Exhibit 10.51
Exhibit 7.1.6
PROFESSIONAL PROMOTION AGREEMENT
This Professional Promotion Agreement, dated as of June 29, 2004 (this
"AGREEMENT"), is by and between Columbia Laboratories, Inc., a Delaware
corporation, having a place of business at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
XX 00000 ("COLUMBIA"), and Lil' Drug Store Products, Inc., an Iowa corporation,
having a place of business at 0000 Xxxxxxxxxxx Xxxxx Xxxxx Xxxx, Xxxxx Xxxxxx,
Xxxx 00000 ("LDS").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Columbia and LDS executed and delivered that certain Asset
Purchase Agreement, dated as of the date hereof (the "PURCHASE AGREEMENT"), for
the sale and purchase of the Purchased Assets and the Business (each as defined
therein) of Columbia;
WHEREAS, this Agreement is being delivered pursuant to Section 8.1.5 of
the Purchase Agreement;
WHEREAS, LDS is in the business, among others, of distributing Replens(R)
Long Lasting Vaginal Moisturizer, RepHresh(R) Vaginal Gel and Advantage - S (R)
Contraceptive Gel (collectively, the "PRODUCTS");
WHEREAS, Columbia is in the business, among others, of promoting and
sampling products to obstetricians, gynecologists and other women's healthcare
physicians, and members of their staffs; and
WHEREAS, LDS and Columbia desire to enter into this Agreement to provide
the terms and conditions upon which LDS engages Columbia to provide promotional
and sampling services for the Products in the Territory (the "SERVICES").
NOW THEREFORE, in consideration of the premises, which are incorporated
herein by reference, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the meanings specified
or referred to in this Section 1:
1.1 "FDA" shall mean the United States Food and Drug Administration.
1.2 "FTC" shall mean the United States Federal Trade Commission.
1.3 "PRESENTATION" shall mean a personal contact by a Sales Representative
with an obstetrician, gynecologist or other women's healthcare physician, or a
member of the physician's staff (each a "PRESENTEE") located in the Territory,
during which a promotional message about one or more of the Products (with a
maximum of up to four (4) Products) is given in accordance with the Promotional
Program.
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1.4 "PRODUCTS" has the meaning set forth in the Recitals of this Agreement
but may also include other LDS over the counter women's health care products as
reasonably agreed upon by LDS and Columbia.
1.5 "PROMOTIONAL MATERIAL" shall mean the samples, labeling, sales aids
and materials, and other promotional support items provided by LDS to Columbia
for use in Presentations.
1.6 "PROMOTIONAL PROGRAM" shall mean the sampling plan, strategy and
promotional message for the Products, that will include use of the Promotional
Material.
1.7 "SALES REPRESENTATIVE" shall mean a Columbia sales representative who
has been trained and equipped to make Presentations.
1.8 "TERRITORY" shall mean the United States.
2. PAYMENTS TO Columbia
2.1 Within thirty (30) days of the end of each calendar month Columbia
shall provide LDS with a report of the Presentations made in the prior month and
an invoice for [***] for each such Presentation; provided that no more than
[***] Presentations shall be made and invoiced in any calendar month. LDS shall
pay the invoice within thirty (30) days of its receipt thereof.
2.2 In the event that LDS does not make any payment within ten days of the
date such payment was due, Columbia may, at its sole discretion and without
prejudice to any other rights or remedies (i) suspend the Presentations and/or
(ii) exercise its right to give notice of a default in accordance with Section
11.2.
3. Columbia OBLIGATIONS
3.1 Columbia will maintain a full time sales force of Sales
Representatives to make Presentations to approximately 10,000 obstetricians,
gynecologists and other women's healthcare physicians, and members of their
staffs.
3.2 Columbia shall conduct the initial training of the Sales
Representatives and provide marketing updates on LDS Products at any national
sales meetings, which are reasonably required in connection with the services to
be performed by the Sales Representatives in accordance with this Agreement. LDS
shall have the right to participate in the training to the extent such training
relates specifically to the Products. LDS shall provide to Columbia copies of
training materials and selling materials reasonably required for for training
and equipping Sales Representatives for making Product Presentations.
