FILED: NEW YORK COUNTY CLERK 10/25/ :01 PM INDEX NO /2016 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/25/2017

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Walter Blankenship
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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x XLON BEAUTY, LLC, Index No.: /2016 Plaintiff, Hon. 0. Peter Sherwood - against - Motion Seq. No. 002 DORIS DAY, ORAL ARGUMENT REQUESTED Defendant. AFFIDAVIT OF DORIS DAY, M.D. IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Doris Day, M.D., being duly sworn, deposes and says as follows: 1. I am the defendant in this action and I submit this affidavit in support of my motion for summary judgment dismissing the remaining claims asserted against me in the February 6, 2017 Amended Complaint (the "Amended Complaint") of plaintiff Xlon Beauty, LLC ("Xlon"). x 2. I have reviewed the Amended Complaint, and it is my understanding that Xlon's claims against me are based on two "facts" that Xlon has alleged: that (i) I made an oral promise to Xlon's principals that I would "use my connections" to actively and affirmatively promote Xlon's "anti-aging" product, Cura Perfect; and (ii) that there were "multiple occasions" on which I failed to make myself available for a promotional appearance in response to a properly-noticed request by Xlon. These foundational allegations are outright falsehoods. 1 of 7

2 3. I never promised or represented to Xlon that I would use the connections I have developed throughout my career to benefit or promote Cura Perfect in any way, as reflected by the fact that neither of the two written agreements I entered into with Xlon -- and which Xlon and its counsel drafted -- include any provision obligating me to do so. Indeed, the contracts we entered into, which were styled "Endorsement Agreements," were just that. In exchange for a percentage of Xlon's revenue from sales of the product, I agreed to endorse Cura Perfect by granting Xlon the right to use my likeness and other identifying features in promotional materials for Cura Perfect, and to make myself available -- subject to personal or professional conflicts -- for promotional appearances in response to a properly-noticed request from Xlon. Xlon and I did not enter into "Endorsement and Marketing" or an "Endorsement and Promotion" agreements, as that simply was not the nature of our agreement, as confirmed by the agreements' express provision providing that "Xlon is desirous of acquiring the right and license to utilize [Dr. Day's] name and likeness in connection with the advertisement, promotion, and sale" of Cura Perfect. If Xlon expected that I would do more than endorse Cura Perfect as set forth in the Endorsement Agreements, it should have included such obligations in the contracts that it drafted. 4. It is also a lie for Xlon to suggest that there were "multiple occasions" on which I refused to make myself available following a request from Xlon. As the Court noted at the hearing on my motion to dismiss -- which I attended -- Xlon makes this false, conclusory allegation, yet its own Amended Complaint only sets forth one instance in which it provided me any notice whatsoever concerning a promotional appearance. Like the Court, I am interested to see how Xlon defends making a false allegation that, of course, is unsupported by any evidence. 2 2 of 7

3 5. I am especially shocked and offended that Xlon has alleged I ever received any properly-noticed requests for my appearance. Indeed, it is my understanding that Xlon has admitted that it never, in a single instance provided me the written notice called for by our written contracts. Remarkably, it is my understanding that Xlon has taken the entirely inconsistent position that the notice provision included in our agreements applied only to my termination of our contract, and not to any of Xlon's obligations. THE 3% AGREEMENT. 6. Beginning in or around August 2015, I began negotiating an agreement pursuant to which I would endorse Xlon's "anti-aging" product, Cura Perfect, in exchange for a percentage of the revenues generated by sales of the product. 7. I understand that Jason Weinberg has asserted that, at a meeting that took place on or about August 26, 2015, I represented to Mr. Weinberg and Sy Garfinkle, the owners of Xlon, that I would use the business connections I have developed throughout my career to promote Xlon's "anti-aging" product, Cura Perfect. 8. While I recall attending a meeting with Messrs. Weinberg and Garfinkle around that time to discuss Cura Perfect, I never promised Mr. Weinberg, Mr. Garfinkle, or Xlon that I would use any connections I have -- in the media, the entertainment industry, the cosmetics industry, or otherwise -- to promote Cura Perfect in any way. 9. I never made any promises or representations to Xlon -- beyond that which I agreed to do in the written contracts we entered -- concerning my endorsement or the promotion of Cura Perfect. 10. During the course of my negotiations with Xlon in and around August 2015, Xlon never requested that our agreement include an obligation on my part to use my connections to 3 3 of 7

