Exhibit 10.8
FORM OF
TRANSITION MARKETING AND DISTRIBUTION SERVICES AGREEMENT
THIS TRANSITION MARKETING AND DISTRIBUTION SERVICES AGREEMENT, dated as
of ____________, 2004, is by and between Hospira, Inc., a Delaware corporation
("HOSPIRA") and ______________________, a _____________ corporation with its
principal place of business at __________________________ ("DISTRIBUTOR") and is
effective as of the Effective Time (as defined below).
WHEREAS, the board of directors of Abbott (as defined below) has
determined that it is appropriate and advisable to separate its core hospital
products business from Xxxxxx'x other businesses by contributing the core
hospital products business and related assets to Hospira and distributing the
shares of Hospira to the shareholders of Abbott, so that the core hospital
products business will be owned by Hospira;
WHEREAS, the transfer to Hospira of the Delayed Ex-U.S. Commercial Assets
(as defined below) and the Delayed Ex-U.S. Commercial Liabilities (as defined
below) within the Territory (as defined below) cannot be accomplished until
Hospira obtains regulatory approvals for the transfer of the marketing
authorizations for the Products (as defined below) and establishes its own
operations in the Territory; and
WHEREAS, Hospira and Distributor have agreed that, until the transfer of
the marketing authorizations for the Products to Hospira is accomplished and
Hospira establishes its own operations in the Territory, Distributor shall
promote, market, distribute and sell the Products within the Territory for
Hospira, but without assuming the commercial risks associated with such
activities, and Hospira shall assume the commercial risks associated with
Distributor's promotional, marketing, distributing and selling activities.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Parties hereto agree as follows:
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1. DEFINITIONS. Capitalized terms used herein have the meanings ascribed to
them in the Separation and Distribution Agreement (as defined below) unless
otherwise defined herein. Reference is made to SECTION 8.11 regarding the
interpretation of certain words and phrases used in this Agreement (as defined
below). In addition, for the purpose of this Agreement, the following terms
shall have the meanings set forth below.
"2004 PLAN" means the 2004 plan attached as SCHEDULE 1 of this Agreement.
"ABBOTT" means Xxxxxx Laboratories, an Illinois corporation.
"ABBOTT SUBSIDIARY" means any Subsidiary of Abbott other than Hospira and
any Hospira Subsidiary.
"ADJUSTED PLAN FOR 2005" means the 2004 Plan adjusted for expected
inflation for 2005 in the country in which the Distributor maintains its
principal place of business with the amount of such adjustment to be determined
by Abbott no later than August 31, 2004 by requesting from each of three (3)
major money center commercial banks an estimate of inflation rates for 2005 for
such country and averaging the responses received from such banks; PROVIDED that
if not all banks respond for such country, then the average shall be taken using
the data provided by the responding banks.
"ADJUSTED PLAN FOR 2006" means the Adjusted Plan for 2005 adjusted for
expected inflation for 2006 in the country in which the Distributor maintains
its principal place of business with the amount of such adjustment to be
determined by Abbott no later than August 31, 2005 by requesting from each of
three (3) major money center commercial banks an estimate of inflation rates for
2006 for such country and averaging the responses received from such banks;
PROVIDED that if not all banks respond for such country, then the average shall
be taken using the data provided by the responding banks.
"AGREEMENT" means this Transition Marketing and Distribution Services
Agreement and each of the Schedules hereto.
"BOOK VALUE" means, for any Delayed Ex-U.S. Commercial Liability, the
recorded amount of such Delayed Ex-U.S. Commercial Liability in the accounting
books of Distributor as of a particular date, calculated in accordance with
Distributor's practices as in effect at such time.
"BUSINESS ENTITY" means any corporation, general or limited partnership,
trust, joint venture, unincorporated organization, limited liability entity or
other entity.
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"CLOSING DATE" has the meaning set forth in SECTION 7.1 of this
Agreement.
"CLOSING REPORT" has the meaning set forth in SECTION 7.4 of this
Agreement.
