Exhibit 10.32
Portions of this Exhibit were omitted and filed separately with the Securities
and Exchange Commission pursuant to a request for confidential treatment. Such
portions are marked by a series of asterisks.
MANUFACTURING AGREEMENT
This Manufacturing Agreement (this "AGREEMENT") is made and entered into on
December 30, 2002, by and between Prestige Brands International, Inc., a
Virginia corporation having a place of business at 00000 Xxxxx Xxx Xxxxx, Xxxxx
000, Xxxxxx Xxxxxxx, Xxxxxxx 00000 ("BUYER"), and Xxxxxx Laboratories, an
Illinois corporation having a place of business at Xxx Xxxxxxx Xxxxxx Xxxx Xxxx,
Xxxxxx Xxxx, Xxxxxxxx, 00000-0000 ("SELLER"). Buyer and Seller each are
sometimes referred to hereinafter as a "Party" and collectively as the
"Parties."
WITNESSETH:
WHEREAS, Buyer and Seller have entered into an Asset Purchase Agreement,
dated as of December 24, 2002 (the "ASSET PURCHASE AGREEMENT") and
WHEREAS, in connection with the transactions contemplated by the Asset
Purchase Agreement, Buyer desires that Seller supply certain products to Buyer,
and Seller is willing to supply such products to Buyer in accordance with this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the promises
herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 DEFINITIONS. Any initially capitalized terms used herein and not
defined herein shall have the meaning set forth in the Asset Purchase Agreement.
The following initially capitalized terms shall have the following meanings when
used herein:
"ACT" shall mean the United States Federal Food, Drug and Cosmetic act of
1938, including any amendments thereto, and all regulations promulgated
thereunder.
"ADR" shall have the meaning set forth in EXHIBIT 7.7 attached hereto.
"AFFILIATE" shall mean (a) any corporation or business entity fifty percent
(50%) or more of the voting stock of which is owned directly or indirectly by
any party hereto; (b) any corporation or business entity that directly or
indirectly owns fifty percent (50%) or more of the voting stock of any party
hereto; or (c) any corporation or business entity under the direct or indirect
control of such corporation or business entity as described in clause (a) or (b)
hereof; provided, however, that with respect to Seller, the term "Affiliate"
shall specifically exclude TAP Holdings Inc., TAP Finance Inc. and TAP
Pharmaceuticals Products Inc.
"AGREEMENT" shall have the meaning set forth in the introductory paragraph.
"ASSET PURCHASE AGREEMENT" shall have the meaning set forth in the recitals
of this Agreement.
"BUSINESS DAY" shall mean any day, other than a Saturday or Sunday, on
which commercial banks are not authorized to close in Chicago, Illinois.
"BUYER" shall have the meaning set forth in the introductory paragraph.
"cGMP" shall mean the quality systems and current good manufacturing
practices set forth in 21 C.F.R. (Parts 210 and 211) and all applicable
directives, Regulatory Requirements (as defined below) and FDA (as defined
below) rules, regulations, guides and guidance, each as amended from time to
time and in effect during the duration of this Agreement.
"CPR" shall have the meaning set forth in EXHIBIT 7.7 attached hereto.
"CONTRACT YEAR" shall mean the twelve (12) month period coinciding with the
calendar year; provided, however, that the first Contract Year of this Agreement
shall mean the period from the Effective Date to December 31, 2002. Thereafter,
each Contract Year shall be from January 1 through December 31 of each calendar
year during the duration of this Agreement.
"DISCRETIONARY CHANGES" shall have the meaning set forth in SECTION 4.3(b).
"EFFECTIVE DATE" shall mean the Closing Date.
"FDA" shall mean the United States Food and Drug Administration or
comparable state or local authority.
"FIRM ORDER" shall mean the monthly requirements of Product for which Buyer
is obligated to purchase and take delivery pursuant to the terms of this
Agreement.
"FORECAST" shall have the meaning set forth in SECTION 2.2(b)(i).
"INITIAL FIRM ORDER" shall have the meaning set forth in SECTION 2.2(a).
"INITIAL FORECAST" shall have the meaning set forth in SECTION 2.2(a).
"INVENTORY" shall have the meaning set forth in SECTION 2.2(f).
"MATERIALS" shall mean all ingredients, packaging supplies, printed
materials and all other components used to manufacture the Products.
"NEW PRODUCTS" shall have the meaning set forth in SECTION 2.3(f).
"PERSON" shall mean any individual, corporation, partnership, joint
venture, limited liability company, trust or unincorporated organization or
government or any agency or political subdivision thereof.
"PARTY" or "PARTIES" shall have the meaning set forth in the introductory
paragraph.
"PPI" shall mean the Producer Price Index, Pharmaceutical Preparation,
Ethical (Prescription), Industry Code 2834 issued by the Bureau of Labor
Statistics, U.S. Department of Labor.
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"PRODUCT(S)" shall mean the products listed in EXHIBITS 1.1, 1.2 and 1.3
attached hereto, which may be amended from time to time by the mutual agreement
of the Parties.
"PRODUCT COMPLAINTS" shall have the meaning set forth in SECTION 3.4(a).
"PRODUCT SPECIFICATIONS" shall mean those product, process, manufacturing
and labeling specifications used by Seller in the production and supply of
Products, including Product formula and materials required for the manufacture
of the Product that is to be purchased and supplied under this Agreement, as
such are in effect as of the Closing Date, which specifications may be amended
from time to time by the written agreement of the Parties.
"PURCHASE ORDER" shall have the meaning set forth in SECTION 2.2(b)(i).
"PURCHASE PRICE" shall have the meaning Set forth in SECTION 2.3(a).
"QUALITY AGREEMENT" shall have the meaning set forth in SECTION 4.2.
"REGISTRATION" shall mean all permits, licenses, registrations, approvals
and authorizations granted by any Regulatory Authority with regard to any
Product.
"REGULATORY AUTHORITY" shall mean any federal, state, local or
international regulatory agency, department, bureau or other governmental
entity, including, without limitation, the FDA, which is responsible for issuing
Registrations necessary for the manufacture, use, storage, import, transport or
sale of Products in a regulatory jurisdiction.
"REGULATORY REQUIREMENTS" shall mean all applicable Registrations and all
other requirements of each applicable Regulatory Authority in relation to the
Products, as in effect from time to time.
"REQUIRED CHANGES" shall have the meaning set forth in SECTION 4.3(a).
"SELLER" shall have the meaning set forth in the introductory paragraph.
"STANDARD FACTORY COST" shall mean the cumulative dollar value of the costs
incurred by Seller with respect to the manufacture of Products hereunder based
upon the Standard Manufacturing Batches and Seller's established and planned
criteria as of the Effective Date, consistently applied, consisting of charges
for Materials and Value Added; provided, however, that notwithstanding anything
in this Agreement to the contrary, (a) with respect to Materials purchased by
Seller from Third Parties, such charges shall consist of the actual
out-of-pocket costs, including, but not limited to, purchase price, set-up and
freight incurred by Seller, provided that freight charges shall be based on
Seller's standard allocation, not actual, and (b) with respect to Materials
produced in-house by Seller, such charges shall consist of the standard costs
incurred by Seller in accordance with Seller's standard internal transfer cost.
Standard Factory Cost shall not include costs associated with any Materials or
Product(s) that do not meet Product Specifications. Standard Factory Costs per
unit of Product shall be as set forth on EXHIBIT 2.3(a) attached hereto.
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"STANDARD MANUFACTURING BATCH" shall mean, with respect to each Product,
the standard planning batch size at the compounding stage, each of which is set
forth on EXHIBIT 2.3(a) attached hereto.
"THIRD PARTY" shall mean any Person other than Seller or Seller's
Affiliates or Buyer or Buyer's Affiliates.
"TRANSFER PLAN" shall have the meaning set forth in SECTION 5.5.
"UNITED STATES" shall mean the United States of America.
"VALUE ADDED" shall mean the cumulative dollar value of the costs incurred
by Seller with respect to the manufacturing of the Products hereunder based upon
Seller's standard established and planned criteria, consistently applied,
consisting of charges for labor (direct and indirect), testing and variable,
activity and capacity overhead.
1.2 CONSTRUCTION.
(a) The language in all parts of this Agreement shall be
construed, in all cases, according to its fair meaning. Seller and Buyer
acknowledge that each Party and its counsel have reviewed and revised this
Agreement and that any rule of construction to the effect that any
ambiguities are to be resolved against the drafting Party shall not be
employed in the interpretation of this Agreement. Whenever used herein, the
words "include," "includes" and "including" shall mean "include, without
limitation," "includes, without limitation" and "including, without
limitation," respectively. The masculine, feminine or neuter gender and the
singular or plural number shall each be deemed to include the others
whenever the context so indicates.
(b) With respect to any particular action, the use of the words
"Seller shall" or "Seller will" herein shall also mean "Seller shall cause"
the particular action to be performed.
(c) Any obligation of Seller under or pursuant to this Agreement
may be satisfied, met or fulfilled, in whole or in part, at Seller's sole
and exclusive option, either by Seller directly or by any Affiliate of
Seller that Seller causes to satisfy, meet or fulfill such obligation, in
whole or in part.
ARTICLE 2- ORDERS, PRICING, PAYMENT AND CONFORMANCE
2.1 PURCHASE AND SALE OF PRODUCT. Pursuant to the terms and conditions
of this Agreement and for the duration of this Agreement, Seller or Seller's
Affiliates shall manufacture, sell and deliver Products to Buyer, and Buyer
shall purchase and take delivery of Products from Seller or Seller's Affiliates.
Seller shall manufacture Products in accordance with: (a) the Product
Specifications; (b) cGMP; and (c) all other applicable Regulatory Requirements.
Seller and its Affiliates may (x) change the location at which they manufacture
Products, the location of their manufacturing plants or the location of the
Manufacturing Assets or (y) sub-contract any manufacturing or assembly
operations hereunder; provided that Seller obtains the prior written approval of
Buyer, which shall not be unreasonably withheld so long as the foregoing will
not
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materially increase Buyer's costs under this Agreement. Seller's and its
Affiliates' right to subcontract under this SECTION 2.1 shall not relieve Seller
of any of its obligations set forth in this Agreement.
2.2 FORECASTS AND ORDERS.
(a) INITIAL FORECAST; INITIAL FIRM ORDER. Buyer's forecast of the
monthly requirements of Product to be manufactured and supplied hereunder
for the first eighteen (18) calendar months of this Agreement is set forth
on EXHIBIT 2.2(a) attached hereto (the "INITIAL FORECAST"). The portion of
the Initial Forecast commencing on the Effective Date and ending on the
last day of the third (3rd) month after the Effective Date shall be deemed
a Firm Order (the "INITIAL FIRM ORDER") for which Buyer is obligated to
order and take delivery of the forecasted Product requirements. The Buyer
shall submit a Purchase Order on the Effective Date for the first month
after the Effective Date, and Buyer shall submit a Purchase Order for the
remainder of the period covered by Initial Firm Order on or before the
fifteenth (15th) Business Day after the Effective Date. The remainder of
the Initial Forecast shall set forth Buyer's best estimate of its Product
production and supply requirements for the remainder of the Forecast
period.
