FIRST AMENDMENT

 

This First Amendment (the “Amendment”) is made and entered into this 1st day of September, 2011, by and among NuGlow Cosmaceuticals, LLC (“NuGlow”), Camden Street Partners, LLC (“Camden”) and Helix BioMedix, Inc. (“HXBM”) and amends (i) that certain Amended and Restated Operating Agreement of NuGlow Cosmaceuticals, LLC dated July 1, 2010 by and among NuGlow, Camden and HXBM (the “LLC Agreement”) and (ii) that certain Supply Agreement dated as of July 1, 2010 by and between NuGlow and HXBM (the “Supply Agreement”).

1.             Amendments to LLC Agreement.

 

(a)           Section 4.2(a) of the LLC Agreement is hereby amended and restated in its entirety as follows:

“(a)        Except as otherwise provided in Sections 4.2(b) through (h), Net Income and Net Loss shall be allocated to the Members as follows:

(A)           For allocations made or related to any period prior to September 1, 2011:

(i)           First, Net Income shall be allocated to offset in reverse order any Net Loss allocated in the current period and in all prior periods that have not previously been offset under this Section 4.2;

(ii)           Next, Net Income shall be allocated 70% to HXBM and 30% to Camden until such time as HXBM has received total cumulative distributions (excluding any Tax Distributions) that equal HXBM’s initial Capital Contribution;

(iii)           Next, Net Income shall be allocated among all Members in proportion to their respective Percentage Interests;

(iv)           In the event of a Net Loss, the Net Loss shall be allocated first as necessary to offset in reverse order any Net Income allocated in the current and all prior periods that have not previously been offset or distributed to the Members;

(v)           Next, any Net Loss shall be allocated among all Members in proportion to their respective Percentage Interests.

(B)           For allocations made or related to any period on or after September 1, 2011:

(i)           First, Net Income shall be allocated to offset in reverse order any Net Loss allocated in the current period and in all prior periods that have not previously been offset under this Section 4.2;

 

 

(ii)           Next, Net Income shall be allocated 30% to HXBM and 70% to Camden until such time as HXBM has received additional total cumulative distributions (excluding any Tax Distributions) that equal $42,000 and Camden has received total cumulative distributions (excluding any Tax Distributions) that equal $98,000;

(iii)           Next, Net Income shall be allocated 70% to HXBM and 30% to Camden until such time as HXBM has received additional total cumulative distributions (excluding any Tax Distributions) that equal HXBM’s initial Capital Contribution;

(iv)           Next, Net Income shall be allocated among all Members in proportion to their respective Percentage Interests;

(v)           In the event of a Net Loss, the Net Loss shall be allocated first as necessary to offset in reverse order any Net Income allocated in the current and all prior periods that have not previously been offset or distributed to the Members;

(vi)           Next, any Net Loss shall be allocated among all Members in proportion to their respective Percentage Interests.”

(b)           Section 4.4(b) of the LLC Agreement is hereby amended and restated in its entirety as follows:

“(b)           For distributions other than those paid under Section 4.4(a) and Tax Distributions, the Manager shall distribute any Distributable Cash to the Members as follows: (A) for distributions made or related to any period prior to September 1, 2011, (i) until such time as HXBM has received total cumulative distributions (excluding any Tax Distributions) that equal HXBM’s initial Capital Contribution, 70% of such Distributable Cash shall be distributed to HXBM and 30% of such Distributable Cash shall be distributed to Camden; and (ii) thereafter, Distributable Cash shall be distributed to the Members in accordance with each Member’s Percentage Interest; and (B) for distributions made or related to any period on or after September 1, 2011, (i) until such time as HXBM has received total cumulative distributions (excluding any Tax Distributions) that equal $42,000 and Camden has received total cumulative distributions (excluding any Tax Distributions) that equal $98,000, 30% of such Distributable Cash shall be distributed to HXBM and 70% of such Distributable Cash shall be distributed to Camden; (ii) until such time as HXBM has received additional total cumulative distributions (excluding any Tax Distributions) that equal HXBM’s initial Capital Contribution, 70% of such Distributable Cash shall be distributed to HXBM and 30% of such Distributable Cash shall be distributed to Camden; and (iii) thereafter, Distributable Cash shall be distributed to the Members in accordance with each Member’s Percentage Interest.”

