Exhibit 10.2
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT, dated as of _____, 2004, is by
and between XXXXXX LABORATORIES, an Illinois corporation ("Abbott"), and
HOSPIRA, INC., a Delaware corporation ("Hospira").
RECITALS:
WHEREAS, the board of directors of Abbott has determined that it is in
the best interests of Abbott and its shareholders to separate Xxxxxx'x core
hospital products business from its other existing businesses;
WHEREAS, in order to effectuate the foregoing, Abbott and Hospira have
entered into a Separation and Distribution Agreement of even date herewith (the
"Separation and Distribution Agreement"), which provides, among other things,
subject to the terms and conditions set forth therein, for the contribution to
Hospira of certain assets, the assumption by Hospira of certain liabilities and
the distribution of Hospira common stock to Abbott shareholders, and for the
execution and delivery of certain other agreements in order to facilitate and
provide for the foregoing; and
WHEREAS, in order to ensure an orderly transition under the Separation
and Distribution Agreement it will be necessary for each of the Parties to
provide to the other the Services described herein for a transitional period of
up to two (2) years.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, and subject to and on the terms and conditions
herein set forth, the Parties hereby agree as follows:
Section 1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
following meanings:
"Abbott" has the meaning set forth in the Preamble.
"Additional Services" has the meaning set forth in SECTION 2(b)(ii).
"Charges" has the meaning set forth in SECTION 2(d).
"Distribution Date" means the date on which Abbott distributes as a
dividend to its shareholders all of the outstanding shares of Hospira common
stock as set forth in the Separation and Distribution Agreement.
"Hospira" has the meaning set forth in the Preamble.
"Information" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, including studies, reports, records, books, contracts, instruments,
surveys, discoveries, ideas, concepts, know-how, techniques,
designs, specifications, drawings, blueprints, diagrams, models, prototypes,
samples, flow charts, data, computer data, disks, diskettes, tapes, computer
programs or other software, marketing plans, customer names, communications by
or to attorneys (including attorney-client privileged communications), memos and
other materials prepared by attorneys or under their direction (including
attorney work product), and other technical, financial, employee or business
information or data.
"Initial Services" has the meaning set forth in SECTION 2(a).
"Person" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a limited
liability entity, any other entity and any governmental authority.
"Omitted Services" has the meaning set forth in SECTION 2(b)(i).
"Parties" means the parties to this Agreement.
"Prime Rate" means the rate which Citibank N.A. (or its successor or
another major money center commercial bank agreed to by the Parties) announces
as its prime lending rate, as in effect from time to time.
"Provider" means, with respect to any Service, the entity or entities
identified on the applicable Schedule as the "Service Provider."
"Purchaser" means, with respect to any Service, the entity or entities
identified on the applicable Schedule as the "Service Purchaser."
"Separation and Distribution Agreement" shall have the meaning set
forth in the Recitals.
"Service Period" means, with respect to any Service, the period
commencing on the Distribution Date and ending on the earlier of (i) the date
the Purchaser terminates the provision of such Service pursuant to SECTION 4(b),
or (ii) the termination date (measured as the number of months from the
Distribution Date) specified with respect to such Service on the Schedule
applicable to such Service, unless extended pursuant to SECTION 4(a).
"Services" has the meaning set forth in SECTION 2(b)(ii).
"Subsidiary" of any Person means another Person that is directly or
indirectly controlled by such first Person. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
ownership of voting securities or other interests, by contract or otherwise. For
the avoidance of doubt, TAP Pharmaceutical Products Inc., TAP Finance Inc. and
TAP Pharmaceuticals Inc. are not Subsidiaries of Abbott as that term is used in
this Agreement.
"Taxes" means all forms of taxation or duties imposed, or required to
be collected or withheld, together with any related interest, penalties or other
additional amounts.
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"Third Party" means any Person other than Abbott, any Abbott
Subsidiary, Hospira and any Hospira Subsidiary.
Section 2. SERVICES.