"COLLECTION PERIOD" means the collection periods set forth in SCHEDULE 2
of this Agreement.
"DELAYED EX-U.S. COMMERCIAL ASSETS" means: (i) the Hospira Assets (other
than Delayed Ex-U.S. Manufacturing Assets) that are held by Distributor as of
the Effective Time; and (ii) the Hospira Assets that are held by Distributor of
the type described in subsection (v) of the definition of Hospira Assets in the
Separation and Distribution Agreement.
"DELAYED EX-U.S. COMMERCIAL LIABILITIES" means: (i) the Hospira
Liabilities (other than Delayed Ex-U.S. Manufacturing Liabilities) of
Distributor that remain outstanding as of the Effective Time; and (ii) the
Hospira Liabilities of Distributor of the type described in subsection (vi) of
the definition of Hospira Liabilities in the Separation and Distribution
Agreement.
"DISTRIBUTION DATE" means the date determined by the board of directors
of Abbott, in its sole discretion, for the consummation of the Distribution.
"DISTRIBUTOR ACTIVITIES" has the meaning set forth in SECTION 4.1 of this
Agreement.
"EFFECTIVE TIME" means 11:59 p.m. Eastern Time on the Distribution Date.
"FACTORED ASSETS" has the meaning set forth in SECTION 7.2 of this
Agreement.
"FACTORED LIABILITIES" has the meaning set forth in SECTION 7. 2 of this
Agreement.
"FACTORING ADJUSTMENT" means the difference resulting from subtracting:
(a) the present discounted value, calculated utilizing the Local Interest Rate
for the period from the Closing Date through the remaining applicable Collection
Period, of the Net Book Value of the Factored Assets, the Book Value of the
Factored Liabilities and the Book Value of the intercompany trade payables
related to the Products outstanding as of the Closing Date; from (b) the Net
Book Value of the Factored Assets, the Book Value of the Factored Liabilities
and the Book Value of the intercompany trade payables related to the Products
outstanding as of the Closing Date.
"FIXED FEE RETAINER" means the following monthly payments payable in
local currency: (i) for each month of the period commencing on the date after
the Distribution Date and ending on November 30, 2004, one hundred five percent
(105%) of the expenses included in the 2004
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Plan for each such month; (ii) for each month of the period commencing on
December 1, 2004 and ending on November 30, 2005, one hundred five percent
(105%) of the expenses for each such month in the Adjusted Plan for 2005; and
(iii) for each month during the period commencing on December 1, 2005 and ending
on the last day of the Term, one hundred five percent (105%) of the expenses for
each such month in the Adjusted Plan for 2006.
"GUIDELINES" has the meaning set forth in SECTION 4.4 of this Agreement.
"HOSPIRA" has the meaning set forth in the Recitals.
"HOSPIRA SUBSIDIARY" means any Subsidiary of Hospira. For greater
clarity, the Transferred Entities shall be deemed to have been Hospira
Subsidiaries at all times prior to the Effective Time.
"LOCAL CLOSING" has the meaning set forth in SECTION 7.1 of this
Agreement.
"LOCAL INTEREST RATE" means the prevailing local per annum interest rate
for ninety (90) day borrowings as in effect on the Distribution Date in the
country in which Distributor maintains its principal place of business,
determined on a basis consistent with Xxxxxx'x treasury practices as of the
Distribution Date.
"NET ASSET VALUE" means the difference between the Net Book Value of the
Delayed Ex-U.S. Commercial Assets and the Book Value of the Delayed Ex-U.S.
Commercial Liabilities held by Distributor as of a particular date.
"NET BOOK VALUE" means, for any Delayed Ex-U.S. Commercial Asset, the
recorded costs of such Delayed Ex-U.S. Commercial Asset in the accounting books
of the Distributor, adjusted for related valuation reserves, amortization and
depreciation, as of a particular date, calculated in accordance with
Distributor's practices as in effect at such time.
"NOTICE OF LOCAL CLOSING" has the meaning set forth in SECTION 6.2 of
this Agreement.
