Exhibit 10.3
ARRID MANUFACTURING AGREEMENT
Arrid Manufacturing Agreement, dated as of September 28, 2001
(this "Agreement"), between Church & Xxxxxx Co., Inc., a Delaware corporation
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("C&D"), and Armkel, LLC, a Delaware limited liability company ("Armkel") (each
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of Armkel and C&D, a "Party" and collectively, the "Parties").
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RECITALS:
WHEREAS, Xxxxxx-Xxxxxxx, Inc., a Delaware corporation ("CW")
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and Armkel have executed and delivered an Asset Purchase Agreement, dated as of
May 7, 2001 (including the exhibits, schedules and annexes thereto, and as
amended, the "Asset Purchase Agreement"), providing for, among other things, the
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sale, conveyance, transfer, assignment and delivery to Armkel of all of CW's and
its Affiliates' rights, title and interest in and to the Purchased Assets (as
defined in the Asset Purchase Agreement) and the assumption by Armkel of all of
the Assumed Liabilities (as defined in the Asset Purchase Agreement; such sales,
transfers, assignments, purchases, acceptances and assumptions collectively, the
"Asset Purchase");
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WHEREAS, included within the Purchased Assets and Assumed
Liabilities are assets and liabilities relating to (i) the Arrid Extra Dry,
Arrid XX and Lady's Choice anti-perspirant and deodorant product lines of the
Business for the United States and Canadian markets (the "APD Product Lines")
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and (ii) the Xxxxxxx Xxx division of pet products (the "Xxxxxxx Xxx Product
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Line," and collectively with the APD Product Lines, the "Product Lines
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Business");
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WHEREAS, with respect to the Product Lines Business, Armkel
and C&D have executed and delivered an Amended and Restated Product Line
Purchase Agreement, dated as of July 30, 2001 and effective as of May 7, 2001
(the "Product Line Purchase Agreement"), providing for, among other things, the
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sale, conveyance, transfer, assignment and delivery to C&D of all of Armkel's
rights, title and interest in and to the PL Purchased Assets (as defined in the
Product Line Purchase Agreement) and the assumption by C&D of the PL Assumed
Liabilities (as defined in the Product Line Purchase Agreement);
WHEREAS, following the Asset Purchase, Armkel will retain
ownership and operation of the Cranbury, New Jersey manufacturing and
distribution facility (the "Facility") where certain Products (as defined
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herein) related to the APD Product Lines are manufactured and distributed;
WHEREAS, pursuant to the Product Line Purchase Agreement, C&D
has purchased the Equipment (as defined herein) located at the Facility and used
in manufacturing the Products; and
WHEREAS, in connection with the transactions contemplated by
the Asset Purchase Agreement and the Product Line Purchase Agreement, C&D and
Armkel have agreed that Armkel will manufacture and sell and C&D will purchase
supplies of the Products in the quantities, for the period and subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein and for other good and valuable
consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 General Terms. For purposes of this Agreement, the
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following terms have the meanings hereinafter indicated:
"Affiliate" shall mean, with respect to any Person, any other
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Person directly or indirectly controlling, controlled by or under common control
with such Person as of the time of determination.
"Agreement" shall have the meaning assigned thereto in the
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Preamble.
"APD Product Lines" shall have the meaning assigned thereto in
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the Recitals.
"Armkel" shall have the meaning assigned thereto in the
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Preamble.
"Armkel Indemnified Parties" shall have the meaning specified
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in Section 8.1.
"Asset Purchase" shall have the meaning assigned thereto in
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the Recitals.
"Asset Purchase Agreement" shall have the meaning assigned
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thereto in the Recitals.
"Bankruptcy Event" with respect to a Party shall mean the
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filing of an involuntary petition in bankruptcy or similar proceeding against
such Party seeking its reorganization, liquidation or the appointment of a
receiver, trustee or liquidator for it or for all or substantially all of its
assets, whereupon such petition shall not be dismissed within 60 days after the
filing thereof, or if such Party shall (i) apply for or consent in writing to
the appointment of a receiver, trustee or liquidator of all or substantially all
of its assets, (ii) file a voluntary petition in bankruptcy or similar
proceeding or admit in writing its inability to pay its debts as they become
due, (iii) make a general assignment for the benefit of creditors, (iv) file a
petition or an answer seeking reorganization or an arrangement with its
creditors or take advantage of any insolvency law with respect to itself as
debtor, or (v) file an answer admitting the material allegations of a petition
filed against it in any bankruptcy, reorganization, insolvency proceedings or
any similar proceedings.
"Business Day" shall mean any day other than a Saturday, a
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Sunday or a day on which banks in the City of New York are authorized or
obligated by law or executive order to close.
"Capital Repairs" shall have the meaning specified in Section
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3.2.
"Change of Control" means the occurrence of any of the
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following events: (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of
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1934, as amended) becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 35% of the
total voting power of the capital stock of C&D outstanding at such time; (ii) a
merger or consolidation or similar transaction involving C&D after which the
holders of C&D's capital stock do not own at least 65% of the total voting power
represented by the capital stock of the surviving entity of such merger or
consolidation; or (iii) the adoption of a plan of complete liquidation or the
sale or disposition by C&D of at least 75% of its assets in any one or series of
transactions.
"Claim Notice" shall have the meaning specified in Section
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8.3.
"Closing" shall have the meaning set forth in the Product Line
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Purchase Agreement.
"Closing Date" shall have the meaning set forth in the Product
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Line Purchase Agreement.
"Collective Bargaining Employee" shall have the meaning
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specified in Section 2.6(a).
"Collectively Bargained Agreements" shall have the meaning
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specified in Section 2.6(a).
"Confidential Information" shall have the meaning specified in
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Section 9.2.
"CW" shall have the meaning assigned thereto in the Recitals.
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"C&D" shall have the meaning assigned thereto in the Preamble.
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"C&D Indemnified Parties" shall have the meaning specified in
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Section 8.2.
"Equipment" shall mean the equipment and tangible personal
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property set forth on Exhibit A.
"Facility" shall have the meaning assigned thereto in the
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Recitals.
"Force Majeure Event" shall have the meaning specified in
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Section 9.1.
"Good Manufacturing Practices" shall have the meaning
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specified in Section 5.9(a).
"Indemnified Party" shall have the meaning specified in
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Sections 8.1 and 8.2.
"Indemnifying Party" shall have the meaning specified in
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Sections 8.1 and 8.2.
"Indemnity Claim" shall have the meaning specified in Section
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8.3.
"Xxxxx Member" shall have the meaning set forth in the LLC
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Agreement.
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"LLC Agreement" shall mean the Amended and Restated Limited
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Liability Company Agreement of Armkel, LLC, dated as of August 27, 2001, as the
same may be amended or modified from time to time.
"Xxxxxxx Xxx Product Line" shall have the meaning assigned
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thereto in the Recitals.
"Losses" shall have the meaning specified in Section 8.1.
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"Manufacturing Costs" shall mean, to the extent incurred in
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manufacturing and supplying the Products hereunder, all of Armkel's (i) actual
material and inbound freight costs, plus (ii) direct labor costs, plus (iii)
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manufacturing and quality control overhead, including without limitation,
employees, production and lab supplies, repairs, maintenance and depreciation of
equipment, warehousing and facility space costs, which overhead, in the case of
employees of Armkel, shall be composed of the product of (x) the sum of all
salary, wages and benefits of the relevant employee, multiplied by (y) the
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quotient of (I) the amount of time such employee is engaged in activities for
Armkel that relate to the manufacture of the Products hereunder divided by (II)
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the total amount of time such employee is engaged in activities for Armkel.
