Exhibit 10.6
INFORMATION TECHNOLOGY AGREEMENT
THIS INFORMATION TECHNOLOGY AGREEMENT, dated as of _____, 2004 (the
"Effective Date"), is by and between XXXXXX LABORATORIES, an Illinois
corporation ("Abbott"), and HOSPIRA, INC., a Delaware corporation ("Hospira").
R E C I T A L S:
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;
WHEREAS, in order to ensure an orderly transition under the Separation and
Distribution Agreement it will be necessary for each of the Parties (as defined
herein) to cooperate to provide for the separation of various information
technology systems and services that are currently shared between the Parties,
are provided by Abbott to Hospira or are planned to be implemented by both
Parties; and
WHEREAS, the Parties intend that all separation activities to be completed
under this Agreement shall be completed by the end of the two-year term of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, 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.
"Abbott Assets" has the meaning set forth in the Separation and
Distribution Agreement.
"Abbott Business" means all businesses and operations (whether or not such
businesses or operations are or have been terminated, divested or discontinued)
conducted prior to the Effective Date by Abbott, the Abbott Subsidiaries,
Hospira and the Hospira Subsidiaries, in each case that are not included in the
Hospira Business.
"Abbott Indemnitee" has the meaning set forth in SECTION 7(c)(ii).
"Abbott Liabilities" has the meaning set forth in the Separation and
Distribution Agreement.
"Abbott Owned Materials" has the meaning set forth in SECTION 3(a)(i).
"ADR" has the meaning set forth in SECTION 7(k).
"Agreement" means this Information Technology Agreement and each of the
Schedules hereto.
"Ancillary Agreement" has the meaning set forth in the Separation and
Distribution Agreement.
"Charges" has the meaning set forth in SECTION 2(d)(i).
"Consents" means any consents, waivers or approvals from, or notification
requirements to, any Third Parties.
"CPR" has the meaning set forth in SCHEDULE F.
"Derivative Work" means a work based on one or more preexisting works,
including a condensation, transformation, translation, modification, expansion
or adaptation that, if prepared without authorization of the owner of the
copyright of such preexisting work, would constitute a copyright infringement
under applicable law, but excluding the preexisting work.
"Developed Materials" means any Materials (including software), or any
modifications, enhancements or Derivative Works thereof, which (i) are jointly
developed by or on behalf of the Parties or any of their Subsidiaries in
connection with or as part of the Services and (ii) are not otherwise Abbott
Owned Materials or Hospira Owned Materials.
"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.
"Effective Date" has the meaning set forth in the Preamble.
"Expiration Date" has the meaning set forth in the SECTION 5(a).
"Governmental Authority" means any supranational, international, national,
federal, state, or local court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental
authority, including the NYSE and any similar self-regulatory body under
applicable securities laws or regulations.
"Hospira" has the meaning set forth in the Preamble.
"Hospira Business" means the business and operations which are separated
from the Abbott Business pursuant to the Separation and Distribution Agreement.
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"Hospira Indemnitee" has the meaning set forth in SECTION 7(c)(i).
"Hospira IT Agreement" means any IT Agreement which is held in the name of
Abbott or any Abbott Subsidiary, and which is used exclusively in connection
with, or relates solely to, the Hospira Business.
"Hospira Owned Materials" has the meaning set forth in SECTION 3(a)(ii).
"Indemnitee" means a Hospira Indemnitee or an Abbott Indemnitee.
"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.
"Intellectual Property License Agreement" means any of the Intellectual
Property License Agreements entered into prior to the Effective Date by and
between the Parties pursuant to the Separation and Distribution Agreement.
"IT Agreement" means any software license or Third Party service agreement
that is: (a) used by either Party or its Subsidiaries (i) to provide Services or
Materials under this Agreement; or (ii) used to provide any information
technology services under the TSA; or (b) required in connection with the
operation of the information technology systems and services of the Hospira
Business.
"Materials" shall mean all computing, networking, telecommunications and
other equipment (firmware and hardware); all software programs and programming
(and all modifications, replacements, upgrades, enhancements, documentation,
materials and media related thereto), including all machine readable and object
code, and all source code, utilities, tools and validation packages; and all
other literary works, other works of authorship, specifications, design
documents and analyses, processes, methodologies, programs, program listings,
programming tools, user manuals, documentation, reports, drawings, databases,
machine readable text and files, data and similar items.
"NYSE" means The New York Stock Exchange, Inc.
"Other IT Agreement" means any IT Agreement that is not a Hospira IT
Agreement or a Shared IT Agreement.
"Parties" means the parties to this Agreement. "Party" means each Party to
this Agreement.
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"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.
"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.
"Project Executive" has the meaning set forth in SECTION 7(e).
"Separation and Distribution Agreement" has the meaning set forth in the
Recitals.
"Separation Project" means each individual project that is described in the
Separation Projects Plan, and that is or will be described in greater detail in
one or more Work Schedules.
"Separation Projects Plan" means the high level description of information
technology separation projects and the associated timeline for completing those
projects that the Parties will undertake pursuant to this Agreement to
accomplish the separation of the information technology systems and services, as
such initial list is set forth in SCHEDULE A, and as the same may be amended
from time to time.
"Services" has the meaning set forth in SECTION 2(a).
"Shared IT Agreement" means any IT Agreement that is held in the name of
Abbott or any Abbott Subsidiary, which is used in connection with the Abbott
Business and the Hospira Business.
"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.
"Third Party" means any Person other than Abbott, any Abbott Subsidiary,
Hospira and any Hospira Subsidiary.
"Third Party Claim" has the meaning set forth in SECTION 7(c)(vii).
"TSA" has the meaning set forth in SECTION 2(b).
"U.S." or "United States" means the United States of America, including
each of the 50 states thereof and the District of Columbia, but excluding Puerto
Rico and all other territories and possessions.
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"Work Schedule" means each document in the form set forth in SCHEDULE B
that is executed by the Parties pursuant to this Agreement, including each
applicable "RFSS", "Contract" or similar document referenced on such Work
Schedule, that details the work effort and further describes the Services to be
performed by Abbott and/or Hospira in connection with a particular Separation
Project(s).
Section 2. SERVICES.
(a) SERVICES AND COMPANION AGREEMENTS. