law and regulations, or to cause the
Subfranchisee to use its best efforts, to promote the performance of the
SoftLight Procedures at the Facilities. Franchisee shall have the right
(and shall have the right to sublicense Subfranchisee) to use the
SoftLight Marks in connection with promotional activities relating to the
performance of SoftLight Procedures at the Facilities, provided it
obtains ThermoLase's prior written approval and acknowledges ThermoLase's
rights in and to the SoftLight Marks by (i) referring to the same at all
times as service marks of ThermoLase in any signage, advertising, press
release, article, publication or other promotional material, document or
broadcast referencing the SoftLight Marks and by (ii) including the
proprietary marking "SM" after SoftLight and Spa Thira each time they are
used by Franchisee (or Subfranchisee) in any printed or electronic media.
In any and all descriptions of or references to the SoftLight Procedures,
Franchisee and Subfranchisee shall use no descriptive name or mark other
than SoftLightSM, Spa ThiraSM, and "ThermoLase".
(b) ThermoLase shall have the right to review and pre-approve
(or reject) all promotional and advertising materials relating to the
SoftLight Procedures or SoftLight Lasers which are prepared by Franchisee
or its Subfranchisee, consultants, contractors, agents, and which are not
based substantially on materials provided by ThermoLase. Franchisee
shall not include in any such promotional or advertising materials any
claims, facts, data or representations relating to the SoftLight
Procedures or SoftLight Lasers which are not provided in writing by
ThermoLase or approved in writing by ThermoLase.
6.2 Ownership of SoftLight Marks. Franchisee acknowledges that
ThermoLase (i) has the exclusive right, title and interest in and to the
SoftLight Marks and (ii) shall have the exclusive right to apply for
registration, and to extend existing registrations, of the SoftLight
Marks for use in connection with the SoftLight Procedures, the Facilities
or otherwise. Franchisee will not register, or cause or permit to be
registered in the name of any entity other than ThermoLase, the SoftLight
Marks or any trademark, trade name or service mark confusingly similar
thereto, with any federal, national, supra-national, state, municipal or
other governmental authority of any jurisdiction, whether within or
outside the United States or The Territory. Franchisee will not use or
associate the SoftLight Marks with any other trademark, trade name or
service mark in any advertising or publicity utilized by Franchisee in
connection with the SoftLight Procedures, the Facilities or otherwise in
such manner as to be misleading with respect to the ownership of the
SoftLight Marks. Franchisee further agrees not to create a composite
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trademark, trade name or service mark with the SoftLight Marks, except in
each instance with ThermoLase's prior written consent which ThermoLase
acting in its sole discretion may withhold. Franchisee agrees that every
use of the SoftLight Marks shall inure to the ultimate benefit of
ThermoLase. Franchisee shall not remove or obscure or alter in any
manner the SoftLight Marks or any notice thereof, which may be displayed
on the SoftLight Lasers, the SoftLight Lotion, a Facility, the User
Manual or any other documentation provided by ThermoLase hereunder.
6.3 Quality Controls and Assurance.
(a) Franchisee agrees that any services provided by Franchisee
based on performance of the SoftLight Procedures pursuant to this
Agreement shall be of a quality at least equal to the quality of similar
services provided by ThermoLase or its other franchisees at facilities
at which ThermoLase or its other franchisees provide such services.
(b) In addition, in order to comply with ThermoLase's quality
control standards, Franchisee shall: (i) use the SoftLight Marks in
compliance with all relevant laws and regulations; and (ii) accord
ThermoLase the right to inspect during normal business hours, without
prior advance notice, the Facilities in order to confirm that
Franchisee's use of the SoftLight Marks is in compliance with this
Agreement.
(c) Franchisee agrees that its failure to comply with the
quality standards described in this Article 6 shall constitute a material
breach of this Agreement.