(b) ROLLING FORECAST.
(i) Buyer shall provide Seller with an updated eighteen
(18) month forecast of the Products to be manufactured and supplied
(each a "FORECAST") on or before the fifteenth (15th) calendar day
of each month, and such Forecast shall cover the eighteen (18) month
period beginning on the first day of the following calendar month.
The first two months of each Forecast will restate the balance of
the Firm Order period of the prior Forecast (or Initial Forecast, as
the case may be), and the first three (3) months of the Forecast
shall constitute the new Firm Order period for which Buyer is
obligated to purchase and take delivery of the forecasted Product,
and except for any reasonable increase in supply required due to a
Local Closing having taken place since the previous Forecast, the
supply required for the last month of such new Firm Order period
shall not be more than one (1) full Standard Manufacturing Batch
from the quantity specified for such month in the previous Forecast
(or Initial Forecast, as the ease may be). Except as provided in
SECTION 2.2(a), purchase orders setting forth Buyer's monthly
Product requirements (each a "PURCHASE ORDER") will be issued for
the last month of each Firm Order period no later than the fifteenth
calendar day of the first month of each Firm Order period, and such
Purchase Order will be in agreement with the Firm Order period of
the Forecast. If a Purchase Order for any month is not submitted by
such deadline, Buyer shall be deemed to have submitted a Purchase
Order for such month for the amount of Product set forth in Buyer's
Forecast for such month.
(ii) The remainder of the Forecast shall set forth Buyer's
best estimate of its Product production and supply requirements for
the remainder of the Forecast period. Each portion of such Forecast
that is not deemed to be a Firm Order shall not be deemed to create
a binding obligation on Buyer to purchase and
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take delivery of Products nor a binding obligation of Seller to
deliver Products; provided, however, that Buyer agrees to purchase
any raw material obtained by Seller in contemplation of such
Forecast as set forth in SECTION 2.2(f).
(iii) Forecasts and Purchase Orders shall be in full Standard
Manufacturing Batches. If a Product has multiple SKUs (as set forth
on EXHIBIT 2.3(a)), then the composite of the forecasted SKU must
equate to the Standard Manufacturing Batch. One Purchase Order shall
be issued for each dosage form and strength of each Product for each
month of the Firm Order period, and such Purchase Order shall
contain the information required pursuant to SECTION 2.3(d) herein.
(c) VARIANCE IN PURCHASE ORDER. In the event that a Purchase Order
requires delivery by Seller or Seller's Affiliates of Product in amount
different than the amount set forth in the Forecast for such month, Seller
shall confirm to Buyer its acceptance of the delivery schedule provided for
in such Purchase Order within fifteen (15) calendar days after receipt of
such Purchase Order. In the event that Seller does not agree with the
delivery schedule provided for in such Purchase Order, Seller shall so
notify Buyer within such fifteen (15) day period, and the Parties shall
negotiate in good faith a mutually acceptable delivery schedule for such
Products.
(d) PURCHASE OBLIGATIONS. The Parties agree and acknowledge that
Buyer shall be obligated to purchase, and Seller shall be obligated to
manufacture, those quantities for which it has submitted (or is deemed to
have submitted) a Purchase Order pursuant to SECTIONS 2.2(a) and (b)
(subject to SECTION 2.2(c)) arid shall also purchase the remaining
Inventory, if any, in accordance with SECTION 2.2(f) of this Agreement.
(e) PURCHASE ORDER TERMS. Each Purchase Order or any
acknowledgment thereof, whether printed, stamped, typed or written, shall
be governed by the terms of this Agreement, and none of the provisions of
such Purchase Order or acknowledgment shall be applicable except those
specifying Product and quantity ordered, delivery dates, special shipping
instructions and invoice information. To the extent any conflict may exist
between the terms of any Purchase Order and this Agreement, the terms of
this Agreement shall control.
(f) INVENTORY. In addition to the finished goods inventory that
Buyer has a firm obligation to purchase pursuant to SECTIONS 2.2(a) and (b)
of this Agreement, upon the expiration or termination of this Agreement,
Buyer shall purchase from Seller or Seller's Affiliates, and Seller or
Seller's Affiliates agree to sell to Buyer, all raw material purchased by
Seller or Seller's Affiliates in the normal course of business, consistent
with past practice and pursuant to each Forecast, and all work-in-process
and finished goods inventory manufactured by Seller in the normal course of
business, consistent with past practice and pursuant to each Forecast
("INVENTORY"), remaining in Seller's or Seller's Affiliates' possession.
Such Inventory shall be purchased by Buyer for an amount equal to Seller's
costs for such Inventory, plus 10%, plus any applicable sales, transfer or
similar tax, excise charge or similar charge, with respect to Inventory
located in the United States; provided that such Inventory complies with
the warranties contained in
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SECTION 3.1 (a) hereof. Any Inventory for which legal title cannot be
transferred to Buyer upon the expiration or termination of this Agreement
due to an Impeding Factor (as defined in the Asset Purchase Agreement)
shall remain in the possession of Seller or Seller's Affiliates and shall
be purchased by Buyer from Seller or Seller's Affiliates pursuant to the
terms and conditions of the Asset Purchase Agreement. At the request of
Buyer and in no event later than thirty-five (35) Business Days prior to
the expiration of this Agreement, or immediately upon termination of this
Agreement, Seller shall provide Buyer with a detailed list and description
of the type and amount of Inventory to be purchased pursuant to this
SECTION 2.2(f), and Buyer shall issue a Purchase Order to Seller for such
Inventory within five (5) Business Days of receipt of such notification
from Seller. Payment for such Inventory shall be made by Buyer within
thirty (30) days from receipt by Buyer of such Inventory.
2.3 PRICE; ADJUSTMENT PAYMENT; SHIPMENT.
(a) PURCHASE PRICE. The price for each Product shall be the
Standard Factory Costs per unit set forth in EXHIBIT 2.3(a) attached hereto
expressed in United States dollars, plus 10% (the "PURCHASE PRICE"). The
Purchase Price shall be subject to adjustment as provided in SECTION
2.3(b).
(b) PURCHASE PRICE ADJUSTMENTS. On November 1st of each Contract
Year, Seller may, at its option, adjust the Purchase Price for each Product
to be effective for the following Contract Year to reflect Seller's actual
increases or decreases over the previous year as follows:
(i) Value Added may be adjusted to reflect Seller's actual
increases or decreases in operational costs at Standard Factory
Cost, versus the previous year, subject to a cap based on the most
recent available PPI.
(ii) Materials may be adjusted to reflect Seller's projected
increases or decreases in Standard Factory Cost for the materials
for the coming year. Because this is a projection of anticipated
market prices, if Seller elects to adjust the Purchase Price based
upon changes in the cost of materials, Seller will calculate the
variance between projected and actual purchase price for purchased
materials used in the production of Product at the completion of the
applicable Contract Year and will issue a debit to Buyer (for the
amount by which actual costs of materials exceeded projected cost of
materials) or credit to Buyer (for the amount by which projected
cost of materials exceeded actual costs of materials) within three
(3) months after the end of such Contract Year. Adjustments to the
Purchase Price based upon changes in the costs of materials shall
not be subject to a cap based on PPI.
Seller shall provide Buyer with written notice of any change in the
Purchase Price within ten (10) Business Days after November 1st of each Contract
Year. Within ten (10) Business Days after receipt of any such written notice,
Buyer shall have the right, during normal business hours and at Buyer's expense,
to have an independent certified public accountant, selected by Buyer and
reasonably acceptable to Seller, audit the change in the Purchase Price;
provided,
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however, that such independent certified public accountant executes a customary
confidentiality agreement with Seller with respect to the information received
in connection with such audit. Seller shall, at its expense, reasonably
cooperate with Buyer and the independent auditor with respect to any such audit.
Such independent auditor shall provide its findings to both Parties, at which
point, in the event that Seller and Buyer disagree as to any such Purchase Price
change based upon such independent auditor's report, Seller and Buyer shall
negotiate in good faith to attempt to reach a resolution of such disagreement.
(c) PAYMENT. Seller shall invoice Buyer upon delivery of Products,
and Buyer agrees to pay Seller for Products as set forth above. Buyer shall
make payment thirty (30) calendar days from the date of Seller's invoice
with respect to Product to be sold in the United States and forty-five (45)
calendar days from the date of Seller's invoice with respect to Product to
be sold outside the United States. All payments hereunder shall be made in
U.S. Dollars.
(d) TAXES. Any federal, state, county or municipal sales or use
tax, excise, customs charges, duties or similar charge, or any other tax
assessment (other than any tax levied on net income), license, fee or other
charge lawfully assessed or charged on the sale or transportation of
Product sold to Buyer pursuant to this Agreement shall be separately stated
on the invoice and paid by Buyer.
(e) DELIVERY. Seller or Seller's Affiliates shall deliver Product
to Buyer or Buyer's designee in the continental United States F.O.B.
Seller's (or subcontractor's) manufacturing plant, and Buyer shall be
responsible for clearing Products for export from the United States or
import into any other country or territory. Seller will not ship Product,
at Buyer's cost or otherwise, outside the continental United States. Seller
will select the carrier unless Buyer specifies otherwise.
(f) NEW PRODUCTS. Buyer shall notify Seller if Buyer desires
Seller to manufacture any additional product strengths and/or "Put-Ups" of
the Products that Seller does not manufacture (collectively, "NEW
PRODUCTS"). The Parties shall negotiate in good faith to determine whether
Seller shall develop such New Products for Buyer. If the Parties agree upon
a development plan, this Agreement and EXHIBIT 2.3(a) attached hereto shall
then be amended to include such New Products. Seller shall be reimbursed
for all direct and actual out-of-pocket development costs in accordance
with the rates set forth on EXHIBIT 2.3(a), as amended, plus 10%. Pricing
for any New Products shall be Seller's Standard Factory Cost per unit, plus
10% and may be adjusted annually in accordance with SECTION 2.3(b).
(g) RELEASE OF PRODUCT. Buyer is responsible for release of
Product to the market place.
2.4 REPLACEMENT OF NONCONFORMING SHIPMENT. Buyer shall have a period of
fifteen (15) Business Days from the date of its receipt of a shipment of Product
to inspect and reject such shipment for non-conformance with the Product
Specifications based on the outward appearance of such shipment or any other
non-conformance determined by Buyer's normal incoming-goods inspections
procedures. If Buyer rejects such shipment, it shall promptly so
8
notify Seller and provide to Seller samples of such shipment for testing. if
Seller determines that such shipment did conform to the Product Specifications,
the Parties shall, if agreed to be relevant, submit samples of such shipment to
a mutually acceptable independent laboratory for testing. If such independent
laboratory determines that the shipment conformed to the Product Specifications,
Buyer shall bear all expenses of shipping and testing such shipment samples and
shall be obligated to accept and pay for such shipment. If Seller or such
independent laboratory confirms that such shipment did not meet the Product
Specifications, Seller shall replace, at no cost to Buyer, that portion of the
Product shipment that does not conform to the Product Specifications, and shall
bear all expenses of shipping and testing the shipment samples, including any
costs incurred by Buyer in returning such Product to Seller or its nominee. Any
non-conforming portion of any shipment shall be disposed of as directed by
Seller, at Seller's expense. Any Product that Buyer does not reject pursuant to
this SECTION 2.4 shall be deemed accepted, and all claims with respect to
Product not conforming with Product Specifications shall be deemed fully waived
and released by Buyer, except as to defects that are not reasonably discovered
or detected by the inspection required under Buyer's normal incoming-goods
inspection procedures. Notwithstanding the foregoing, this SECTION 2.4 shall not
limit any liability of Seller under SECTION 3.1(c).