"PARTIES" means the parties to this Agreement.
"PERSON" means any: (i) individual; (ii) Business Entity; or (iii)
Governmental Authority.
"PRODUCTS" has the meaning set forth in SECTION 2.1 of this Agreement.
"PURCHASE PRICE" has the meaning set forth in SECTION 7.3 of this
Agreement.
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"PURCHASER" means Hospira or a Hospira Subsidiary or designee that shall
purchase the Delayed Ex-U.S. Commercial Assets and assume the Delayed Ex-U.S.
Commercial Liabilities at the applicable Local Closing.
"SEPARATION AND DISTRIBUTION AGREEMENT" means the Separation and
Distribution Agreement by and between Abbott and Hospira dated _____________.
"SUBSIDIARY" of any Party means another Business Entity that is directly
or indirectly controlled by such Party. 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.
"TERM" has the meaning set forth in SECTION 6.1 of this Agreement.
"TERMS AND CONDITIONS" has the meaning set forth in SECTION 3.1 of this
Agreement.
"TERRITORY" has the meaning set forth in SECTION 2.2 of this Agreement.
"THIRD PARTY" means any Person other than Abbott, any Abbott Subsidiary,
Hospira and any Hospira Subsidiary.
"TRANSITION SERVICES PERIOD" means the period from the Effective Time
until the earlier of: (i) the Closing Date; and (ii) except as otherwise
provided in SECTION 8.1 of this Agreement, the second anniversary of the
Distribution Date.
2. DISTRIBUTION
2.1 PRODUCTS. For purposes of this Agreement, "PRODUCTS" means the
Hospira Products that are sold in the Territory by Distributor as of the
Effective Time and such other products that are added by the Parties
pursuant to the provisions of this Agreement.
2.2 TERRITORY. Hospira hereby appoints Distributor, and Distributor
hereby accepts such appointment, to promote, market, distribute and sell
the Products within the country or countries listed on SCHEDULE 3 of this
Agreement (the "TERRITORY") in its own name, acting as Hospira's
non-exclusive distributor.
2.3 DISTRIBUTION CHANNELS. Distributor has the right to promote,
market, distribute and sell the Products to customers in the Territory
through all channels of distribution either
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by itself or by way of any Third Parties, including wholesalers,
sub-distributors and agents. The promotion, marketing, distribution or
sale of Products by any Third Party shall require the prior written
consent of Hospira unless: (i) such Third Party was engaged in the
promotion, marketing, distribution or sale of the Products prior to the
Effective Time; or (ii) Distributor is obtaining analogous services for
Abbott products from such Third Party. Distributor shall not grant to any
wholesalers, sub-distributors or agents any rights greater than those
that are granted by Hospira to Distributor under this Agreement.
2.4 INDEPENDENT CONTRACTOR. Each of the Parties hereby acknowledges
that the Parties are separate entities, each of which has entered into
this Agreement for independent business reasons. The relationship of the
Parties hereunder is that of independent contractors and nothing
contained herein shall be deemed to create a joint venture, partnership
or any other relationship.
2.5 PERFORMANCE BY SUBSIDIARIES. All rights and obligations of a Party
under or pursuant to this Agreement may be exercised, satisfied, met or
fulfilled, in whole or in part, by such Party directly or, in the case of
Distributor, by any Abbott Subsidiary and, in the case of Hospira, by any
Hospira Subsidiary.
3. PURCHASE OF PRODUCTS AND TERMS OF SALE
3.1 ORDERS; TERMS AND CONDITIONS. Distributor shall purchase from
Hospira, and Hospira shall sell to Distributor, such quantities of
Products as Distributor may order from time to time pursuant to the terms
of this Agreement. The price, terms and conditions of each sale of
Products to Distributor shall be subject to the then-applicable terms and
conditions of sale agreed in writing from time to time by Distributor and
Hospira (the "TERMS AND CONDITIONS"). The Terms and Conditions in effect
as of the Effective Time are set forth in SCHEDULE 4 of this Agreement.