"Manufacturing Services" shall have the meaning specified in
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Section 2.2.
"Marks" shall have the meaning specified in Section 9.4.
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"Notice Period" shall have the meaning specified in Section
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8.3.
"Party" shall have the meaning assigned thereto in the
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Preamble.
"Person" shall mean any individual, firm, partnership,
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association, group (as such term is used in Rule 13d-5 under the Securities
Exchange Act of 1934, as amended, as such Rule is in effect on the date of this
Agreement), corporation, limited liability company or other entity.
"Product Line Purchase Agreement" shall have the meaning
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assigned thereto in the Recitals.
"Product Lines Business" shall have the meaning assigned
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thereto in the Recitals.
"Product Production Orders" shall have the meaning specified
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in Section 4.2.
"Production CBA" shall have the meaning specified in Section
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2.6(a).
"Production Employees" shall have the meaning specified in
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Section 2.6(a).
"Products" shall mean those products listed on Exhibit B, and
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those products, if any, which may be added to Exhibit B by the mutual written
agreement of the Parties.
"QC CBA" shall have the meaning specified in Section 2.6.
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"QC Employees" shall have the meaning specified in Section
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2.6.
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"Recall" shall have the meaning specified in Section 5.12.
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"Rejection Notice" shall have the meaning specified in Section
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5.10.
"Removal Period" shall have the meaning specified in Section
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3.3.
"Specifications" shall mean the specifications currently used
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by CW to produce the Products, as revised in accordance with Section 2.2.
"Subsidiary" shall mean, with respect to any Person, more than
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50% of the outstanding voting power of which is at the time owned or controlled
directly or indirectly by such Person or by one or more of such subsidiary
entities, or both.
"Third Party Claim" shall have the meaning specified in
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Section 8.3.
"Transition Services Agreement" shall have the meaning
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specified in Section 2.6(b).
"Union" shall have the meaning specified in Section 2.6(a).
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ARTICLE II
SERVICES AND PRODUCTS
2.1 Services. (a) Armkel shall provide or cause one of its
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Affiliates to provide to C&D or the relevant Affiliate of C&D the Manufacturing
Services for the term of the Agreement. The Manufacturing Services shall be as
described in Section 2.2. Additions or variations to the level of the
Manufacturing Services or Manufacturing Costs may be made from time to time by
agreement between the Parties. In the event any Manufacturing Service is
terminated in accordance with Section 6.4, this Agreement shall remain in effect
unless otherwise terminated in full in accordance with Article VI.
(b) Each Party shall create and maintain full and
accurate books in connection with the provision of the Manufacturing Services,
and all other records relevant to this Agreement, and upon reasonable notice
from the other Party shall make available for inspection and copy by such other
Party's agents such records during reasonable business hours.
2.2 Manufacturing Services.
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(a) Product Quantities. During the term of this
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Agreement, and subject to the provisions of this Agreement, Armkel shall
manufacture and supply to C&D in accordance with the terms of this Agreement,
including, without limitation, the Specifications in respect of the Products,
100% of C&D's total requirements for the Products (such manufacturing and supply
services, the "Manufacturing Services") with the exception of any Products
produced at C&D's own facilities.
(b) Revised Specifications. At the request and at the
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sole cost and expense of C&D, the Specifications for any Products manufactured
hereunder may be revised at
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any time upon the agreement of Armkel, which agreement will not be unreasonably
withheld, delayed or conditioned. The cost of conversion to the new
Specifications shall be composed of Armkel's actual conversion costs reasonably
incurred by Armkel at C&D's direction, and with Armkel's agreement contemplated
by this Section 2.2.
2.3 Changes. Except with the prior written consent of C&D,
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Armkel will not make any change to Product ingredients, components,
Specifications, trade dress or packaging. Cost incurred by Armkel for any
changes requested by C&D shall be borne by C&D.
2.4 No Competitive Products by Armkel. Armkel agrees that it
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shall not manufacture, nor cause or allow any of its Affiliates to manufacture,
the Products for any reason except as provided in this Agreement.
Notwithstanding the foregoing, the Parties acknowledge and agree that the
Products may be manufactured by a third party from time to time for limited
periods, as determined by Armkel in its reasonable discretion, provided that the
Manufacturing Costs shall remain applicable to the Manufacturing Services
hereunder. Except as provided in this Agreement, during the term of this
Agreement, Armkel shall not manufacture, nor cause any of its Affiliates to
manufacture, for itself or for an other party, any product that is the same as,
or similar in design, function or appearance to, the Products. Notwithstanding
the foregoing, nothing contained in this Agreement shall prohibit Armkel from
manufacturing and distributing products for the Arrid, Arrid XX and Lady's
Choice product lines to the extent such assets or product lines are retained by
Armkel under Section 1.2(a) of the Product Line Purchase Agreement (i.e., Armkel
may manufacture and distribute the Arrid, Arrid XX and Lady's Choice product
lines for the U.K. and Australian markets).
2.5 Parameters of Services; Standard of Service. (a) The
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Manufacturing Services shall be in scope and nature substantially the same as
such Manufacturing Services were provided within CW for the four quarters prior
to the date of the Asset Purchase Agreement unless otherwise agreed to by the
Parties.
(b) In performing the Manufacturing Services, Armkel or
any of its Affiliates providing the Manufacturing Services on its behalf shall
provide substantially the same level of service and use substantially the same
degree of care as consistent with the level of services provided within CW for
the four quarters prior to the date of the Asset Purchase Agreement, and in
connection with the provisions of such Manufacturing Services, Armkel shall not
favor its own products, divisions or Subsidiaries over those provided to C&D
(when viewed on an aggregate basis) (it being understood that Armkel may be
unable to retain and/or attract qualified employees from time to time;
accordingly, to the extent Armkel is so affected, Armkel shall not be in breach
of its obligations hereunder so long as it uses its reasonable best efforts to
hire or make available replacement personnel to perform the Manufacturing
Services required hereunder).
2.6 Collective Bargaining Employees. (a) Upon the Closing, and
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to the extent consistent with its obligations under the Collectively Bargained
Agreements (as defined herein), Armkel shall make available to C&D a sufficient
number of (i) certain production employees ("Production Employees") who are
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covered under the collective bargaining agreement (the "Production CBA") between
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Armkel and the Paper, Allied-Industrial, Chemical and Energy Workers
International Union, AFL-CIO, CLC and its Local 2-5570 (the "Union") to operate
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the
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APD Product Lines operations at the Facility and (ii) certain quality control
employees ("QC Employees", and together with Production Employees, the
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"Collective Bargaining Employees") who are covered under the collective
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bargaining agreement (the "QC CBA," and collectively, with the Production CBA,
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the "Collectively Bargained Agreements") between the Union and Armkel to
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perform, at the direction of C&D's employees, certain quality control functions
with respect to the APD Product Lines consistent with past practice at the
Facility. As of the date of this Agreement, C&D estimates that it will require
78 Production Employees and 15 QC Employees. C&D will update such estimates
monthly during the term that Manufacturing Services are provided.
(b) Subject to the Collectively Bargained Agreements and
the Transition Services Agreement, dated as of the Closing Date, between Armkel
and CW (the "Transition Services Agreement"), C&D shall have priority rights to
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choose which skilled or partially qualified Collective Bargaining Employees are
made available to it by Armkel.