3.3 Columbia shall manage and monitor the Presentations of Sales
Representatives. Sales Representatives shall not be permitted to develop, create
or use any promotional material or literature other than the Promotional
Material in connection with the Presentations. Sales Representatives will be
required to immediately cease the use of any Promotional Materials when
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instructed to do so by LDS. Columbia shall use commercially reasonable efforts
to ensure that: (i) Promotional Materials are not intentionally changed,
(including, without limitation, by underlining or otherwise highlighting any
text or graphics or adding any notes thereto) by Sales Representatives, (ii)
Sales Representatives limit their statements and claims regarding the Products
to those that are consistent with the relevant product label, package insert and
Promotional Materials, (iii) Sales Representatives do not knowingly add, delete
or modify claims in the promotion of the Products and (iv) Sales Representatives
do not knowingly make any untrue or misleading statements or comments about the
Products or any LDS competitors or competitor products. Columbia shall maintain
a commercially reasonable incentive compensation program to Sales
Representatives related to Presentations and sampling of the Products under this
Agreement. In addition, Columbia shall restrict the Sales Representatives from
providing any services for a product competitive with the Products during the
Presentations.
3.4 Within thirty (30) days of the end of each calendar month, Columbia
shall provide LDS with a report of the Presentations made in the prior month.
The report of the Presentations shall include the name and address of the
practice or Presentee(s) called upon, the Products presented, and the number of
samples left of each of the Products.
4. LDS RIGHTS, RESPONSIBILITIES AND OBLIGATIONS
4.1 LDS shall be responsible for providing the Promotional Materials and
samples of the Products to the Sales Representatives on a monthly basis. Such
Promotional Materials and samples shall (i) not involve the counseling or
promotion of a business arrangement that violates any applicable law, (ii) be in
compliance with the AMA Guidelines on Gifts to Physicians from Industry and
(iii) not require or encourage Sales Representatives to offer, pay, solicit or
receive any remuneration from or to physicians or their staffs to induce
referrals for or the purchase of the Products.
4.2 LDS shall be responsible for providing Promotional Materials for all
Sales Representative training and sales meetings.
4.3 Unless otherwise required by law, LDS will retain exclusive authority
and responsibility for complying with all applicable laws and regulatory
requirements and maintaining all government agency contacts relating to the
Products, including the development and submission of applications for new
indications (if any), the reporting of any adverse drug reactions to the FDA and
the compliance of Promotional Materials with FDA and FTC rules and regulations.
4.4 LDS shall have the right to ride-along with Sales Representatives in
sales territories selected by LDS and approved by Columbia, up to [***] times
per year, with 15 business days notice from LDS; it being understood that such
right of LDS to ride-along with Sales Representatives shall not interfere with
Columbia's ordinary business operations. In addition, LDS shall have the right
once in each twelve (12) month period, upon reasonable advance notice to
Columbia and during regular business hours, to conduct a reasonable audit of
Columbia's reports and services under this Agreement; provided, however, that,
to the extent that any material irregularity shall arise during such audit, LDS
shall have the right to do appropriate and reasonable follow up. Any such audit
by LDS shall not interfere with Columbia's ordinary business operations.