6.4 Translation of Documentation. To the extent required by law,
Franchisee shall translate, at its own expense, or cause Subfranchisee to
translate, the User Manual, all technical manuals, advertising and
marketing information and other documentation provided by ThermoLase into
the French language and provide ThermoLase with advance copies of all
such materials for approval; provided, however, that Franchisee shall
take full responsibility for any mistakes or inaccuracies in such
translations. All right, title and interest in and to such translations
shall be owned by ThermoLase, and Franchisee hereby assigns all right,
title and interest in and to such translations, and all copyright,
trademark and other intellectual property rights therein, to ThermoLase,
as they are developed. Franchisee shall, at ThermoLase's request,
execute and deliver all certificates, applications, assignments and other
instruments as ThermoLase may reasonably request in order to effectuate
the assignment of Improvements to ThermoLase as described above. All
employees of Franchisee shall waive all moral rights with respect to
works of authorship in such translations created by them. To the extent
permitted by local law, Franchisee will enter into, and cause
Subfranchisee to enter into, agreements with its employees to ensure
compliance with the provisions of this Section 6.4.
7. TRAINING
7.1 Training Program. Franchisee agrees that all officers,
employees, agents or independent contractors of Franchisee or
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Subfranchisee who will be involved in the performance of the SoftLight
Procedures at a Facility will complete the training program offered by
ThermoLase prior to performing the SoftLight Procedures at a Facility.
Franchisee shall be required to pay the cost of the training course at
ThermoLase's then prevailing standard rates and all related travel and
other expenses associated with its personnel attending the training
course.
7.2 User Manual. ThermoLase agrees to provide to Franchisee, at no
additional charge, one copy of the User Manual for each Facility operated
by Franchisee or its Subfranchisee. Franchisee acknowledges that the User
Manual is copyrighted material of ThermoLase and cannot be reproduced in
whole or in part, except to translate it into French in accordance with
Section 6.4 above. ThermoLase will consider requests for additional
copies of the User Manual.
8. EXCLUSIVITY
Franchisee agrees that, during the term of this Agreement,
Franchisee shall not offer or perform, either directly or indirectly, at
any facility or location any hair removal or exfoliation or skin-
rejuvenation process or offer any similar service other than the
SoftLight Procedures and such other processes and services as may be
expressly permitted by the User Manual.
9. CONFIDENTIALITY
9.1 Franchisee acknowledges and agrees that ThermoLase has
disclosed, and shall continue to disclose, to Franchisee in connection
with the use of the Licensed Technology and performance of this Agreement
certain confidential information of ThermoLase regarding its business
operations, trade secrets, know-how, customer information, pricing,
marketing data and other information of a confidential nature relating to
the Licensed Technology and the SoftLight Procedures, including, without
limitation, the terms of this Agreement (collectively, the "ThermoLase
Confidential Information"). In addition, ThermoLase acknowledges and
agrees that Franchisee may disclose to it during the term of this
Agreement certain confidential information of Franchisee regarding its
business operations, trade secrets, know-how, customer information,
pricing, marketing data and other information of a confidential nature
(the "Franchisee Confidential Information").
9.2 The Confidential Information of each party shall remain the
sole and exclusive property of such party, and the other party shall have
no interest or rights with respect thereto, except to the extent
expressly provided in this Agreement. Each party agrees to maintain the
confidentiality of the Confidential Information of the other party,
provided, however, that Franchisee shall have the right to disclose such
information to its sublicensees who have a need to know such information
and who have agreed in writing to maintain the confidentiality thereof in
a manner no less restrictive than that required under this Agreement.
Notwithstanding the foregoing provisions of this Article 9, the receiving
party shall have the right to disclose any information that it can
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demonstrate (i) was rightfully possessed by the receiving party before it
was received from the disclosing party, (ii) is or becomes public
otherwise than through any act or default of the receiving party, or
(iii) is required by law, court order or stock exchange rule to be
disclosed, provided the receiving party notifies the disclosing party in
writing prior to making any such disclosure so as to afford to ThermoLase
a reasonable opportunity to object or seek an appropriate protective
order with respect to such disclosure.