Any provisions in any preprinted order form or order document used by
Hospira or Distributor are explicitly rejected and shall be null and void
and of no force or effect.
3.2 PAYMENTS. (a) During each month of the Term, Hospira shall pay
to Distributor the Fixed Fee Retainer and such other amounts as described
in SCHEDULE 4 of this Agreement.
(b) Distributor shall pay Hospira the amounts
described in SCHEDULE 4 of this Agreement under the terms and conditions
described therein.
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(c) Hospira hereby authorizes Distributor to offset
the amounts due by Hospira to Distributor under subsection (a) from the
amounts payable by Distributor to Hospira under SCHEDULE 4 of this
Agreement. If the difference resulting from such offset is a positive
number, Distributor shall pay the difference to Hospira in accordance
with SCHEDULE 4 of this Agreement. If, by contrast, such difference is a
negative number, Hospira shall pay such difference to Distributor in
accordance with SCHEDULE 4 of this Agreement.
3.3 LATE PAYMENTS. All amounts due under this Agreement that are not
paid when due shall bear interest at a rate per annum equal to the sum
of: (i) Local Interest Rate; and (ii) two percent (2%).
4. DISTRIBUTOR'S ACTIVITIES
4.1 DISTRIBUTOR ACTIVITIES. (a) During the Term, Distributor shall
perform regulatory, pharmacovigilance, promotional, marketing,
distribution and selling activities for the Products in the Territory in
a manner that is: (i) substantially similar in nature, quality,
timeliness, volume and level to those services contemplated by the
Parties in preparing the 2004 Plan; (ii) consistent with the Guidelines,
the Abbott Code of Business Conduct and applicable local laws; and (iii)
subject to Hospira's commercially reasonable instructions with respect to
such activities (the "DISTRIBUTOR ACTIVITIES"). Nothing in this Agreement
shall require either of the Parties to perform or cause to be performed
any service or activity in a manner that would constitute a violation of
applicable laws, the marketing authorizations for the Products or the
Abbott Code of Business Conduct.
(b) Hospira hereby acknowledges that, unless
Distributor otherwise agrees in writing during the Transition Services
Period, Distributor shall have no obligation to provide: (i) any
additional services or activities that were not contemplated by the
Parties in preparing the 2004 Plan; or (ii) any services or activities
that are of a nature or timing or at a volume, level or quality of
services or activities that exceed those contemplated by the Parties in
preparing the 2004 Plan.
4.2 PRORATION. In the event of any partial payment of any invoice
covering both Hospira Products and other products of Distributor, the
amount collected by Distributor from the customer shall be allocated to
Hospira in the same proportion that the amount of the invoice for the
Products bears to the total amount of the invoice. Any interest
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recovered or out-of-pocket expenses incurred in connection with the
collection of an invoice covering both Products and other products of
Distributor shall be allocated to Hospira in the same proportion that the
amount of the invoice for the Products bears to the total invoice.
4.3 DISCLAIMER. (a) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL SERVICES AND PRODUCTS ARE
PROVIDED ON AN "AS-IS" BASIS AND DISTRIBUTOR MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, AND HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OR
ANY OTHER WARRANTY WHATSOEVER; and (b) notwithstanding anything to the
contrary herein: (i) Distributor shall not be required to perform or
cause to be performed any Distributor Activities or any other service or
activity for the benefit of any Party other than Hospira and any Hospira
Subsidiary; and (ii) Distributor shall have no obligation to Hospira for
any Liabilities relating to, arising out of, or resulting from the
Distributor Activities except to the extent that such Liabilities relate
to, arise out of or result from (A) Distributor's gross negligence or
willful misconduct or (B) Distributor's payment obligations pursuant to
this Agreement.
4.4 ADHERENCE TO GUIDELINES. Each of Hospira and Distributor hereby
agrees and covenants that during the Term it shall adhere to the
guidelines for Distributor Activities set forth in SCHEDULE 5 of this
Agreement (the "GUIDELINES").
