Exhibit 10.31
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.
CONTRACT MANUFACTURING AGREEMENT
This is a CONTRACT MANUFACTURING AGREEMENT ("Supply Agreement"), between The
Procter & Xxxxxx Manufacturing Company, an Ohio corporation and P&G
International Operations SA, a Swiss corporation (collectively with its
affiliates, "Supplier"), and Prestige Brands International, Inc., a Virginia
corporation, and Prestige Brands International (Canada) Corp., a Nova Scotia
corporation (collectively "Buyer"). This Supply Agreement will have an effective
date of February 1, 2001. Supplier and Buyer are sometimes collectively referred
to herein as "parties" and individually as "party."
WHEREAS, Supplier and Buyer have previously entered into an Asset Sale and
Purchase Agreement, dated as of Xxxxx 00, 0000 ("Xxxx Agreement"), pursuant to
which Buyer purchased the Acquired Assets (as defined in the Sale Agreement),
and on the same day, Supplier and Buyer simultaneously entered into a
Transitional Services Agreement ("Services Agreement") to expire June 30, 2000
and a Transitional Supply Agreement ("Transitional Supply Agreement") to expire
January 31, 2001;
WHEREAS, pursuant to Section 6.19 of the Sale Agreement, Supplier and Buyer
agreed to negotiate in good faith a supply agreement governing the supply of
Product by Suppliers for Buyer for the period after January 31, 2001 and
incorporating the Post-Transition Supply Terms set forth on Schedule 6.19 of the
Sale Agreement;
WHEREAS, upon expiration of the Transitional Supply Agreement and in connection
with the Sale Agreement, Buyer wishes that Supplier, upon Buyer's request and
according to the terms and conditions set forth herein, continue Manufacturing
(as defined hereinafter) Products (as defined hereinafter) or, subject to
Buyer's prior written approval, which will not be unreasonably withheld,
arranging for the Contract Manufacturing (as defined hereinafter) of Products on
Buyer's behalf for the period(s) set forth herein;
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, agreements, and conditions contained herein, the parties hereto agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 GENERAL. Any capitalized term used but not defined herein will
have the meaning set forth in the Sale Agreement.
1.02 "AFFILIATE" means, with respect to a Person, another Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. "Control," whether
or not capitalized, means, with respect to a Person, the ownership by another
Person of greater than 50% of the income or voting interests of such Person or
such other Person of greater than 50% of the income or voting interests of such
Person or such other arrangement as constitutes the direct or indirect ability
to direct the management, affairs or actions of such Person.
1.03 "PACKAGING MATERIALS SUPPLIERS" means those contract manufacturers
who Supply packaging materials to Supplier.
1.04 "BULK LOZENGE PRODUCT" means the oral anesthetic bulk lozenge
product produced as of the Signing Date for use in the United States and Canada
and produced for delivery non-blistered in bulk containers and set forth on
Schedule 1.03, together with any Alterations and/or Modifications.
1.05 "BUSINESS" means the manufacturing, packaging, distributing,
marketing and selling of the Products under one or more Trademarks in the United
States or Canada.
1.06 "CLOSING DATE" means March 30, 2000, the date when Buyer purchased
the Business from Supplier.
1.07 "CONTRACT MANUFACTURING" means the sourcing and warehousing of raw
and packaging materials, compounding, component preparation, production,
manufacturing, income and outgoing quality control, fabrication, filing,
inspecting, labeling, packing, packaging and/or warehousing of any Products, or
any part thereof, as well as associated activities, in accordance with the
Specifications and the terms and conditions of this Supply Agreement, in each
case, by any non-Affiliate third party pursuant to Contract Manufacturing
Agreement(s) with the Supplier or any of Supplier's Affiliates. The terms
"CONTRACT MANUFACTURE," "CONTRACT MANUFACTURER" and "CONTRACT MANUFACTURED" will
have the appropriate derivative meanings.
1.08 "CONTRACT MANUFACTURING AGREEMENT" means any purchase order,
contract, agreement or other obligation between Supplier or any of Supplier's
Affiliates and any non-Affiliate third party pursuant to which any non-Affiliate
third party Contract Manufacturers Products.
1.09 "CONTRACT PLANT" means that portion of a Contract Manufacturer's
facilities used in the Contract Manufacture of Products.
1.10 "CONTRACT WAREHOUSE" means that portion of a Contract
Manufacturer's facilities used to warehouse finished goods.
1.11 "DELIVERY DATE" means the date on Buyer's Firm Written Purchase
Order that designates the date when Supplier will have Products available for
Buyer to pick-up.
1.12 "EFFECTIVE DATE" means February 1, 2001.
1.13 "LIQUID PRODUCT" means the oral anesthetic liquid finished open
stock product produced as of the Signing Date for sale in the United States and
Canada that is set forth on Schedule 1.12, together with any Alterations and/or
Modifications.
1.14 "LOZENGE PRODUCT" means the oral anesthetic lozenge finished open
stock product produced as of the Signing Date for sale in the United States and
Canada that is set forth on Schedule 1.13, together with any Alterations and/or
Modifications.
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1.15 "MANUFACTURING" means the sourcing and warehousing of raw and
packaging materials, compounding, component preparation, production,
manufacturing, incoming and outgoing quality control, fabrication, filling,
inspecting, labeling, packing, packaging and/or warehousing of any Products, or
any part thereof, as well as associated activities, in accordance with the
Specifications and the terms and conditions of this Supply Agreement, in each
case, by Supplier or any of Supplier's Affiliates. The terms "MANUFACTURE" and
"MANUFACTURED" will have the appropriate derivative meanings.
1.16 "MATERIALS" means works in progress and raw and packaging
materials related to the Business.
1.17 "PERSON" means (as the context requires) an individual, a
corporation, a partnership, an association, a trust, a limited liability
company, or other entity or organization, including a Governmental Entity.
1.18 "PRODUCTS" means collectively, except where specifically qualified
in this Supply Agreement, the Liquid Product and the Lozenge Product SKU's of
the Business and the Bulk Lozenge Product of the Business produced as of the
Signing Date of this agreement for sale in the United States and Canada, and set
forth on Schedules 1.03, 1.12 and 1.13 respectively, whether Manufactured or
Contract Manufactured as of the effective date of this Supply Agreement,
together with any Alterations and/or Modifications. For purposes of
clarification, the term Products does not include the UltraChloraseptic product
produced and sold in the United Kingdom, liquid products topped with sample
lozenges ("Toppered Products"), special pack products or displays.
1.19 "PRODUCT CATEGORY" means the particular type of Product. For
purposes of this Supply Agreement, a Product may be categorized as one of the
following: Liquid Product, Lozenge Product or Bulk Lozenge Product as defined
herein.
1.20 "SIGNING DATE" means the date this Supply Agreement is signed.
1.21 "SKUS" means Stock Keeping Units.
1.22 "SPECIFICATIONS" means the procedures, requirements, formula(e)
and standards related to Products employed by or on behalf of Supplier as of the
Signing Date and provided to Buyer under the Sale Agreement, as amended pursuant
to this Supply Agreement.
1.23 "SUPPLIER'S PLANT" means that portion of Supplier's and Supplier's
Affiliates' facilities located in Greensboro, North Carolina and Gross Gerau,
Germany that is used in the Manufacture of Products and/or such other facilities
of Supplier or Supplier's Affiliates as may be used in the Manufacture of
Products.
1.24 "SUPPLY PERIOD" means that period commencing on February 1, 2001
and running until either party terminates pursuant to Article XV of this Supply
Agreement.
1.25 OTHER DEFINITIONS. Other terms defined in this Agreement, and the
location where they are defined, are:
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"AFFECTED PARTY" ................................. Section 16.04
"ALTERATIONS" .................................... Section 6.01
"BUYER" .......................................... Preamble
"COST AND FEASIBILITY PROCESS" ................... Section 6.04
"DEFAULTING PARTY" ............................... Section 15.01
"FIRM WRITTEN PURCHASE OFFER" .................... Section 2.03
"FIFO" ........................................... Section 5.02
"FORECAST" ....................................... Section 3.01
"MODIFICATIONS" .................................. Section 6.02
"NON-AFFECTED PARTY" ............................. Section 16.04
"NON-DEFAULTING PARTY" ........................... Section 15.01
"SALE AGREEMENT" ................................. Preamble
"SERVICES AGREEMENT" ............................. Preamble
"SUPPLIER" ....................................... Preamble
"TRANSITIONAL SUPPLY AGREEMENT" .................. Preamble
"TERMINATION DATE" ............................... Section 15.01
ARTICLE II
BASIC OBLIGATIONS
2.01 SUPPLIER'S OBLIGATIONS. Subject to the limitations and conditions
of this Supply Agreement, during the applicable Supply Period, Supplier will
Manufacture, or arrange for the Contract Manufacture of, and sell to Buyer
Buyer's requirements (up to the maximum set forth in Schedule 2.02) of Products.
Except as set forth in Section 7.01 herein, Supplier will be responsible for
ensuring that all Product sold to Buyer hereunder complies with Specifications.
2.02 BUYER'S OBLIGATIONS. Subject to the limitations and conditions of
this Supply Agreement, during the applicable Supply Period, Buyer will purchase
from Supplier Buyer's requirements (up to the maximums set forth in Schedule
2.02) of Products within the applicable Product Category, at the prices set
forth on Schedule 9.01 or at such other prices as may be determined in
accordance with this Supply Agreement. Buyer will also be responsible for paying
certain other expenses, as expressly set forth elsewhere in this Supply
Agreement.
2.03 PURCHASE ORDER REQUIREMENTS. Subject in all respects to
Article III of this Supply Agreement, all Manufacturing or Contract
Manufacturing under this Supply Agreement will be covered by a written purchase
order in a form mutually acceptable to Buyer and Supplier (a "Firm Written
Purchase Order"). The terms of this Supply Agreement will govern the performance
of all firm purchase orders and, in the event of any inconsistency between this
Supply Agreement and any firm purchase order, this Supply Agreement will
prevail.
ARTICLE III
FORECASTS/ORDERS/LOCATIONS
3.01 BUYER FORECAST. Pursuant to the terms of the Transitional Supply
Agreement, Buyer will be submitting to Supplier a forecast of its requirements
of Products, by month, for the entire Transitional Supply Period. Buyer will be
providing an eighteen (18) month rolling forecast ("Forecast") that will be
updated monthly, and Buyer will continue this process of
4
providing and updating the Forecast under this Supply Agreement for the Supply
Period. Such monthly updates will be provided to Supplier on the 15th of each
calendar month.
3.02 SUBSEQUENT FIRM WRITTEN PURCHASE ORDERS. In addition to the
Forecast set forth above in Section 3.01, Buyer will deliver to Supplier Firm
Written Purchase Orders for Buyer's requirements. Such Firm Written Purchase
Orders will be in the form set forth in Schedule 3.02 and for the Liquid Product
must be received twelve (12) weeks prior to the date set forth in such Firm
Written Purchase Order for delivery of such Products; and for the Lozenge
Product and Bulk Lozenge Product must be received sixteen (16) weeks prior to
the date set forth in such Firm Written Purchase Order for delivery of such
Products. Pursuant to these conditions, and to the maximums set forth in
Schedule 2.02, Supplier will manufacture and Buyer will arrange to pick-up
Products to fulfill such Firm Written Purchase Orders.
3.03 REPORTS BY SUPPLIER. If requested by Buyer, Supplier will use
commercially reasonably efforts to provide Buyer with quarterly reports on raw
materials, packing material and finished Products reflecting Manufacturing,
Contract Manufacturing, shipments, inventories, and non-binding projections
related thereto.
3.04 CHANGE TO PARTIAL OR FULL CONTRACT MANUFACTURING OR RELOCATION OF
MANUFACTURING. Unless otherwise agreed to by the parties, if Supplier shall
relocated any Manufacturing or Contract Manufacturing to facility(ies) different
from the facility(ies) currently Manufacturing or Contract Manufacturing or if
Supplier shall decide to switch from Manufacturing Products to partial or full
Contract Manufacturing of Products, Supplier will provide Buyer with six (6)
months prior written notice of such change provided that no such relocation or
change shall affect Supplier's agreements or obligations hereunder.
ARTICLE IV
MATERIALS AND EQUIPMENT; CAPACITY
4.01 SOURCES OF MATERIALS. During the Supply Period, Supplier will
source or arrange for the sourcing of all raw and packaging materials required
for Manufacturing or Contract Manufacturing Products from vendors reasonably
selected by or on behalf of Supplier consistent with Supplier's ordinary past
business practices and in quantities reasonably calculated to meet Buyer's
Orders in a cost-effective manner. Supplier agrees to maintain adequate
inventories of raw materials and componentry reasonably calculated to meet the
reasonable requirements of Buyer in a timely manner. Supplier agrees to use
commercially reasonable efforts to obtain competitive pricing.
4.02 NORMAL REPAIR AND REPLACEMENT OF EQUIPMENT. Supplier will be
responsible for all repairs and replacement of equipment or facilities used in
the Manufacture of Products at Supplier's Plant.
4.03 CAPACITY. Supplier is not required to install additional
production capacity or additional production lines to perform its supply
obligations hereunder.
4.04 MATERIAL SUPPLY. In the event that Supplier cannot, or does not,
pursuant to Sections 2.01, 15.01 or 15.02 of this Supply Agreement, continue to
produce Buyer's requirements, Supplier will use commercially reasonable efforts
to separately supply Materials
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for Buyer's use at other contract manufacturers to produce Buyer's requirements.
Notwithstanding the foregoing, Buyer's use of the Materials at another
manufacturer is subject to Section 12.02 below.
ARTICLE V
SHIPPING AND USE OF MATERIALS
5.01 SHIPPING.
(a) LIQUID PRODUCT. Buyer will arrange for the shipment of
Liquid Product in full truckload quantities (on common carriers selected by
Buyer), where possible, and at Buyer's expense (including without limitation any
duties payable in respect of any shipment) and risk of loss from the Supplier's
Warehouse or Contract Plant or Contract Warehouse (i.e., F.O.B. Supplier's
Warehouse or F.O.B. Contract Plant or Contract Warehouse). Buyer will be
responsible for all actual reasonable costs and expenses of month-to-month
storage and warehousing of Liquid Products, whether stored or warehoused at
Supplier's Warehouse, any Contract Warehouse or Contract Plant or elsewhere.
Buyer must arrange to pick up its ordered requirements from Supplier's Warehouse
or Contract Plant or Contract Warehouse on the Deliver Date specified in the
Firm Written Purchase Order.
(b) LOZENGE PRODUCT AND BULK LOZENGE PRODUCT. Supplier will
arrange for the shipment of Lozenge Product and Bulk Lozenge Product in full
seatainer quantities (on common carriers selected by Supplier), where possible,
and at Buyer's expense (including without limitation any duties payable in
respect of any shipment) from Gross Gerau, Germany to the respective port of
entry ["Port(s) of Entry"] in North America. Buyer will arrange for the shipment
of Lozenge Product and Bulk Lozenge Product in full truckload quantities (on
common carriers selected by Buyer), where possible, and at Buyer's expense
(including without limitation any duties payable in respect of any shipment) and
risk of loss from the respective port of entry Port(s) of Entry where the
Lozenge Product and Bulk Lozenge Product are delivered from Gross Gerau,
Germany. Buyer will be the importer of record for the Lozenge Product and Bulk
Lozenge Product. Buyer will be responsible for all actual reasonable costs and
expenses of month-to-month storage and warehousing of Lozenge Product and Bulk
Lozenge Product, whether stored or warehoused at the Ports of Entry, Supplier's
Warehouse, any Contract Warehouse or Contract Plant or elsewhere. Buyer must
arrange to pick up its ordered requirements from the Ports of Entry, Supplier's
Warehouse or Contract Plant or Contract Warehouse on the Delivery Date specified
in the Firm Written Purchase Order.
5.02 ORDER OF USE FOR RAW AND PACKAGING MATERIALS AND INVENTORY BY
SUPPLIER. Supplier will, and will cause any Contract Manufacturer to, use raw
and packaging materials on a first-in, first-out basis ("FIFO") consistent with
past ordinary business practices. Any Products Materials as of the Effective
Date will likewise be used first to satisfy Buyer's requirements.
5.03 COMMON CARRIER CLAIMS. All claims by or to common carriers in
connection with Products will be the responsibility of Buyer, except to the
extent any such claim by a common carrier is the proximate result of the
negligence, gross negligence or intentional misconduct of, or breach of this
Supply Agreement by, Supplier.
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5.04 PALLETS. Liquid Product will be shipped to Buyer on CHEP pallets.
Lozenge Product and Bulk Lozenge Product will be shipped to Buyer on UK pallets.
Buyer will, at its discretion, either pay Supplier for such pallets at actual
cost or establish a lease contract for such pallets directly with the applicable
third party.
ARTICLE VI
CHANGES TO SPECIFICATIONS
6.01 ALTERATIONS. During the Supply Period, Buyer may alter the
Specifications for artwork and label copy of Products ("Alterations") by
utilizing the Cost and Feasibility Process set forth below in Section 6.04 in
order to seek the necessary prior written consent of Supplier, which consent
will not be unreasonably withheld. Once an Alteration has been approved, Buyer
will provide a finished artwork directly to the Packaging Materials Suppliers
designed by Supplier. Once the artwork has been received by the Packaging
Materials Suppliers, the process to order the materials and have the materials
in the plant requires ten (10) weeks. Buyer will be responsible at the time of
consent for:
(a) providing materials required or prudent for implementation
of such Alterations, including, without limitation, artwork and cylinders;
(b) having secured from any Governmental Entity any approvals
that may be necessary in connection with any Alteration;
(c) any resulting increases in costs; and
(d) all liabilities, costs or expenses, including, without
limitation, those of third parties, arising out of or related to Alterations,
including, without limitation, those related to the failure or alleged failure
of the Alterations to comply with applicable laws and regulations, provided the
alterations are implemented by Supplier in accordance with the new
specifications; and
(e) all scrapping costs associated with any Alterations.
6.02 BUYER'S MODIFICATIONS. All changes to Specifications, including,
but not limited to, new product SKU introductions (collectively
"Modifications"), require the prior written consent of Supplier, such consent
not to be unreasonably withheld. Buyer will utilize the Cost and Feasibility
Process set forth below in Section 6.04 in order to seek the necessary prior
written consent of Supplier. Buyer will be responsible for any costs and
expenses associated with such Modifications, including, but not limited to any
testing required for such Modifications and any costs and expenses thereof.
6.03 SUPPLIER MODIFICATIONS. If Supplier initiates a change in
packaging and Buyer agrees to such change, Supplier will bear the cost of any
change parts and any cost increase or decrease in the production of the
Product(s) will be passed through to Buyer.
6.04 COST AND FEASIBILITY PROCESS. Any Modifications or Alterations
requests from Buyer are subject to Supplier's cost and feasibility determination
as to whether such modification can be accomplished ("Cost and Feasibility
Process"). Supplier will provide Buyer
7
with the cost and feasibility form set forth on Schedule 6.04 for submitting
requests for such Modifications or Alterations to Supplier's Cost and
Feasibility Process. Supplier will respond to Buyer's cost and feasibility
request within four (4) weeks of receipt of the cost and feasibility form.
ARTICLE VII
QUALITY ASSURANCE
7.01 QUALITY CONTROL TESTS. Supplier will perform or cause to be
performed quality control tests and assays on raw and packaging materials and on
Liquid Product, Lozenge Product and Bulk Lozenge Product in accordance with
Specifications. Buyer will perform or cause to be performed quality control
tests associated with any sampling uses of the Bulk Lozenge Product.
7.02 STABILITY TESTS. Supplier will maintain a stability testing
program for the Products.
7.03 BUYER INSPECTIONS. Supplier will permit Buyer's designated
representatives to inspect and visit the Chloraseptic-related portion of
Supplier's Plant from time to time for the purpose of determining compliance
with this Supply Agreement. Such inspections will occur during regular business
hours after at least twenty-four (24) hours written notice to Supplier. Buyer
will not disrupt Supplier's operations. Buyer's designated representatives will
be permitted to inspect and visit from time to time any Contract Plant for the
purpose of determining Supplier's compliance with this Supply Agreement, if, and
only to the extent, Supplier obtains the applicable Contract Manufacturer's
consent.
7.04 BUYER TESTS. At Buyer's request, Supplier will cause to be sent,
at Buyer's expense, a reasonable number of Product samples to Buyer for
examination and testing, at Buyer's expense, to assure conformity with
Specifications.
ARTICLE VIII
COMPLIANCE WITH LAWS
8.01 LAWS RELATED TO MANUFACTURING. Supplier will maintain all
necessary permits, licenses and certifications necessary for the Manufacturing
of the Product. Supplier will comply with laws and regulations relating to
environmental matters, wages and hours, equal employment opportunity, tax
withholding on payrolls, working and sanitary conditions and workers'
compensation, in each case, as well as all other applicable laws, regulations,
ordinances and other rules of the federal, state or local authorities, with
respect to maintenance and operation of Supplier's Plant, except where not
material.
8.02 LAWS RELATED TO PRODUCTS. Notwithstanding Section 8.01, Buyer will
be responsible for complying in all material respects with all other laws and
regulations relating to Products (without regard to whether such Products have
been the subject of any Alteration or Additional Modification), including,
without limitation, laws relating to the registration, identification,
formulation, transportation, labeling, sale, marketing or distribution of
Products. Buyer will be responsible for conducting product recalls and for other
duties and obligations imposed by law, rule or regulation arising from or
related to Product purchased by Buyer from Supplier during the Term hereof.
Buyer will also be responsible for documentation,
8
investigation and action regarding drug adverse events, reports and records, and
the like, arising from or related to Buyer's sales of the Products during the
Term hereof.
ARTICLE IX
PRICE
9.01 PRICING AND COST ASSUMPTIONS. Schedule 9.01 sets forth, by SKU,
the price Buyer will pay Supplier for Products. Schedule 9.01 also sets forth
major assumptions concerning the costs of Products (collectively "Manufacturing
Costs"). Supplier will adjust any raw materials and packaging costs on a
quarterly basis and will adjust any other manufacturing costs on an annual
basis, on or before July 1st of each calendar year. In the event of any increase
or decrease in the Manufacturing Costs (including, without limitation, cost
changes associated with any decision by Supplier to switch from Manufacturing
Products to partial or full Contract Manufacturing of Products), Supplier will
pass such increase or decrease through to Buyer, such that the price Buyer will
pay Supplier for Products will reflect such increase or decrease. In accordance
with Supplier's adjustment of these costs, Supplier will notify Buyer in writing
of any such increase or decrease in raw materials and packaging costs on a
quarterly basis, and will notify Buyer in writing of any such increase or
decrease in other manufacturing costs of an annual basis, on or before July 1st
of each calendar year. The notice will include:
(a) the reason for the increase or decrease;
(b) the date when the increase or decrease will take effect; and
(c) the amount of the increase or decrease.
Supplier will use its reasonable efforts to minimize cost increases
consistent with its ordinary past business practices; provided, however,
that this requirement will not limit Supplier's ability to switch from
Manufacturing Products to partial or full Contract Manufacturing of
Products.
ARTICLE X
PAYMENT
10.01 INVOICING AND PAYMENT. Supplier will send Buyer an invoice for
each shipment of Products. All invoices will be based upon the xxxx of lading
describing the Products and quantity of Products shipped to Buyer. Buyer will be
responsible for paying each invoice within thirty (30) calendar days after the
date of such invoice and payment will not be delayed pending delivery of
Products by any common carrier or resolution of any disputes between Buyer and
any common carrier regarding the shipment. Buyer will pay Supplier a late
payment charge of twelve percent (12%) per annum on any payment not received
within thirty (30) calendar days of the date of the relevant invoice; provided,
however, that Buyer will not owe any late payment charge with respect to any
disputed payment amount pending resolution of such dispute. Payment will be made
in US dollars and will be sent to the location designated in advance by
Supplier.
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ARTICLE XI
SUPPLIER'S REPRESENTATIONS, WARRANTIES AND DISCLAIMER
11.01 TITLE TO PRODUCTS. Supplier represents and warrants it will pass
to Buyer good and marketable title to Products, free and clear of all material
liens, claims, security interests and encumbrances of any kind.
11.02 COMPLIANCE WITH SPECIFICATIONS AND GMP'S. Supplier represents and
warrants the Products will be in compliance with Specifications within normal
variation at the time such Products are delivered to the common carrier for
shipment to Buyer, and will have been produced in accordance with then-current
Good Manufacturing Practices.
11.03 LIMITATION OF WARRANTIES. SUPPLIER MAKES NO WARRANTY, OTHER THAN
THE WARRANTIES SET FORTH HEREIN OR IN THE SALE AGREEMENT. THE WARRANTIES SET
FORTH HEREIN AND THEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE XII
INTELLECTUAL PROPERTY
12.01 OWNERSHIP OF INTELLECTUAL PROPERTY. All intellectual property
constituting Acquired Assets or constituting Excluded Assets shall be owned by
and will at all times be and remain the exclusive property of Buyer or Supplier
(or Supplier's Affiliates), respectively, and this Supply Agreement will not
constitute a license, except to the extent required to fulfill each party's
obligations hereunder.
12.02 LICENSE DURING SUPPLIER SUPPLY TO BUYER. Except as otherwise
agreed in writing by the parties, Supplier grants Buyer a nonexclusive license
under any applicable packaging patents owned by Supplier to use and sell
Products supplied by Supplier to Buyer under this Supply Agreement. This license
will not include any right to repackage any products using said packages
supplied under this Supply Agreement. This license will not apply to any
Products supplied under this Supply Agreement the contents of which have been
modified by Buyer. For avoidance of doubt, it is understood that Buyer will have
no rights, except as set forth in Section 12.03 herein, to make or have made
packages under Supplier's packaging patents.
12.03 LICENSE IF SUPPLIER NO LONGER SUPPLIES BUYER. In the event this
Supply Agreement is terminated pursuant to Paragraph 15.02 and Supplier no
longer supplies Product to Buyer, Supplier grants Buyer a perpetual license to
certain patents dealing with certain child resistant packaging, under the terms
set forth in the License Agreement, in the form attached as Exhibit 12.03, to be
executed concurrently with this Supply Agreement.
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ARTICLE XIII
SUPPLIER'S AND CONTRACT MANUFACTURER'S
USE OF BUYER'S PROPERTY
13.01 BOOKS AND RECORDS. During the Supply Period with respect to any
Product Category, Supplier will be permitted, at no cost to Supplier, to retain
and use any Books and Records transferred to the Buyer pursuant to the Sale
Agreement to the extent reasonably necessary for Supplier to fulfill its
obligations under this Supply Agreement with respect to such Product Category.
ARTICLE XIV
TERM
14.01 TERM. This Supply Agreement will be in effect until either party
terminates this Supply Agreement pursuant to Section 15.01 or Section 15.02.
ARTICLE XV
TERMINATION
15.01 NOTICE OF DEFAULT. In addition to any other rights or remedies
Buyer or Supplier may have under the Sale Agreement or at law or in equity, a
party not in default under this Supply Agreement (the "Non-Defaulting Party")
may terminate this Supply Agreement or any Supply Period by giving written
notice to the other party (the "Defaulting Party") of the Non-Defaulting Party's
intention to terminate this Supply Agreement or any Supply Period upon the
occurrence of either or both of the following events:
(a) a breach by the Defaulting Party of any of its obligations
hereunder; or
(b) the filing by or against the Defaulting Party of a petition
in bankruptcy, or any appointment of a receiver for the Defaulting Party or any
substantial part of its assets, or any assignment for the benefit of the
Defaulting Party's creditors.
Such notice will identify a date for termination of this Supply Agreement
or any Supply Period, which date will not be sooner than five (5) Business
Days after receipt of such notice by the Defaulting Party ("Termination
Date"). If the event on which the notice is based is not cured prior to the
Termination Date, then this Supply Agreement or any Supply Period will
terminate on the Termination Date pursuant to such notice.
15.02 TERMINATION WITHOUT CAUSE. Buyer may terminate early this Supply
Agreement or any Supply Period at any time without cause and without penalty by
giving twelve (12) months prior written notice to Supplier. Notwithstanding the
above, if Buyer terminates in this manner, Buyer will be liable for existing
inventory and Materials.
15.03 EFFECT ON OTHER AGREEMENTS/SURVIVAL OF CERTAIN PROVISIONS.
Termination of this Supply Agreement or any Supply Period will have no effect on
any other agreements between Buyer and Supplier, unless an effect is mutually
and specifically agreed in writing between the parties, and such termination
will not relieve either party of any liability to the other based on acts or
omissions prior to such termination. The following Articles and Sections will
11
survive any such termination: Article XI, Article XII, and Sections 15.03,
15.04, 16.03, 16.05, 16.06, 16.07, 16.08, 16.09 and 16.10.
15.04 UNSHIPPED PRODUCTS AND MATERIALS. Upon any termination of this
Supply Agreement or any Supply Period with respect to any Product Category,
Supplier will arrange for the prompt shipment to Buyer at the address(es)
designated by Buyer pursuant to Section 5.01, and Buyer will purchase:
(a) any unshipped Products within such Product Categor(ies) as
of the Termination Date at the price(s) set forth in Schedule 9.01 as modified
pursuant to Section 9.01; and
(b) any unused but usable works in progress or Materials
exclusively related to Products within such Product Categor(ies), at actual
cost.
Buyer will be responsible for paying for the shipment of, and will bear the
risk of loss for, usable Materials and Products to the designated
location(s).
ARTICLE XVI
MISCELLANEOUS
16.01 ENTIRE AGREEMENT. This Supply Agreement constitutes the entire
agreement between Supplier and Buyer with respect to, among other things, the
Manufacture and Contract Manufacture of Products. In the event of any
inconsistency between this Supply Agreement and any subsequently-issued
document, including without limitation, an Order, this Supply Agreement will
prevail.
16.02 TAXES. Buyer and Supplier agree to pay all Taxes assessed on all
materials, excluding Products, to which each of them has title. Buyer will be
responsible for paying all taxes assessed on Products.
16.03 SUPPLIER'S EMPLOYEES AND INDEPENDENT CONTRACTOR STATUS. During the
term hereof, and for a period of two (2) years after the termination of this
Supply Agreement, Buyer will not, and will cause its Affiliates not to, without
Supplier's prior written agreement, directly or indirectly solicit for
employment or hire any employees of Supplier or Supplier's Affiliates who have
worked in connection with the performance of this Supply Agreement. Supplier is
acting pursuant to this Supply Agreement as an independent contractor.
16.04 FORCE MAJEURE. Neither party (the "Affected Party") will be liable
to the other (the "Non-Affected Party") for failure to perform any part of this
Supply Agreement if such failure results from an act of God, war, revolt,
revolution, sabotage, actions of a Governmental Entity, laws, regulations,
embargo, fire, strike, other labor trouble, insolvency or other financial
difficulty of any Contract Manufacturer or any cause beyond the Affected Party's
control. Upon the occurrence of any such event which results in, or will result
in, delay or failure to perform according to the terms of this Supply Agreement,
the Affected Party will promptly give notice to the Non-Affected Party of such
occurrence and the effect and/or anticipated effect of such occurrence. The
Affected Party will use its reasonable efforts to minimize disruptions in its
performance and to resume performance of its obligations under this Supply
Agreement as soon
12
as practicable, provided, however, the resolution of any strike or labor trouble
will be within the sole discretion of the Affected Party.
16.05 NO RIGHT OF SET-OFF. Notwithstanding any other provisions of this
Supply Agreement or any other agreement between the parties, all payments to be
made by either party under this Supply Agreement will be made free of any
set-off and will be promptly remitted to the party entitled to receive payment
hereunder.
16.06 LIMITATION. Any Action pursuant to this Supply Agreement,
including, without limitation, any Action with respect to any indemnify
obligation, must be commenced within five (5) years after the termination of
this Supply Agreement.
16.07 INDEMNIFICATION BY SUPPLIER.
(a) Subject to the terms and conditions of this Supply
Agreement, Supplier will jointly and severally defend, indemnify and hold
harmless Buyer and its affiliates and each of their respective officers,
directors, employees, shareholders, agents and representatives, and their
successors and assigns (collectively the "Buyer Indemnities") from and against
all claims, losses, liabilities, damages, costs and expenses (including without
limitation reasonable fees and expenses of attorneys incurred in investigation
or defense of any Action) (collectively "Claims") arising out of or related to:
(i) Excluded Liabilities as set forth in the Sale Agreement, (ii) any breach of
any covenant or agreement of Supplier contained in this Supply Agreement, (iii)
any negligence, gross negligence, or willful or intentional misconduct by
Supplier or any of its personnel; and (iv) any breach of any representation or
warranty of Supplier contained in this Supply Agreement;
(b) Promptly after receipt by Buyer of notice of any third-party
Action in respect of which indemnity may be sought against Supplier hereunder
(for purposes of this Section 16.07, a "Buyer's Assertion"), Buyer will notify
Supplier in writing of the Buyer's Assertion, but the failure to so notify
Supplier will not relieve Supplier of any liability it may have to Buyer, except
to the extent Supplier has suffered actual prejudice thereby. Supplier will be
entitled to participate in and, to the extent Supplier elects by written notice
to Buyer within thirty (30) days after receipt by Supplier of notice of such
Buyer's Assertion, to assume the defense of such Buyer's Assertion, at
Supplier's own expense, with counsel chosen by them which will be reasonably
satisfactory to Buyer. With respect to any such Buyer's Assertion, Buyer will
promptly provide Supplier with: (i) notice and copies of any documents served
upon Buyer; and (ii) all reasonable cooperation which Supplier deems necessary
to defend such Buyer's Assertion, including, without limitation, providing
Supplier and its outside attorneys access to any potentially relevant documents,
information, or individuals within the control of Buyer, other than any
privileged documents. If business information of Buyer other than that
pertaining to the Business is contained in such documents or information,
Supplier and Buyer will enter into appropriate secrecy commitments to protect
such documents or information. Notwithstanding that Supplier may have elected by
written notice to assume the defense of any Buyer's Assertion, Buyer will have
the right to participate in the investigation and defense thereof, with separate
counsel chosen by Buyer, but in such event the fees and expenses of Buyer (above
those which would otherwise have been incurred) and such separate counsel will
be paid by Buyer.
13
(c) Notwithstanding anything in this Section 16.07 to the
contrary: (i) Supplier will have no obligation with respect to any Buyer's
Assertion if, in connection therewith, Buyer, without the written consent of
Supplier, which consent will not be unreasonably withheld, settles or
compromises any Action or consents to the entry of any judgment; and (ii)
Supplier will not without the written consent of Buyer with respect to any Buyer
Assertion: (A) settle or compromise any Action or consent to the entry of any
judgment which does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to Buyer of a duly executed written release of Buyer
from all liability in respect of such Action, which release will be reasonably
satisfactory in form and substance to counsel for Buyer, or (B) settle or
compromise any Action in any manner that, in the reasonable judgment of Buyer or
its counsel, will adversely affect Buyer other than as a result of money damages
or other money payments.
(d) Upon the payment of any settlement or judgment pursuant to
this Section 16.07 with respect to any Buyer's Assertion, Supplier will be
subrogated to all rights and remedies of Buyer against any third party in
respect of such Buyer's Assertion to the extent of the amount so paid by
Supplier.
(e) The indemnity provided for by this Section 16.07 will be
Buyer's exclusive source of recovery against Supplier with respect to matters
covered hereby.
16.08 INDEMNIFICATION BY BUYER.
(a) Subject to the terms and conditions of this Agreement, Buyer
will defend, indemnify and hold harmless Supplier and its affiliates and each of
their respective officers, directors, employees, shareholders, agents and
representatives, and their successors and assigns (collectively, the "Supplier
Indemnities") from and against all Claims arising out of or related to: (i)
Assumed Liabilities as defined in the Sale Agreement; (ii) any breach of any
covenant or agreement of Buyer contained in this Supply Agreement; and (iii) any
breach of any representation or warranty of Buyer contained in this Supply
Agreement.
(b) Promptly after receipt by Supplier of notice of any Action
in respect of which indemnity may be sought against Buyer hereunder (for
purposes of this Section 16.08, a "Supplier's Assertion"), Supplier will notify
Buyer in writing of the Supplier's Assertion, but the failure to so notify Buyer
will not relieve Buyer of any liability it may have to Supplier, except to the
extent Buyer has suffered actual prejudice thereby. Buyer will be entitled to
participate in and, to the extent Buyer elects by written notice to Supplier
within thirty (30) days after receipt by Buyer of notice of such Supplier's
Assertion, to assume the defense of such Supplier's Assertion, at its own
expense, with counsel chosen by it which will be reasonably satisfactory to
Supplier. With respect to any such Supplier's Assertion, Supplier will promptly
provide Buyer with: (i) notice and copies of any documents upon Supplier; and
(ii) all reasonable cooperation which Buyer deems necessary to defend such
Supplier's Assertion, including without limitation providing Buyer and its
outside attorneys access to any potentially-relevant documents, information, or
individuals within the control of Supplier, other than any privileged documents.
If business information of Supplier other than that pertaining to the Business
is contained in such documents or information, Supplier and Buyer will enter
into appropriate secrecy commitments to protect such documents or information.
Notwithstanding that Buyer may have elected by
14
written notice to assume the defense of any Supplier's Assertion, Supplier will
have the right to participate in the investigation and defense thereof, with
separate counsel chosen by Supplier, but in such event the fees and expenses of
Supplier (above those which would otherwise have been incurred) and such
separate counsel will be paid by Supplier.
(c) Notwithstanding anything in this Section 16.08 to the
contrary: (i) Buyer will have no obligation with respect to any Supplier's
Assertion if, in connection therewith, Supplier, without the written consent of
Buyer, settles or compromises any Action or consents to the entry of any
judgment; and (ii) Buyer will not, without the written consent of Supplier,
which consent will not be unreasonably withheld, with respect to any Supplier's
Assertion: (A) settle or compromise any Action or consent to the entry of any
judgment which does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to Supplier of a duly executed written release of
Supplier from all liability in respect of such Action, which release will be
reasonably satisfactory in form and substance to counsel for Supplier; or (B)
settle or compromise any Action in any manner that, in the reasonable judgment
of Supplier or their counsel, will materially adversely affect Supplier other
than as a result of money damages or other money payments.
(d) Upon the payment of any settlement or judgment pursuant to
this Section 16.08 with respect to any Supplier's Assertion, Buyer will be
subrogated to all rights and remedies of Supplier against any third party in
respect of such Supplier's Assertion to the extent of the amount so paid by
Buyer.
(e) The indemnity provided for by this Section 16.08 will be
Supplier's exclusive source of recovery against Buyer with respect to matters
covered hereby.
16.09 DISPUTE RESOLUTION
(a) Any Action asserted by Supplier against buyer or by Buyer
against Supplier (a "Claim") arising out of or related to this Supply Agreement,
including without limitation any Claim for indemnification pursuant to Sections
16.07 and 16.08 above, hereof or any issue as to whether or not a Claim is
arbitrable, will be resolved pursuant to the procedures described in this
Section 16.09.
(b) Should any Claim arise, Supplier and Buyer will first
attempt to resolve such Claim by entering into good faith negotiations by or
among their appropriate employees or officers. Such negotiations will commence
as soon as practicable after either Supplier or Buyer has received notice from
the other party of such claim, but no later than ten (10) days after such
receipt, and will terminate thirty (30) calendar days after such commencement.
During negotiations, Supplier and buyer will not have the right to any
discovery, unless agreed by each of Supplier and Buyer.
(c) Any Claim which has not been resolved pursuant to Section
16.09(b) of this Agreement will be referred to good faith negotiations by or
among one or more officers of Supplier and Buyer. Such negotiations will
commence as soon as practicable after termination of the negotiations described
in Section 16.09(b), but not later than ten (10) business day thereafter, and
will terminate thirty (30) calendar days after such commencement. During the
15
negotiations, Supplier and Buyer will not have the right to any discovery,
unless agreed by Supplier and Buyer.
(d) Any Claim which has not been resolved pursuant to Section
16.09(c) of this Agreement will be determined by arbitration. The arbitration
will be conducted by one arbitrator, who will be appointed pursuant to the
Commercial Arbitration Rules of the American Arbitration Association (AAA). The
arbitration will be held in Cincinnati,
Ohio and will be conducted in accordance
with the Commercial Arbitration rules of the AAA, except that the rules set
forth in this Section 16.09(d) will govern such arbitration to the extent they
conflict with the rules of the AAA. Supplier and Buyer will use their best
efforts to cause the arbitration to be conducted in an expeditious manner.
Supplier and Buyer will use their best efforts to cause the arbitration to be
completed within sixty (60) days after selection of the arbitrator. In the
arbitration, Delaware law will govern, except to the extent that those laws
conflict with the Commercial Arbitration Rules of the AAA and the provisions of
this Section 16.09(d). There will be no discovery, except as the arbitrator will
permit following a determination by the arbitrator that the person seeking such
discovery has a substantial, demonstrable need. All other procedural matters
will be within the discretion of the arbitrator. In the event a Person fails to
comply with the procedures in any arbitration in a manner deemed material by the
arbitrator, the arbitrator will fix a reasonable period of time for compliance
and, if the Person does not comply within said period, a remedy deemed just by
the arbitrator, including an aware of default, may be imposed. The determination
of the arbitrator will be final and binding on the Supplier and Buyer. Judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
16.10 DAMAGE LIMITATIONS. Notwithstanding anything to the contrary in
this Agreement, none of Supplier's Indemnified Parties nor Buyer's Indemnified
Parties will be permitted to recover any consequential, indirect, special or
punitive damages arising out of or related to this Agreement, regardless of the
form of the Claim or Action, including without limitation Claims or Actions for
indemnification, tort, breach of contract, warranty, representation or covenant.
16.11 SUCCESSORS AND ASSIGNS. This Supply Agreement will be binding upon
and will inure to the benefit of the signatories hereto and their respective
successors and permitted assigns. Neitherof Supplier nor Buyer may assign this
Supply Agreement, or any of their rights or liabilities thereunder, without the
prior written consent of the other parties thereto, provided that Supplier and
Buyer may so assign, in whole or in part, to one or more of their Affiliates.
Any such assignment will not relieve the party making the assignment from any
liability under such agreements.
16.12 NOTICES. All notices required or permitted to be given under this
Supply Agreement will be in writing and will be deemed to be properly given when
actually received by the Person entitled to receive the notice at the address
stated below, or at such other address as Supplier or Buyer may provide by
notice to the other:
SUPPLIER:
The Procter & Xxxxxx Manufacturing Company
The Health Care Research Center
16
0000 Xxxxx-Xxxxxxxxxx xxxx
X.X. Xxx 0000
Xxxxx, Xxxx 00000-0000
Attention: Xxx Xxxxxx, Manufacturing Brand Assistant
Telephone: 000-000-0000
Fax: 000-000-0000
With a copy to:
The Procter & Xxxxxx Manufacturing Company
Xxx Xxxxxxx & Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Associate General Counsel - Healthcare
Telephone: (000) 000-0000
Fax: (000) 000-0000
BUYER:
Prestige Brands International, Inc.
00000 Xxxxx Xxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Attention: Xxx Host
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
IN WITNESS WHEREOF, the parties have signed this Supply Agreement on the date
set forth below.
SUPPLIER: BUYER:
THE PROCTER & XXXXXX MANUFACTURING PRESTIGE BRANDS INTERNATIONAL, INC.
COMPANY
By: By:
------------------------------------ ----------------------------------------
Name printed: Name printed:
------------------------------------ ----------------------------------------
Title: Title:
------------------------------------ ----------------------------------------
Date: Date:
------------------------------------ ----------------------------------------
17
P&G INTERNATIONAL OPERATIONS SA PRESTIGE BRANDS INTERNATIONAL (CANADA),
CORP.
By: By:
------------------------------------ ----------------------------------------
Name printed: Name printed:
------------------------------------ ----------------------------------------
Title: Title:
------------------------------------ ----------------------------------------
Date: Date:
------------------------------------ ----------------------------------------
18
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.
SCHEDULE 1.04
BULK LOZENGE PRODUCT
BULK LOZENGES IN DRUMS
cherry
menthol
SCHEDULE 1.13
LIQUID PRODUCT
OPEN STOCK LIQUID
FINISHED PRODUCT:
# per
physical
Brand Codes Description cases
----------- ----------- --------
69350 U.S. Cherry Liquid 6oz. 12
00000 X.X. Xxxxxxx Liquid 6oz. 12
04712 U.S. Cool Mint Liquid 6oz. 12
64535 U.S. Cherry Liquid 1oz. 24
67936 Canada Cherry Liquid 175mL (6oz.) 12
00000 Xxxxxx Menthol Liquid 175mL (6oz.) 12
SCHEDULE 1.14
LOZENGE PRODUCT
OPEN STOCK LOZENGE
FINISHED PRODUCT:
# per
physical
Brand Codes Description cases
----------- ----------- --------
11921 U.S. Cherry Lozenges 18ct 36
15374 U.S. Menthol Lozenges 18 ct 36
74497 Canada Cherry Lozenges 18 Ct 36
74567 Canada Menthol Lozenges 18 ct 36
SCHEDULE 2.02
MAXIMUMS
Requirements requested by Buyer in the Firm Written Purchase Order will not
exceed the forecast by the following amounts:
Months 1 and 2: Fixed
Months 3 and 4: 10%
Months 5 and 6: 25%
Supplier will be open to consider deviations beyond this on a case-by-case basis
and will use commercially reasonable efforts to accommodate such deviations.
If Buyer's annual requirements are forecasted to increase more than 10% versus
previous year, Buyer and Supplier agree to develop a mutually agreeable plan to
meet the demand.
SCHEDULE 3.02
FORM OF FIRM WRITTEN PURCHASE ORDER
PRESTIGE BRANDS INTERNATIONAL
PURCHASE ORDER
TO: PROCTER & XXXXXX SHIP TO:
tbd
DATE PICK UP DATE SHIP VIA PURCHASE ORDER NO.
SHIPMENTS BY WEEK*
QUANTITY BRAND WEEK WEEK WEEK WEEK
(PHYS CS.) CODE DESCRIPTION 1 2 3 4
---------------------------------------------------------------------
*SHIPMENTS SHOULD BE IN FULL TRUCKLOADS
48 ft. and 53 ft. trucks will hold 48 pallets
Liquids: 130 cases/pallet
Lozenges: 80 cases/pallet
-------------------------------------------------
AUTHORIZATION SIGNATURE
SCHEDULE 6.04
COST AND FEASIBILITY FORM
COST & FEASIBILITY REQUEST
DATE: C&F NO.:
SKU:
COUNTRY:
ASSUMPTIONS:
VOLUME:
TIMING:
REQUIREMENTS:
--------------------------------------------
SIGNATURE
CHLORASEPTIC SCHEDULE 9.01
PRODUCT US CANADA
BRAND BRAND
CODE CODE
----- ------
6oz Cherry liquid 69350 67936
6oz Menthol liquid 07195 67937
6oz Cool Mint liquid 04712 n/a
1oz Cherry liquid 64535 n/a
18ct Cherry lozenge 11921 74497
18ct Menthol lozenge 15374 74567
Bulk lozenges (40kg) n/a n/a
***
EXHIBIT 12.03
LICENSE AGREEMENT
This LICENSE AGREEMENT by and between The Procter & Xxxxxx Company, an
Ohio
corporation (collectively with its affiliates, "P&G"), and Prestige Brands
International, Inc., a Virginia corporation, (collectively with its Affiliates
"PRESTIGE"). This LICENSE AGREEMENT will have an effective date of February 1,
2001 ("EFFECTIVE DATE"). Supplier and Buyer are sometimes collectively referred
to herein as "parties" and individually as "party."
BACKGROUND OF THE AGREEMENT
PRESTIGE and P&G have entered into an Asset Sale and Purchase Agreement, dated
Xxxxx 00, 0000 ("XXXX AGREEMENT"), pursuant to which PRESTIGE purchased certain
assets; and on the same day, PRESTIGE and P&G simultaneously entered into a
Transitional Services Agreement to expire June 30, 2000 and a Transitional
Supply Agreement to expire January 31, 2001.
Under the terms of the SALE AGREEMENT, in addition to having agreed to negotiate
in good faith a long term supply agreement governing the supply of certain
product by P&G for a period after January 31, 2001, the PARTIES also agreed to
negotiate in good faith a license agreement governing the licensing by P&G to
PRESTIGE of certain child resistant packaging technology, said license to become
effective in the event P&G no longer supplies the subject product to PRESTIGE.
The parties have negotiated and on this day are simultaneously entering into the
long term supply agreement ("SUPPLY AGREEMENT") to which this LICENSE AGREEMENT
is an exhibit.
In consideration of the mutual representations, warranties, covenants,
agreements and conditions contained herein, the PARTIES agree as follows:
1. DEFINITIONS.
1.1. GENERAL. The capitalized terms defined herein shall have the
meanings indicated for purposes of this LICENSE AGREEMENT;
non-capitalized terms have no limit as to subject matter or scope.
1.2. "AFFILIATE" means, with respect to a Person, another Person
that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
Person. "Control," whether or not capitalized, means, with respect to
a Person, the ownership by another Person of greater than 50% of the
income or voting interests of such Person or such other Person of
greater than 50% of the income or voting interests of such Person or
such other arrangement as constitutes the direct or indirect ability
to direct the management, affairs or actions of such Person.
1.3. "LICENSE AGREEMENT" means this agreement.
1.4. "LICENSED FIELD" means packaging for the Liquid Product.
1.5. "LICENSED PATENTS" means those patents, patent applications
and patents issuing therefrom specifically set forth in Appendix A.
1.6. "LICENSED PACKAGING" means packaging having a bottle, closure,
and seal as generally set forth in Appendix B; and employing a child
resistant means as specifically set forth in Appendix B; and covered
by and/or produced using a process or method covered by, one or more
claims of LICENSED PATENTS.
1.7. "LIQUID PRODUCT" means the oral anesthetic liquid finished
open stock product produced as of the Signing Date of the SUPPLY
AGREEMENT for sale in the United States and Canada that is set forth
on Schedule 1.12 of the SUPPLY AGREEMENT, together with any
Alterations and/or Modifications.
1.8. "OTHERWISE DISPOSED OF" means the transfer of a UNIT by
PRESTIGE to a THIRD PARTY (except for purposes of scrapping),
irrespective of the form of consideration received by PRESTIGE.