10. INSURANCE.
10.1 Franchisee shall maintain (or, if all Facilities in The
Territory are operated by Subfranchisee, then Franchisee shall cause
Subfranchisee to maintain) the following policies of insurance in effect
throughout the term of this Agreement and for three years thereafter and
shall provide to ThermoLase certificates of insurance evidencing the
existence of the same upon request by ThermoLase:
(a) Commercial general liability insurance, including the
broad form endorsement, written on an occurrence basis with bodily injury
and property damage limits of not less than One Million United States
Dollars (US$1,000,000) per occurrence and Three Million United States
Dollars (US$3,000,000) annual aggregate, and a deductible not to exceed
Two Thousand Five Hundred United States Dollars (US$2,500); and
(b) Professional liability insurance written on an occurrence
basis with limits of not less than One Million United States Dollars
(US$1,000,000) per occurrence and Three Million United States Dollars
(US$3,000,000) annual aggregate, and a deductible not to exceed Two
Thousand Five Hundred United States Dollars (US$2,500).
Any policy limits and deductibles stated in a currency other than United
States Dollars shall be converted into United States Dollars at the
exchange rate published in the New York edition of The Wall Street
Journal from time to time.
10.2 All insurance required to be carried by Franchisee pursuant to
this Article 10 shall be issued by insurers of recognized responsibility,
licensed to do business in the location in which the Facilities are
located and reasonably acceptable to ThermoLase, and shall include
ThermoLase as an additional named insured. Franchisee agrees that any
insurance policy obtained and maintained in accordance with this Article
10 shall include a provision stating that such policy may not be canceled
without thirty (30) days prior written notice to ThermoLase. Franchisee
shall notify ThermoLase in writing no less than sixty (60) days prior to
the non-renewal or other material change in the provisions of any such
insurance. In the event of such cancellation, ThermoLase shall have the
right to terminate this Agreement effective immediately and without the
requirement of notice to Franchisee.
10.3 In the event that the types of coverage described in this
Article 10 are not available in the Territory or portions thereof, then
Franchisee shall obtain insurance as close as possible to such coverages
and which is acceptable to ThermoLase, in its absolute discretion.
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11. INDEMNIFICATION
11.1 By Franchisee. Subject to the provisions of Article 12 below,
Franchisee shall indemnify, defend and hold harmless ThermoLase, its
parents, subsidiaries and affiliates, and their respective officers,
directors, shareholders and employees, from and against any and all
actions, causes of action, suits, claims, or demands by, or damages,
liabilities, costs and expenses (including without limitation reasonable
attorneys' fees and disbursements and court costs) to, a third party to
the extent arising from or in connection with (i) the negligence
(including without limitation professional malpractice) or willful
misconduct of Franchisee or its Subfranchisee, their agents, employees,
representatives or contractors; (ii) failure of Franchisee or its
Subfranchise to perform the SoftLight Procedures in accordance with the
protocols set forth in the User Manual; (iii) failure to operate and
maintain each Facility in accordance with the User Manual; or (iv) any
employee, agent or representative of Franchisee or its Subfranchisee
under any applicable termination, labor, social security or other similar
laws or regulations.
11.2 Procedures. The indemnified party shall provide prompt written
notice of any third party claim to the indemnifying party. The
indemnifying party shall have the right to assume exclusive control of
the defense of such claim or, at the option of the indemnifying party, to
settle the same provided that no settlement that imposes any obligation
on the indemnified party or affects the indemnified party rights under
this Agreement may be made without the prior written consent of the
indemnified party. The indemnified party agrees to reasonably cooperate
with the indemnifying party in connection with the performance of the
indemnifying party's obligations under this Article. In the event that
the indemnifying party fails to perform its defense obligations
hereunder, the indemnified party shall have the right to do so at the
indemnifying party's expense.