5. INDEMNIFICATION
5.1 INDEMNIFICATION BY HOSPIRA. Hospira shall, to the fullest extent
permitted by law, indemnify, defend and hold Distributor harmless against
and in respect of any Liabilities relating to, arising out of, or
resulting from: (i) Distributor's performance of this Agreement; and (ii)
the Delayed Ex-U.S. Commercial Assets and Delayed Ex-U.S. Commercial
Liabilities held by Distributor; PROVIDED, HOWEVER, that Hospira shall
not be required to indemnify Distributor to the extent any such
Liabilities relate to, arise out of, or result from the gross negligence
or willful misconduct of Distributor in performing this Agreement.
5.2 INDEMNIFICATION BY DISTRIBUTOR. Distributor shall, to the fullest
extent permitted by law, indemnify, defend and hold harmless Hospira
against and in respect of any
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Liabilities relating to, arising out of, or resulting from the gross
negligence or willful misconduct of Distributor in performing this
Agreement.
6. EFFECTIVE TIME AND TERM
6.1 TERM. This Agreement shall become effective at the Effective Time
and shall remain in effect for a term expiring on the second anniversary
of the Distribution Date unless: (i) terminated by Hospira on an earlier
date by initiating the Local Closing in accordance with the provisions of
SECTION 6.2; or (ii) extended due to an event of force majeure in
accordance with SECTION 8.1 (the "TERM").
6.2 LOCAL CLOSING. Hospira shall be entitled to initiate a Local
Closing at any time during the Term by giving Distributor at least ninety
(90) days' prior written notice of such Local Closing (the "NOTICE OF
LOCAL CLOSING"). In the Notice of Local Closing Hospira shall identify
the name and address of the Purchaser.
6.3 SURVIVAL. The provisions of SECTION 4.3, ARTICLE 5, SECTION 8.3,
SECTION 8.4, SECTION 8.6, SECTION 8.8, SECTION 8.9, SECTION 8.10, SECTION
8.11 and SECTION 8.12 of this Agreement, any outstanding payment
obligations under ARTICLE 3 and any outstanding payment, invoicing and
wind down obligations under ARTICLE 7 shall survive the termination of
this Agreement and shall remain in full force and effect thereafter.
7. PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES
7.1 LOCAL CLOSING. Except as otherwise provided in SECTION 7.5 below,
at the expiration or termination of the Term pursuant to ARTICLE 6, there
will be a local closing (the "LOCAL CLOSING") to evidence and effectuate:
(i) transfer of all legal title to and physical possession of all the
Delayed Ex-U.S. Commercial Assets owned by Distributor (other than the
Factored Assets) as of date of the Local Closing (the "CLOSING DATE") to
Purchaser; and (ii) the assumption by Purchaser of all Delayed Ex-U.S.
Commercial Liabilities of Distributor (other than Factored Liabilities
and intercompany trade payables related to the Products) outstanding as
of the Closing Date. Any Delayed Ex-U.S. Commercial Liabilities that are
included in the calculation of the Fixed Fee Retainer shall not be
considered Delayed Ex-U.S. Commercial Liabilities as of the Closing Date
and shall be paid in accordance with the provisions of SECTION 7.6 of
this Agreement. The Closing Date must occur on the last business day of a
month and must occur on or before the last day of the Term.
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7.2 FACTORED ASSETS AND FACTORED LIABILITIES. Any Delayed Ex-U.S.
Commercial Assets or Delayed Ex-U.S. Commercial Liabilities (such as
trade receivables and certain Third Party Liabilities) that cannot be
legally or practically transferred to or assumed by Purchaser at the
Local Closing (respectively, the "FACTORED ASSETS" and "FACTORED
LIABILITIES") and intercompany trade payables related to the Products:
(i) shall not be included as part of the Delayed Ex-U.S. Commercial
Assets and the Delayed Ex-U.S. Commercial Liabilities to be transferred
to Purchaser; (ii) shall not be considered as Hospira Assets or Hospira
Liabilities after the Local Closing; and (iii) shall be retained by
Distributor. In order to reflect the time value of money, the Parties
shall calculate the Factoring Adjustment.