(c) C&D will use its best efforts to provide Armkel with
30 days' prior written notice if it shall require that Armkel reduce or increase
the number of Collective Bargaining Employees it is providing to C&D, but Armkel
shall be required to provide additional Collective Bargaining Employees to C&D
only if Armkel has such Collective Bargaining Employees available to it and to
the extent consistent with its obligations under the Collectively Bargained
Agreements and the Transition Services Agreement.
(d) No Collective Bargaining Employee and no employee of
Armkel performing Manufacturing Services for C&D at the Facility shall be deemed
to be an employee of C&D; provided, however, that no Collective Bargaining
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Employee and no employee of Armkel performing Manufacturing Services for C&D at
the Facility shall be permitted by C&D to perform any task for which such
Collective Bargaining Employee or employee of Armkel performing Manufacturing
Services for C&D at the Facility does not possess necessary training, education
and background, or for which such Collective Bargaining Employee or employee of
Armkel performing Manufacturing Services for C&D at the Facility is otherwise
disqualified by applicable law or regulation.
2.7 Ownership. Neither Armkel nor any Affiliate thereof is
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acquiring pursuant to this Agreement any ownership interests in the Products
manufactured hereunder or any related intellectual property (other than Armkel's
ownership of inventory in the ordinary course of manufacture hereunder, until
title passes pursuant to Section 4.4).
ARTICLE III
EQUIPMENT
3.1 Equipment License. C&D hereby grants to Armkel a
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royalty-free license to use the Equipment for the sole and exclusive purpose of
manufacturing the Products for C&D, and Armkel hereby accepts such license, all
on the terms and conditions set forth in this Agreement. The Equipment and
Confidential Information shall at all times be and remain the property of C&D,
and Armkel shall have no interest therein or rights thereto except as
specifically provided in this Agreement. Armkel shall not remove the Equipment
from the
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Facility during the term of this Agreement or thereafter without C&D's written
consent. If requested by C&D, Armkel shall affix to the Equipment asset tags
indicating that the Equipment is the property of C&D. Armkel acknowledges that
it is a bailee with respect to the Equipment.
3.2 Maintenance and Repair of Equipment. During the term of
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this Agreement, Armkel shall perform, at its cost and expense, all routine
maintenance and repair in substantial conformity with what has historically been
performed on the Equipment at such intervals as have been historically customary
to maintain the Equipment in good working order, including but not limited to
changing oil, replacing filters and lubrication. C&D shall bear the costs and
expenses of repairs to the Equipment that are not routine or which extend the
useful life of the Equipment beyond routine maintenance and servicing (referred
to herein as "Capital Repairs"). If the historical performance of maintenance,
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cleaning, and repair failed to conform with current Good Manufacturing
Practices, Armkel agrees to henceforth comply with such equipment standard. If
Armkel ascertains that the Equipment requires any Capital Repairs, Armkel shall
promptly advise C&D thereof by telephone or fax pursuant to Section 9.10 hereof.
Except in the case of an emergency, C&D shall have the right to direct the
manner in which such Capital Repairs shall be effected, and Armkel shall abide
by such directions. To the extent Armkel reasonably incurs any out-of-pocket
costs or otherwise at C&D's direction for Capital Repairs (including time of its
own employees in diagnosing or effecting any such repairs), Armkel shall invoice
C&D therefor, which invoice shall be accompanied by the invoices or vouchers for
such costs. C&D shall pay such invoice within 30 days after its receipt thereof.
3.3 Return of Equipment. After any termination hereunder and
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for one month thereafter (the "Removal Period"), C&D and its designated
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contractors shall have the right (which C&D may exercise at any time and from
time to time during such period, upon reasonable notice and subject to the
consent of Armkel, which consent shall not unreasonably be withheld) to enter
upon the Facility and remove the Equipment or any components thereof therefrom,
provided, however, that such removal shall not unreasonably interfere with
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operation of the Facility. During the course of such removal, Armkel may
reasonably restrict access by C&D's employees to the areas of the Facility where
products other than C&D's products are being manufactured; provided, that in no
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event shall C&D be ultimately prevented from removing the Equipment as a result
of such restrictions. Equipment not removed by the expiration of the Removal
Period shall be and become the property of Armkel without further act or charge.
Armkel shall cooperate with C&D and shall provide at C&D's request employees to
assist C&D in disassembling and crating any such Equipment prior to its removal.
Armkel's obligation to provide employees to assist in disassembling and crating
equipment shall be contingent upon Armkel having employees available for such
duties without adversely impacting Armkel's other operations; provided, that to
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the extent C&D has requested of Armkel that Equipment be removed and it is not
removed due to Armkel not providing sufficient employees to assist in the
removal, the date referenced in the first sentence of this Section 3.3 shall be
extended to the extent required to permit removal of the Equipment with the
necessary assistance of Armkel's employees. C&D shall repair any damage to the
Facility caused by such removal and shall reimburse Armkel for reasonable
out-of-pocket costs (including time of Armkel's own employees) incurred by
Armkel in disassembling and crating the Equipment, costs for which are to be
agreed upon by both parties in good faith in advance of any such activity. It is
C&D's responsibility to validate that Equipment is operational before removal
and, without limiting Armkel's obligation to provide C&D assistance as
contemplated hereby, it is C&D's sole
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responsibility to ensure successful removal, transportation and reinstallation
in C&D's facility. Armkel makes no warranties for Equipment other than that it
will be maintained as described herein. During Equipment removal, C&D agrees to
adhere to the general contractor and removal procedures and standards observed
in the consumer products industry.
ARTICLE IV
SCHEDULING
In order to permit production and supply in the most efficient
and economical manner possible, the following procedures shall apply during the
term of this Agreement:
4.1 Best Estimated Forecast of Product Requirements. C&D shall
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provide Armkel with its best estimated 6-month rolling forecasts of C&D's
requirements, by month and by seven digit SKU number, for supply of the
Products. Except for the first forecast which shall be delivered at or prior to
the Closing and which shall be for the number of days from the date of the
Closing until the next following December 31, each such forecast will be for a
6-month period beginning on the first month to which it applies and shall be due
30 days before commencement of the period to which it applies. The forecasts
delivered hereunder are not firm commitments by C&D to order or purchase the
Products, but are provided only as a guide to assist Armkel in scheduling
production.
4.2 Production Orders. C&D will issue to Armkel production
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orders which shall serve as a firm order for the Products (each, a "Product
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Production Order"). Such Product Production Orders shall be issued at least
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fourteen calendar days prior to the anticipated delivery date for Products
covered by such order or such other longer lead time and batch sizes as had been
customary for the Products during the prior four quarters. C&D will use its
reasonable best efforts to give Armkel longer lead times whenever possible and
Armkel will use all reasonable commercial efforts to fulfill any short lead time
orders.
4.3 Delivery, Pricing and Payment. (a) Armkel shall coordinate
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deliveries of the Products with a traffic representative designated by C&D. All
shipments shall be at the agreed upon level of costs and services. C&D shall
provide Armkel a list of common carriers from time to time for its approval,
which shall not be unreasonably withheld, and Armkel shall schedule deliveries
with the common carriers and with the appropriate C&D personnel. Armkel shall
have the responsibility to inspect all carriers shipping the Products and shall
reject any carrier not in a clean, dry and odorless condition or which is not
otherwise in accordance with industry practice. The rejection of any carrier not
meeting C&D's standards shall be immediately reported to C&D's representative.
If after inspection, Armkel determines that the carrier meets C&D's requirements
for carrier fitness, Armkel shall proceed to deliver the Products to the
carrier.