(a) INITIAL SERVICES. Commencing on the Distribution Date, the
Party designated as the Provider on the Schedules hereto agrees to provide, or
with respect to any service to be provided by a Subsidiary of such Party, to
cause such Subsidiary to provide, to the Party designated as the Purchaser on
the Schedules hereto, or with respect to any service to be provided to a
Subsidiary of such Party, to such Subsidiary, the applicable services (the
"Initial Services") set forth on SCHEDULE 1 through SCHEDULE _ hereto.
(b) OMITTED SERVICES; ADDITIONAL SERVICES.
(i) If during the term of this Agreement, a Party identifies a
service that the other Party previously provided to such Party prior to the
Distribution Date, but such service was inadvertently omitted from the
Services set forth on the Schedules hereto (such service an "Omitted
Service"), then upon the prior written consent of the Party that would be
the Provider of such Omitted Service, which consent shall not be
unreasonably withheld, such Omitted Service shall be added and considered
as part of the Services. The Parties shall cooperate and act in good faith
to create a Schedule for each Omitted Service in the form attached hereto
as SCHEDULE __.
(ii) From time to time after the Distribution Date, the Parties may
identify additional services that are not Omitted Services that one Party
will provide to the other Party in accordance with the terms of this
Agreement (the "Additional Services" and, together with the Initial
Services and any added Omitted Services, the "Services"). The Parties shall
cooperate and act in good faith to create a Schedule for each Additional
Service in the form attached hereto as SCHEDULE __. Notwithstanding the
foregoing, neither Party shall have any obligation to agree to provide
Additional Services.
(c) PERFORMANCE OF SERVICES.
(i) Each Provider shall perform and cause its Subsidiaries to
perform all Services to be provided by such Provider in a manner which is
substantially similar in nature, quality and timeliness to the analogous
services provided by the applicable Provider to the applicable Purchaser
prior to the Distribution Date.
(ii) Each Provider shall, and shall cause its Subsidiaries to,
perform its duties and responsibilities hereunder in good faith based on
its past practices. Neither Provider nor any of its Subsidiaries shall be
liable or held accountable, in damages or otherwise, for any error of
judgment or any mistake of fact or law or for anything that the Provider or
any of its Subsidiaries does or refrains from doing in good faith
hereunder, except in the case of its gross negligence or willful
misconduct.
(iii) Nothing in this Agreement shall require a Provider to perform
or cause to be performed any Service in a manner that would constitute a
violation of applicable laws.
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(iv) No Provider shall be obligated to perform or to cause to be
performed any Service in a volume or quantity which exceeds the planned
2004 volumes or quantities of analogous services to be performed for the
applicable Purchaser without reference to the transactions contemplated by
the Separation and Distribution Agreement. A Purchaser may request a higher
volume or quantity of such historical volumes or quantities of a Service,
which request the applicable Provider may accept or reject in its sole
discretion. If the Provider agrees to such a request, the Parties shall
cooperate and act in good faith to make any modifications to the applicable
Schedule for such Service.
(v) (1) Neither the Provider nor any of its Subsidiaries will be
required to perform or to cause to be performed any of the Services for the
benefit of any Third Party or any other Person other than the applicable
Purchaser, and (2) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2(c), EACH PARTY
ACKNOWLEDGES AND AGREES THAT ALL SERVICES AND PRODUCTS ARE PROVIDED ON AN
"AS-IS" BASIS AND THAT EACH PROVIDER MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SERVICES AND PRODUCTS, AND HEREBY DISCLAIMS
ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTY WHATSOEVER.
(d) CHARGES FOR SERVICES. The charges for the Services shall be
determined in accordance with EXHIBIT A (the "Charges").
(e) CHANGES TO SERVICES. Except as provided in SECTION 2(h) below,
each Provider may make changes from time to time in the manner of performing the
Services if such Provider is making similar changes in performing analogous
services for itself and if such Provider furnishes to the applicable Purchaser
substantially the same notice (in content and timing) as such Provider shall
furnish to its own organization respecting such changes. No such change shall
affect the Charges for the applicable Service.
(f) TRANSITIONAL NATURE OF SERVICES. The Parties acknowledge the
transitional nature of the Services and agree to cooperate in good faith and to
use commercially reasonable efforts to effectuate a smooth transition of the
Services from the Provider to the Purchaser (or its designee).