11.3 Enforcement of Intellectual Property Rights. Franchisee shall
promptly advise ThermoLase upon becoming aware of any infringement or
threatened infringement of any of the Licensed Technology or the
SoftLight Marks or any claim that the Licensed Technology or the
SoftLight Marks infringe the intellectual property rights of another
party. ThermoLase, in its sole discretion, shall determine the
appropriate action, if any, to be taken with respect to any such
infringement and shall have the right to exclusive control of any
enforcement suit or proceeding. Franchisee shall cooperate with
ThermoLase with respect to any enforcement, including, without
limitation, joining as a party to any litigation, if required. The costs
and expenses of such action shall be borne solely by Franchisee.
12. LIMITATION OF LIABILITY; REMEDIES
12.1 Consequential Damages. Notwithstanding anything to the
contrary contained in this Agreement, including without limitation the
provisions of Article 11 above, neither party hereto shall be liable to
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the other for any indirect, special, consequential, incidental or
punitive damages (including without limitation damages for loss of use of
facilities or equipment, loss of revenue, loss of profits or loss of
goodwill) regardless of (i) the negligence (either sole or concurrent) of
either party and (ii) whether either party has been informed of the
possibility of such damages.
12.2 No Warranty. THERMOLASE PROVIDES HEREIN NO WARRANTY OF
MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF NON-
INFRINGEMENT, OR AS TO THE RESULTS THAT MAY BE ATTAINED BY THE
PERFORMANCE, PRACTICE OR OPERATION OF THE SOFTLIGHT PROCEDURES, INCLUDING
WITHOUT LIMITATION THE SOFTLIGHT LASERS.
12.3 Aggregate Liability. Notwithstanding anything to the contrary
contained in this Agreement, the aggregate liability of ThermoLase to
Franchisee for any matter arising out of or in connection with this
Agreement or the subject matter hereof (whether directly or indirectly
and whether by reason of breach of contract, tort or otherwise) shall be
limited to a maximum amount equal to the total aggregate fees and
Royalties theretofore paid by Franchisee to ThermoLase hereunder.
ThermoLase shall have no liability whatsoever hereunder to any
Subfranchisee, agent, employee, contractor, consultant or customer of
Franchisee, or any other person or entity other than Franchisee.
12.4 Equitable Relief. Notwithstanding any other provision of this
Agreement to the contrary, due to the fact that the unauthorized use,
transfer or dissemination of the ThermoLase Confidential Information or
the Licensed Technology, or the improper use thereof in violation of the
User Manual and/or applicable law or regulations, would diminish
substantially the value thereof and cause irreparable harm to ThermoLase
which could not be adequately addressed by monetary damages, if
Franchisee breaches any of the provisions of Articles 3, 6 or 9 of this
Agreement, ThermoLase shall be entitled, without limiting its other
rights or remedies, to obtain equitable relief to prevent or restrain
such breach, including without limitation injunctive relief.
13. TERM AND TERMINATION; RESTRICTIVE COVENANT
13.1 Term. The initial term of this Agreement ("Term") shall
commence on the Effective Date and shall continue until December 31,
2012, unless sooner terminated as set forth herein, and shall be
renewable by Franchisee for successive one-year renewal terms upon the
delivery of written notice of renewal to ThermoLase at least sixty (60)
days prior to the end of the initial term or the applicable renewal term,
as the case may be, so long as Franchisee is in full compliance with all
terms and conditions of this Agreement.
13.2 Termination.
(a) This Agreement may be terminated by ThermoLase:
(i) in the event of a breach by Franchisee of any
obligation hereunder that is not cured within thirty (30) days following
written notice thereof; or
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
(ii) in the event of the occurrence of a change in control
of Franchisee which has, or in the reasonable opinion of ThermoLase could
have, a material adverse effect on the business, prospects or operations
of Franchisee and the failure of Franchisee to promptly pursue (within
thirty (30) days after receiving written notice thereof from ThermoLase)
a remedy designed to cure (in the reasonable judgment of ThermoLase)
ThermoLase's objections to such change; or
(iii) immediately, in the event Franchisee contests
the validity of the Patents, the Licensed Technology or the ownership
thereof by ThermoLase; or
(iv) at any time after the *****************************
*********************, upon thirty (30) days' prior written notice to
Franchisee, if (1) Franchisee does not have operating for commercial
service at least ******** Facilities or (2) if Franchisee does not pay
ThermoLase Royalties of at least $*********** during any calendar quarter
ending after the ****************************************.