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5. CONFIDENTIALITY AND OWNERSHIP OF INFORMATION
5.1 Each of the parties acknowledges that, in the course of performing its
obligations hereunder, it may receive information from the other party that is
proprietary to the disclosing party and that the disclosing party wishes to
protect from public disclosure ("CONFIDENTIAL INFORMATION"). Columbia and LDS
each agree to retain in confidence, during the Term of this Agreement, and
thereafter for a period of seven years, all Confidential Information disclosed
to it by or on behalf of the other party, and that it will not, without the
written consent of such other party, use Confidential Information for any
purpose other than the purposes set forth herein. These restrictions shall not
apply to Confidential Information that: (i) is or becomes public knowledge
(through no fault of the receiving party); (ii) is made lawfully available to
the receiving party by an independent third party; (iii) is already in the
receiving party's possession at the time of receipt from the disclosing party
(and such prior possession can be properly demonstrated by the receiving party);
(iv) is independently developed by the receiving party and/or an affiliate of
the receiving party (and such independent development can be properly
demonstrated by the receiving party); or (v) is required by law, regulation,
rule, act or order of any governmental authority or agency to be disclosed by
the receiving party; provided, however, that if reasonably possible, the
receiving party will give the disclosing party sufficient advance written notice
to permit it to seek a protective order or other similar order with respect to
such Confidential Information and, thereafter, the receiving party will disclose
only the minimum Confidential Information required to be disclosed.
5.2 Subject to Section 5.1, Columbia and LDS shall limit disclosure of the
other party's Confidential Information to only those of their respective
officers, representatives, agents and employees who are directly concerned with
the performance of this Agreement and have a legitimate need to know such
Confidential Information. Upon receipt of a request from either party, the
receiving party shall return all Confidential Information of the other within 30
days of such request; provided, however, that each party can maintain one copy
of the other's Confidential Information to monitor compliance with this Section
5, to satisfy regulatory requirements or to resolve disputes regarding the
Services.
5.3 Each party's patents, trade secrets, copyrights, trade names,
trademarks, service marks, proprietary materials or intellectual property and
all improvements to any of the foregoing (collectively, "INTELLECTUAL PROPERTY")
used in connection with this Agreement shall remain the sole and exclusive
property of that party, and the other party's rights to use such Intellectual
Property shall be limited to those rights expressly permitted by this Agreement.
5.4 No public announcement or other disclosure to any third party
concerning the existence or terms of this Agreement shall be made, either
directly or indirectly, by any party, except as may be legally required or as
may be required for financial reporting purposes, without first obtaining the
written approval of the other party and agreement upon the nature and text of
such announcement or disclosure.
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6. INDEPENDENT CONTRACTOR RELATIONSHIP
6.1 For the purposes of this Agreement, the parties are independent
contractors and nothing contained in this Agreement shall be construed to place
them in the relationship of partners, principal and agent, employer and employee
or joint venturers. Neither party shall have the power or right to bind or
obligate the other party, nor shall either party hold itself out as having such
authority.
6.2 No provision of this Agreement shall be deemed to create or imply any
contract of employment between LDS and any employee of Columbia or a Columbia
sub-contractor. The Sales Representatives may be employees of a subcontractor
engaged by Columbia, and such employees of a subcontractor shall not be entitled
to any benefits applicable to employees of LDS or Columbia.
7. REGULATORY COMPLIANCE
7.1 In carrying out their responsibilities under this Agreement Columbia
and LDS agree to comply, to the extent applicable, with all laws, rules and
regulations, including, but not limited to the Federal Equal Employment
Opportunity Act, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, the Fair
Labor Standards Act, the Immigration Reform and Control Act of 1986, the Food,
Drug and Cosmetic Act, and Section 1128B(b) of the Social Security Act (42
U.S.C. ss.l320a-7b(b)).
7.2 If Columbia or its employees become aware of adverse experience
reports involving the use of any of the Products, Columbia will promptly notify
LDS.
7.3 LDS shall be solely responsible for responding to any government or
regulatory agency inquiry concerning the use or marketing of the Products,
except where (i) such responsibility is expressly transferred to Columbia in
writing; or (ii) to the extent any notice or reporting requirement is by law
made directly applicable to Columbia. Columbia shall promptly notify LDS of any
information Columbia receives regarding any threatened or pending action by a
government or regulatory agency that may affect any of the Products. Columbia
shall, at the written request of LDS, cooperate with LDS in order to respond, or
in formulating a procedure for taking appropriate action. In no event shall
Columbia respond to any agency without the prior consent of LDS, unless
compelled to do so by law.