(c)           Section 10.2(d) of the LLC Agreement is hereby amended and restated in its entirety as follows:

 

 

“(d)           All liquidation proceeds and any other remaining assets of the Company shall be distributed to the Members and Economic Interest Holders as follows: (A) for any such distributions made or related to any period prior to September 1, 2011, (i) first, 100% of such proceeds shall be paid to HXBM until such time as HXBM has received total cumulative distributions (comprising both ordinary and liquidating distributions, but excluding any Tax Distributions) that equal the aggregate of HXBM’s initial and any additional Capital Contributions; (ii) second, to the extent of the positive balance of each Member’s or Economic Interest Holder’s Capital Account, as determined after taking into account all Capital Account adjustments, including, but not limited to, adjustments in connection with the liquidation, until each such Capital Account is reduced to zero; and then (iii) the remainder, if any, in accordance with the Percentage Interest of each Member or Economic Interest Holder, as applicable; and (B) for any such distributions made or related to any period on or after September 1, 2011, (i) 30% of such proceeds shall be paid to HXBM until such time as HXBM has received total cumulative distributions (comprising both ordinary and liquidating distributions, but excluding any Tax Distributions) that equal $42,000 and 70% of such proceeds shall be paid to Camden until such time as Camden has received total cumulative distributions (comprising both ordinary and liquidating distributions, but excluding any Tax Distributions) that equal $98,000; (ii) second, 100% of any remaining proceeds shall be paid to HXBM until such time as HXBM has received additional total cumulative distributions (comprising both ordinary and liquidating distributions, but excluding any Tax Distributions) that equal the aggregate of HXBM’s initial and any additional Capital Contributions (less up to $42,000 paid pursuant to clause (d)(B)(i) above); (iii) third, to the extent of the positive balance of each Member’s or Economic Interest Holder’s Capital Account, as determined after taking into account all Capital Account adjustments, including, but not limited to, adjustments in connection with the liquidation, until each such Capital Account is reduced to zero; and then (iv) the remainder, if any, in accordance with the Percentage Interest of each Member or Economic Interest Holder, as applicable.”

2.             Amendments to Supply Agreement.

(a)           The following is hereby added to the end of Section 2.1 of the Supply Agreement (“Supply and Purchase of Products”):

“Customer acknowledges that while Manufacturer endeavors to deliver the exact quantity of Products ordered, this is not always possible due to custom manufacturing and quality control efforts.  Therefore, notwithstanding anything contained in this Agreement to the contrary, Manufacturer reserves the right, and Customer hereby consents to allow Manufacturer, to ship and subsequently bill or credit Customer’s charge card or account for up to 10% over or under the desired Product quantity, and Customer acknowledges and agrees that some Product orders may be filled in two or more shipments.”

(b)           Section 4.3 of the Supply Agreement is hereby amended and restated in its entirety as follows:

 

 

“4.3           Payments

Except as provided in Section 4.4 below, Customer shall pay to Manufacturer (i) the applicable Product purchase price within sixty (60) days after the order is shipped by Manufacturer and (ii) any of Manufacturer’s charges for artwork setup within thirty (30) days of Customer’s receipt of Manufacturer’s invoice therefor. Any late payments shall bear interest at the rate of 12% per year, or the maximum permitted by applicable law, whichever is less. In addition, any amount under this Agreement not paid within sixty (60) days after due and payable hereunder shall constitute default under the terms of this Agreement.”

3.             Force and Effect.

The remainder of each of the LLC Agreement and the Supply Agreement is not amended hereby and shall remain in full force and effect.  The parties hereby ratify and confirm the terms and conditions of each of the LLC Agreement and the Supply Agreement, as amended by this Amendment.

 

IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their duly authorized representatives as of the date first set forth above.

 

 

NUGLOW COSMACEUTICALS, LLC
By:	/s/ Steven Sheiner
Name:	Steven Sheiner
	Title: Managing Member of Camden Street Partners, LLC, its Manager