7.3 ASSET PURCHASE AND LIABILITY ASSUMPTION. On the Closing Date,
Distributor shall sell, transfer, convey and deliver to Purchaser, and
Purchaser shall purchase and accept delivery of, all Delayed Ex-U.S.
Commercial Assets owned by Distributor (other than Factored Assets) as of
the Closing Date and Purchaser shall accept, assume and agree faithfully
to perform, discharge and fulfill the Delayed Ex-U.S. Commercial
Liabilities of Distributor (other than Factored Liabilities and
intercompany trade payables related to the Products) outstanding as of
the Closing Date in exchange for a purchase price equal to: (i) the Net
Asset Value of the Delayed Ex-U.S. Commercial Assets and Delayed Ex-U.S.
Commercial Liabilities transferred as of the Closing Date; plus (ii) the
Factoring Adjustment (the "PURCHASE PRICE"). The Purchase Price shall be
paid in accordance with the provisions of SECTION 7.4 below.
7.4 INVOICE AND PAYMENT. Within twenty (20) days following the Closing
Date, Distributor shall (a) prepare and deliver to each of Hospira and
Purchaser a report (the "CLOSING REPORT") setting forth: (i) a list
identifying all of the Delayed Ex-U.S. Commercial Assets and Delayed
Ex-U.S. Commercial Liabilities transferred to or assumed by Purchaser at
the Local Closing which shall contain the information regarding such
Delayed Ex-U.S. Commercial Assets and Delayed Ex-U.S. Commercial
Liabilities, and be in such format or formats, as is available from the
books and records of Distributor; (ii) the Net Book Value of all Delayed
Ex-U.S. Commercial Assets transferred by Distributor to Purchaser at the
Local Closing and the Book Value of all Delayed Ex-U.S. Commercial
Liabilities assumed by Purchaser at the Local Closing; (iii) the Net Book
Value of the Factored Assets and the Book Value of the Factored
Liabilities; (iv) the Book Value of the intercompany trade payables
related to the Products; (v) the amount of the Factoring Adjustment; and
(vi) the Purchase Price; and (b) provide an invoice to Purchaser stating
the Purchase Price plus any applicable value
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added Taxes, sales Taxes or transfer Taxes or any similar Taxes payable
by Purchaser in accordance with the provisions of applicable law.
Purchaser shall pay the amount so invoiced within thirty (30) days from
the date of Distributor's invoice. The Purchase Price plus any applicable
Taxes shall be paid in the local currency of Distributor in accordance
with payment instructions to be provided by Distributor.
7.5 FAILURE TO CLOSE. Subject to the provisions of SECTION 8.1, if
Hospira does not provide Notice of Local Closing at least ninety (90)
days prior to the end of the Term, the following shall be applicable as
of the end of the Term:
(a) Except as otherwise provided in SECTION 7.5(d) below,
Distributor shall not have any responsibility, liability or
obligation to Hospira with respect to the Delayed Ex-U.S.
Commercial Assets and Delayed Ex-U.S. Commercial
Liabilities in the Territory;
(b) Within twenty (20) days following the end of the Term,
Distributor shall provide an invoice to Hospira indicating
the Purchase Price calculated as if the Local Closing had
taken place as of the end of the Term and Hospira shall pay
the invoice within thirty (30) days from the date of such
invoice;
(c) As of the end of the Term, Distributor shall immediately
cease all Distributor Activities related to the Products,
except to the extent necessary for Distributor to satisfy
its remaining contracts, commitments or other legal
obligations in the Territory related to the Products; and
(d) Subject to the provisions of SECTION 7.5(c), Distributor
shall proceed to liquidate all the Delayed Ex-U.S.