8. RETURN OF LDS MATERIALS
8.1 Not later than 30 days after the expiration or termination of this
Agreement, all Confidential Information, LDS property and other data owned by
LDS, regardless of the method of storage or retrieval, shall at LDS's written
request either be delivered to LDS in such form as is then currently in the
possession of Columbia, or disposed of at the direction and written request of
LDS, unless such materials are otherwise required to be stored or maintained by
Columbia as a matter of law or regulation. LDS shall pay the costs associated
with any of the above options. Columbia reserves the right to retain, at its own
expense and subject to Section 5, one copy of all materials provided in
connection with this Agreement, to be used to satisfy regulatory requirements or
to resolve disputes regarding this Agreement.
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9. INDEMNIFICATION AND LIABILITY LIMITS
9.1 Columbia agrees that in addition to any and all other rights and
remedies of LDS, whether at law or in equity, and notwithstanding any inspection
made or not made by LDS, Columbia shall defend, indemnify and hold LDS and its
affiliates and their respective officers, directors, employees, independent
contractors, agents, and assigns harmless from and against any and all actions
claims, demands, proceedings, suits, losses, damages, costs and expenses
(including reasonable attorneys' fees) of whatsoever kind or nature (including
but not limiting the generality of the foregoing, in respect of death, injury,
loss or damage to any person or property) (collectively, "CLAIMS") arising in
any way out of or connected with: (i) any material breach by Columbia of its
obligations hereunder; (ii) the willful misconduct or negligent acts or
omissions of Columbia in connection with the Services; and (iii) any violation
by Columbia of any municipal, county, state or federal laws, rules or
regulations applicable to the performance of Columbia's obligations under this
Agreement in each case except to the extent such Claims are determined to have
resulted from the negligence or willful misconduct of LDS or its employees.
9.2 LDS agrees that in addition to any and all other rights and remedies
of Columbia, whether at law or in equity, notwithstanding any inspection made or
not made by Columbia, LDS shall defend, indemnify and hold Columbia and its
affiliates and their respective officers, directors, employees, independent
contractors, agents and assigns harmless from and against any and all Claims
arising out of or connected with: (i) the manufacture, storage, packaging,
production, transportation, distribution, sale or other disposition of any of
the Products by LDS or its agents; (ii) any material breach by LDS of its
obligations hereunder; (iii) the willful misconduct or negligent acts or
omissions of LDS; (iv) any violation by LDS or its employees of any municipal,
county, state or federal laws, rules or regulations applicable to the
performance of LDS's obligations under this Agreement; in each case except to
the extent such Claims are determined to have resulted from the negligence or
willful misconduct of Columbia or its employees and (v) any action, suit, claim,
proceeding, obligation, judgment, threat or charge based on a claim that any of
the Products infringes any patent, copyright, trademark, trade secret or other
proprietary or contractual right or obligation, of any third party.
9.3 The parties agree that:
(a) the indemnifying party shall have the right in its sole
discretion to conduct all proceedings and negotiations connected with such
Claims; provided, however, that the indemnifying party shall not settle any
Claim without the consent of the indemnified party, which consent shall not be
unreasonably withheld or delayed; and provided, further, that if the
indemnifying party fails to defend a Claim, the indemnified party shall have the
right to undertake the defense of any such Claim at the expense and for the
account of the indemnifying party and the indemnifying party shall pay all such
expenses within 30 days of the receipt of any invoice with respect thereto;
(b) the indemnified party shall promptly notify the indemnifying
party of all such Claims and shall not make any admissions regarding them unless
legally required to do so;
(c) the indemnified party shall, at the indemnifying party's
expense, provide the indemnifying party with reasonable assistance in connection
with such claims;
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(d) each party shall advise the other of any defect, error, fault or
failure with respect to the Products, or even the possibility of such defect,
error, fault or failure, if reasonably likely, within a reasonable time after
learning of the defect, error, fault or failure or the possibility thereof; and
(e) the indemnifying party shall keep the indemnified party informed
as to the status of any Claim, and not less than every 60 days shall provide the
indemnified party with a written status report on the Claim.
