EXHIBIT 10.3
AMENDMENT TO MEDIA SERVICES
AGREEMENT
Amendment, dated as of
September 29, 2008 (this “ Amendment ”), to
the Media Services Agreement, dated as of February 15, 2006
(as amended from time to time, the “ Agreement
”), by and between Alloy, Inc., a Delaware corporation
(“ Alloy ” or “ Agent ”), and
dELiA*s, Inc., a Delaware corporation (“ dELiA*s
”). Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto
in the Agreement.
RECITALS
WHEREAS, Alloy and dELiA*s entered
into the Agreement as of February 15, 2006, as amended from
time to time;
WHEREAS, Alloy and dELiA*s wish to
amend the Agreement to exclude from its coverage, on and after the
date hereof, the CCS Business, including, without limitation, all
CCS Intellectual Property, CCS Media Assets and CCS Websites (as
such terms are defined below).
NOW THEREFORE, in consideration of
the mutual covenants and agreements set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Agent and dELiA*s (each, a “
Party ” and collectively, the “ Parties
”), on behalf of themselves and their Affiliates hereby agree
as follows:
1. Definitions .
(a) Amendments to Definitions
.
(i) The definitions of the following
terms are hereby amended by deleting such definitions in their
entirety and replacing them with the following
definitions:
“ Alloy Business
” means any business operated by Alloy and its Affiliates as
of and subsequent to the Effective Date.
“ Alloy Media Assets
” means any and all assets currently or hereinafter acquired
or operated by Alloy or any of its Affiliates enabling Persons to
reach third parties to promote, market or advertise goods or
services, including without limitation, the Alloy Websites and any
branding, buttons, banners, navigation bars, and other placements
and promotions or similar services and rights executed on,
displayed on or using information derived or obtained from any
Alloy Website; media boards; newspaper placement services; email,
direct and database marketing; content licensing;
database and list rental and
licensing; sampling programs; research; and promotional, sampling
and sponsorship programs; provided, however, that “Alloy
Media Assets” shall not include the CCS Media Assets on and
after the Amendment Effective Time.
“ Alloy Websites
” means any and all public-facing websites currently or
hereinafter owned or operated by Alloy or any of its Affiliates,
including the Alloy Flagship Websites and the Licensed URLs
contained therein; provided, however, that “Alloy
Websites” shall not include the CCS Websites on and after the
Amendment Effective Time.
“ Company ”
means, collectively, dELiA*s and any Affiliate of dELiA*s after
giving effect to the Spinoff; provided, however, that
“Company” shall not include Skate Direct, LLC on and
after the Amendment Effective Time.
“ Company Brands
” means the Company Flagship Brands and any other brand
acquired, launched or operated by Company subsequent to the
Effective Date; provided, however, that “Company
Brands” shall not include the CCS merchandise brand on and
after the Amendment Effective Time.
“ Company Business
” means the merchandising and retail businesses operated by
the Company as of and subsequent to the Effective Date, including,
without limitation, the operation of the Company Websites and the
Company Media Assets; provided, however, that “Company
Business” shall not include the CCS Business on and after the
Amendment Effective Time.
“ Company Catalogs
” means the Company Flagship Catalogs and any catalog or
publication acquired, launched or operated by the Company
subsequent to the Effective Date; provided, however, that
“Company Catalogs” shall not include any catalog
related to the CCS Business on and after the Amendment Effective
Time.
“ Company Flagship
Brands ” means the Alloy and dELiA*s merchandise
brands.
“ Company Flagship
Websites ” means those websites or webpages supporting
the Company Brands except for the Alloy Flagship Websites;
provided, however, that “Company Flagship Websites”
shall not include the CCS Websites on and after the Amendment
Effective Time.
2
“ Company Media Assets
” means any and all assets of the Company currently held or
hereinafter acquired through which Persons connect with or
otherwise reach third parties for the purpose of advertising,
marketing or promoting products or services, including, without
limitation, the Company Websites and any branding, buttons,
banners, navigation bars, and other placements and promotions or
similar services and rights executed on, displayed on or using
information derived or obtained from any Company Website; catalog
print advertisements; catalog insertions; online upsell
arrangements; in store retail promotions; and sample distribution,
but excluding offline upsell arrangements; provided, however, that
“Company Media Assets” shall not include the CCS Media
Assets on and after the Amendment Effective Time.
“ Company Websites
” means the Company Flagship Websites and any website
acquired, operated or maintained subsequent to the Effective Date
by dELiA*s or any Affiliate of dELiA*s; provided, however, that
“Company Websites” shall not include the CCS Websites
on and after the Amendment Effective Time.
“ Data ” means
information that identifies or describes an individual or an
individual’s record of behavior or action, including without
limitation, name, telephone, postal address, phone number, email,
date of birth, gender, and any information listed on the Field
Schedule (as hereinafter defined), but specifically excludes
(i) credit card data, (ii) any of the foregoing
information acquired by a Party in connection with an acquisition
of a company or business division and (iii) any of the
foregoing information gathered in the conduct of the CCS
Business
(b) Additional Definitions .
As used herein, the following terms shall have the following
meanings given to them below, and the Agreement is hereby amended
to include the following additional definitions:
(i) “ Amendment Effective
Time ” means the closing under the Intellectual Property
Purchase Agreement, dated as of September 29, 2008, by and
among Alloy, dELiA*s and Skate Direct, LLC (the “ IP
Agreement ”).
(ii) “ CCS Business
” means the business of marketing and selling apparel,
footwear, skateboard and snowboard products and related accessories
via catalogs and the Internet under the trade name
“CCS”.
(iii) “ CCS Intellectual
Property ” means all Intellectual Property, including,
without limitation, the www.ccs.com domain name, including the
universal resource locator shop.ccs.com, the CCS
trademar