(g) COOPERATION. In the event that (i) there is nonperformance of
any Service as a result of an event described in SECTION 6(e), or (ii) the
provision of a Service would violate applicable law, the Parties agree to work
together in good faith to arrange for an alternative means by which the
applicable Purchaser may obtain, at the Purchaser's sole cost, the Services so
affected.
(h) USE OF THIRD PARTIES TO PROVIDE THE SERVICES. Each Provider may
perform its obligations through its Subsidiaries or, if such Provider is
obtaining analogous services for itself from agents, subcontractors or
independent contractors, the Provider may perform its obligations hereunder
through the use of agents, subcontractors or independent contractors, if such
Provider furnishes to the applicable Purchaser substantially the same notice (in
content and timing) as such Provider shall furnish to its own organization
respecting such use
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of Third Parties. If the Provider is not obtaining analogous services for itself
from Third Parties, the Provider may perform its obligations hereunder through
the use of agents, subcontractors or independent contractors only upon obtaining
the prior written consent of the Purchaser. Notwithstanding the foregoing, the
Provider shall not be relieved of its obligations under this Agreement by use of
such Subsidiaries, agents, subcontractors or contractors. Delegation of
performance of any Service by a Provider in accordance with this SECTION 2(h)
shall not affect the Charges for the applicable Service.
Section 3. BILLING; TAXES.
(a) PROCEDURE. Charges for the Services shall be charged to and
payable by the Purchaser. Amounts payable pursuant to the terms of this
Agreement shall be paid to the Provider, as directed by the Provider, on a
monthly basis, which amounts shall be due within thirty (30) days after the date
of invoice. All amounts due and payable hereunder shall be invoiced and paid in
U.S. dollars.
(b) LATE PAYMENTS. Charges not paid when due shall bear interest at
a rate per annum equal to the Prime Rate plus two percent (2%).
(c) TAXES. Each Purchaser shall pay any and all Taxes incurred in
connection with the applicable Provider's provision of the Services, including
all sales, use, value-added, and similar Taxes, but excluding Taxes based on
such Provider's net income.
(d) NO SET-OFF. A Purchaser's obligation to make any required
payments under this Agreement shall not be subject to any unilateral right of
offset, set-off, deduction or counterclaim, however arising.
Section 4. TERM AND TERMINATION.
(a) TERM. Unless otherwise terminated pursuant to SECTION 4(b),
this Agreement will terminate with respect to any Service at the close of
business on the last day of the Service Period for such Service. Notwithstanding
the foregoing, the Purchaser may elect to extend the Service Period for any
Service by providing the Provider of such Service with written notice within the
shorter of (i) one hundred eighty (180) days, or (ii) one-half of the original
Service Period for such Service; provided, however, that no Service Period,
including any extension thereof, will continue for longer than two (2) years
after the Distribution Date. This Agreement will terminate two (2) years after
the Distribution Date.
(b) EARLY TERMINATION. Each Purchaser shall have the right at any
time during the term of this Agreement to terminate its obligation to purchase
any individual Service, upon the giving of an advance written notice to the
Provider of such Service within the shorter of (i) one hundred eighty (180)
days, or (ii) one-half the original Service Period for such Service.
(c) INFORMATION TRANSMISSION. On or prior to the last day of each
relevant Service Period, the Provider shall use commercially reasonable efforts
and shall cause its Subsidiaries to use commercially reasonable efforts to
support any transfer of Information concerning the relevant Services to the
applicable Purchaser. If requested by the Purchaser, the
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Provider shall deliver and shall cause its Subsidiaries to deliver to the
applicable Purchaser, within such time periods as the Parties may reasonably
agree, all Information received or computed for the benefit of such Purchaser
during the Service Period, in electronic and/or hard copy form; provided,
however, that (i) the Provider shall not have any obligation to provide or cause
to provide Information in any non-standard format, and (ii) the Provider and its
Subsidiaries shall be reimbursed for their reasonable out-of-pocket costs for
providing Information in any format other than its standard format.
Section 5. CONFIDENTIALITY; PROTECTIVE ARRANGEMENTS.