9.4 Neither party, nor its affiliates, nor any of a party's or its
affiliate's directors, officers, employees, subcontractors or agents shall have
any liability of any type to the other (including, but not limited to, contract,
negligence and tort liability), for any loss of profits, opportunity or
goodwill, or any type of special, incidental, punitive, indirect or
consequential damage or loss, in connection with or arising out of this
Agreement or the Services.
9.5 Columbia shall not be liable to LDS for Claims arising out of the
statements or representations of Columbia employees with respect to the Products
to the extent the statements or representations conform to the written or
printed statements or representations made to Columbia and Columbia employees by
LDS with respect to the Products.
10. INSURANCE
10.1 Each party shall maintain during the performance of this Agreement
the following insurance or self-insurance in amounts no less than that specified
for each type:
(a) Commercial general liability insurance with combined limits of
not less than $[***] per occurrence, $[***] per accident for bodily injury,
including death, and property damage, a general aggregate limit of not less than
$[***] and products/completed operations aggregate of not less than $[***] which
coverage shall insure such party for product liability claims and its
obligations under this Agreement;
(b) Workers compensation insurance in the amounts required by the
law of the state(s) in which such party's workers are located and employer's
liability insurance with limits of not less than $[***] per occurrence;
(c) Automobile liability insurance covering automobiles and trucks
used by or on behalf of such party either on or away from the other parties'
premises with combined single limit of not less than $[***] per occurrence and
$[***] per accident for bodily injury, including death, and property damage,
which policy shall include coverage for all hired, owned and no-owned
automobiles and trucks;
(d) Product Liability Insurance with limits not less than $[***];
and
(e) Excess insurance, in excess of all coverages set forth above,
with limits not less than $[***].
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10.2 Each party shall provide the other with evidence of its insurance or
self insurance. Each party shall provide to the other 30 days prior written
notice of any cancellation or material change in its coverage. Each party agrees
to deliver to the other concurrently with the execution of this Agreement and
thereafter annually, a certificate from the insurance company(ies) evidencing
that all the insurance required by this Agreement is in force, including a broad
form vendors' endorsement naming the other party as an additional insured.
11. TERM AND TERMINATION
11.1 The term of this Agreement shall commence on the date first written
above (the "EFFECTIVE DATE") and shall continue until December 31, 2006 (the
"INITIAL TERM"); provided, however, that Columbia may terminate this Agreement
without cause at any time during the Initial Term on ninety (90) days prior
written notice to LDS. For the avoidance of doubt, the parties agree that LDS
may not terminate this Agreement without cause during the Initial Term. Upon the
expiration of the Initial Term this Agreement shall automatically renew for
successive one year terms (each a "RENEWAL TERM" and, collectively with the
Initial Term, the "TERM"); provided, however, that either party may terminate
this Agreement without cause at any time during any Renewal Term on ninety (90)
days prior written notice to the other party.
11.2 Subject to the terms of this Section 11, either party may terminate
this Agreement by written notice to the other party at any time if the other
party defaults in the performance of its material obligations under this
Agreement. In the event of such default, the party declaring the default shall
provide the defaulting party with written notice setting forth the nature of the
default, and the defaulting party shall have 30 days from the date of such
notice to cure the default; provided, however, that if the nature of the default
is such that it cannot reasonably be cured within 30 days, the defaulting party
shall be deemed to have cured such default by commencing in good faith to cure
such default promptly after its receipt of such written notice thereof and
prosecuting the cure of such default to completion with diligence and continuity
within a reasonable time thereafter. If the defaulting party fails to cure the
default within the applicable time period, the other party may terminate this
Agreement by further written notice to the defaulting party, which termination
shall be effective upon receipt of such notice.
