EXHIBIT 10.4
FORM OF
AMENDMENT NO. 1 TO
MANUFACTURING AGREEMENT
AMENDMENT NO. 1 TO MANUFACTURING AGREEMENT (this "Amendment") dated as
of June __, 1999, by and between Jafra Cosmetics International, Inc. a Delaware
corporation ("Jafra") and Universal Packaging Systems, Inc., a California
corporation ("Contractor").
W I T N E S S E T H
WHEREAS, Jafra and Contractor are parties to a Manufacturing
Agreement, dated as of June10, 1999, by and between Jafra and Contractor (the
"Manufacturing Agreement");
WHEREAS, the parties desire to amend the Manufacturing Agreement to
provide for certain post-closing matters as set forth below;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the parties
hereto agree to amend the Manufacturing Agreement as follows:
ARTICLE I
AMENDMENTS
1.1 Paragraph 2.11 of the Manufacturing Agreement is hereby deleted in its
entirety, and the following substituted in lieu thereof:
2.11 Decoration.
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(a) Tube Decoration
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(i) Jafra hereby agrees to lease its "tube decorating
machine" and the related change parts to Contractor at a cost of
$*** per year for the duration of this Agreement. Such lease
shall automatically terminate without further action on the part
of any person or entity upon the termination of this Agreement by
either party for any reason.
(ii) Contractor shall decorate those tubes as required by
Jafra using the tube decorating machine leased pursuant to
Section 2.11(a) above. Contractor will charge Jafra a decorating
fee equal to $*** per unit with a loss allowance of
up to ***% of the tubes decorated. At the termination of this
Agreement, Contractor shall return the tube decorating machine to
Jafra (or another entity designated by Jafra) at Jafra's expense.
(b) Jar Decoration
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(i) Jafra hereby agrees to lease one "jar decorating machine" and per
machine, the related change parts to Contractor at a cost of $*** per year,
per machine, for the duration of this Agreement. Such lease shall
automatically terminate without further action on the part of any person or
entity upon the termination of this Agreement by either party for any
reason.
(ii) Contractor shall decorate those jars as required by
Jafra using the jar decorating machine leased pursuant to Section
2.11(b) above. Contractor will charge Jafra a decorating fee
equal to $*** per unit with a loss allowance of up to ***% of the
jars decorated. At the termination of this Agreement, Contractor
shall return the jar decorating machine to Jafra (or another
entity designated by Jafra) at Jafra's expense.
(c) Bottle Decoration
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(i) Jafra hereby agrees to lease two "bottle decorating
machines" and the related change parts to Contractor at a cost of
$*** per year, per machine, for the duration of this Agreement. Such lease
shall automatically terminate without further action on the part of any
person or entity upon the termination of this Agreement by either party for
any reason.
(ii) Contractor shall decorate those bottles as required by
Jafra using the bottle decorating machine leased pursuant to
Section 2.11(c) above. Contractor will charge Jafra a decorating
fee equal to $*** per unit with a loss allowance of up to ***% of
the bottles decorated. At the termination of this Agreement,
Contractor shall return the bottle decorating machine to Jafra
(or another entity designated by Jafra) at Jafra's expense.
1.2 The second to last sentence of Paragraph 11.4(c) of the Manufacturing
Agreement is hereby deleted in its entirety, and the following sentence
substituted in lieu thereof:
In addition, Contractor shall return the tube, jar and bottle decorating
machines to Jafra in accordance with Section 2.11 hereof.
ARTICLE II
MISCELLANEOUS
2.1 Notices. All notices, demands or other communications hereunder shall
be in writing and shall be deemed to have been duly given on the date of
delivery, if delivered in person, and on the date of receipt, if sent by
facsimile transmission (with telephonic and mail confirmation) or by recognized
overnight carrier service (e.g., Federal Express or United Parcel Service), and
three (3) business days after mailing by United States mail, certified or
registered with return receipt requested, addressed to the parties at their
addresses set forth below:
If to Jafra, to:
Jafra Cosmetics International, Inc.
2451 Townsgate Road
Westlake Village, California 91361
Attn: Vice President, Manufacturing
Fax: 805-449-3259
With a copy to:
Office of the General Counsel
Fax: 805-449-3256
If to Contractor, to:
Universal Packaging Systems, Inc.
4575 Danito Court
Chino, California 91710
Attn: Julio Liberal
Fax: 909-590-5869
With a copy to:
Ronald J. Grant, Esq.
Tilles, Webb, Kulla & Grant, ALC
433 North Camden Drive, Suite 1010
Beverly Hills, California 90210
Fax: 310-888-3433
Any party may change its address for notices by giving notice of such change in
accordance with the foregoing procedures. Any notice not sent in accordance
with the foregoing, shall be deemed given on the date of actual receipt.
2.2 Expenses. Each party is responsible for its own expenses hereunder.
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No party may impose any costs or expenses on the other party other than those
explicitly set forth in this Agreement.
2.3 Counterparts. This Amendment may be executed in one or more
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counterparts, all of which taken together constitute one instrument.
2.4 Waiver. The waiver by either party of any provision, nonperformance or
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any breach of any provision of this Amendment will not constitute a waiver of
any subsequent nonperformance or other breach of the same or any other
provision.
2.5 Severability. If any provision of this Amendment is held to be
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ineffective, unenforceable or illegal for any reason, such decision shall not
affect the validity or enforceability of any or all of the remaining portions
hereof.
2.6 Headings. The section headings of this Amendment are for reference
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only and shall not be of any force and effect.
2.7 Facsimile. This Amendment may be executed and delivered by facsimile,
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which the parties agree shall have the same legal effect as if the parties had
delivered copies bearing original signatures.
2.8 Governing Law. This Amendment will be governed by the internal laws
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of the State of California without giving effect to any principles of conflicts
of laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be signed on its behalf by its duly authorized representative as of
the date first written above.
JAFRA COSMETICS INTERNATIONAL, INC.
By:
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Name: Brian Chase
Title: Vice President of Manufacturing
By:_______________________________________
Name:
Title:
UNIVERSAL PACKAGING SYSTEMS, INC.
By:
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Name: Julio Liberal
Title: President
By:
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Name: Mark Tomberlin
Title: Chief Financial Officer