ARTICLE 3- WARRANTIES, COVENANTS AND INDEMNIFICATION
3.1 GENERAL WARRANTY AND INDEMNIFICATION.
(a) Seller warrants that Product that Seller delivers to Buyer
pursuant to this Agreement shall be manufactured in accordance with cGMP,
the Act and all other Regulatory Requirements and Product Specifications,
and, at the time of delivery shall (i) be free from defects in materials
and workmanship, (ii) not be adulterated or misbranded within the meaning
of any applicable rules and regulations of any Regulatory Requirements,
(iii) be free and clear of all liens and encumbrances other than liens and
encumbrances that are the result of actions taken by Buyer and (iv) meet
the standards set forth in SECTION 3.5(a) of the Asset Purchase Agreement
(except that the quantity of Products delivered pursuant to Buyer's
Purchase Orders shall not be required to be saleable in a manner consistent
with Seller's past practices). Seller further warrants that Product that
Seller delivers to Buyer pursuant to this Agreement shall be manufactured
in compliance with all applicable statutes, laws, rules or regulations or
any other applicable Regulatory Authority. EXCEPT AS EXPRESSLY STATED IN
THIS SECTION 3.1, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO THE
MERCHANTABILITY OF THE PRODUCT OR AS TO ITS FITNESS FOR A PARTICULAR
PURPOSE AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, PURSUANT TO
APPLICABLE LAW.
(b) In the event that any Product is quarantined or recalled, or
is subject to stop-sale action, whether voluntary or by governmental
action, it is agreed and understood that any expenses, including reasonable
fees of any experts or attorneys that may be used by either Party,
government fines or penalties, related to such recall, quarantine or
stop-sale, shall be borne by Buyer, unless it is determined that Seller has
breached its obligations under this Agreement and such breach is a material
basis upon which said recall, quarantine or stop-sale was initiated, in
which case such expenses shall
9
be shared according to the relative responsibility of each Party. Said
determination of any recall, quarantine or stop-sale action may be made by
the governmental agency involved, or by mutual agreement of the Parties
following examination and review of all records pertinent to the
manufacture of the Product subject to such recall.
(c) Seller agrees to defend, indemnify and hold Buyer and its
Affiliates harmless from and against any losses, liabilities, costs or
expenses (including reasonable attorney's fees) resulting from a breach by
Seller of any of its agreements, covenants or obligations contained in or
made pursuant to this Agreement. Such indemnification shall include
liability for consequential, incidental, indirect or punitive damages to
the extent Buyer or its Affiliates are required to pay such amount to a
Third Party in respect of a final, non-appealable judgment or order
obtained by such Third Party. Except as expressly provided in the preceding
sentence, there shall be no indemnification by Seller for any
consequential, incidental, indirect or punitive damages, including damages
from loss of profits, loss of use or loss of goodwill.
(d) Buyer agrees to defend, indemnify and hold Seller and its
Affiliates harmless from and against any losses, liabilities, costs or
expenses (including reasonable attorney's fees) resulting from a breach by
Buyer of any of its agreements, covenants or obligations contained in or
made pursuant to this Agreement. Such indemnification shall include
liability for consequential, incidental, indirect or punitive damages to
the extent Seller or its Affiliates are required to pay such amount to a
Third Party in respect of a final, non-appealable judgment or order
obtained by such Third Party. Except as expressly provided in the preceding
sentence, there shall be no indemnification by Buyer for any consequential,
incidental, indirect or punitive damages, including damages from loss of
profits, loss of use or loss of goodwill.
(e) Any Party submitting a claim for indemnification under this
Agreement shall be subject to the procedural requirements set forth in
SECTION 9.2(c) of the Asset Purchase Agreement.
3.2 MANUFACTURING OF THE PRODUCTS.
(a) Seller or its Affiliates shall use commercially reasonable
efforts to manufacture Products at the same level of quality as the
Products were manufactured immediately prior to the Effective Date.
(b) Seller or its Affiliates shall manufacture and deliver (or
cause to be manufactured and delivered) the Products to Buyer at all times
in full compliance with cGMP, the Act and any other applicable Regulatory
Requirements and Product Specifications. Seller or its Affiliates shall
maintain all records as are necessary and appropriate to demonstrate
compliance with cGMP, the Act and any other applicable quality control
standards of any Regulatory Authority and Product Specifications.
(c) Buyer shall have the right during the duration of this
Agreement, at its sole expense, (1) on reasonable advance notice and during
Seller's normal business hours, to inspect the facilities and operations of
Seller's, its Affiliates' and their subcontractors,
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from time to time as may be reasonable and (ii) not more than once per yeas
unless reasonable cause is shown, to audit the facilities and operations of
Seller's, its Affiliates' and their subcontractors to confirm compliance
with the covenants contained in this Agreement. Buyer also shall have the
right to reasonable access to the facilities at which Products are
manufactured, from time to time during the duration of this Agreement, at
Buyer's sole expense, on reasonable advance notice and during Seller's
normal business hours, for the purpose of providing Buyer with information
reasonably necessary to facilitate the transition of manufacturing Products
from Seller to Buyer.
(d) Seller or its Affiliates shall provide all raw materials,
components, packaging, containers, labeling, release testing, quality
control, equipment (other than the Manufacturing Assets), labor and other
services and materials necessary for the manufacture of Products, as part
of the price therefor. Notwithstanding the foregoing, Buyer may, upon such
terms as agreed to between the Parties, provide to Seller or its Affiliates
the raw materials necessary for the manufacture of the Products, and in
such case, Buyer (i) will be responsible for vendor approvals, (ii) will
provide documentation of such approvals to Seller prior to requiring Seller
to receive such raw materials and (iii) will re-certify the approval status
to Seller on an annual basis. Any such materials provided by Buyer and not
used by the termination of this Agreement shall be purchased by Buyer
pursuant to SECTION 2.2(f) without regard to whether such materials
represent an amount used in the normal course of business, consistent with
past practice and pursuant to Buyer's Forecast. Buyer shall provide, at no
cost or expense to Seller, the Manufacturing Assets, which assets shall
remain at Seller's or its Affiliates' facilities free of charge until the
expiration of this Agreement. Seller agrees that from the Closing Date
until Buyer acquires physical possession of the Manufacturing Assets (or
otherwise directs the disposition of such assets pursuant to the Transfer
Plan), (i) Seller and its Affiliate shall cooperate with Buyer to maintain
the Manufacturing Assets in a manner that is substantially similar to
Seller's maintenance of such assets immediately prior to the Closing Date
and (ii) subject to the following provisions of this SECTION 3.2(d), Seller
shall perform all necessary repairs, maintenance and replacement of the
Manufacturing Assets such that Seller's and its Affiliates can manufacture
the Products in accordance with the standards set forth in this Agreement.
All routine repairs and preventative maintenance shall be at Seller's sole
cost and expense. Major repairs and any replacement of the Manufacturing
Assets shall be at Buyer's sole cost and expense, and Seller shall obtain
Buyer's prior written consent before incurring such expenses; provided,
however, that if Buyer fails to consent to any necessary major repairs or
replacements of the Manufacturing Assets, Seller shall be under no further
obligation to manufacture Products. Any Manufacturing Assets replaced by
Buyer pursuant to this SECTION 3.2(d) shall be deemed to be removed from
EXHIBIT 5.5 of this Agreement and SCHEDULE 2.1(a) of the Asset Purchase
Agreement, and such replacement equipment shall be provided by Buyer to
Seller at no cost or expense to Seller and shall remain at Seller's or its
Affiliates' facilities free of charge until the expiration of this
Agreement.
(e) Seller shall be responsible for any transfer of the
Manufacturing Assets among Seller's or its Affiliates' facilities,
including any damage to the Manufacturing Assets caused by any such change
in location. Seller shall use commercially reasonable
11
efforts to ensure reasonable Product consistency after a change in the
location at which Products are manufactured.
(f) Except as set forth in the Asset Purchase Agreement and as to
currently existing Product inventory packaged and labeled by Seller or its
Affiliates with their own trademarks, trade names, service marks and
existing Product Registrations, Buyer shall, in a manner consistent with
Buyer's Forecasts, promptly supply Seller with approved artwork to comply
with required copy changes. Buyer shall be solely responsible for any costs
incurred by Buyer related to providing these items to Seller, as well as
any reasonable incremental direct out-of-pocket costs of Seller related to
incorporating these items into the manufacturing process that are above
Seller's cost of packaging and labeling Product inventory with its own
trademarks, trade names, service marks and existing Product Registrations.
Seller shall invoice Buyer separately for any such costs and expenses.
Buyer and Seller shall meet promptly after the Effective Date to outline a
plan to convert trade dress for Products to Buyer trade dress. All
production of Products initiated after the twelve (12) month anniversary of
the Effective Date shall be in Buyer's trade dress.
3.3 REGULATORY MATTERS.
(a) Seller shall use its commercially reasonable efforts to
maintain all Registrations that may be necessary to manufacture and ship
the Products to Buyer. Seller agrees that Buyer may continue to use
Seller's UPC Codes for the Products for a period of twelve (12) months
following the Effective Date and thereafter for as long as reasonably
necessary for Buyer to sell all Products and related components existing on
the twelve (12) month anniversary of the Effective Time.
(b) To the extent that either Party requires the reasonable
assistance of the other Party in order to fulfill its obligations pursuant
to this SECTION 3.3, such other Party agrees to fully cooperate.
(c) Except as otherwise provided herein, during the duration of
this Agreement, pending transfer of any Registration, Seller will be
responsible for any reporting of matters regarding the manufacture of
Products to any applicable Regulatory Authorities in accordance with
pertinent laws and regulations. Following transfer of any Registrations,
such responsibility shall be the Buyer's. Seller shall furnish copies of
any reports related to the manufacture of the Products to Buyer. Seller
shall also advise Buyer of any occurrences or information arising out of
Seller's manufacturing activities that have or could reasonably be expected
to have adverse regulatory compliance and/or reporting consequences
concerning Products.
(d) Except as otherwise provided herein, Seller shall be
responsible for handling and responding to any FDA or other Regulatory
Authority inspections with respect to Seller's manufacture of the Products
during the duration of this Agreement. Seller shall provide to Buyer any
information reasonably requested by Buyer and all information requested by
any Regulatory Authority concerning any governmental inspection related to
the Products. To the extent Seller requires the assistance of Buyer in
12
order to fulfill its obligations pursuant to this SECTION 3.3(d), Buyer
agrees to fully cooperate and assist Seller, at Buyer's sole expense.