(a) ABBOTT AND HOSPIRA OBLIGATIONS. Subject to SECTION 5(c),
Abbott, on behalf of itself and each Abbott Subsidiary, and Hospira, on behalf
of itself and each Hospira Subsidiary, agrees to hold, and to cause its
respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives to hold, in strict confidence, with at least
the same degree of care that applies to Xxxxxx'x confidential and proprietary
information pursuant to policies in effect as of the date of this Agreement, all
Information concerning the other and the other's Subsidiaries that is either in
its possession (including Information in its possession prior to the date of
this Agreement) or furnished by the other or the other's Subsidiaries or their
respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives at any time pursuant to this Agreement, and
will not use any such Information other than for such purposes as may be
expressly permitted hereunder, except, in each case, to the extent that such
Information has been (i) in the public domain through no fault of such Party or
its Subsidiaries or any of their respective directors, officers, employees,
agents, accountants, counsel and other advisors and representatives; (ii) later
lawfully acquired from other sources by such Party (or any of its Subsidiaries),
which sources are not themselves bound by a confidentiality obligation; or (iii)
independently generated without reference to any proprietary or confidential
Information of the other Party.
(b) NO RELEASE; RETURN OR DESTRUCTION. Each Party agrees not to
release or disclose, or permit to be released or disclosed, any Information
addressed in SECTION 5(a) to any other Person, except its directors, officers,
employees, agents, accountants, counsel and other advisors and representatives
who need to know such Information, and except in compliance with SECTION 5(c).
Without limiting the foregoing, when any Information furnished by the other
Party pursuant to this Agreement is no longer needed for the purposes
contemplated by this Agreement, each Party shall promptly after receiving a
written request from the other Party either return to the other Party all such
Information in a tangible form (including all copies thereof and all notes,
extracts or summaries based thereon) or certify to the other Party that it has
destroyed such Information (and such copies thereof and such notes, extracts or
summaries based thereon).
(c) PROTECTIVE ARRANGEMENTS. In the event that either Party or any
of its Subsidiaries either determines on the advice of its counsel that it is
required to disclose any Information pursuant to applicable law or the rules or
regulations of any governmental authority or receives any demand under lawful
process or from any governmental authority to disclose or provide Information of
any other Party that is subject to the confidentiality provisions hereof, such
Party shall notify the other Party prior to disclosing or providing such
Information and shall cooperate at the expense of the requesting Party in
seeking any reasonable protective
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arrangements requested by such other Party. Subject to the foregoing, the Person
that received such request may thereafter disclose or provide Information to the
extent required by such law (as so advised by counsel) or by lawful process or
such governmental authority.
Section 6. MISCELLANEOUS.
(a) MUTUAL COOPERATION. The Parties and their respective
Subsidiaries shall cooperate with each other in connection with the performance
of the Services hereunder, including producing on a timely basis all Information
that is reasonably requested with respect to the performance of Services and the
transition of Services at the end of the term of this Agreement; provided,
however, that such cooperation shall not unreasonably disrupt the normal
operations of the Parties and their respective Subsidiaries.
(b) LIMITATIONS ON LIABILITY.
(i) FOR EACH TWELVE (12) MONTH PERIOD DURING WHICH THIS AGREEMENT
IS IN EFFECT, THE FIRST SUCH PERIOD COMMENCING ON THE DISTRIBUTION DATE AND
THE SECOND SUCH PERIOD COMMENCING ON THE ONE YEAR ANNIVERSARY THEREOF, THE
MAXIMUM LIABILITY OF THE PROVIDER AND ITS SUBSIDIARIES TO, AND THE SOLE
REMEDY OF, THE PURCHASER AND ANY OF ITS SUBSIDIARIES WITH RESPECT TO ANY
AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT,
REGARDLESS OF THE THEORY UPON WHICH THE LIABILITY IS PREMISED, SHALL NOT
EXCEED THE PROVIDER'S PROFITS FOR PERFORMING SERVICES HEREUNDER, WHICH
SHALL BE DEEMED TO BE EQUAL TO THE AMOUNT OF THE XXXX-UP RECEIVED BY THE
PROVIDER DURING SUCH TWELVE (12) MONTH PERIOD AS SET FORTH ON EXHIBIT A AND
AS MAY BE ADJUSTED PURSUANT TO THE TERMS OF EXHIBIT A.