4 promote or benefit Cura Perfect, and therefore no such provisions were included in the contracts, which were drafted by Xlon or its counsel. 11. On or about September 18, 2015, Xlon and I executed an Endorsement Agreement (the "3% Agreement") pursuant to which I: (i) granted Xlon the right and license to use my likeness and other identifying features in connection with the sale of Cura Perfect; and (ii) agreed to make myself available (subject to personal and professional commitments) for promotional appearances upon receipt of proper written notice from Xlon. In exchange, I was to receive a royalty equal to 3% of Xlon's "Adjusted Gross Revenues" as defined in the 3% Agreement. 12. In order to enter into the 3% Agreement, I terminated a separate endorsement agreement I had with a company associated with supermodel Christie Brinkley. MY EFFORTS TO BENEFIT CURA PERFECT. 13. At Xlon's request, in or around November 2015, I travelled to Florida and filmed an infomercial for Cura Perfect. 14. Following the execution of the 3% Agreement, although I had no contractual obligation to do so, I began undertaking efforts to benefit Cura Perfect. I did so because I believed my efforts could lead to additional sales of Cura Perfect and consequently I would earn more royalties pursuant to the terms of the 3% Agreement. 15. For example, I shared samples of Cura Perfect with the makeup artists for the Dr. Oz and Good Morning America television shows. 16. I began looking for, and suggesting to Xlon, potential models to be used in promotional materials for Cura Perfect. 17. I also shared Cura Perfect with some of my connections in the entertainment and promotional space, including Tory Johnson, who appears weekly on Good Morning America's 4 4 of 7

5 "Deals & Steals," curates deals for The View, and hosts her own show on the Home Shopping Network. 18. I introduced Cura Perfect to Estee Lauder, one of the world's largest cosmetics companies. 19. I also submitted Cura Perfect for consideration in Allure Magazine's "Best of Beauty" awards. 20. I did all of these things -- although I had no obligation to do so under the 3% Agreement or any other agreement, and although I never made any representations or promises to Xlon that I would do so -- in the hopes that I could assist Xlon (which had no experience in the cosmetics industry and was run by individuals whose primary experience was in textiles) in generating sales, and thus receive more royalties. THE 7% AGREEMENT. 21. By the summer of 2016, as a result of numerous concerns I had about Xlon and Cura Perfect, I was considering terminating the 3% Agreement. However, Mr. Garfinkle promised to address my concerns, and Xlon and I entered into a new endorsement agreement in September 2016 (the "7% Agreement" and, together with the 3% Agreement, the "Endorsement Agreements"). 22. The 7% Agreement is identical to the 3% Agreement except that, pursuant to the 7% Agreement, I would receive a royalty equal to 7% of Xlon's "Adjusted Gross Revenues" (as defined in the Endorsement Agreements) as opposed to 3%. 23. I entered into the 7% Agreement because, at the time, I still hoped that Xlon could successfully produce, market, and sell Cura Perfect. Because the 7% Agreement -- like the 3% Agreement -- gave me the right to terminate the contract at any time, I did not see any harm in 5 5 of 7

6 entering into the 7% Agreement, and it offered me the opportunity to earn additional royalties as compared to the 3% Agreement. XLON'S FAILURE TO PERFORM. 24. Xlon never provided me any written royalty statements concerning sales of Cura Perfect. 25. Xlon never paid me any royalties under the Endorsement Agreements, despite the fact that I understand Xlon received some revenues as a result of sales of Cura Perfect. 26. Xlon never provided me with the notice required by the Endorsement Agreements (drafted by Xlon and/or its counsel) -- in writing and mailed to me at 10 East 70th Street, New York, New York, by certified or registered mail, return receipt requested, or delivered by a national overnight express service -- of any photo/video shoots or public appearances that Xlon requested that I make pursuant to the Endorsement Agreements. CONCLUSION 27. As stated in paragraphs 2-4 above, the bases of Xlon's remaining claims against me (and, for that matter, the claims that were dismissed) are simply false. Indeed, Xlon's two foundational allegations -- that I represented to them or promised that I would affirmatively go out and sell Cura Perfect when all I had agreed to do was endorse the product, and that I refused to make myself available on multiple occasions where Xlon requested I do so -- are simply lies, as is clear from the fact that Xlon has no evidence whatsoever to support these allegations. * * * 6 6 of 7

7 Sworn to before me this.,mday of October 2017 Doris Day, M.D.. Coun empires 3jjy w *no 7 7 of 7

FILED: NEW YORK COUNTY CLERK 03/08/ :35 PM INDEX NO /2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/08/2017 EXHIBIT A

FILED: NEW YORK COUNTY CLERK 07:35 PM NYSCEF DOC. NO. 10 RECEIVED NYSCEF: EXHIBIT A (FILED: NEW YORK COUNTY CLERK 02/06/2017 02:23 07:35 PM) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK XLON