(e) In the event Seller is inspected by any Regulatory Authority,
Seller shall promptly notify Buyer of any material written alleged
violations or deficiencies relating to the manufacture of the Products.
(f) Except as provided in the Asset Purchase Agreement or any
Other Agreement, Seller has granted no license, express or implied, to
Buyer to use Seller's proprietary technology, know-how or rights relating
to Seller's manufacturing process, other than for purposes of this
Agreement. If Seller, in its sole discretion, deems patentable any
improvement or invention relating to Seller's proprietary technology,
know-how or rights relating to Seller's manufacturing processes made or
reduced to practice in the course of this Agreement, and if such
improvement or invention relates to the Seller's manufacturing operations
in general, Seller shall solely own and shall be entitled to apply for
patent protection on such improvements or inventions at Seller's expense
and risk. if such improvement or invention relates exclusively to the
Products or the manufacture thereof, Buyer shall be entitled to all such
rights relating thereto, and Seller shall assign (free of charge) such
rights to Buyer and assist Buyer in securing any patent or other
intellectual property right relating thereto at Buyer's sole expense.
(g) Buyer has granted no license, express or implied, to Seller to
use Buyer's proprietary technology, know-how or rights relating to
Products, other than for purposes of this Agreement. If Buyer, in its sole
discretion, deems patentable any improvement or invention related to
Products or to Buyer's proprietary technology, know-how or rights relating
to Products, then Buyer shall solely own and shall be entitled to apply for
patent protection on such improvements or inventions at Buyer's sole
expense and risk.
3.4 COMPLAINTS AND RECALLS.
(a) Product complaint reports concerning manufacture of Products
("PRODUCT COMPLAINTS") received by either Party will be faxed as quickly as
possible and in no event later than five (5) Business Days after receipt by
the recipient to the other Party to:
Xxxxxx Laboratories
0000 Xxxxxxxx Xxxx
X-00X, Xxxx. XX
Xxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Quality Assurance Department
Facsimile Number: (000) 000-0000
and
Prestige Brands International, Inc.
00000 Xxxxx Xxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
13
Attn: Xxxx Xxxxxxxxx, Vice President - Scientific Affairs
Facsimile Number: (000) 000-0000
(b) The Parties will cooperate to investigate all Product
Complaints and to complete a written report in a form reasonably
satisfactory to both Parties. Buyer will investigate all other complaints
associated with Products and provide a written report to Seller. Buyer also
will provide a written response on each Product Complaint to each
complainant with a simultaneous copy to Seller. In the event either Party
should be required to initiate a recall, field alert, Product withdrawal or
field correction pursuant to any Product provided under this Agreement,
that Party shall immediately notify the other Party in writing. Except
where one Party is required by law to do so, no such recall or field
correction shall be made without the other Party's prior express written
consent, such consent not to be withheld unreasonably.
3.5 INSURANCE. Each of Buyer and Seller shall obtain and keep in full
force during the term of this Agreement insurance policies from a reputable
insurance company or pursuant to its self-insurance program providing such Party
with insurance coverage for the Product Line that is not less than $2,000,000
per occurrence.
3.6 EXCLUSIVITY. This Agreement represents an exclusive arrangement
between Buyer and Seller. Seller may not supply Products to any other parties
other than Buyer or such party as may be designated by Buyer.
ARTICLE 4 - MANUFACTURING OF THE PRODUCTS
4.1 EXCEPTION DOCUMENTATION, CERTIFICATES OF ANALYSIS AND BATCH RECORDS.
(a) EXCEPTIONS. Buyer shall be required to review and approve or
reject all exception documentation associated with the manufacture of
Product in accordance with procedures stated in the Quality Agreement.
Seller shall make available to Buyer any and all data supporting the
investigation of such exception, including, but not limited to, the batch
records.
(b) CERTIFICATE OF ANALYSIS. Seller shall provide a certificate of
analysis and other documents as defined in the Quality Agreement for any
Product to be released hereunder, in a form in accordance with the cGMPs
and all other applicable Regulatory Requirements and Product
Specifications. For any batch that initially failed to meet any Product
Specification, the certificate of analysis shall document the exception.
(c) ACCESS TO BATCH DOCUMENTATION; ANNUAL AUDIT. Full batch
documentation including batch production records, and manufacturing and
analytical procedures shall be available for review by Buyer in conjunction
with any annual audit made by Buyer pursuant to SECTION 3.2(c) of this
Agreement.
4.2 QUALITY AGREEMENT. Within ninety (90) days following the Effective
Date, the Parties shall negotiate in good faith to agree upon an intercompany
quality agreement which will appropriately address regulatory, operational and
quality responsibilities (the "QUALITY AGREEMENT").
14
4.3 MANUFACTURING AND PACKAGING CHANGES.
(a) REQUIRED CHANGES. With respect to changes to the Product
Specifications or manufacturing relating to the Products that are required
by laws and other Regulatory Requirements (including, without limitation,
cGMP), or by medical or scientific concerns as to the toxicity, safety
and/or efficacy of the Products (collectively, "REQUIRED CHANGES"), the
Parties shall cooperate in making such Required Changes promptly, and
Seller shall promptly provide written notice for each such Required Change
to Buyer.
(b) DISCRETIONARY CHANGES. Seller shall consider in good faith any
request by Buyer to make changes to the Product Specifications or
manufacturing that are not Required Changes, including, but not limited to,
changes to the existing Product, Product line extensions or changes to the
existing or additional packaging (collectively, "DISCRETIONARY CHANGES").
Any analytical improvements shall be considered Discretionary Changes
unless requested or required by Regulatory Authorities in which case such
improvements shall be considered a Required Change. Any change requested by
Seller that is not a Required Change shall be considered a Discretionary
Change and shall be made only with the written consent of the Buyer, such
consent not to be unreasonably withheld.
(c) COSTS OF CHANGES. Any and all costs associated with (i)
Required Changes or (ii) Discretionary Changes initiated by the Buyer shall
be borne by the Buyer. The Parties shall negotiate in good faith to reach
an agreement on the responsibility for funding any Discretionary Changes
initiated by Seller. Notwithstanding the foregoing, any Required Changes
during the first three (3) months after the Effective Date that are
required in order to comply with laws and other Regulatory Requirements in
effect as of the Effective Date shall be at Seller's sole cost and expense.
4.4 STABILITY. During the term of this Agreement, Seller shall conduct
the commercial stability program and annual Product review pursuant to
Regulatory Requirements applicable as of the Effective Date at no separate
charge. Should additional stability studies be required, the Parties shall
negotiate in good faith to agree upon the protocol and associated charges (which
shall be paid by Buyer) in connection therewith, based on the then current
charge rates for staff services, with invoicing for such additional services to
occur when the lot is placed on stability.
4.5 FILE SAMPLES. Seller shall retain a representative sample or samples
and associated documentation from each manufacturer's lot of key ingredients
used in the manufacture of Products for the period required by the applicable
FDA regulations.
ARTICLE 5 - TERM AND TERMINATION
5.1 TERM. This Agreement shall have a term beginning on the Effective
Date and ending on December 31, 2005. Notwithstanding the foregoing, Buyer may
terminate this Agreement by providing Seller with not less than twelve (12)
months prior written notice; provided, however, that such termination cannot
occur prior to December 31, 2004. This Agreement may be extended for an
additional twelve (12) months if agreed to in writing by both Parties no later
than one (1) year prior to termination.
15
5.2 MATERIAL BREACH. Either Party may terminate this Agreement upon
forty-five (45) calendar day's prior written notice in accordance with SECTION
7.10 to the other Party if the other Party is in material breach of any
provision of this Agreement and fails to cure that breach within such forty-five
(45) day period.
5.3 INSOLVENCY. This Agreement shall automatically terminate if at any
time (a) either Party shall file in any court pursuant to any statute of any
government in any country a petition in bankruptcy or insolvency or for
reorganization or for an arrangement or for the appointment of a receiver or
trustee of such Party or of its assets; (b) any Third Party proposes a written
agreement of composition for extension of a Party's debts; (c) either Party
shall be served with an involuntary petition against it, filed in any insolvency
proceeding, and such petition shall not be dismissed within sixty (60) days
after filing thereof; (d) either Party shall be a party to any dissolution or
liquidation; (e) either Party shall make a general assignment for the benefit of
its creditors; or (f) either Party shall be subject to any final order of
debarment that can be expected to have a material adverse effect on the sales of
Products.
5.4 EFFECT OF TERMINATION. Termination of this Agreement shall not
affect any obligations of either Party incurred prior to its termination,
including, without limitation, each Party's obligations with respect to Firm
Orders or other binding Purchase Orders that have been submitted or deemed to be
submitted pursuant to ARTICLE 2 hereof.
5.5 TRANSFER OF ASSETS. Upon Buyer's identification of a new
manufacturing site, and in any event no later than six (6) months prior to the
termination of this Agreement, the Parties shall meet and agree upon a plan to
transfer possession of the Manufacturing Assets listed on EXHIBIT 5.5 attached
hereto from Seller or Seller's Affiliates to Buyer or Buyer's Affiliate (the
"TRANSFER PLAN"). The Transfer Plan shall be put into writing and attached
hereto as an exhibit to this Agreement and shall specify the location to which
the Manufacturing Assets (or any replacement equipment) shall be transferred and
shall specify which Manufacturing Assets (or any replacement equipment) are to
be disposed. The Transfer Plan also shall provide for: (a) Seller making
available to Buyer, upon prior notice and for a period no longer than six (6)
months following termination of this Agreement, technical and manufacturing
employees of Seller for reasonable assistance or consultation in connection with
the manufacture of Products, transfer of technology related to the Manufacture
of Products and quality control, quality assurance testing and regulatory
compliance of the Product Line; and (b) providing Buyer with copies of batch
records, quality control testing records, product release, certificates of
manufacture, Product complaint files, Product files and specifications and
labeling information. Transfer of the Manufacturing Assets and the other
information set forth in this SECTION 5.5 shall occur at the earlier of the date
specified in the Transfer Plan or upon termination or expiration of this
Agreement. All of the direct and indirect costs associated with the transfer,
disposal or storage of the Manufacturing Assets (or any replacement equipment),
as specified in the Transfer Plan, and all direct and indirect non-standard
costs of Seller incurred in connection with any consultation, transfer of
technology or other assistance contemplated by the Transfer Plan, including,
without limitation, the non-standard costs of Seller providing its technical and
manufacturing employees, shall be the sole responsibility of Buyer.
16
ARTICLE 6 - CONFIDENTIALITY
6.1 BUYER'S INFORMATION. All information provided by Buyer to Seller
concerning this Agreement shall be maintained in strict confidence by Seller.
Such information shall remain the property of Buyer, and Seller shall not use
the same for or on behalf of any entity other than Buyer or make use of any such
information except for the purposes for which it was provided.
6.2 SELLER'S INFORMATION. Except to the extent Seller may otherwise
agree, all information (other than information included in the Closing Assets
and related exclusively to the Product Line) provided by Seller to Buyer
concerning this Agreement shall be maintained in strict confidence by Buyer.