(ii) IN NO EVENT SHALL EITHER PARTY, ITS SUBSIDIARIES OR ITS
DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN
CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT, EVEN IF THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EACH PARTY HEREBY
WAIVES ON BEHALF OF ITSELF AND ITS SUBSIDIARIES ANY CLAIM FOR SUCH DAMAGES,
INCLUDING ANY CLAIM FOR PROPERTY DAMAGE OR LOST PROFITS, WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE.
(iii) The foregoing limitations on liability in this SECTION 6(b)
shall not apply to: (1) either Party's liability for breaches of
confidentiality under SECTION 5 (Confidentiality), and (2) either Party's
obligations under SECTION 6(c) (Third Party Claims).
(c) THIRD PARTY CLAIMS. Each Purchaser shall indemnify, defend and
hold harmless the Provider, its Subsidiaries and each of their respective
directors, officers and employees, and each of the successors and assigns of any
of the foregoing (collectively, the
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"Provider Indemnitees"), from and against any and all claims of Third Parties
relating to, arising out of or resulting from the Provider's furnishing or
failing to furnish the Services provided for in this Agreement, other than Third
Party claims arising out of the gross negligence or willful misconduct of any
Provider Indemnitee.
(d) TITLE TO INTELLECTUAL PROPERTY. Each Purchaser acknowledges
that it will acquire no right, title or interest (including any license rights
or rights of use) in any intellectual property which is owned or licensed by any
Provider, by reason of the provision of the Services provided hereunder. No
Purchaser will remove or alter any copyright, trademark, confidentiality or
other proprietary notices that appear on any intellectual property owned or
licensed by any Provider, and each Purchaser shall reproduce any such notices on
any and all copies thereof. No Purchaser will attempt to decompile, translate,
reverse engineer or make excessive copies of any intellectual property owned or
licensed by any Provider, and each Purchaser shall promptly notify such Provider
of any such attempt, regardless of whether by Purchaser or any Third Party, of
which Purchaser becomes aware.
(e) FORCE MAJEURE. Neither Party shall be liable to the other if,
and to the extent that, the performance or delay in performance of any of its
obligations under this Agreement is prevented, restricted, delayed or interfered
with due to circumstances beyond the reasonable control of such Party,
including, but not limited to, government legislation, fires, floods,
explosions, epidemics, accidents, acts of God, wars, riots, strikes, lockouts or
other concerted acts of workers and/or acts of government. The Party claiming an
event of force majeure shall promptly notify the other Party in writing, and
provide full particulars of the cause or event and the date of first occurrence
thereof, as soon as possible after the event and also keep the other Party
informed of any further developments. The Party so affected shall use its
commercially reasonable efforts to remove the cause of non-performance, and both
the Parties shall resume performance hereunder with the utmost dispatch when
such cause is removed unless this Agreement has previously been terminated under
SECTION 4 hereof.
(f) INDEPENDENT CONTRACTORS. The Parties each acknowledge that they
are separate entities, each of which has entered into this Agreement for
independent business reasons. The relationships of the Parties hereunder are
those of independent contractors and nothing contained herein shall be deemed to
create a joint venture, partnership or any other relationship.
(g) NO THIRD PARTY BENEFICIARIES. Except as expressly provided in
SECTION 6(c), the provisions of this Agreement are solely for the benefit of the
Parties and their Subsidiaries and are not intended to confer upon any Person
except the Parties any rights or remedies hereunder. Except for the Provider
Indemnitees, there are no Third Party beneficiaries of this Agreement and this
Agreement shall not provide any Third Party with any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of Illinois
irrespective of the choice of laws principles of the State of Illinois, as to
all matters, including matters of validity, construction, effect,
enforceability, performance and remedies.
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(i) ADR PROCEDURES; EQUITABLE RELIEF. The Parties acknowledge that
from time to time during the Term of this Agreement a controversy, dispute or
claim may arise relating to either Party's rights or obligations under this
Agreement. The Parties agree that any controversy or claim (whether arising in
contract, tort or otherwise) arising out of or relating in any way to this
Agreement (including the interpretation or validity of this Agreement), shall be
resolved exclusively by the alternative dispute resolution ("ADR") provisions
set forth in this SECTION 6(i) and EXHIBIT B, the result of which shall be
binding upon the Parties.