11.3 Either party may terminate this Agreement by written notice to the
other party, effective upon receipt thereof with no right to cure the default,
if the other party files a petition for bankruptcy, reorganization or
arrangement under any statute, or makes an assignment for the benefit of
creditors or takes advantage of any insolvency statute or similar statute, or if
a receiver or trustee is appointed for the property and assets of such party and
the receivership proceedings are not dismissed within 60 days of such
appointment.
11.4 In the event that this Agreement is terminated, LDS shall pay to
Columbia all payments, costs and fees which are due and owing to Columbia
because of any completed performance of Columbia's obligations hereunder prior
to the effective date of termination.
11.5 Termination of this Agreement for whatever reason shall not affect
the accrued rights of either Columbia or LDS arising under this Agreement, and
all provisions which expressly or by implication survive the termination or
expiration of this Agreement shall remain in full force and effect.
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12. COOPERATION
12.1 All data and information in LDS' s possession or control necessary
for Columbia to perform its obligations hereunder will be timely delivered by
LDS to Columbia. Columbia shall not be liable to LDS nor be deemed to have
breached this Agreement as a result of errors or delays by Columbia or other
consequences directly arising from LDS's failure to provide documents, materials
(including samples) or information or to otherwise cooperate with Columbia in
order for Columbia to timely and properly perform Columbia's obligations
hereunder.
13. Project Team
Columbia Contact Person: Xxx Xxxxxx
Senior Vice President, Marketing & Sales
Address: 000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
LDS Contact Person: Xxxxx Xxxxxxx
Director of Marketing
Address: 0000 Xxxxxxxxxxx Xxxxx Xxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
13.1 Routine correspondence and other routine communications relevant to
the Services should be sent to the above-named contact persons. All notices or
similar communications in regard to the terms or a change of terms of this
Agreement are to be sent to the parties named in Section 15.
14. FORCE MAJEURE
14.1 Neither party shall be liable to the other for delay or failure in
the performance of the obligations on its part contained in this Agreement if
and to the extent that such failure or delay is due to circumstances beyond its
control which it could not have avoided by the exercise of reasonable diligence
including but not limited to: act of God, war or insurrection; civil commotion;
destruction of essential facilities or materials by earthquake, fire, flood or
storm; act of government, labor disturbance (whether or not any such labor
disturbance is within the power of the affected party to settle); epidemic; or
other similar event; provided, however, that the party so affected shall
promptly notify the other party in writing should such circumstances arise,
giving an indication of the likely extent and duration thereof, and shall use
all commercially reasonable efforts to avoid, remove or alleviate such causes of
non-performance and shall resume performance of its obligations hereunder with
the utmost dispatch whenever such causes are removed. In the event of force
majeure lasting more than three months, the parties agree to meet and discuss
how this Agreement can be justly and fairly implemented under the circumstances
and if the parties are unable to agree upon how this Agreement can be
implemented then either party may terminate this Agreement upon 30 days written
notice to the other party.
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15. NOTICES
15.1 All notices given pursuant to this Agreement shall be in writing and
shall be deemed received upon the earlier of (i) when received at the address
set forth below (including telefax or personal delivery), or (ii) five business
days after being sent by telefax and confirmed by being mailed by certified,
registered, or overnight courier mail in the United States, postage prepaid and
properly addressed, with return receipt requested. Notices shall be delivered to
the respective parties as indicated or to such other address as the party to
whom notice is to be given may have furnished to the other party in writing in
accordance herewith:
if to Columbia, to it at:
Columbia Laboratories, Inc.
000 Xxxxxxxxxx Xxxxxxx, Plaza 1, Second Floor
Livingston, New Jersey 07039
Attention: Xxxxxxx XxXxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxxxxx X. XxxxXxxxxxx, Esq.
Facsimile: (000) 000-0000
if to LDS, to it at:
Lil' Drug Store Products, Inc.