Such information shall remain the property of Seller, and Buyer shall not make
use of any such information except for the purposes for which it was provided.
Notwithstanding the foregoing, the provisions of this Article 6 shall not apply
to restrict in any manner the use by Buyer and its Affiliates of any
confidential or proprietary information included in the Closing Assets and
related exclusively to the Product Line.
6.3 EXCEPTIONS. The covenants of the receiving party contained in
SECTION 6.1 and SECTION 6.2 shall not apply to information that: (a) is already
in the public domain at the time of disclosure; (b) becomes part of the public
domain through no action or omission of the receiving party after disclosure to
the receiving party; (c) is already known to the receiving party at the time of
disclosure, as evidenced by the receiving party's written records; (d) has been
or is disclosed to the receiving party in good faith by a Third Party who was or
is not, at the time of disclosure, under any obligation of confidence to the
other party hereto at the time the Third Party disclosed such information; or
(e) is required to he disclosed by law. Nothing in this SECTION 6.3 shall be
deemed to supersede, limit or otherwise modify Seller's confidentiality
obligations under SECTION 11.3 of the Asset Purchase Agreement.
6.4 SURVIVAL. This Article 6 shall survive termination of this Agreement
for a period often (10) years.
ARTICLE 7- MISCELLANEOUS
7.1 CORPORATE ORGANIZATION AND AUTHORITY. Each Party represents and
warrants that it is a company duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized, and that
it has all necessary power and authorization to assume its obligations under
this Agreement and to discharge them pursuant to the terms hereof.
7.2 PUBLIC ANNOUNCEMENTS. Neither Party shall make any publicity
releases, interviews or other dissemination of information concerning this
Agreement or its terms, or either Party's performance hereunder, to
communication media, financial analysts or others without the approval of the
other Party, which approval shall not be unreasonably withheld. Either Party may
upon notice to the other make any disclosure in filings with regulatory agencies
as required by law or applicable court order; provided, however, that the other
Party shall have the opportunity to consult on such disclosures and filings.
7.3 FORCE MAJEURE. Neither Party shall be liable to the other if, and to
the extent that, the performance or delay in performance of any of its
obligations under this Agreement is prevented, restricted, delayed or interfered
with due to circumstances beyond the reasonable
17
control of such Party, including, without limitation, government legislation,
fires, floods, explosions, epidemics, accidents, acts of God, wars, riots,
strikes, lockouts or other concerted acts of workers and/or acts of government.
The Party claiming an event of force majeure shall promptly notify the other
Party in writing and provide full particulars of the cause or event (to the
extent known) and the date of first occurrence thereof as soon as possible after
the event and also keep the other Party informed of any further developments.
The Party so affected shall use its commercially reasonable efforts to remove
the cause of non-performance, and both Parties shall resume performance
hereunder with the utmost dispatch when such cause is removed unless this
Agreement has previously been terminated under ARTICLE 5 hereof.
7.4 ENTIRE AGREEMENT. This Agreement and the other agreements entered
into in connection herewith contain the entire agreement and understanding
between the Parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings, whether written or oral,
relating to such subject matter; provided, however, that except as otherwise
expressly agreed by the Parties, nothing herein shall modify or supersede the
Asset Purchase Agreement or any of the Other Agreements.
7.5 AMENDMENT AND WAIVER. This Agreement may be amended only by a
writing that specifically states that such is an amendment, specifically states
its purpose and is signed by both Parties. No course of dealing between the
Parties or failure by either Party to exercise any right or remedy hereunder
shall constitute an amendment to this Agreement or a waiver of any other right
or remedy or the later exercise of any right or remedy.
7.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Illinois without regard to
the conflicts of law provisions thereof.
7.7 ALTERNATIVE DISPUTE RESOLUTION. Any dispute, controversy or claim
arising out or relating to this Agreement, or the breach, termination or
invalidity thereof, which is not settled by written agreement between the
Parties shall be finally settled pursuant to the alternative dispute resolution
procedures set forth in EXHIBIT 7.7 attached hereto.
7.8 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Parties hereto and their respective
successors and permitted assigns; provided, however, that except as otherwise
provided herein, no Party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without first receiving the prior
written consent of the other Party, except that (a) either Party may assign or
delegate its rights and duties hereunder to any Affiliate of such Party without
obtaining such consent if the assigning Party guarantees the performance by such
Affiliate of the assigning Party's obligations under this Agreement, (b) Seller
may assign or delegate its rights and duties hereunder without obtaining such
consent to any party or entity that acquires substantially all of the business
or assets of the Xxxx Products Division of Seller, if the acquiring party
expressly assumes Seller's obligations hereunder and (c) Buyer may assign or
delegate its rights and duties hereunder without obtaining such consent to any
party or entity that acquires substantially all of the business or assets of
Buyer, if Buyer guarantees the performance of the acquiring party and the
acquiring party expressly assumes the Buyer's obligations hereunder.
18
7.9 NATURE OF AGREEMENT. In operating under this Agreement, each Party
shall act independently, and this Agreement shall not be construed as creating
any partnership, joint venture or incorporated business entity. Neither Party
shall have any authority to incur any liability or obligation whatsoever on
behalf of the other.
7.10 NOTICES. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of telex,
facsimile or other means of wire transmission (with request for assurance of
receipt in a manner typical with respect to communications of that type), by
overnight courier or by mail, and shall become effective: (a) on delivery if
given in person; (b) on the date of transmission if sent by telex, facsimile or
other means of wire transmission; (c) one (1) Business Day after delivery to the
overnight service; or (d) four (4) Business Days after being deposited in the
United States mails, with proper postage and documentation, for first-class
registered or certified mail, prepaid.
Notices shall be addressed as follows:
if to Buyer, to:
Prestige Brands International, Inc.
00000 Xxxxx Xxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attn: Xxx Host, Chief Executive Officer
Facsimile Number: (000) 000-0000
with copies to:
Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: T. Xxxxxx Xxxxx, III, Esq.
Facsimile Number: (000) 000-0000
If to Seller, to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX0X, Department 364
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Senior Vice President, Secretary and General
Counsel
Facsimile Number: (000) 000-0000
with copies to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
19
provided, however, that if any Party shall have designated a different address
by notice to the others pursuant to this SECTION 7.10, then to the last address
so designated.
7.11 COUNTERPARTS. This Agreement maybe executed in one or more
counterparts (including by means of faxed signature pages), all of which shall
be considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the Parties and delivered to
the other Party.
* * * * * * * *
20
IN WITNESS WHEREOF, the Parties have affixed hereunto their authorized
signature as follows:
PRESTIGE BRANDS INTERNATIONAL,
INC.
By: /s/ XXXXXXXX HOST
-------------------------------------
Xxxxxxxx X. Host
Chief Executive Officer
XXXXXX LABORATORIES
By: /s/ XXXX XXXXX
-------------------------------------
Xxxx X. Xxxxx
President, Xxxx Products Division,
Xxxxxx Laboratories
EXHIBIT 1.1 - PRODUCTS
Clear eyes(R)
UNITED STATES
LIST NUMBER DESCRIPTION
00000-00-00 Clear Eyes Lubricant
00000-00-00 Clear Eyes Lubricant
00000-00-00 Clear Eyes 1.0 fl. oz. $0.70 IRC
00000-00-00 Clear Eyes Twin-Pack
00000-00-00 Clear Eyes 100% MF
00000-00-00 Clear Eyes Pocket Pal
00000-00-00 Clear Eyes 0.5 fl. oz. $0.40 IRC
00000-00-00 Clear Eyes 1.0 fl. oz
00000-00-00 Clear Eyes 0.2 fl. oz. Clip Strip
00000-00-00 Clear Eyes Pocket Pal Bulk
00000-00-00 Clear Eyes (100% MF)
00000-00-00 Clear Eyes ACR
00000-00-00 Clear Eyes ACR
00000-00-00 Clear Eyes ACR $0.40 IRC
00000-00-00 Clear Eyes ACR $0.70 IRC
00000-00-00 Clear Eyes ACR (100% MF)
00000-00-00 Clear Eyes ACR (100% MF)
00000-00-00 Clear Eyes ACR (100% MF)
00000-00-00 Clear Eyes CLR
00000-00-00 Clear Eyes CLR 0.5 fl. oz. IRC
00000-00-00 Clear Eyes CLR 1.0 fl. oz. IRC
00000-00-00 Clear Eyes CLR 1 fl. oz. IRC
00000-00-00 Clear Eyes CLR 1 fl. oz. IRC
00000-00-00 Clear Eyes CLR
00000-00-00 Clear Eyes CLR (100% MF)
00000-00-00 Clear Eyes Pocket Pal for Lil'
00000-00-00 Say-On 0.5 fl. oz.
00000-00-00 Clear Eyes Pocket Pal for Mechanical Servants - Kroger
00000-00-00 Equate Eye Drops 0.5 fl. oz.
00000-00-00 Equate 1.0 fl. oz.-- WalMart
00000-00-00 Osco 0.5 fl. oz.
INTERNATIONAL
LIST NUMBER DESCRIPTION
00000-00-00 Murine Clear Eyes (Australian)
00000-00-00 Clear Eyes for Canada
00000-00-00 Clear Eyes for Canada
00000-00-00 Clear Eyes New Zealand
00000-00-00 Clear Eyes Pocket Pal for New Zealand
00000-00-00 Clear Eyes International
00000-00-00 Clear Eyes International
00000-00-00 Clear Eyes Bulk Pack
00000-00-00 Clear Eyes Venezuela
00000-00-00 Clear Eyes (Chile)
00000-00-00 Clear Eyes Hong Kong
00000-00-00 Clear Eyes ACR Canada
00000-00-00 Clear Eyes ACR New Zealand
00000-00-00 Clear Eyes ACR, 30 mL
00000-00-00 Clear Eyes ACR, 15 mL
0G662-28-36 Murine Plus Hong Kong
00000-00-00 Murine - UK
EXHIBIT 1.2 - PRODUCTS
MURINE TEARS(R)
UNITED STATES
LIST NUMBER DESCRIPTION
00000-00-00 Murine Tears Plus 0.5 fl. oz.
00000-00-00 Murine Tears Plus 1.0 fl. oz.