(b) All shipments of the Products by common carrier shall
be consistent with the published price list. Armkel will maintain adequate and
accurate shipping records in order that the Product lots on all shipments may be
traced. Unless otherwise specified herein, C&D shall be responsible for paying
all shipping costs and expenses associated with the transportation of the
Products.
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4.4 Risk of Loss and Insurance. (a) Title to the Products
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shall be and remain with C&D from the date the Product is delivered to the
carrier at the Facility for delivery to C&D. Armkel shall bear the risk of loss
to the Products until it is delivered to the carrier at the Facility for
delivery to C&D.
(b) At all times during the term of this Agreement,
Armkel shall, at its sole cost and expense, maintain commercial public liability
insurance in amounts not less than:
(i) property insurance at cash value of the Facility; and
(ii) liability insurance for bodily injury and property
damage of $5,000,000 combined single limit per
occurrence and in the aggregate.
A copy of each insurance policy or certificate thereof shall be issued by an
insurer reasonably satisfactory to C&D and authorized to issue such policy or
policies, shall name C&D and the mortgagee of C&D, if any, as additional insured
and shall otherwise be reasonably satisfactory to C&D, and shall be delivered to
the C&D within 10 calendar days following commencement of this Agreement and
shall not be subject to cancellation upon less than 10 calendar days written
notice to C&D.
(c) Armkel acknowledges that C&D has an interest in
resolving product liability claims quickly and in a manner that minimizes the
negative impact of the experience to the consumer. Armkel further acknowledges
that packages of the Products produced by Armkel may have a toll-free number for
consumers to call in order to make comments about the Products. As a result, C&D
will be in a position to solve many product liability claims quickly and for a
nominal amount. Notwithstanding Section 8.3, Armkel hereby agrees that C&D may
handle product liability claims regarding the Products provided such claims can
be settled for less than $5,000 on an individual basis. In the event the claim
is a result of actions or inactions of Armkel for which it would be responsible
under this Agreement, Armkel agrees to reimburse C&D for costs of settling these
claims, notwithstanding the fact that it may not have been notified of such
claim prior to settlement. Settlements for amounts greater than $5,000 will be
subject in all respects to Articles VII and VIII hereof. Notwithstanding the
foregoing, the Parties agree that Armkel will not be responsible for any claim
relating to the formulation of the Products, except to the extent such
formulation is not in accordance with the Specification through the gross
negligence or willful misconduct of Armkel. C&D agrees to notify Armkel of all
claims to be settled by C&D in accordance with this clause (c) as soon as
possible. C&D's right to settle any claims for which Armkel is obligated to
reimburse C&D under this clause (c), other than by the procedures contemplated
by Section 8.3 hereof, shall terminate to the extent the aggregate of all such
claims is greater than $75,000 in any contract year.
4.5 Notification of Delay or Non-Performance. (a) Without
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affecting Armkel's other obligations hereunder, in the event Armkel reasonably
believes that production or delivery of the Products may be delayed, impaired or
prevented for any reason, including for any reason which constitutes a permitted
delay (in accordance with Section 9.1), Armkel shall (i) immediately notify C&D
of the possibility of such delay, and the reasons therefor; (ii)
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immediately notify C&D of such actual delay, and the reasons therefor; and (iii)
use all reasonable commercial efforts to keep its contractual commitments under
this Agreement.
(b) If within 30 days the Parties are unable to resolve
the subject problem, and if, at the conclusion of such period C&D reasonably
determines that Armkel will not adequately be able to supply C&D's firm orders,
C&D shall be free to enter into an agreement with an alternative supplier for
such quantities of Products that C&D has determined that Armkel will be unable
to supply (or any amount in excess thereof that constitutes the minimum batch
size production from C&D's alternative supplier). Armkel shall be obligated for
a period of 90 days from the end of such 30 day period to reimburse C&D for the
increased expense incurred by C&D in obtaining its requirements for such Product
from an alternative supplier over the costs for such Products hereunder.
ARTICLE V
PAYMENT; PRODUCT PRICING
5.1 Payment. The consideration to be paid by C&D for the
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Manufacturing Services and Products shall be the Manufacturing Costs in respect
of the Products actually provided to C&D. Armkel will invoice C&D in United
States dollars on a monthly basis (with quarterly true-ups as necessary), and
C&D shall pay to Armkel or to such Affiliate as Armkel may direct the amounts
due under such invoices in United States dollars no later than 10 Business Days
of receipt by C&D.
5.2 Notification of Changes in Raw Materials or Packaging
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Materials. Without limiting C&D's obligations hereunder, Armkel shall notify C&D
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in writing of all changes of which it becomes aware in the costs of raw
materials or packaging material that are likely to materially change the
Manufacturing Costs hereunder.
5.3 Purchase of Inventory. On the date of the Closing, Armkel
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shall purchase on an "as is where is" basis from C&D all inventory relating to
the Products, other than the finished goods inventory of the Products that C&D
purchased from Armkel pursuant to the Product Line Purchase Agreement, and the
agreed purchase price for such inventory shall be the invoice amount for such
raw material components and packaging necessary to make the Products and shall
be paid by means of four equal offsets to the amounts otherwise due to Armkel by
C&D under the invoices to be delivered to C&D by Armkel hereunder until such
payment is fully discharged.
5.4 Periodic Re-Evaluations. The Parties agree to re-evaluate
-----------------------
the Manufacturing Costs including the underlying methods used to determine such
amounts, from time to time, and in any event at least annually, to confirm that
such levels or fee structures produce a result consistent with the supply
requirements of C&D and the costs incurred by the Parties to provide the
Manufacturing Services.
5.5 Inspection, Sampling, Line Capacity, Raw Materials. (a)
--------------------------------------------------
Armkel shall inspect and sample all raw materials and packaging purchased for
the Products for conformance with the Specifications and shall withhold from use
in the manufacture of the Products any raw
11
materials or packaging determined by Armkel not to be in conformity with such
the Specifications. Armkel will maintain available line capacity and inventories
of raw materials and packaging materials in sufficient amounts to support the
production requirements of the Products contemplated by the best estimated
forecast to be delivered by C&D to Armkel hereunder.
(b) Without limiting the provisions of Section 5.13, upon
C&D's request and at its cost and expense, Armkel shall provide sample of raw
materials and packaging purchased for the Products to C&D for analysis. If C&D
reasonably determines that such material and packaging are not in conformance
with the Specifications, Armkel shall withhold from use any such material not in
conformance.
5.6 Obsolete Goods. It is understood by the Parties that when
--------------
production is terminated, and possibly during the term of this Agreement, some
materials will either become obsolete due to changes in the Specifications or
there will be extra material due to incorrect forecasting. Although C&D will be
financially responsible for these obsolete and/or extra materials, (i) Armkel
shall use all prudent means to minimize the financial impact to C&D of these
material losses, and (ii) under no circumstances will C&D be responsible under
the provisions of this Section for raw materials and packaging materials which,
when ordered by Armkel or purchased by Armkel from C&D pursuant to Section 5.3
hereof, represented more than a six-month supply (based on C&D's rolling
forecast at the time when the materials were purchased) of the item in question.
5.7 Records. Armkel shall keep complete, true and accurate
-------
records and accounts in accordance with generally accepted accounting principles
applied on a consistent basis from year to year with respect to information used
to determine the Manufacturing Costs (including, without limitation, raw
materials and packaging) and other information relevant to the manufacture,
packaging or shipping of the Products, quality assurance measures, and all other
procedures utilized in the production process under this Agreement and including
an inventory of all finished goods produced and shipped or held by Armkel. Such
records and accounts shall be separate from the records and accounts with
respect to Armkel's own products and activities. C&D or its representatives
shall have the right to audit any and all of such records and accounts of
Armkel.