1.9. "PARTY" means either PRESTIGE or P&G, and "PARTIES" means the
two collectively.
1.10. "PERSON" means (as the context requires) an individual, a
Corporation, a partnership, an association, a trust, a limited
liability company, or other entity or organization, including a
governmental entity.
1.11. "PERSONNEL" means, as applied to PRESTIGE or P&G, officers,
employees, consultants, agents, contractors or others hired by or
retained by the respective PARTY.
1.12. "TERRITORY" means the United States and Canada.
1.13. "THIRD PARTY" means any individual, corporation, association
or other entity, which is not a PARTY.
1.14. "UNIT" means a single LICENSED PACKAGING.
1.15. Other Terms. Other terms defined in this LICENSE AGREEMENT, and
the location where they are defined, are:
"AAA" Paragraph 11
"AUDITOR" Paragraph 5.2
"DISPUTE" Paragraph 11
"EFFECTIVE DATE" Page 1, first paragraph
"INFRINGEMENT" Paragraph 7.1
27
"LIABILITY" Paragraph 9.1
"LICENSE" Paragraph 2.1
"SALE AGREEMENT" Page 1, second paragraph
"SUITS" Paragraph 9.1
2. GRANT
2.1. LICENSE GRANT. Effective pursuant to Paragraph 2.2, P&G
conditionally grants PRESTIGE a non-exclusive license to make, have
made, use, and sell LICENSED PACKAGING in the TERRITORY under LICENSED
PATENTS solely in the LICENSED FIELD; said license shall not include
the right to sublicense ("LICENSE").
2.2. CONDITION AND EFFECTIVE DATE OF LICENSE GRANT. The LICENSE
shall automatically be granted upon condition of, and become effective
as of the date of, termination of the SUPPLY AGREEMENT under Paragraph
15.02 of the SUPPLY AGREEMENT and whereupon such termination P&G no
longer supplies LICENSED PACKAGING to PRESTIGE.
3. ROYALTIES
3.1. RUNNING ROYALTY. In consideration for the LICENSE granted
herein, PRESTIGE shall pay P&G a running royalty of ***.
4. PAYMENTS
4.1. STATEMENTS AND DUE DATE. Not later than the fifteenth (15th)
day of each February and August, PRESTIGE shall both: furnish to P&G a
written statement in such detail as P&G may reasonably require (but in
any case providing the number of UNITS sold or OTHERWISE DISPOSED OF
during the period) of all amounts due under this LICENSE AGREEMENT for
the semiannual periods ending the last days of the preceding December
and June, respectively; and pay to P&G all amounts due to P&G. If no
amount is accrued during any semiannual period, a written statement to
that effect shall be furnished.
4.2. ELECTRONIC FUND TRANSFER. All monies due P&G under this
LICENSE AGREEMENT shall be paid by electronic fund transfer to an
account to be identified by written notice to PRESTIGE. PRESTIGE shall
bear all charges associated with the electronic fund transfers.
4.3. OVERDUE PAYMENTS. Payments provided for in this Article 4,
when overdue, shall bear interest compounded daily at a rate per annum
equal to four percent (4%) in excess of the "prime rate" published by
"The Wall Street Journal" at the time such payment is due, and for the
time period beginning on the due date and ending on the date payment
is received by P&G.
28
4.4. EFFECT OF TERMINATION. If the LICENSE for any reason is
terminated before all of the payments provided for in this Article 4
have been made, PRESTIGE shall immediately submit a terminal report
and pay to P&G any remaining unpaid balance even though the due date
as above provided has not been reached.
4.5. WITHHOLDING TAX. In the event and to the extent that any
payment under this LICENSE AGREEMENT is subject to a withholding tax
under the law of the country from which the payment is made, and a
treaty exists between that country and the country where the payment
is received, PRESTIGE shall be permitted to make such a deduction from
the payment made to P&G hereunder. PRESTIGE shall, for each such
deduction, obtain from the relevant government authority a certificate
or other documentary evidence of such deduction to enable P&G to
recover the amount of tax or otherwise avoid double taxation on the
payments.
5. Records
5.1. RECORDS. PRESTIGE shall keep and maintain at its regular place
of business complete books and records of all business transactions by
PRESTIGE in connection with LICENSED PACKAGING, including, but not
limited to books and records relating to shipments, orders and sales
of the LICENSED PACKAGING. Such records shall be retained by PRESTIGE
for at least five (5) years following the year to which they pertain.
5.2. INSPECTION OF RECORDS. P&G, or its duly authorized agents or
representatives, shall have the right to inspect said books and
records at PRESTIGE's premises during regular business hours, provided
that P&G shall give PRESTIGE at least ten (10) days advance written
notice of its intention to do so. P&G may only inspect PRESTIGE's
records once per calendar year and may not inspect the same records
twice. PRESTIGE shall pay P&G the amount of any underpayment of
royalties with interest of Twelve Percent (12%) per year within
fifteen (15) business days after the determination of the amount of
such underpayment. P&G shall credit the amount of any overpayment of
royalties made by PRESTIGE to the next royalty payment due after the
determination of such overpayment. In the event of any dispute between
the PARTIES as to the amount of any underpayment or overpayment of
royalties, the PARTIES shall select an independent THIRD PARTY auditor
("AUDITOR") who shall inspect the PARTIES' books and records relating
to any alleged underpayment or overpayment of royalties and whose
determination with respect hereto shall be definitive and final. If
the AUDITOR determines that there was a net underpayment or
overpayment of royalties, then PRESTIGE shall either pay to P&G the
amount of any such underpayment or P&G shall credit PRESTIGE the
amount of any such overpayment as set forth above. If the AUDITOR
finds in favor of P&G's calculations of royalties due and owing, then
PRESTIGE shall bear the costs and fees of the AUDITOR; if the AUDITOR
finds in favor of PRESTIGE's calculations of royalties due and owing,
then P&G shall bear the costs and fees of the AUDITOR. If the AUDITOR
does not find in favor of either
29
PARTY's calculation, then the PARTIES shall share equally the costs
and fees of the AUDITOR.
6. MARKING
6.1. MARKING. PRESTIGE shall place in a conspicuous location, on
any product made or sold under LICENSED PATENTS, a patent notice in
accordance with the applicable patent marking laws of the country in
which the product is made and/or sold, should such marking serve as
legal notice to would-be infringers.
7. ENFORCEMENT
7.1. NOTIFICATION OF INFRINGEMENT. In the event PRESTIGE learns of
any potential or alleged infringement of LICENSED PATENTS due to the
manufacture, use, importation, offer for sale or sale ("INFRINGEMENT")
of LICENSED PACKAGING by a THIRD PARTY, PRESTIGE shall promptly advise
P&G of all the relevant facts and circumstances known by PRESTIGE in
connection with the INFRINGEMENT.
7.2. ENFORCEMENT. P&G shall have the right, but not the obligation,
to institute such action as it deems appropriate to terminate the
INFRINGEMENT through negotiation, litigation and/or alternative
dispute resolution means, at its sole discretion and at its sole cost.
The right to institute such an action shall be exclusive to P&G. P&G
shall have the right to select and to control counsel in any action
initiated by P&G. PRESTIGE shall lend its name to the action, and
provide such assistance as may be reasonably necessary. P&G has the
right to settle such action at its sole discretion; any recovery of
damages shall be retained by P&G.
8. REPRESENTATIONS AND WARRANTIES
8.1. REPRESENTATIONS AND DISCLAIMER OF WARRANTIES. Nothing in this
LICENSE AGREEMENT shall be deemed to be a representation or warranty
by P&G of the accuracy, safety, or usefulness for any purpose of any
technical information, techniques, or practices at any time made
available by P&G; nor to the patentability or validity of any patent
applications or granted patents licensed by P&G. P&G shall have no
liability whatsoever to PRESTIGE or any other person for or on account
of any injury, loss, or damage, of any kind or nature, sustained by,
or any damage assessed or asserted against, or any other liability
incurred by or imposed on PRESTIGE or any other person, arising out of
or in connection with or resulting from (a) the production, use, or
sale of any apparatus or product, or the practice of the subject
licensed patent rights; (b) the use of any technical information,
techniques, or practices disclosed by P&G; or (c) any advertising or
other promotional activities with respect to any of the foregoing, and
PRESTIGE shall hold P&G or its PERSONNEL harmless in the event P&G or
its PERSONNEL is held liable. Additionally, neither PARTY shall be
liable in
30
any circumstances whatsoever (including liability for negligence or
other tortious act or omission) for (a) any loss of profit, loss of
contract or loss of goodwill; or (b) any indirect or consequential
loss. P&G shall not have any liabilities or responsibilities
whatsoever with respect to LICENSED PACKAGING.