00000-00-00 Murine Plus $0.55 IRC
00000-00-00 Murine 1.0 fl. oz. $2.00 Refund
00000-00-00 Murine 1.0 fl. oz. $0.75 IRC
00000-00-00 Murine Opthalmic Solution
00000-00-00 Murine Opthalmic Solution
00000-00-00 Murine Bulk Pak
00000-00-00 Murine 1.0 fl. oz. $2.00 Refund
00000-00-00 Murine 1.0 fl. oz. $0.75 IRC
00000-00-00 Murine .50 .00 XXX
00000-00-00 Eye Drops 0.5 fl. oz. - Walmart
INTERNATIONAL
LIST NUMBER DESCRIPTION
00000-00-00 Murine Plus 0.5 fl. oz. Malaysia
00000-00-00 Murine Plus Hong Kong
00000-00-00 Murine Plus International
00000-00-00 Murine Plus Chile
00000-00-00 Murine 0.5 fl. oz. Malaysia
00000-00-00 Murine 0.50 fl. oz. Canada
00000-00-00 Murine 1.0 fl. oz. Canada
00000-00-00 Murine F/Hong Kong
00000-00-00 Murine International
00000-00-00 Murine Rev Eyes, Australia
00000-00-00 Murine TFE's (Australian)
00000-00-00 Murine Eye Drops (Australian)
EXHIBIT 1.3 - PRODUCTS
MURINE(R) EAR CARE
UNITED STATES
LIST NUMBER DESCRIPTION
00000-00-00 Murine Ear Drops System
00000-00-00 Murine Ear Drops Refill
00000-00-00 Murine Ear Drops Systems $0.55 IRC
00000-00-00 Murine Ear Drops - $2.50 Refund
00000-00-00 Ear Drops Refill $1.50 Refund
00000-00-00 Murine Ear Care Refill
00000-00-00 Walgreen Ear Drops
INTERNATIONAL
LIST NUMBER DESCRIPTION
00000-00-00 Murine Ear Drops
00000-00-00 Murine Ear Drop Systems
00000-00-00 Murine Ear Drops Refill
EXHIBIT 2.2(a) -- INITIAL FORECAST
[TO BE SUBMITTED BY BUYER NO LATER THAN THIRTY (30) DAYS AFTER THE EFFECTIVE
DATE.]
EXHIBIT 2.3(a) - STANDARD FACTORY COSTS AND STANDARD MANUFACTURING BATCHES
See attached.
21
EXHIBIT 2.3a_a
CLEAR EYES FAMILY STANDARD BATCH SIZES AND PRICING FOR 2003
LIST/LABEL
CODE/SIZE CODE
BULK BATCH SOURCED FROM **APPROXIMATE SOLN STD BATCH
BULK LIST # BULK NAME SIZE(S) BULK DESCRIPTION (L)/1000 UNITS SIZE (UNITS)
---------------------------------------------------------------------------------------------------------------------------------
02541 Clear Eyes 8630L U.S.
-----------------
2900L 00000-00-00 CLEAR EYES LUBRICANT 16.9 470,000
00000-00-00 CLEAR EYES LUBRICANT 32.5 83,500
00000-00-00 CLEAR EYES 1.0 FL. OZ. $0.70 IRC 33.8 60,000
00000-00-00 CLEAR EYES TWIN PACK 64.8 18,000
00000-00-00 CLEAR EYES 100% MF 30.0 70,000
00000-00-00 CLEAR EYES POCKET PAL 6.5 150,000
00000-00-00 CLEAR EYES 0.5 FL. OZ. $0.40 IRC 17.6 50,000
00000-00-00 CLEAR EYES 1.0 FL. OZ. 32.5 88,000
00000-00-00 CLEAR EYES 0.2 FL. OZ. CLIP STRIP 6.5 48,000
00000-00-00 CLEAR EYES POCKET PAL BULK 6.5 100,000
00000-00-00 CLEAR EYES (100% MF) 33.8 70,000
CLEAR EYES POCKET PAL FOR 125,000
MECHANICAL SERVANTS - KROGER
00000-00-00 6.5
00000-00-00 CLEAR EYES POCKET PAL FOR LIL' 6.5 30,000
-----------------
INTERNATIONAL
-----------------
00000-00-00 CLEAR EYES FOR CANADA 16.9 9,000
00000-00-00 CLEAR EYES FOR CANADA 32.5 2,300
00000-00-00 CLEAR EYES NEW ZEALAND 16.9 39,996
00000-00-00 CLEAR EYES POCKET PAL FOR NEW 35,000
ZEAL 6.5
00000-00-00 CLEAR EYES INTERNATIONAL 16.9 30,000
00000-00-00 CLEAR EYES INTERNATIONAL 39.0 15,000
00000-00-00 CLEAR EYES BULK PACK 6.5 30,000
00000-00-00 CLEAR EYES VENEZUELA 15.9 300,000
00000-00-00 CLEAR EYES (CHILE) 16.9 30,000
---------------------------------------------------------------------------------------------------------------------------------
06592 Clear Eyes ACR 2842L U.S.
-----------------
00000-00-00 CLEAR EYES ACR 17.6 167,000
00000-00-00 CLEAR EYES ACR 32.5 15,000
00000-00-00 CLEAR EYES ACR $0.40 IRC 16.9 132,000
00000-00-00 CLEAR EYES ACR $0.70 IRC 33.8 16,000
00000-00-00 CLEAR EYES ACR (100% MF) 33.8 16,000
00000-00-00 CLEAR EYES ACR (100% MF) 33.8 170,000
00000-00-00 CLEAR EYES ACR (100% MF) 170,000
INTERNATIONAL
00000-00-00 CLEAR EYES ACR CANADA 16.9 5,000
00000-00-00 CLEAR EYES ACR NEW ZEALAND 17.6 20,000
00000-00-00 CLEAR EYES ACR, 30 mL 32.5 6,500
00000-00-00 CLEAR EYES ACR, 15 mL 17.6 120,000
---------------------------------------------------------------------------------------------------------------------------------
06532 Clear Eyes CLR 1800 L U.S
-----------------
1200 L 00000-00-00 CLEAR EYES CLR 17.6 105,000
00000-00-00 CLEAR EYES CLR 0.5 FL OZ IRC 16.9 50,000
00000-00-00 CLEAR EYES CLR 1.0 FL OZ IRC 33.8 25,000
00000-00-00 CLEAR EYES CLR 1.0 FL OZ IRC 33.8 25,000
00000-00-00 CLEAR EYES CLR 1.0 FL OZ IRC 33.8 25,000
00000-00-00 CLEAR EYES CLR (100% MF) 33.8 25,000
00000-00-00 CLEAR EYES CLR 33.8 12,000
-----------------
INTERNATIONAL
-----------------
00000-00-00 CLEAR EYES - HONG KONG 16.9 30,000
---------------------------------------------------------------------------------------------------------------------------------
11010 Sterile eye 2850 L U.S.
Redness Releiver -----------------
(Visine Knock- 00000-00-00 EQUATE EYE DROPS 0.5 FL OZ 17.6 167,000
Off) -----------------
00000-00-00 EQUATE 1.0 FL OZ - WALMART 32.3 83,500
-----------------
00000-00-00 SAV-ON 0.5 FL OZ 16.4 30,000
-----------------
00000-00-00 OSCO 0.5 FL OZ 16.9 40,000
-----------------
INTERNATIONAL
-----------------
0G662-28-36 MURINE PLUS HONG KONG 16.9 50,004
---------------------------------------------------------------------------------------------------------------------------------
18796 Murine Clear 1800 L INTERNATIONAL
Eyes (Australian) -----------------
00000-00-00 MURINE CLEAR EYES Full Batch 96,676
(AUSTRALIAN)
---------------------------------------------------------------------------------------------------------------------------------
02536 Murine UK 1290 L INTERNATIONAL
---------------------------------------------------------------------------------------------------------------------------------
00000-00-00 MURINE - UK Full Batch 90,000
---------------------------------------------------------------------------------------------------------------------------------
***
** APPROXIMATE SOLUTION (L)/1000 UNITS CALCULATED AS FOLLOWS:
Fill Volume x (1L/1000 mL) x 1000 units x Scrap Factor
WHERE:
Fill Volume = 6 mL, 15 mL, or 30 mL
Scrap Factor is product specific and ranges from 1.0 to 1.3
EXHIBIT 2.3a_b
MURINE TEARS FAMILY STANDARD BATCH SIZES AND PRICING FOR 2003
LIST/LABEL
CODE/SIZE CODE
BULK BATCH SOURCED FROM **APPROXIMATE SOLN STD BATCH
BULK LIST # BULK NAME SIZE(S) BULK DESCRIPTION (L)/1000 UNITS SIZE (UNITS)
---------------------------------------------------------------------------------------------------------------------------------
05574 Murine Tears 2850 L U.S.
-----------------
00000-00-00 MURINE OPTHALMIC SOLUTION 17.6 150,000
00000-00-00 MURINE OPTHALMIC SOLUTION 32.5 40,000
00000-00-00 MURINE BULK PAK 6.5 70,000
00000-00-00 MURINE 1.0 FL. OZ. $2.00 REFUND 33.8 40,000
00000-00-00 MURINE 1.0 FL. OZ. $0.75 IRC 33.8 25,000
00000-00-00 MURINE .50 .00 XXX 16.9 100,000
00000-00-00 EYE DROPS 0.5 FL. OZ. - WALMART 17.6 60,000
-----------------
INTERNATIONAL
-----------------
00000-00-00 MURINE 0.5 FL. OZ. MALAYSIA 19.1 50,000
00000-00-00 MURINE 0.50 FL. OZ CANADA 16.9 9,000
00000-00-00 MURINE 1.0 FL. OZ. CANADA 33.8 1,750
00000-00-00 MURINE F/HONG KONG 16.9 30,000
00000-00-00 MURINE INTERNATIONAL 16.9 30,000
00000-00-00 MURINE REV EYES - AUSTRALIA 16.9 30,000
00000-00-00 MURINE TFE's (Australian) 16.9 91,000
---------------------------------------------------------------------------------------------------------------------------------
02652 Murine Tears 2850 L U.S.
Plus -----------------
Tetrahydrazoline 00000-00-00 MURINE TEARS PLUS 0.5 FL.OZ 16.9 150,000
00000-00-00 MURINE TEARS PLUS 1.0 FL.OZ. 32.5 15,000
00000-00-00 MURINE PLUS $0.55 IRC 16.9 100,000
00000-00-00 MURINE 1.0 FL. OZ. $2.00 REFUND 33.8 20,000
00000-00-00 MURINE 1.0 FL. OZ. $0.75 IRC 33.8 10,000
-----------------
INTERNATIONAL
-----------------
00000-00-00 MURINE PLUS 0.5 FL OZ MALAYSIA 16.9 30,000
00000-00-00 MURINE PLUS HONG KONG 16.9 30,000
00000-00-00 MURINE PLUS INTERNATIONAL 16.9 30,000
00000-00-00 MURINE PLUS CHILE 15.0 30,000
---------------------------------------------------------------------------------------------------------------------------------
18797 Murine Eye 1800 L INTERNATIONAL
Drops -----------------
(Australian) 00000-00-00 MURINE EYE DROPS (Australian) Full Batch 91,000
---------------------------------------------------------------------------------------------------------------------------------
***
** APPROXIMATE SOLUTION (L)/1000 UNITS CALCULATED AS FOLLOWS:
Fill Volume x (1L/1000 mL) x 1000 units x Scrap Factor
WHERE:
Fill Volume = 6 mL, 15 mL, or 30 mL
Scrap Factor is product specific and ranges from 1.0 to 1.3
EXHIBIT 2.3a_c
MURINE EAR CARE FAMILY STANDARD BATCH SIZES AND PRICING FOR 2003
LIST/LABEL
CODE/SIZE CODE
BULK BATCH SOURCED FROM **APPROXIMATE SOLN STD BATCH
BULK LIST # BULK NAME SIZE(S) BULK DESCRIPTION (L)/1000 UNITS SIZE (UNITS)
---------------------------------------------------------------------------------------------------------------------------------