(i) NOTICE. Prior to initiating an ADR proceeding, a Party first
must send written notice to the other Party in accordance with the
provisions of SECTION 6(o) describing the dispute and requesting attempted
resolution by good faith negotiations. Good faith negotiations shall be
conducted in two stages, with the second stage being triggered only if
first stage negotiations do not result in a resolution of the dispute.
(ii) FIRST STAGE NEGOTIATIONS. Following receipt of the written
notice described in the preceding paragraph, the respective CEOs or
Presidents of the Parties shall designate a group of no more than three
individuals, exclusive of counsel, to participate in good faith
negotiations aimed at resolving the dispute. Within 21 days from receipt of
the written notice, the respective groups shall meet in-person to conduct
good faith negotiations. By mutual written consent, the Parties may extend
the 21-day period for conducting first stage negotiations. If the Parties
fail to meet within the 21-day period or the Parties fail to resolve the
dispute during such period, and the period is not extended by mutual
written agreement, the Parties shall engage in second stage negotiations as
described in the next paragraph.
(iii) SECOND STAGE NEGOTIATIONS. Following the expiration of the
21-day period described in the preceding paragraph, or any extension
thereof mutually agreed to in writing, if the Parties are unable to resolve
the dispute, they shall engage in second stage negotiations between the
respective CEOs or Presidents (or their designees) of the Parties. If the
dispute has not been resolved within 14 days following the conclusion of
first stage negotiations, either Party may initiate an ADR proceeding as
provided in EXHIBIT B. The Parties shall have the right to be represented
by counsel in such a proceeding.
Notwithstanding the foregoing, the Parties acknowledge that the breach of
SECTION 5 (Confidentiality) by one Party may give rise to irreparable injury to
the other Party which is not adequately compensable in damages or at law.
Accordingly, the Parties agree that in such event, the non-breaching party may
seek equitable relief to enforce or prevent violation of such Party's respective
rights and/or obligations under those Sections. Unless otherwise agreed in
writing, the Parties shall continue to provide Services and honor all other
commitments under this Agreement during the course of dispute resolution
pursuant to the provisions of this SECTION 6(i) and EXHIBIT B with respect to
all matters subject to such dispute, controversy or claim; provided, however,
that this obligation shall only exist during the term of this Agreement.
(j) INTERPRETATION. Words in the singular shall be deemed to
include the plural and vice versa and words of one gender shall be deemed to
include the other genders as the context requires. The terms "hereof," "herein,"
and "herewith" and words of similar
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import shall, unless otherwise stated, be construed to refer to this Agreement
as a whole (including all of the Schedules and Exhibits hereto and thereto) and
not to any particular provision of this Agreement. Section, Exhibit and Schedule
references are to the Sections, Exhibits, and Schedules to this Agreement unless
otherwise specified. Unless otherwise stated, all references to any agreement
shall be deemed to include the exhibits, schedules and annexes to such
agreement. The word "including" and words of similar import when used in this
Agreement shall mean "including, without limitation," unless the context
otherwise requires or unless otherwise specified. The word "or" shall not be
exclusive. Unless otherwise specified in a particular case, the word "days"
refers to calendar days. References herein to this Agreement or any other
agreements contemplated herein shall be deemed to refer to this Agreement or
such other agreement as of 11:59pm Eastern Daylight Time on the Distribution
Date and as such time may be amended thereafter, unless otherwise specified.
(k) SURVIVAL. SECTION 1 (Definitions), SECTION 3 (Billing; Taxes),
SECTION 5 (Confidentiality), SECTIONS 2(c)(v), 6(b) (Liability), 6(c) (Third
Party Claims), 6(d) (Title to Intellectual Property), and 6(g) (No Third Party
Beneficiaries) THROUGH 6(r) (Severability), shall survive any expiration or
termination of this Agreement.