5.8 Sampling and Testing. (a) Without limiting its warranties
--------------------
herein, Armkel shall perform at its sole cost and expense, the sampling and
testing procedures, including microbiological, analytical and environmental
testing, for the Products in accordance with C&D's Specifications and the
quality control procedures for the Products prior to releasing the Products for
delivery to C&D.
(b) Without limiting the provisions of Section 5.13, C&D
may perform, or engage an independent third party to perform, at C&D's sole cost
and expense, sampling and testing procedures for the products to determine that
such Products are in accordance with the Specifications. If C&D reasonably
determines that such Products are not in conformance with the Specifications,
Armkel shall not release such Products for delivery to C&D.
12
5.9 Covenant and Warranty. (a) Armkel warrants that each lot
---------------------
of Product sold to C&D will be manufactured, processed and packaged and held in
accordance with the higher of the standards established by (i) the Good
Manufacturing Practices regulations promulgated by the United States Food and
Drug Administration (collectively, "Good Manufacturing Practices") or (ii)
----------------------------
Armkel's internal standards. All manufacturing services performed pursuant to
this Agreement shall be performed in compliance with all material applicable
federal, state, provincial and local laws, rules and regulations.
(b) Armkel warrants that the Products delivered to C&D in
accordance with this Agreement (i) will be free from defects in materials and
manufacture; (ii) will conform to the Specifications and all applicable laws and
regulations of the United States Food and Drug Administration, the United States
Public Health Service, and any and all other similar applicable health and
safety laws and regulations of the United States, any state and any local
jurisdiction; and (iii) when delivered to C&D, shall not be adulterated or
misbranded within the meaning of the United States Federal Food, Drug and
Cosmetic Act and regulations promulgated thereunder; and (iv) shall not be
articles which may not, under the provisions of Section 512 of the Federal Food,
Drug and Cosmetic Act, be introduced into interstate commerce.
(c) Each Party shall obtain and maintain all material
permits, approvals and licenses necessary or appropriate to perform its
obligations hereunder and shall at all times comply with the terms and
conditions of such permits, approvals and licenses.
5.10 Acceptance. Each batch of the Products delivered by
----------
Armkel to C&D shall be deemed to be accepted unless C&D gives Armkel a written
notice (a "Rejection Notice") within 30 calendar days of C&D's actual receipt of
----------------
such Products, stating in reasonable detail the deficiencies of such Products
hereunder and delivering any such rejected Products to Armkel at Armkel's
expense. The rejection shall be conclusive and binding upon the Parties and C&D
shall have no obligation to pay for such Products if Armkel does not
specifically deny responsibility for the deficiencies with the Products forming
the basis of C&D's rejection, by delivery within 30 days after Armkel's receipt
of both the rejected goods and the Rejection Notice of written notice to C&D
stating in reasonable detail the relevant information underlying its denial of
responsibility.
5.11 Defects, Discrepancies. Armkel shall remedy any defects
----------------------
or discrepancies caused by Armkel by replacement, at no additional cost to C&D,
of any Products rejected by C&D in accordance with Section 5.10 above for
failure to conform to the requirements of this Agreement. Armkel's obligation
under the prior sentence shall include reimbursing C&D for all reasonable
transportation, retrieval, storage and destruction costs associated with the
defective Products. The remedies of this Section 5.11 are in addition to those
contemplated by Article VIII hereof.
5.12 Recalls. C&D shall determine in its sole discretion, and
-------
in accordance with its direction, from time to time, to conduct a voluntary
recall, market withdrawal or field correction (a voluntary or mandatory recall,
and any such market withdrawal or field correction, a "Recall") of any Products
------
manufactured by Armkel. To the extent any such Recall is the result of
deficiencies of any Products arising from Armkel's breach hereunder, Armkel
shall either replace the recalled Products with an equivalent quantity of such
Products or credit C&D for the
13
Manufacturing Costs paid by C&D hereunder in respect of such Products. The
remedies of this Section 5.12 are in addition to those contemplated by Article
VIII hereof.
5.13 Access. Upon reasonable notice, and during Armkel's
------
normal operations, Armkel shall permit C&D or its designees access to Armkel's
facilities utilized in the receiving, handling, packaging and storage of
packaging, raw materials and the Products for the purpose of ascertaining
Armkel's compliance with Good Manufacturing Practices, Specifications and
quality assurance requirements and otherwise with the terms hereunder in respect
of the Manufacturing Services and determination of the Manufacturing Costs;
provided, that unless permitted under another agreement between the Parties, C&D
--------
shall not have access to any part of Armkel's facilities which are not used
directly in the manufacture of the Products or the receiving, storage, handling
or packaging of any Products or raw materials or which are subject to limited
access by agreement of the Parties. Notwithstanding the foregoing, C&D's access
to and inspections of Armkel's facilities and operations permitted hereunder
shall not affect Armkel's obligations to comply with all requirements of this
Agreement. Armkel shall promptly notify C&D of any discrepancies noted during
any inspection of Armkel's production facilities by the United States Food and
Drug Administration, the United States Public Health Service, any state or any
other legally authorized federal, state or local regulatory agency and shall
also provide C&D a list of any discrepancies noted by any authorities relating
to the manufacture, packaging and storage by Armkel of the Products, the raw
materials and the packaging materials. Armkel shall allow C&D or its designees
reasonable access to all records insofar as they relate to the Products.
ARTICLE VI
TERM AND TERMINATION
6.1 Duration. Subject to the terms of Sections 9.2 and 9.3
--------
and this Article VI, this Agreement shall terminate upon the first anniversary
of the date hereof; provided, that this Agreement shall be automatically renewed
for successive one year periods unless either party gives notice of its
intention not to renew (in whole or in part) at least three months prior to the
expiration of the term.
6.2 Early Termination by Armkel. (i) Armkel may terminate
---------------------------
this Agreement by (and effective upon) its delivery of written notice to C&D
specifying the basis for termination hereunder, under the following
circumstances:
(a) if C&D shall breach this Agreement in any material
respect; provided, that C&D shall have the right to prevent termination based
upon C&D's material breach of this Agreement by curing such material breach
within 60 days following receipt of Armkel's termination notice;
(b) the sale to a third party of the Xxxxx Member's or
C&D's ownership interests in Armkel pursuant to Section 10.3 ("Sales by Xxxxx:
Right of First Offer, Drag-Along Rights") or Section 10.2 ("Sales by C&D: Right
of First Offer, Drag-Along Rights") of the LLC Agreement;
14
(c) following the occurrence of a Bankruptcy Event
with respect to C&D or Armkel; or
(d) upon the occurrence of a Change of Control of
C&D.
6.3 Early Termination by C&D. C&D may terminate this Agreement
------------------------
by (and effective upon) its delivery of written notice to Armkel specifying the
basis for termination hereunder, under the following circumstances:
(a) the sale to a third party of C&D's or the Xxxxx
Member's ownership interests in Armkel pursuant to Section 10.2 ("Sales by C&D:
Right of First Offer, Drag-Along Rights") or Section 10.3 ("Sales by Xxxxx:
Right of First Offer, Drag-Along Rights") of the LLC Agreement;
(b) upon one month's written notice to Armkel if C&D
determines in its sole discretion that it does not require the Manufacturing
Services hereunder; or
(c) following the occurrence of a Bankruptcy Event
with respect to C&D or Armkel.
6.4 Partial Termination. Without limiting any of the rights
-------------------
set forth in Section 6.3, C&D shall have the right to terminate the
Manufacturing Services with respect to any Product if (1) the Manufacturing
Services provided by Armkel with respect to such Product have been deficient for
a period of at least 30 days, and such deficiency is within Armkel's control;
(2) the Chief Executive Officer of C&D recommends to the Board of Directors of
C&D to terminate the Manufacturing Services provided by Armkel with respect to
such Product, (3) C&D has provided written notice to Armkel detailing such
deficiency and (4) C&D has provided Armkel an opportunity to cure such
deficiency for a period of at least 15 days. Without limiting the foregoing,
Armkel's failure to supply any Product that has been ordered in accordance with
Section 4.2 of this Agreement for a period in excess of 30 days from the due
date of delivery shall be deemed to be a deficiency in the services provided. In
the event of termination of any Manufacturing Services effected pursuant to this
Section 6.4, C&D may thereafter purchase such Product from an alternative
source. In the event any Manufacturing Service is terminated in accordance with
this Section 6.4, this Agreement shall remain in effect with respect to all
other Manufacturing Services unless otherwise terminated in full in accordance
with the other terms of this Article VI.
6.5 Consequences on Termination. In the event this Agreement
---------------------------
expires or is terminated in accordance with this Article VI, then (a) Armkel
shall promptly cease all Manufacturing Services, and shall cause its Affiliates
to do so, and shall transfer back to C&D all works in progress and finished
goods and associated raw materials, (b) each of Armkel and C&D shall promptly
return all Confidential Information received from the other Party in connection
with this Agreement, without retaining a copy thereof, (c) each of Armkel and
C&D shall promptly honor all credits and make any accrued and unpaid payment to
the other Party as required pursuant to the terms of this Agreement, including
payments for all works in progress, finished goods and raw materials, (d) C&D
shall remove its Equipment from the Facility as contemplated by Section 3.3
hereof, and (e) each Party shall continue to be subject to and
15
responsible for its accrued but unperformed obligations and any liabilities in
respect of its prior breach hereof.
ARTICLE VII
LIMITATION ON LIABILITY
7.1 Limitation on Liability. Neither Party nor any of its
-----------------------
Affiliates will be liable to the other Party or its Affiliates for any claim or
demand against such other Party and its Affiliates, and their respective
officers, directors, partners, principals, employees, agents or representatives,
arising under or relating to this Agreement (i) by any unaffiliated third party
(except as provided in Article VIII hereof), or (ii) for any amounts
representing loss of profit, loss of business or special, indirect, incidental,
consequential or punitive damages of any nature whatsoever, including, without
limitation, any damages arising out of or in connection with any loss of
business or anticipatory profits, even if such Person has been advised of the
possibility of such damages.
ARTICLE VIII
INDEMNIFICATION
8.1 C&D Indemnification. Subject to Article VII, C&D (for
-------------------
purposes of Section 8.3, an "Indemnifying Party") shall indemnify, defend and
------------------
hold harmless Armkel and its Affiliates, and their respective officers,
directors, partners, principals, employees, agents and representatives
(collectively, the "Armkel Indemnified Parties", and for purposes of Section
--------------------------
8.3, each an "Indemnified Party"), from and against all liabilities,
-----------------
out-of-pocket costs and expenses, including, without limitation, reasonable
defense costs, settlement costs and attorneys' fees (collectively, "Losses"),
------
based upon (i) any claim, action, suit or proceeding by an unaffiliated third
party arising out of or related to the provision of Manufacturing Services
pursuant to this Agreement; provided, however, that the foregoing
--------
indemnification under clause (i) shall not apply to the extent, and only to the
extent, that such Losses are directly and proximately caused by the gross
negligence or willful misconduct of Armkel or its Affiliates or Armkel's failure
to comply in any material respect with the express terms of this Agreement or
(ii) C&D's failure to comply in any material respect with the express terms of
this Agreement. The indemnification obligations set forth in this Section 8.1
are subject to the indemnification procedures set forth in Section 8.3.
8.2 Armkel Indemnification. Subject to Article VII, Armkel
----------------------
(for purposes of Section 8.3, an "Indemnifying Party") shall indemnify, defend
------------------
and hold harmless C&D and its Affiliates, and their respective officers,
directors, partners, principals, employees, agents and representatives
(collectively, the "C&D Indemnified Parties", and for purposes of Section 8.3,
-----------------------
each an "Indemnified Party") from and against any Losses suffered by the C&D
-----------------
Indemnified Parties to the extent, and only to the extent, that such Losses are
directly or proximately caused by (i) the gross negligence or willful misconduct
of Armkel or its Affiliates or (ii) Armkel's failure to comply in any material
respect with the express terms of this Agreement. The indemnification
obligations set forth in this Section 8.2 are subject to the indemnification
procedures set forth in Section 8.3.
16
8.3 Procedures for Indemnity Claims. Any claim which may form
-------------------------------
a basis for indemnification hereunder (an "Indemnity Claim") by any Indemnified
---------------
Party shall be asserted and resolved as set forth in this Section 8.3. The
Indemnified Party shall promptly, but in no event more than 15 Business Days
following such Indemnified Party's receipt of, notice of, or actual knowledge of
such claim, give written notice to the Indemnifying Party, which notice shall
state in reasonable detail the nature and basis of the Indemnity Claim and the
amount or the estimated amount thereof to the extent then feasible (which
estimate shall not be conclusive of the final amount of any claim) and which
notice, if applicable, shall also have attached to it copies of all relevant
documents received by the Indemnified Party substantiating such Indemnity Claim
(the "Claim Notice"). Failure of the Indemnified Party to give a Claim Notice as
------------
contemplated hereby shall not relieve the Indemnifying Party from liability for
indemnification hereunder, except if and to the extent that the Indemnifying
Party is actually prejudiced thereby. Thereafter, the Indemnified Party shall
deliver to the Indemnifying Party, on an ongoing basis promptly after the
Indemnified Party's receipt thereof, copies of all notices and documents
received by the Indemnified Party relating to the Indemnity Claim, as the case
may be. With respect to an indemnity claim other than an a third party claim
that is resolved as provided in this Section 8.3, the Indemnifying Party shall
promptly pay such Indemnity Claim within 20 Business Days from its receipt of
the Claim Notice (the "Notice Period"), unless, it notifies the Indemnified
-------------
Party in writing that the Indemnifying Party disputes the liability of the
Indemnifying Party to the Indemnified Party hereunder with respect to the
Indemnity Claim. If the Indemnity Claim involves an amount in dispute with a
third party (a "Third Party Claim"), the Indemnifying Party may advise the
-----------------
Indemnified Party within 10 Business Days from its receipt of the Claim Notice
that it will defend the Indemnified Party against such Third Party Claim. Except
as hereinafter provided, in the event that the Indemnifying Party so notifies
the Indemnified Party that it will defend the Indemnified Party against such
Third Party Claim, the Indemnifying Party shall have the right to defend the
Indemnified Party by appropriate proceedings and shall have the sole power to
direct and control such defense. All costs and expenses incurred by the
Indemnifying Party in defending the Third Party Claim shall be paid by the
Indemnifying Party. If an Indemnified Party desires to participate in any such
defense it may do so at its sole cost and expense; provided, that the
--------
Indemnified Party and its counsel shall comply with all reasonable instructions
from the Indemnifying Party. The Indemnifying Party shall not consent to the
entry of any judgment or enter into any settlement in respect of a Third Party
Claim without the consent of the Indemnified Party, to the extent such judgment
or settlement imposes a non-monetary obligation on the Indemnified Party or is
not accompanied by a complete and unconditional release of the Indemnified Party
in respect of such Third Party Claim; provided, that the consent of the
--------
Indemnified Party shall not be unreasonably withheld, conditioned or delayed. If
the Indemnifying Party elects not to defend the Indemnified Party against such
Third Party Claim, whether by not giving the Indemnified Party timely notice as
provided above or otherwise, then the Indemnified Party may conduct the defense
and the reasonable costs and expenses pertaining to such defense shall be the
liability of the Indemnifying Party. In any case, whether or not the
Indemnifying Party elects to control the defense of a Third Party Claim, the
Indemnified Party shall not consent to the entry of any judgment or enter into
any settlement in respect of a Third Party Claim without the consent of the
Indemnifying Party, and without such consent the Indemnifying Party shall not be
obligated to indemnify the Indemnified Party hereunder in respect of the related
Indemnification Claim; provided, that the consent of the Indemnifying Party
--------
shall not be unreasonably withheld,
17
conditioned or delayed. To the extent the Indemnifying Party shall direct,
control or participate in the defense or settlement of any Third Party Claim,
the Indemnified Party will, as reasonably required, give the Indemnifying Party
and its counsel access to, during normal business hours, the relevant business
records and other documents, and permit them to consult with the employees and
counsel of the Indemnified Party. Regardless of which Person assumes control of
the defense of any claim, each Party shall cooperate and provide the other Party
reasonable assistance in the defense thereof.
8.4 Sole Remedy. The remedies set forth in this Agreement
-----------
shall constitute the sole and exclusive remedy and shall be in lieu of any other
remedies that may be available to Armkel Indemnified Parties or C&D Indemnified
Parties under any agreement, pursuant to any statutory or common law, in equity
or otherwise with respect to the subject matter of this Agreement. The Parties
each hereby waive any provision of any applicable law to the extent that it
would limit or restrict the agreements contained in this Section 8.4.
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 Force Majeure. Subject to Section 4.5 hereof, in the event
-------------
the performance by C&D or Armkel of their respective duties or obligations
hereunder is interrupted or interfered with by reason of any cause beyond its
reasonable control including, but not limited to, fire, storm, flood,
earthquake, explosion, war, strike or labor disruption, rebellion, insurrection,
quarantine, `act of God', boycott, embargo, shortage or unavailability of
supplies, riot, or governmental law, regulation or edict (collectively, a "Force
-----
Majeure Event"), the Party affected by such Force Majeure Event shall not be
-------------
deemed to be in default of this Agreement by reason of its nonperformance of its
obligations hereunder to the extent due to such Force Majeure Event, but shall
give prompt written notice to the other Party of the Force Majeure Event. If, as
soon as, and to the extent that the Force Majeure Event no longer interrupts a
Party's performance of its obligations hereunder, its interrupted obligations
shall accrue from such point forward under the terms hereof.
9.2 Confidential Information. The Parties hereto expressly
------------------------
acknowledge and agree that all information, whether written or oral, furnished
by either Party to the other Party or any Affiliate of such other Party pursuant
to this Agreement, including any schedules and exhibits hereto ("Confidential
------------
Information") shall be deemed to be confidential and shall be maintained by each
-----------
Party and their respective Affiliates in confidence, using the same degree of
care to preserve the confidentiality of such Confidential Information that the
Party to whom such Confidential Information is disclosed would use to preserve
the confidentiality of its own information of a similar nature and in no event
less than a reasonable degree of care. Except as authorized in writing by the
other Party, neither Party shall at any time disclose or permit to be disclosed
any such Confidential Information to any person, firm, corporation or entity,
(i) except as may reasonably be required in connection with the performance of
this Agreement by the Parties or their respective Affiliates, as the case may
be, and (ii) except to the Parties' lenders, financing sources, agents or
representatives who are informed by the Parties of the confidential nature of
the information and are bound to maintain its confidentiality, and (iii) in the
course of due diligence in connection with the sale of all or a portion of
either Party's business or the sale
18
of either Party's ownership interests in Armkel, provided the disclosure is
pursuant to a written nondisclosure agreement having terms comparable to
Sections 9.2 and 9.3 hereof. The provisions of this Section 9.2 shall survive
the termination of this Agreement.
9.3 Exceptions. The obligation not to disclose information
----------
under this Section 9.2 shall not apply to information that, as of the Closing
Date or thereafter, (i) is or becomes generally available to the public other
than as a result of disclosure made by the Party desiring to treat such
information as nonconfidential or any of its Affiliates or representatives
thereof, (ii) was or becomes readily available to the Party desiring to treat
such information as nonconfidential or any of its Affiliates or representatives
thereof on a nonconfidential basis prior to its disclosure to such Party by the
other Party, or (iii) becomes available to the Party desiring to treat such
information as nonconfidential or any of its Affiliates or representatives
thereof on a nonconfidential basis from a source other than its own files or
personnel or the other Party or its Subsidiaries, provided, that such source is
--------
not known by the Party desiring to treat such information as nonconfidential to
be bound by confidentiality agreements with the other party or its Subsidiaries
or by legal, fiduciary constraints on disclosure of such information, or (iv) is
required to be disclosed pursuant to a governmental order or decree or other
legal requirement (including the requirements of the U.S. Securities and
Exchange Commission and the listing rules of any applicable securities
exchange), provided, that the Party required to disclosure such information
--------
shall give the other Party prompt notice thereof prior to such disclosure and,
at the request of the other Party, shall cooperate in all reasonable respects in
maintaining the confidentiality of such information, including obtaining a
protective order or other similar order. Nothing in this Section 9.3 shall limit
in any respect either Party's ability to disclose information in connection with
the enforcement by such Party of its rights under this Agreement.
9.4 License. C&D hereby grants Armkel a non-assignable,
-------
non-sublicenseable, royalty-free license to use C&D's marks, trade dress, logos,
artwork, packaging and labeling and all related items and rights ("Marks") on
-----
Products supplied by Armkel to C&D hereunder. All Marks for the Products
provided by C&D shall remain the exclusive and sole property of C&D. Armkel
shall not utilize, for any purpose whatsoever, any Xxxx provided hereunder in
any manner inconsistent with the terms of this Agreement or any other agreement
between the parties. Armkel further agrees that it will in no way utilize the
Marks in any other manner regarding Armkel, unless C&D's prior written consent
specifically referencing this Section 9.3 is obtained.
9.5 Independent Contractor. This Agreement shall not
----------------------
constitute or give rise to a partnership between the Parties. The operation of
any equipment or machinery or devices used by Armkel and the employment of labor
to process, package, pack, code date, stencil, store, assemble and load the
Products shall be the sole responsibility of Armkel. All activities by Armkel
under the terms of this Agreement shall be carried on by Armkel as an
independent contractor and not as an agent for or employee of C&D and this
Agreement shall not constitute or give rise to an agency relationship between
the parties except as otherwise expressly contemplated hereby. C&D shall not be
liable for any injuries or personal or real property damages incurred by Armkel
or its agents or employees in the performance of their duties hereunder, as the
case may be, unless caused by the material breach by C&D of the terms hereof. No
employee of Armkel shall be deemed to be an employee of C&D.
19
9.6 Conflict with Purchase Order Terms. In case of any
----------------------------------
conflict between the terms of this Agreement and the terms of any purchase
orders, acceptances, correspondence, memoranda, listing sheets or documents
forming part of any order or acceptance for the Products during the term of this
Agreement, the terms of this Agreement shall govern and prevail and conflicting
and additional terms and conditions of any such documents shall be deemed
deleted and shall not be binding upon the Parties.