(b) This Agreement may be terminated without cause by
Franchisee upon one hundred eighty (180) days written notice to
ThermoLase.
13.3 Termination Upon Occurrence of Certain Events. ThermoLase may
terminate this Agreement, effective immediately and without the
requirement of any notice if Franchisee: (i) files for or consents to a
general assignment for the benefit of creditors, (ii) files a petition in
bankruptcy or liquidation, or is adjudicated bankrupt or insolvent or
takes similar actions under the laws of any jurisdiction for the general
benefit of creditors of an insolvent or financially troubled debtor, or
(iii) is the subject of an involuntary bankruptcy or insolvency
proceeding which is not fully dismissed within forty-five (45) days.
13.4 Additional Termination Rights of ThermoLase. This Agreement
may be terminated by ThermoLase, effective immediately upon written
notice to Franchisee, in the event that (i) the marketing clearance
granted to ThermoLase by the U.S. Food and Drug Administration (the
"FDA") or any regulatory authority in the Territory with respect to the
SoftLight Procedures is revoked, rescinded or suspended for any reason,
or any adverse regulatory action is undertaken by the FDA or any
regulatory authority in the Territory with respect to the validity or
scope of such marketing clearance, or (ii) any claim is asserted against
ThermoLase alleging that the Licensed Technology, or any portion thereof,
or the SoftLight Marks are being used by Franchisee in a manner which
infringes a patent or other intellectual property rights owned by a third
party and ThermoLase and Franchisee are unable to agree as to how to
resolve such claim after consulting with each other for a period of not
less than ten (10) Business Days.
13.5 Effect of Termination. Upon expiration or earlier termination
of this Agreement for any reason, all rights and obligations of the
parties under this Agreement shall cease, except that Franchisee shall be
obligated to pay to ThermoLase all outstanding fees and Royalties that
are payable with respect to the period prior to the effective date of
15PAGE
<PAGE>
such expiration or earlier termination. Upon such expiration or earlier
termination, Franchisee shall cease all use of the SoftLight Marks and
the Licensed Technology, and ThermoLase shall have free access to all
User Manuals and any other materials in Franchisee's possession that are
related to the Licensed Technology or the SoftLight Marks. The SoftLight
Lasers shall be returned to ThermoLase free of all liens and encumbrances
and in good working order and repair. Upon the expiration or earlier
termination of this Agreement, Franchisee will be deemed to have
assigned, transferred or conveyed to ThermoLase any and all rights and
goodwill in or to the SoftLight Marks that may have been obtained or
developed by Franchisee, and Franchisee will, without any consideration
other than the mutual covenants and agreements of this Agreement, execute
and deliver such instruments and other documents as may be requested by
ThermoLase to accomplish such assignment, transfer and conveyance, or to
preserve and secure the rights of ThermoLase (or its parents,
subsidiaries or affiliates) in and to the SoftLight Marks. Upon the
expiration or earlier termination of this Agreement, Franchisee shall
immediately remove all signs and other markings from each Facility which
indicate any connection to the SoftLight Procedures, SoftLight Lasers,
the SoftLight Marks or ThermoLase.
13.6 Restrictive Covenant. Franchisee agrees that, in the event
that this Agreement expires or is terminated pursuant to Section 13.2,
13.3, or 13.4 Franchisee shall not, in the Territory, offer or perform,
directly or indirectly, commercial laser, light-source or electrolysis
based hair-removal or skin exfoliation or rejuvenation services for a
period of twenty-four (24) months following the effective date of
expiration or termination.
13.7 No Rights to Compensation Upon Expiration or Termination. In
the event of a termination pursuant to any of the provisions of this
Agreement or upon expiration of this Agreement, ThermoLase shall not have
any obligation to Franchisee or to its Subfranchisee, or to any employee
of Franchisee or Subfranchisee, for compensation or for damages of any
kind, on account of the loss by Franchisee or Subfranchisee or such
employee of present or prospective sales, investments, compensation or
goodwill. Franchisee, for itself and on behalf of each of its employees,
hereby waives any rights which may be granted to it or them under the
laws and regulations of The Territory or otherwise which are not granted
to it or them by this Agreement.
13.8 Survival. Notwithstanding anything to the contrary contained
herein, the provisions of Sections 3.2, 3.3, 5.2, 5.3, 6.2, 9, 10, 11,
12, 13.5, 13.6, 13.7 and 14 of this Agreement shall survive any
expiration or earlier termination of this Agreement according to their
respective terms.
14. MISCELLANEOUS
14.1 Relationship of the Parties. The parties acknowledge that no
relationship of partnership, joint venture or employment is created by
this Agreement and that neither party shall have any right, power or
authority to act for or to bind the other party in any way except to the
extent expressly provided in this Agreement. Without in any way limiting
16PAGE
<PAGE>
the foregoing, Franchisee shall be solely responsible at all times during
the term of this Agreement for all aspects of the professional services
delivered at each Facility and for the selection, training, professional
direction, supervision and employment of all persons, who are licensed,
registered or certified by the jurisdiction in which each Facility is
located to perform such services (collectively, the "Professional
Staff"). No provision of this Agreement is intended, nor shall it be
construed, to permit ThermoLase to affect or influence the professional
judgment of any member of the Professional Staff involved in the
performance of the SoftLight Procedures at a Facility.
14.2 Franchisee Operations. Franchisee shall comply with all
national, supra-national, provincial and local laws, rules, orders,
ordinances and regulations of any governmental or other public authority
applicable to the operation of each Facility, including, without
limitation, the performance of the SoftLight Procedures.
14.3 Notices. Whenever by the terms of this Agreement, notice,
demand or other communication shall or may be given to either party, the
same shall be in writing and, addressed if to Franchisee at the address
set forth at the beginning of this Agreement and if to ThermoLase at
ThermoLase Corporation, 10455 Pacific Center Court, San Diego, CA 92121,
USA, Attn: President; with a copy to General Counsel, Thermo Electron
Corporation, 81 Wyman St., Waltham, MA 02254- 9046 USA, or to such other
address or addresses as shall from time to time be designated by written
notice by either party to the other as herein provided. All notices
shall be sent by registered or certified air mail, postage prepaid and
return receipt requested, or by Federal Express or other comparable
courier providing proof of delivery, and shall be deemed duly given and
received (i) if mailed, on the tenth (10th) Business Day following the
mailing thereof, or (ii) if sent by courier, the date of its receipt (or,
if such day is not a Business Day, the next succeeding Business Day).
14.4 Governing Laws. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
excluding: (i) its conflict of laws principles; (ii) the United Nations
Convention on Contracts for the International Sale of Goods; and (iii)
the 1974 Convention on the Limitation Period in the International Sale of
Goods (the "1974 Convention") and the Protocol amending the 1974
Convention, done at Vienna April 11, 1980. Notwithstanding the
application of the laws of the State of New York, Franchisee agrees that
ThermoLase shall have no obligation to provide Franchisee with any
information or disclosures relating to the Licensed Technology, the
SoftLight Procedures or the operation of a Spa Thira except as set forth
herein and in the User Manual. In particular, Franchisee waives, and
releases ThermoLase from, any obligation to comply with the Disclosure
Requirements and Prohibitions concerning Franchising and Business
Opportunity Ventures of the United States Federal Trade Commission or any
similar provisions existing under the laws of the State of New York.