9. INDEMNIFICATION
9.1. INDEMNIFICATION. PRESTIGE agrees to indemnify, hold harmless and
defend P&G and its PERSONNEL, against any and all claims, suits,
actions, or demands ("SUITS") for any liability, damage or loss,
including, but not limited to, death, illness, losses, property
damage, costs, fees, and expenses ("LIABILITY") resulting or alleged
to result from or arising out of exercise of the licenses granted
herein or the LICENSED PACKAGING made, used, and/or sold under this
LICENSE AGREEMENT by PRESTIGE. In the event of a SUIT against P&G
which might give rise to a claim of indemnification hereunder, P&G
shall promptly notify PRESTIGE. At its own expense, PRESTIGE shall
have the right to control the resolution of such SUIT by intervention
or otherwise. P&G will cooperate fully to reach disposition or
settlement of the issue.
10. TERMINATION
10.1. TERMINATION. The LICENSE shall terminate upon the expiration
of the last to expire LICENSED PATENT covering LICENSED PACKAGING,
unless the LICENSE AGREEMENT is terminated sooner.
10.2. PRESTIGE TERMINATION. PRESTIGE may terminate this LICENSE
AGREEMENT (including payment obligations hereunder) at any time by
providing written notice to P&G. Upon PRESTIGE'S provision of notice
of such termination, the LICENSE granted to PRESTIGE will terminate
and such rights will revert back to P&G. Notwithstanding the above, in
the event of any such Termination, Prestige will still make payments
due pursuant to Section 4.4 above.
10.3. P&G TERMINATION. P&G may terminate this LICENSE AGREEMENT
after written notice to PRESTIGE if PRESTIGE is in material breach of
this LICENSE AGREEMENT providing that PRESTIGE shall have thirty (30)
days after receipt of such written notice to take prudent and
reasonable steps to cure the material breach. Furthermore, should
PRESTIGE fail to cure the material breach within a reasonable time,
termination of the LICENSE AGREEMENT shall be stayed pending
resolution of any dispute pursuant to Article 10, if a request for
arbitration pursuant to Article 11 is made by PRESTIGE within such
thirty (30) day period. Notwithstanding the above, in the event of any
such Termination, Prestige will still make payments due pursuant to
Section 4.4 above.
11. ARBITRATION
11.1. ARBITRATION OF DISPUTES. Any controversy or dispute arising
out of or in connection with this LICENSE AGREEMENT, its
interpretation, performance, or termination, but not including
validity or enforceability of LICENSED
31
PATENTS, ("DISPUTE") that the PARTIES are unable to resolve within
ninety (90) days after written notice by one PARTY to the other of the
existence of such DISPUTE, shall be submitted to arbitration. The
arbitration shall be conducted in Cincinnati,
Ohio, U.S.A. except as
may otherwise be agreed by the PARTIES, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association
("AAA") then in effect. Each DISPUTE shall be submitted to a panel of
three (3) impartial arbitrators with each PARTY selecting one (1)
arbitrator within fifteen (15) days after the commencement of the
arbitration period and the two (2) selected arbitrators selecting a
third arbitrator within thirty (30) days after the commencement of the
arbitration period. Any arbitration hereunder shall commence within
thirty (30) days after appointment of the third arbitrator. Both
Parties will use their best efforts to cause the arbitration to be
completed in an expeditious manner. In the arbitration,
Ohio law will
govern, except to the extent that those laws conflict with the
Commercial Arbitration Rules of the AAA and the provisions of this
section. No discovery by either PARTY shall be permitted unless the
arbitrators determine that the PARTY requesting such discovery has a
substantial, demonstrable need. The arbitrators shall make final
determinations as to any discovery disputes and all other procedural
matters. If any PARTY fails to comply with the procedures in any
arbitration in a manner deemed material by the arbitrators, then the
arbitrators shall fix a reasonable time for compliance, and if the
PARTY does not comply within such period, then a remedy deemed just by
the arbitrators, including an award of default, may be imposed. The
decision of the arbitrators shall be rendered no later than one
hundred and twenty (120) days after commencement of the arbitration
period. The final decision of the arbitrators with respect to the
DISPUTE, shall be limited to a finding fully in favor of one PARTY's
position, and no compromise or split decisions shall be allowed. The
costs of arbitration shall be born by the PARTY against whom the
arbitral decision is made. Any judgment or decision rendered by the
panel shall be binding upon the PARTIES and shall be enforceable by
any court of competent jurisdiction.
12. MISCELLANEOUS
12.1. APPLICABLE LAW. This LICENSE AGREEMENT shall be construed
under and enforced in accordance with the laws of the State of
Ohio,
without regard to its conflicts of laws principles.
12.2. CURRENCY. All monies due to either PARTY must be paid in US
dollars.
12.3. HEADINGS. The headings or titles of Articles, Sections or
Paragraphs appearing in this LICENSE AGREEMENT are provided for
convenience and are not to be used in construing this LICENSE
AGREEMENT.
12.4. ENTIRE AGREEMENT. This LICENSE AGREEMENT constitutes the
entire understanding between the PARTIES with respect to the subject
matter contained herein and supersedes any and all prior agreements,
understandings and
32
arrangements whether oral or written between the PARTIES relating to
the subject matter hereof, except as expressly set forth herein.
12.5. LIMITATION ON USE OF NAMES. Neither PARTY shall use the name
of the other PARTY without prior written consent of an authorized
representative of the other PARTY; unless such use be required by law
or government regulation, provided the other PARTY is given reasonable
prior notice of such use.
12.6. NON-ASSIGNABILITY. This LICENSE AGREEMENT shall be binding
upon and inure to the benefit of the PARTIES, and, except as provided
in Paragraph 12.6.1, shall be nontransferable and nonassignable to
THIRD PARTIES without the prior express written consent of the other
PARTY.
12.6.1. TRANSFER OF PATENT RIGHTS. Notwithstanding the terms
of Paragraph 12.6, the LICENSE granted herein under the
LICENSED PATENTS shall be binding upon any subsequent party in
ownership or control thereof. P&G shall be responsible for
ensuring the above.
12.7. NON-WAIVER. The waiver by either PARTY of any breach of any
provision hereof by the other PARTY shall not be construed to be a
waiver of any succeeding breach of such provision or a waiver of the
provision itself.
12.8. PARTIAL INVALIDITY. If and to the extent that any court or
tribunal of competent jurisdiction holds any of the terms or
provisions of this LICENSE AGREEMENT, or the application thereof to
any circumstances, to be invalid or unenforceable in a final
nonappealable order, the PARTIES shall use their best efforts to
reform the portions of this LICENSE AGREEMENT declared invalid to
realize the intent of the PARTIES as fully as practicable, and the
remainder of this LICENSE AGREEMENT and the application of such
invalid term or provision to circumstances other than those as to
which it is held invalid or unenforceable shall not be affected
thereby, and each of the remaining terms and provisions of this
LICENSE AGREEMENT shall remain valid and enforceable to the fullest
extent of the law.
12.9. NOTICES. Any and all notices provided for shall be sent to the
respective PARTIES at the following addresses by certified or
registered mail or sent by a nationally recognized overnight courier
service:
If to PRESTIGE: Prestige Brands International, Inc.
00000 Xxxxx Xxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000
Attention: Xxx Host
Telephone: (000) 000-0000
Fax: (000)000-0000
AND COPY TO:
00
Xxxxxx & Xxxxxxxx
Xxxxxxxxxx Xxxxx, Xxxx Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to P&G: The Procter and Xxxxxx Company
Xxx Xxxxxxx & Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Manager, Healthcare L&A
Telephone: (000) 000-0000
Fax: (000) 000-0000
AND COPY TO:
Patent Department
The Procter & Xxxxxx Company
0000 Xxxxx-Xxxxxxxxxx Xxxx
Xxxxx, Xxxx 00000-0000
Attention: Associate General Counsel - Patents
This LICENSE AGREEMENT is hereby executed by the PARTIES by their duly
authorized representatives.
FOR: PRESTIGE BRANDS INTERNATIONAL, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
FOR: THE PROCTER & XXXXXX COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
34
35
APPENDIX A
Country Application No. Patent No. Grant Date
------------------------------------------------------------------------
Canada 2176151 -- (accepted 04 May 2000)
United States 08/602877 5,586,671 24 Dec. 1996
36
APPENDIX B
[U.S. Patent No. 5,586,671]
37