0000 Xxxxxxxxxxx Xxxxx Xxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx PC
0000 Xxxxx Xxxxxx XX
XX Xxx 0000
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
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16. Assignment
16.1 Unless consent in writing is first obtained from the other party (not
to be unreasonably withheld), this Agreement and the rights granted herein shall
not be assignable by either party hereto, except to a successor to all or
substantially all of its business or to an Affiliate, including to a third party
acquirer of the Business and Purchased Assets (as each is defined in the
Purchase Agreement), or substantially all of the assets thereof pursuant to
Section 6.5 of the Purchase Agreement. Any attempted assignment without consent
shall be void. Any permitted assignee shall assume all obligations of its
assignor under this Agreement including expressly the rights and obligations
under Section 2 and Section 4 hereof.
17. ADDITIONAL WARRANTIES AND REPRESENTATIONS
17.1 Columbia and LDS warrant and represent to each other that: (i) they
have the full right and authority to enter into this Agreement; (ii) that there
is no impediment that would inhibit their ability to perform their respective
obligations under this Agreement; and (iii) they will comply with all applicable
local, state and federal laws and regulations in carrying out their obligations
pursuant to this Agreement.
17.2 Columbia and LDS agree to perform their obligations hereunder in a
timely, professional and competent manner.
17.3 LDS warrants and represents that: (i) it possesses good title to, or
the right to use, any and all trademarks for the Products, free and clear of any
claims or encumbrances that would impede the performance by either party under
the terms of this Agreement; (ii) it owns, controls or has the required rights
to the patents or appropriate intellectual property rights required in
connection with the Products; (iii) it has no knowledge of the existence of any
claim or adverse rights which would restrict or prevent LDS or Columbia from
performing under this Agreement; (iv) the Promotional Material is in compliance
with all applicable laws and regulations; (v) any and all samples of the
Products to be supplied by LDS pursuant to this Agreement will, at the time of
shipment by or on behalf of LDS, not be misbranded or adulterated under the
terms of the Federal Food, Drug and Cosmetic Act and all applicable regulations
promulgated thereunder; and (vi) LDS has obtained any and all regulatory
approvals and licenses which are required to be obtained for sales of the
Products within the Territory.
18. GENERAL PROVISIONS
18.1 The validity and interpretation of this Agreement and the legal
relations of the parties to it shall be governed by the substantive laws of New
Jersey, without reference to any rules of conflict of laws.
18.2 The rights and obligations of LDS and Columbia under this Agreement,
which by intent or meaning have validity beyond any termination of this
Agreement (including, but not limited to, rights with respect to
confidentiality, mutual indemnification and liability limitations) shall survive
the termination of this Agreement.
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18.3 This Agreement sets forth the entire agreement and understanding of
the parties as to the subject matter hereof and supersedes all prior agreements,
proposals, oral or written, and all other communications between the parties
with respect to such subject matter. No provision of this Agreement may be
amended or modified other than by a written document signed by authorized
representatives of both parties.
18.4 The failure of either party to assert a right hereunder or to insist
upon compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other party.
18.5 Should one or more of the provisions of this Agreement become void or
unenforceable as a matter of law, then this Agreement shall be construed as if
such provision were not contained therein and the remainder of this Agreement
shall be in full force and effect, and the parties will use their best efforts
to substitute for the invalid or unenforceable provision a valid and enforceable
provision which conforms as nearly as possible with the original intent of the
parties.
18.6 The headings of Sections of this Agreement are for convenience of
reference only and shall not affect the meaning or interpretation of this
Agreement in any way. Words denoting the singular shall include the plural and
vice versa; words denoting any gender shall include all genders; and words
denoting persons shall include bodies corporate, and vice versa.
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EXECUTION DOCUMENTS
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date and year first above mentioned.
COLUMBIA LABORATORIES, INC.
By: /S/ Xxxx Xxxxxxxxx
------------------
(signature)
Name: Xxxx Xxxxxxxxx
Title: President, Chief Executive
Officer and Chairman of the Board
LIL' DRUG STORE PRODUCTS, INC.
By: /S/ Xxxxx XxXxxx
------------------
(signature)
Name: Xxxxxxxxxxx XxXxxx
Title: President
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