14.5 Dispute Resolution.
a. Mediation. In the event of any dispute, controversy or
claim arising out of or relating to this Agreement or to a breach hereof,
including its interpretation, performance or termination, the parties
17PAGE
<PAGE>
agree to follow the procedures set forth in this Section 14.5. First,
the parties shall identify in writing the point on which they cannot
agree (the "Disputed Point") and the respective positions of each party
with respect to such point. The parties will refrain from making a
decision on the Disputed Point for a period of up to two weeks. During
such 2-week period, the parties will (i) consult with one another in good
faith with the goal of resolving the Disputed Point, (ii) engage a
mutually acceptable impartial mediator who is fluent in both English and
French (the "Mediator") to assist them in finding a mutually agreeable
solution to the Disputed Point, (iii) study the economic or commercial
bases on which each of the parties has based its position and the issues
raised by each of the parties in respect of the Disputed Point, and (iv)
cooperate with the Mediator in examining alternative solutions to the
Disputed Point. The costs and expenses of the Mediator shall be shared
equally by the parties. The parties will meet at the end of such 2-week
period for the sole purpose of discussing and voting on the Disputed
Point. The Mediator shall conduct the meeting and begin it with a
summary of the situation, the nature of the Disputed Point and any
proposed solutions, while reminding the parties of the consequences of
the continuation of the dispute. The parties will use their good faith
best efforts to agree on a solution prior to or during such meeting.
b. Arbitration. In the event that a Disputed Point cannot be
resolved by the mediation procedure described in Section 14.5(a) above,
then such Disputed Point, shall be finally resolved by arbitration. The
arbitration shall be conducted by one (1) arbitrator fluent in French and
English, with experience in international commercial joint ventures, to
be appointed by the presiding officer of the London Court of
International Arbitration ("LCIA"). The arbitration shall be conducted
in English, under the supervisory authority of the LCIA, and in
accordance with the LCIA arbitration rules. Multiple arbitrations between
the parties and their Affiliates relating to the same transaction or
series of transactions may be aggregated in the same arbitration
proceeding. The arbitration, including the rendering of the award, shall
take place in London, England, and shall be the exclusive forum for
resolving such dispute, controversy or claim. The decision of the
arbitrator shall be binding upon the parties hereto, and the expense of
the arbitration (including without limitation the award of reasonable
attorneys' fees to the prevailing party) shall be paid as the arbitrator
determines. The decision of the arbitrator shall be executory, and
judgment thereon may be entered by any court of competent jurisdiction.
Notwithstanding the foregoing, nothing in this section 14.5(b) shall be
construed as limiting in any way the right of a party to seek injunctive
relief with respect to any actual or threatened breach of this Agreement
from a court of competent jurisdiction.
14.6 Entire Agreement. This Agreement, together with all exhibits
and schedules hereto, constitutes the sole and entire agreement between
ThermoLase and Franchisee with respect to the subject matter hereof,
supersedes all prior agreements between the parties either written or
oral and shall not be supplemented, amended, varied or modified in any
manner except (i) by an instrument in writing signed by duly authorized
representatives of both parties; or (ii) by ThermoLase amending and/or
supplementing the User Manual, as described above. Notwithstanding the
foregoing, the parties do not intend this Agreement to supersede or alter
18PAGE
<PAGE>
the agreements that they may have entered into with respect to activities
outside the Territory.
14.7 Waiver. No delay or omission on the part of either party to
this Agreement in requiring performance by the other party or in
exercising any right hereunder shall operate as a waiver of any provision
hereof or of any right hereunder, and the waiver, omission or delay in
requiring performance or exercising any right hereunder on any one
occasion shall not be construed as a bar to or waiver of such performance
or right on any future occasion.
14.8 Remedies Cumulative. Any and all rights and remedies which
either party may have under this Agreement, at law or in equity, shall be
cumulative and shall not be deemed inconsistent with each other, and any
two or more of all such rights and remedies may be exercised at the same
time insofar as permitted by law.
14.9 Headings. Article and Section headings and the organization of
this Agreement are for descriptive purposes only and shall not control or
alter the meaning of this Agreement.
14.10 Costs. Except as otherwise expressly provided herein,
each party shall bear its own costs and expenses in performing its
obligations under this Agreement. In the event that one party to this
Agreement commences an arbitration or other action against the other
party to this Agreement, the prevailing party shall be entitled to
recover its costs resulting from such arbitration or action from the
non-prevailing party.