9.7 Taxes. C&D shall pay all sales, revenue, excise or other
-----
federal, state or local taxes payable with respect to any purchase or shipment
of the Products hereunder, excluding franchise, ad valorem, income taxes or
other similar taxes of Armkel related to the operation of its business. In lieu
of sales taxes, C&D may provide Armkel with an appropriate sales tax exemption
certificate acceptable to the relevant taxing authority.
9.8 Modification or Amendment. Subject to the provisions of
-------------------------
applicable law, the parties hereto may only modify or amend this Agreement by
written agreement executed and delivered by duly authorized officers of C&D and
Armkel.
9.9 GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL.
---------------------------------------------
(i) THIS AGREEMENT AND ANY DISPUTES, CLAIMS OR
CONTROVERSIES ARISING FROM OR RELATING TO THE AGREEMENT SHALL BE DEEMED TO BE
MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF. The Parties hereby irrevocably submit to the
jurisdiction of the courts of the State of New York and the Federal courts of
the United States of America located in the County of New York, New York solely
in respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and in respect of
the transactions contemplated hereby, and hereby waive, and agree not to assert,
as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
Parties irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a New York State or Federal
court. The Parties hereby consent to and grant any such court jurisdiction over
the person of such Parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 9.10 or in such other manner as may
be permitted by law shall be valid and sufficient service thereof.
(ii) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY
20
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.9.
9.10 Notices. Any notice, request, instruction or other
-------
document to be given hereunder by any party to the others shall be in writing
and shall be deemed to have been delivered (i) on the date of service, if served
personally, (ii) upon confirmation of receipt, if transmitted by facsimile,
electronic or digital transmission method, (iii) on the first business day after
sent, if sent for next day delivery by recognized overnight delivery service and
(iv) on the third day after it is sent, if sent by first class mail. In each
case, notice shall have been sent to the Parties at the following addresses:
if to Armkel:
------------
Armkel, LLC
c/o Kelso & Company
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
Facsimile: (000) 000-0000
(with copies to:
Xxx Xxxxx
Xxxxxx X. Xxxxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to C&D
---------
Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(with copies to
Xxxxxx Xxxxx, Esq.
21
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000)
or to such other persons or addresses as may be designated in writing by the
Party to receive such notice as provided above.
9.11 Entire Agreement. This Agreement, including any schedules
----------------
and exhibits hereto or thereto, constitute the entire agreement with respect to
the subject matter hereof, and supersedes all other prior agreements,
understandings, representations and warranties both written and oral, among the
Parties.
9.12 Severability. It is the intention of the Parties that the
------------
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. It is the intention of the
Parties that if any provision of this Agreement, or the application thereof to
any Person or any circumstance, is invalid or unenforceable, (i) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (ii) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
9.13 No Third-Party Beneficiary Rights. This Agreement is not
---------------------------------
intended to confer upon any Person other than the Parties any rights or remedies
hereunder or in connection herewith.
9.14 Assignment. This Agreement and any rights and obligations
----------
hereunder shall not be assignable by either Party whether by operation of law or
otherwise, without the prior written consent of the other Party, and any
assignment made in contravention of this Section 9.14 shall be null and void;
provided, that a Party may assign any of its rights and obligations hereunder in
--------
whole or in part, to an Affiliate of such Party without consent of the other
Party, provided such Affiliate agrees to be bound by this Agreement; provided
--------
further, that any Affiliate of a Party may perform any obligations due to be
-------
rendered by such Party to the
22
other Party hereunder and any Party may cause any obligation due to it by the
other Party hereunder to be rendered to its Affiliate, if in either of such
cases, such substitution does not change the nature of the obligations in any
way or otherwise have any adverse impact on the other Party; provided further,
that if a Party's Affiliate is performing any obligations on behalf of such
Party, such Party shall continue to be directly and primarily liable hereunder
for the performance thereof.
9.15 Arbitration. The Parties shall endeavor to settle all
-----------
disputes by amicable negotiations. Except as otherwise provided herein, any
claim, dispute, disagreement or controversy that arises among the Parties
relating to this Agreement that is not amicably settled shall be resolved by
arbitration. Any such arbitration shall be heard in The City of New York, New
York, before a panel consisting of three (3) arbitrators, each of whom shall be
impartial. Upon the written Request for Arbitration of either Party to commence
arbitration hereunder, each Party shall choose one (1) arbitrator within fifteen
(15) days of the date of such request. The arbitrators chosen by each Party
shall then mutually choose one (1) additional arbitrator within fifteen (15)
days after both arbitrators have been chosen by the Parties. Except as the
Parties may otherwise agree, all arbitrators (if not selected by the Parties and
arbitrators within a total of thirty (30) days of a written Request for
Arbitration) shall be appointed pursuant to the commercial arbitration rules of
the American Arbitration Association. In determining the appropriate background
of the arbitrators, the appointing authority shall give due consideration to the
issues to be resolved, but his or her decision as to the identity of the
arbitrator(s) shall be final. An arbitration may be commenced by either Party by
the service of a written Request for Arbitration upon the other. Such Request
for Arbitration shall summarize the controversy or claim to be arbitrated. All
attorneys' fees and costs of the arbitration shall in the first instance be
borne by the respective Party incurring such costs and fees but the arbitrators
shall have the discretion to award costs and/or attorney's fees as they deem
appropriate under the circumstances. The Parties hereby expressly waive punitive
damages, and under no circumstances shall an award contain any amount that in
any way reflects punitive damages. Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. It is
intended that controversies or claims submitted to arbitration under this
Section 9.15 shall remain confidential, and to that end it is agreed by the
Parties that neither the facts disclosed in the arbitration, the issues
arbitrated, nor the views or opinions of any Persons concerning them, shall be
disclosed to third Persons at any time, except to the extent necessary to
enforce an award or judgment or as required by law or in response to legal
process or in connection with such arbitration. Any arbitration under this
Section 9.15 shall be conducted pursuant to the commercial arbitration rules of
the American Arbitration Association. All decisions by the panel of arbitrators
shall be final, binding and nonappealable.
9.16 Headings/Construction. Section headings contained in this
---------------------
Agreement are for convenient reference only, and shall not in any way affect the
meaning or interpretation of this Agreement. The language used in this Agreement
will be deemed the language chosen by the Parties to express their mutual
intent, and no rule of strict construction will be applied against any Person.
9.17 Counterparts. This Agreement may be executed in any
------------
number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same
agreement.
23
9.18 Determinations by Armkel. For purposes of this Agreement,
------------------------
determinations to be made by Armkel hereunder shall be made solely as directed
by the Kelso Member or, in the event of a sale to a third party of all of the
Xxxxx Member's ownership interests in Armkel pursuant to Section 10.3 of the LLC
Agreement, such third party transferee, in each case, acting in good faith on
behalf of Armkel and its members.
24
IN WITNESS WHEREOF, the Parties hereby have caused this
Agreement to be executed by their proper officers, duly authorized to do so, as
of the date first written above.
ARMKEL, LLC
By:
--------------------------------
Name:
Title:
CHURCH & XXXXXX CO., INC.
By:
--------------------------------
Name:
Title:
25
EXHIBIT A
Equipment
---------
Any equipment and tangible personal property located at the Facility that
constitutes a PL Purchased Asset under the Product Line Purchase Agreement that
is used primarily in the production of the APD Product Lines, or by any property
tags that appear in the records of C&D.
EXHIBIT B
Products
--------
See Attached for List of Arrid Extra Dry, Arrid XX and Lady's Choice
Products by SKU