Commercial Assets existing as of the end of the Term and
pay all Delayed Ex-U.S. Commercial Liabilities outstanding
as of the end of the Term and, following the completion of
the wind down activities, to remit the proceeds from such
wind down to Hospira, net of Delayed Ex-U.S. Commercial
Liabilities and the costs incurred by Distributor in
connection with such wind down activities.
7.6 PAYMENT OF THE FINAL FIXED FEE RETAINER AND INTEREST PAYMENT.
Within twenty (20) days following the Closing Date or the end of the
Term, Distributor shall provide to Hospira an invoice indicating the
Fixed Fee Retainer and any other amounts due under the provisions of
SECTION 3.2, in each case for the last month of the Term. Hospira shall
pay the amount so invoiced within thirty (30) days of the date of the
invoice.
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8. MISCELLANEOUS.
8.1 FORCE MAJEURE. Neither Party shall be deemed in default of this
Agreement to the extent that any delay or failure in the performance of
its obligations under this Agreement results from any cause beyond its
reasonable control and without its fault or negligence, such as acts of
God, acts of a Governmental Authority, embargoes, epidemics, war, riots,
insurrections, acts of terrorism, fires, explosions, earthquakes, floods,
unusually severe weather conditions, labor problems or unavailability of
parts, or, in the case of computer systems, any failure in electrical or
air conditioning equipment. In the event of any such excused delay, the
time for performance shall be extended for a period equal to the time
lost by reason of the delay. Notwithstanding the foregoing, the Local
Closing shall not be delayed pursuant to this Section beyond the date
that is thirty (30) months after the Effective Time.
8.2 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement.
8.3 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.
8.4 DISPUTE RESOLUTION. Any controversy, dispute or claim (whether
arising in contract, tort or otherwise) arising out of or relating in any
way to this Agreement shall be resolved pursuant to the procedures set
forth in SCHEDULE 6 of this Agreement. Unless otherwise agreed in
writing, the Distributor shall continue to perform Distributor Activities
in accordance with the provisions of this Agreement during the course of
any dispute, but in no event shall such Distributor Activities extend
beyond the second anniversary of the Distribution Date, unless the Local
Closing is delayed under SECTION 8.1.
8.5 ASSIGNABILITY. 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
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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, 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 such an assignment on the basis that the proposed
assignee is a competitor of such Party.
8.6 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 (2) days after deposit with a
private express mail courier, in any such case addressed as set forth on
SCHEDULE 7 of this Agreement. Any Party may, by notice to the other
Party, change the address to which such notices are to be given.
8.7 SEVERABILITY. If any provision of this Agreement or the
application thereof to any entity or person or circumstance is determined
by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of
such provision to any entity or person 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 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.
8.8 WAIVERS OF DEFAULT. Waiver by either Party of any default by the
other Party of any provision of this Agreement shall not be deemed a
waiver by the waiving Party of any subsequent or other default, nor shall
it prejudice the rights of the other Party.
8.9 HEADINGS. The article, section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
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8.10 AMENDMENTS. No provisions of this Agreement shall be deemed
amended, supplemented or modified unless such amendment, supplement or
modification is in writing and signed by the authorized representative of
both Parties. No provisions of this Agreement shall be deemed waived
unless such waiver is in writing and signed by the authorized
representative of the Party against whom it is sought to be enforced.
8.11 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 import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole
(including all of the Schedules hereto) and not to any particular
provision of this Agreement. Article, section, and schedule references
are to the articles, sections, 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 shall be deemed to refer to this Agreement as of the Effective
Time and as it may be amended thereafter, unless otherwise specified.
8.12 MUTUAL DRAFTING. This Agreement shall be deemed to be the joint
work product of the Parties and any rule of construction that a document
shall be interpreted or construed against a drafter of such document
shall not be applicable.
* * * *
IN WITNESS WHEREOF, the Parties have caused this Transition Marketing and
Distribution Services Agreement to be executed as of the date first written
above.
[DISTRIBUTOR] HOSPIRA, INC.
-------------------------------------- ----------------------------------------
By: By:
Title: Title:
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