14.11 Force Majeure. Neither party shall be deemed to be in
default under this Agreement if prevented from performing any obligation
hereunder (other than a payment obligation) for any reason beyond its
reasonable control, including without limitation Acts of God, war, civil
commotion, fire, flood or casualty, labor difficulties, shortages of or
inability to obtain labor, materials or equipment, governmental
regulations or restrictions, or unusually severe weather. In any such
case, the parties agree to negotiate in good faith with the goal of
preserving this Agreement and the respective rights and obligations of
the parties hereunder, to the extent reasonably practicable. It is
agreed that financial inability shall not be a matter beyond a party's
reasonable control.
14.12 Successors and Assigns. This Agreement is personal to
Franchisee and has been entered into in reliance upon the competence and
skill of Franchisee. Accordingly, except as expressly permitted herein,
Franchisee may not assign this Agreement without the prior written
consent of ThermoLase, which consent may be withheld in ThermoLase's sole
and absolute discretion. ThermoLase may assign this Agreement upon
written notice to Franchisee. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
14.13 Authority. The individuals executing this Agreement
hereby represent and warrant that they are empowered and duly authorized
to so execute this Agreement on behalf of the parties they represent.
19PAGE
<PAGE>
14.14 Severability. If any provision of this Agreement is
declared invalid or unenforceable by a court or other tribunal having
competent jurisdiction, it is mutually agreed that this Agreement shall
endure except for the part declared invalid or unenforceable by order of
such court or tribunal. The parties shall consult and use their best
efforts to agree upon a valid and enforceable provision which shall be a
reasonable substitute for such invalid or unenforceable provision in
light of the intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date first set forth above.
THERMOLASE CORPORATION YVES MICHELI
By: John Hansen Yves Micheli
------------------------- ----------------------------
Name: John C. Hansen Yves Micheli
Title: President and CEO
20PAGE
<PAGE>
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXHIBIT A
Licensed Technology
-------------------
United States Patents
5,226,907 Hair Removal Device and Method
5,425,728 Hair Removal Device and Method
5,423,803 Skin Surface Peeling Process using Laser
United States Patent Applications
********** ******************************
********** ****************************
********** ****************************************************
*************************
********** **********************************
********** ****************************
********** **********************************
********** *******************
European Patent Applications
*********** ********************************************************
*********** *********************************************************
********
Patent Cooperation Treaty ("PCT") Applications
**********************************
*************************************************
Other Patents. As patent applications that cover the Licensed Technology
are filed and issue in the Territory, they shall constitute Patents under
this Agreement.
Other Licensed Technology
ThermoLase's trade secrets and know how relating to the inventions
covered by the above patents, the operation and maintenance of the
SoftLight Lasers and the performance of the SoftLight Procedures, as
described more fully in the User Manual and the training to be provided
by ThermoLase to Franchisee.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THERMOLASE
CORPORATION'S QUARTERLY REPORT ON FORM 10-Q FOR THE PERIOD ENDED DECEMBER 28,
1996 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> SEP-27-1997
<PERIOD-END> DEC-28-1996
<CASH> 22,230
<SECURITIES> 17,173
<RECEIVABLES> 4,684
<ALLOWANCES> 379
<INVENTORY> 4,486
<CURRENT-ASSETS> 52,044
<PP&E> 30,527
<DEPRECIATION> 2,621
<TOTAL-ASSETS> 92,948
<CURRENT-LIABILITIES> 16,586
<BONDS> 0
0
0
<COMMON> 408
<OTHER-SE> 72,577
<TOTAL-LIABILITY-AND-EQUITY> 72,985
<SALES> 6,046
<TOTAL-REVENUES> 8,610
<CGS> 4,015
<TOTAL-COSTS> 6,827
<OTHER-EXPENSES> 909
<LOSS-PROVISION> 60
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (2,724)
<INCOME-TAX> (1,335)
<INCOME-CONTINUING> (1,389)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,389)
<EPS-PRIMARY> (.03)
<EPS-DILUTED> 0
</TABLE>