07362 Murine Ear 2000 L U.S.
Drops -----------------
00000-00-00 WALGREEN EAR DROPS 18.2 60,000
00000-00-00 MURINE EAR DROPS SYSTESM 15.5 124,500
00000-00-00 MURINE EAR DROPS REFILL 15.5 124,500
00000-00-00 MURINE EAR DROPS SYSTEMS $0.55 IRC 15.5 60,000
00000-00-00 MURINE EAR DROPS $2.50 REFUND 15.5 60,000
40,000
00000-00-00
00000-00-00 MURINE EAR CARE REFILL 15.5 40,000
-----------------
INTERNATIONAL
-----------------
00000-00-00 MURINE EAR DROPS 15.5 35,000
00000-00-00 MURINE EAR DROP SYSTEMS 15.5 30,000
00000-00-00 MURINE EAR DROPS REFILL 15.5 25,000
---------------------------------------------------------------------------------------------------------------------------------
***
** APPROXIMATE SOLUTION (L)/1000 UNITS CALCULATED AS FOLLOWS:
Fill Volume x (1L/1000 mL) x 1000 units x Scrap Factor
WHERE:
Fill Volume = 6 mL, 15 mL, or 30 mL
Scrap Factor is product specific and ranges from 1.0 to 1.3
EXHIBIT 5.5 - MANUFACTURING ASSETS
EQUIPMENT
ASSET # DESCRIPTION MANUFACTURER MODEL NUMBER SERIAL NUMBER SIZE/CAPACITY
------- ----------- ------------ ------------ ------------- -------------
F1956 Autoclave Xxxx-Aqua
Line 25
S-3186 Unscrambler Xxxxxxx Series 40 1697 0.5 oz Oval; 0-300 BPM
S-3186 Filler/Plugger/Xxxxxx XX Systems TPO 7406 0.5 oz Oval; 0-300 BPM
LC946091 Level Cap Sensor DVT 720 14053
LC950122 Outfeed Conveyor Automatic Feeder AG05760
S3721 Accumulating Table Xxxxx Accumulating Table
O-2885 Turntable
S-3725 Accumulating Table Xxxxx Metering Conveyor AM 3725
S3198 Labeler New Jersey Machine 4HD 311LLRRDB337 1186-162 0.5 and 1.0 oz Oval
Front and Back
LC948175 Printer Video Jet (Labeler) Video Jet Excel 170 IHS 982510051WD 0-1500 BPM
LC948512 Printer Video Jet (Labeler) Video Jet Excel 1701 82740034WD
LC963275 Printer Video Jet (cartoner) Video Jet Excel 781 1940010WD 0-1500BPM
S3739 Cartoner Glue Xxxxxx Series 60 60271 0-400 CPM
LC911760 Wrapper Infeed Conveyor Do-Boy Microtronic 96-18259 0-400 CPM
LC911894 Doboy Wrapper Do-Boy Microtronic 96-18258 0-400 CPM
S3735 Shrink Tunnel Xxxxxxxx T-62 T83187
FK7114 Printer Video Jet (Logo) Video Jet Excel 100 E94E27017
X-0000 Xxxxxxx/Xxxxxxx Xxxxxxx 110 25940
LC-907687 Case Packer Xxxxxx Engineering Series 400 9408 12,24,36 Pack RSC Cases
LC-910443 Coupon Placer Label-Aire MOD.211CD 0107169511A
MOD.211-M 6/94458707
MOD.211-M 6/94428707
Line 26
S-3759 Unscrambler Omega 3D-LP-CR 11701
S-3716 Filler/Plugger/Capper Chase-Logemen FPCC3012H 4531085 0-120 BPM
FK-5320 Level Cap Sensor DVT 800 0.2 oz and 1.0 xx Xxxx
XX000000 Pressureless Combiner Xxxxx 5415-1 and
5415-29
S-3729 Labeler Accraply P.S. (4 head) 4000-L 1992 0.2 oz and 1.0 oz Oval
S-3730 Cartoner, Glue X.X. Xxxxx CMC 2732
S3736 Infeed Metering Conveyor Runway Enterprises GA 3736 0-200 CPM
X-0000 Xxxxxxx Xx-Xxx Super H-SK 83-20491 0-200 CPM
S-3719 Heat Tunnel Xxxxxxxx T-62 T-83129
LC996996 Semi-Automatic Case Packer ABC Packaging Co. SP-19 23136 Up to 10 cases/min
X-0000 Xxxxxxx/Xxxxxxx Xxxxxxx 110 5988
S-4317 Case Labeler/Apply Superior Machine Genesis 9500 90395261
S-4316 Case Labeler/Apply Superior Machine Genesis 9500 90295254
LC984699 Blister Machine D.T. Sencorp HP-15 61223901 120BPM 10 cycles/Min.
Other Eyecare Equipment
NN-9080 Tank 707**2950 Liter Vesselcraft M019571-C
FJ-6335 Lightnin Mixer Lightnin
NN-9081 Tank 727** 2950 Liter Vesselcraft M-19571-B
FJ-6334 Lightnin Mixer Lightnin
T-2609 Tank 737** Vesselcraft M-19571-A
S-3727 Lightnin Mixer Lightnin
Q-2851 Tank 747**2250 Gal. Xxxxxxxxx 000000
FJ-6306 Lightnin Mixer Lightnin
Q-3501 Tank 757** Precision 5833
IM-1291 Control Panel (750 gal)
LC085336 Control Panel (Yokogawa Rec.)
IM-1293 Control Panel (Temp) DX22012A22 124935407
LC085337 Yokogawa Recorder
* All Manufacturing Assets Located at Seller's North Chicago Plant.
** Significant engineering and other costs would be incurred in
transferring this equipment to another manufacturing site. Costs may be greater
than purchase of new equipment.
- Scope of Project: Remove roof and lift out of current location with crane
and/or helicopter.
EXHIBIT 7.7 -- ALTERNATIVE DISPUTE RESOLUTION
The Parties recognize that from time to time a dispute may arise relating
to either Party's rights or obligations under this Agreement. The Parties agree
that any such dispute shall be resolved by the Alternative Dispute Resolution
("ADR") provisions set forth in this Exhibit 7.7, the result of which shall be
binding upon the Parties.
To begin the ADR process, a Party first must send written notice of the
dispute to the other Party for attempted resolution by good faith negotiations
between their respective presidents (or their designees) of the affected
subsidiaries, divisions or business units within twenty-eight (28) days after
such notice is received (all references to "days" in this ADR provision are to
calendar days). if the matter has not been resolved within twenty-eight (28)
days of the notice of dispute, or if the Parties fail to meet within such
twenty-eight (28) days, either Party may initiate an ADR proceeding as provided
herein. The Parties shall have the right to be represented by counsel in such a
proceeding.
1. To begin an ADR proceeding, a Party shall provide written notice to the
other Party of the issues to be resolved by ADR. Within fourteen (14) days
after its receipt of such notice, the other Party may, by written notice to
the Party initiating the ADR, add additional issues to be resolved within
the same ADR.
2. Within twenty-one (21) days following receipt of the original ADR notice,
the Parties shall select a mutually acceptable neutral to preside in the
resolution of any disputes in this ADR proceeding. if the Parties are
unable to agree on a mutually acceptable neutral within such period, either
Party may request the President of the CPR Institute for Dispute Resolution
("CPR"), 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, to
select a neutral pursuant to the following procedures:
(a) The CPR shall submit to the Parties a list of not less than five (5)
candidates within fourteen (14) days after receipt of the request,
along with a Curriculum Vitae for each candidate. No candidate shall
be an employee, director or shareholder of either Party or any of
their subsidiaries or Affiliates.
(b) Such list shall include a statement of disclosure by each candidate of
any circumstances likely to affect his or her impartiality.
(c) Each Party shall number the candidates in order of preference (with
the number one (1) signifying the greatest preference) and shall
deliver the list to the CPR within seven (7) days following receipt of
the list of candidates. If a Party believes a conflict of interest
exists regarding any of the candidates, that Party shall provide a
written explanation of the conflict to the CPR along with its list
showing its order of preference for the candidates. Any Party failing
to return a list of preferences on time shall be deemed to have no
order of preference.
(d) if the Parties collectively have identified fewer than three (3) candidates
deemed to have conflicts, the CPR immediately shall designate as the neutral the
candidate for whom the Parties collectively have indicated the greatest
preference. if a tie should result between two candidates, the CPR may designate
either candidate. If the Parties collectively have identified three (3) or
more candidates deemed to have conflicts, the CPR shall review the explanations
regarding conflicts and, in its sole discretion, may either (i) immediately
designate as the neutral the candidate for whom the Parties collectively have
indicated the greatest preference, or (ii) issue a new list of not less than
five (5) candidates, in which case the procedures set forth in subparagraphs
2(a) - 2(d) shall be repeated.
3. No earlier than twenty-eight (28) days or later than fifty-six (56) days
after selection, the neutral shall hold a hearing to resolve each of the
issues identified by the Parties. The ADR proceeding shall take place at a
location agreed upon by the Parties. If the Parties cannot agree, the
neutral shall designate a location other than the principal place of
business of either Party or any of their subsidiaries or Affiliates.
4. At least seven (7) days prior to the hearing, each Party shall submit the
following to the other Party and the neutral:
(a) A copy of all exhibits on which such Party intends to rely in any oral
or written presentation to the neutral;
(b) A list of any witnesses such Party intends to call at the hearing, and
a short summary of the anticipated testimony of each witness;
(c) A proposed ruling on each issue to be resolved, together with a
request for a specific damage award or other remedy for each issue.
The proposed rulings and remedies shall not contain any recitation of
the facts or any legal arguments and shall not exceed one (1) page per
issue.
(d) A brief in support of such Party's proposed rulings and remedies;
provided, however, that the brief shall not exceed twenty (20) pages.
This page limitation shall apply regardless of the number of issues
raised in the ADR proceeding.
Except as expressly set forth in subparagraphs 4(a) - 4(d) above, no
discovery shall be required or permitted by any means, including
depositions, interrogatories, requests for admissions or production of
documents.
5. The hearing shall be conducted on two (2) consecutive days and shall be
governed by the following rules:
(a) Each Party shall be entitled to five (5) hours of hearing time to
present its case. The neutral shall determine whether each Party has
had the five (5) hours to which it is entitled.
(b) Each Party shall be entitled, but not required, to make an opening
statement, to present regular and rebuttal testimony, documents or
other evidence, to crossexamine witnesses, and to make a closing
argument. Cross-examination of witnesses shall occur immediately after
their direct testimony, and crossexamination time shall be charged
against the Party conducting the crossexamination.
(c) The Party initiating the ADR shall begin the hearing and, if it
chooses to make an opening statement, shall address not only issues it
raised but also any issues raised by the responding Party. The
responding Party, if it chooses to make an opening statement, also
shall address all issues raised in the ADR. Thereafter, the
presentation of regular and rebuttal testimony and documents, other
evidence and closing arguments shall proceed in the same sequence.