(l) AMENDMENT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Parties hereto and their respective successors
and permitted assigns; PROVIDED, HOWEVER, that neither Party may assign its
rights or delegate its obligations under this Agreement without the express
prior written consent of the other Party hereto. Notwithstanding the
foregoing, this Agreement shall be assignable by either Party in whole with
the prior written consent of the other Party (which consent shall not be
unreasonably withheld, delayed or conditioned) in connection with: (i) a
merger or consolidation of such Party; (ii) the sale of all or substantially
all of the assets of such Party; or (iii) the acquisition by a Third Party of
at least 30% of the combined voting power of the then-outstanding securities
of such Party entitled to vote generally in the election of directors (each
such occurrence, a "Change of Control Event"), in each case so long as the
resulting, surviving or transferee Person assumes all the obligations of the
assignor hereunder by operation of law or pursuant to an agreement in form and
substance reasonably satisfactory to the other Party. It shall not be deemed
to be unreasonable for a Party to withhold consent to assignment in connection
with a Change of Control Event on the basis that the proposed assignee is a
competitor of such Party. In the event a Party effects a Change of Control
Event without the other Party's prior written consent to assign this Agreement
as set forth above, the latter Party may terminate this Agreement, in its sole
discretion, with effect immediately upon the occurrence of such Change of
Control Event.
(m) AUDIT ASSISTANCE. Each of the Parties and their respective
Subsidiaries are or may be subject to regulation and audit by governmental
bodies, standards organizations, other regulatory authorities, customers or
other parties to contracts with such Parties under applicable law and contract
provisions. If a governmental body, standards organization, other regulatory
authority or customer or other party to a contract with a Party or a Subsidiary
of a Party exercises its right to examine or audit such Party's or its
Subsidiary's books, records, documents or accounting practices and procedures
pursuant to such applicable law, rules, regulations, standards or contract
provisions and such audit or examination relates to the Services, the other
Party shall provide, at the sole cost and expense of the requesting Party, all
assistance requested by the Party that is subject to the audit in responding to
such audits or requests for information, to the extent that such assistance or
information is within the reasonable control of the cooperating Party and is
related to the Services.
(n) NO WAIVERS. No failure or delay of any Party in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Parties and their Subsidiaries hereunder are cumulative and
are
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not exclusive of any rights or remedies which they would otherwise have
hereunder. No provision of this Agreement may be waived except pursuant to a
writing executed by the waiving Party.
(o) NOTICES. All notices or other communications under this
Agreement must be in writing and shall be deemed to be duly given (i) when
delivered in person, (ii) upon transmission via confirmed facsimile
transmission, provided that such transmission is followed by delivery of a
physical copy thereof in person, via U.S. first class mail, or via a private
express mail courier, or (iii) two days after deposit with a private express
mail courier, in any such case addressed as follows:
If to Abbott, to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX0X, Xxxx. 364
Xxxxxx Park, Illinois 60064-6020
Attn: General Counsel
Facsimile: (000) 000-0000
If to Hospira, to:
Hospira, Inc.
Legal Department
Dept. _____;
000 Xxxxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
Facsimile: (224) 212-_________________
Any Party may, by notice to the other Party, change the address to
which such notices are to be given.
(p) COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by means of faxed signature pages), all of which shall
be considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the Parties and delivered to
the other Party.
(q) ENTIRE AGREEMENT. This Agreement and the Exhibits and Schedules
hereto contain the entire agreement and understanding between the Parties with
respect to the subject matter hereof and supersede all previous agreements,
negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter and there are no agreements or
understandings between the Parties other than those set forth or referred to
herein or therein. Notwithstanding any other provisions in this Agreement to the
contrary, in the event and to the extent that there is a conflict between the
provisions of this Agreement and the provisions of the Separation and
Distribution Agreement, the provisions of this Agreement shall control.
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(r) SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof or thereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby or thereby, as the case
may be, is not affected in any manner adverse to any Party. Upon such
determination, the Parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the Parties.
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IN WITNESS WHEREOF, the Parties have executed this Agreement to be
executed as of the date first written above.
XXXXXX LABORATORIES
By:
--------------------------------
Name:
Title:
HOSPIRA, INC.
By:
--------------------------------
Name:
Title:
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