(d) Except when testifying, witnesses shall be excluded from the hearing
until closing arguments.
(e) Settlement negotiations, including any statements made therein, shall
not be admissible under any circumstances. Affidavits prepared for
purposes of the ADR hearing also shall not be admissible. As to all
other matters, the neutral shall have sole discretion regarding the
admissibility of any evidence.
6. Within seven (7) days following completion of the hearing, each Party may
submit to the other Party and the neutral a post-hearing brief in support
of its proposed rulings and remedies; provided, however, that such brief
shall not contain or discuss any new evidence and shall not exceed ten (10)
pages. This page limitation shall apply regardless of the number of issues
raised in the ADR proceeding.
7. The neutral shall rule on each disputed issue within fourteen (14) days
following completion of the hearing. Such ruling shall adopt in its
entirety the proposed ruling and remedy of one of the Parties on each
disputed issue but may adopt one Party's proposed rulings and remedies on
some issues and the other Party's proposed rulings and remedies on other
issues. The neutral shall not issue any written opinion or otherwise
explain the basis of the ruling.
8. The neutral shall be paid a reasonable fee plus expenses. These fees and
expenses, along with the reasonable legal fees and expenses of the
prevailing Party (including all expert witness fees and expenses), the fees
and expenses of a court reporter, and any expenses for a hearing room,
shall be paid as follows:
(a) If the neutral rules in favor of one Party on all disputed issues in
the ADR, the losing Party shall pay 100% of such fees and expenses.
(b) If the neutral rules in favor of one Party on some issues and the
other Party on other issues, the neutral shall issue with the rulings
a written determination as to how such fees and expenses shall be
allocated between the Parties. The neutral shall allocate fees and
expenses in a way that bears a reasonable relationship to the outcome
of the ADR, with the Party prevailing on more issues, or on issues of
greater value or gravity, recovering a relatively larger share of its
legal fees and expenses.
9. The rulings of the neutral and the allocation of fees and expenses shall be
binding, nonreviewable and non-appealable, and may be entered as a final
judgment in any court having jurisdiction.
10. Except as provided in paragraph 9 above or as required by law, the
existence of the dispute, any settlement negotiations, the ADR hearing, any
submissions (including exhibits, testimony, proposed rulings and briefs),
and the rulings shall be deemed confidential information. The neutral shall
have the authority to impose sanctions for unauthorized disclosure of
confidential information.
Notwithstanding the foregoing, after the initiation of an ADR proceeding
described in numbered paragraph 1, but before the selection of a neutral as
described in numbered paragraph 2, the Parties may agree to submit the issues in
dispute to mediation. If one of the Parties does not agree to mediation, then
the process described beginning at numbered paragraph 2 and following shall be
implemented. If the Parties are in agreement to pursue mediation, then they
shall agree on the selection of a mediator and the mediation shall proceed
pursuant to the procedure established by the mediator. The mediation shall take
place within forty-five (45) days following receipt of the original ADR notice.
If the remediation is not successful in resolving all issues identified as a
result of the process described in numbered paragraph 1, then the process
described in this Exhibit 7.7 shall proceed pursuant to the time periods
established herein. The time during which the Parties pursue mediation shall
toll the time periods established in this Exhibit 77.
EXHIBIT 2.3a_c REV. 3\
MURINE EAR CARE FAMILY STANDARD BATCH SIZES AND PRICING FOR 2003
List Total
Bulk Sourced Trade Singles/ Bottles
Bulk Bulk Batch from Label Size Unite Sales Carriers/ Carrier/ Per
List # Name Size(s) Bulk Code Code Code Size UPC Codes Description Case Case Case
--------------------------------------------------------------------------------------------------------------------------------
Murine
Ear
07362 Drops 0000 X X.X.
--------------------------------------------------------------------------------------------------------------------------------
00000 04 01 01 04 311917000220 Walgreen Ear Drops 6 6 36
07362 04 01 01 02 300747362011 Murine Ear Drops Systems 6 6 36
07362 04 03 03 06 300747362035 Murine Ear Drops Refill 6 6 36
Murine Ear Drops System
07362 04 76 01 07 300747362011 $0.55 IRC 6 6 36
Murine Ear Drops $2.50
07362 04 79 01 08 300747362011 Refund 6 6 36
Murine Ear Drops Refill
07362 04 92 03 13 300747362035 $1.50 Refund 6 6 36
07362 04 57 03 14 300747362035 Murine Ear Care Refill 6 6 36
INTERNATIONAL
07362 13 01 No barcode Murine Ear Drops 0 350 350
07362 54 95 No barcode Murine Ear Drop Systems 6 6 36
07362 54 96 No barcode Murine Ear Drops Refill 6 5 36
**Approximate
Bulk Bulk Singles Soln(L)/1000 Std Batch
List # Name Description units Size (Unites)
-----------------------------------------------------------
Murine
Ear
07362 Drops
-----------------------------------------------------------
0.5 FL OZ 18.2 60,000
0.5 FL OZ 15.5 124,500
0.5 FL OZ 15.5 124,500
0.5 FL OZ 15.5 60,000
0.5 FL OZ 15.5 60,000
0.5 FL OZ 15.5 40,000
0.5 FL OZ 15.5 40,000
0.5 FL OZ 15.5 35,000
0.5 FL OZ 15.5 30,000
0.5 FL OZ 15.5 25,000
***
** APPROXIMATE SOLUTION ACCEPTED BY: DATED: 8/11/03 ACCEPTED BY:
(L)/1000 UNITS CALCULATED AS
FOLLOWS:
Fill Volume X (1L/1000 mL) /s/ XXX XXXX /s/ XXXXXXX X. XXXXXXXXXXX
X 1000 units X Scrap Factor ---------------------------- --------------------------
WHERE: ABBOT LABORATORIES PRESTIGE BRANDS INTERNATIONAL
Fill Volume = 15 mL XXX XXXX 7/15/03
L-7165 Scrap Factor =1.21 VICE PRESIDENT OPERATIONS
L-7362 Scrap Factor = 1.03
EXHIBIT 2.3a_b REV. 5
MURINE EAR CARE FAMILY STANDARD BATCH SIZES AND PRICING FOR 2003
REVISION A
List
Bulk Sourced Trade Singles/
Bulk Batch from Label Size Unite Sales Carrier/
List # Bulk Name Size(s) Bulk Code Code Code Size UPC Codes Description Carriers/Case Case
---------------------------------------------------------------------------------------------------------------------------------
Murine
05574 Tears 0000 X X.X.
00000 04 05 05 09 300745574058 Murine Opthalmic Solution 6 6
05574 04 16 16 10 300745574164 Murine Opthalmic Solution 6 6
05574 04 22 22 11 300745574225 Murine Bluk Pak 0 45
05574 04 41 18 15 300745574164 Murine Tears 100% MF 6 6
05574 04 56 16 12 300745574164 Murine 1.0 FL OZ $2.00 Refund 6 6
05574 04 81 16 13 300745574164 Murine 1.0 FL OZ $0.75 IRC 6 6
05574 04 87 05 14 300745574058 Murine .50 .00 XXX 6 6
03756 04 01 01 03 300743756029 Eye Drops 0.5 FL OZ - Walmart 6 6
INTERNATIONAL
05574 08 05 8888426557450EAN Murine 0.5 FL OZ Malaysia 6 6
05574 13 15 055325557418 Murine 0.50 FL OZ Canada 1 1
05574 13 30 055325557432 Murine 1.0 FL OZ Canada 1 1
05574 28 05 4891035557401EAN Murine F/Hong Kong 6 6
05574 54 05 No barcode Murine International 6 6
05574 54 10 9310185557420EAN Murine Rev Eyes-Australia 6 6
05574 54 91 No barcode Murine TFE's (Australian) 0 145
Murine
Tears
Plus
Tetra-
02652 hydrazoline 2850 L X.X.
00000 04 05 05 04 300742652058 Murine Tears Plus 0.5 FL OZ 6 6
02652 04 26 28 07 300742652261 Murine Tears Plus 1.0 FL OZ 6 6
02652 04 58 05 09 300742652056 Murine Plus $0.55 IRC 6 6
02652 04 58 28 11 300742652261 Murine 1.0 FL OZ $2.00 Refund 6 6
02652 04 51 28 13 300742652261 Murine 1.0 FL OZ $0.75 IRC 6 6
INTERNATIONAL
02652 08 05 8888426265256 EAN Murine Plus 0.5 FL OZ Malaysia 6 6
02652 28 38 4891035265207 EAN Murine Plus Hong Kong 6 6
02652 54 05 No barcode Murine Plus International 6 6
02652 54 55 No barcode Murine Sore Eyes Australia 6 6
02652 88 05 7800009745314 EAN Murine Plus Chile 6 6
INTERNATIONAL
Murine Eye
Drops
18797 (Australia) 1800 L 18797 54 05 No barcode Murine Eye Drops (Australia) 0 145
Total
Bulk Bottles Singles **Approximate Soln Std Batch Siz
List # Bulk Name Per Case Description (L)/1000 units (Unites)
----------------------------------------------------------------------------
Murine
05574 Tears
36 0.5FL OZ 17.6 150,000
36 1.0 FL OZ 32.5 40,000
48 6 MIL 6.5 70,000
36 1.0 FL OZ 32.5 40,000
36 1.0 FL OZ 33.8 40,000
36 1.0 FL OZ 33.8 25,000
36 0.5 FL OZ 16.9 100,000
36 0.5 FL OZ 17.6 60,000
36 0.5 FL OZ 19.1 50,000
1 1 DOZEN 16.9 9,000
1 1 DOZEN 33.8 1,750
36 0.5 FL OZ 16.9 30,000
36 0.5 FL OZ 16.9 30,000
36 15 ML 16.9 30,000
145 15 ML 16.9 91,000
Murine
Tears
Plus
Tetra-
02652 hydrazoline
36 0.5FL OZ 16.9 150,000
36 1.0 FL OZ 32.5 15,000
36 0.5 FK OZ 16.9 100,000
36 1.0 FL OZ 33.8 20,000
36 1.0 FL OZ 33.8 10,000
36 0.5 FL OZ 16.9 30,000
36 0.5 FL OZ 16.9 30,000
36 0.5 FL OZ 16.9 30,000
36 15 ML 16.9 30,000
36 15 ML 15.0 30,000
Murine Eye
Drops
18797 (Australia) 145 15 ML Full Batch 91,000
***
** APPROXIMATE SOLUTION ACCEPTED BY: DATED: 8/11/03 ACCEPTED BY:
(L)/1000 UNITS CALCULATED AS
FOLLOWS:
Fill Volume X (1L/1000 mL) /s/ XXX XXXX /s/ XXXXXXX X. XXXXXXXXXXX
X 1000 units X Scrap Factor ---------------------------- --------------------------
WHERE: ABBOT LABORATORIES PRESTIGE BRANDS INTERNATIONAL
Fill Volume = 15 mL XXX XXXX 7/15/03
L-7165 Scrap Factor =1.21 VICE PRESIDENT OPERATIONS
L-7362 Scrap Factor = 1.03
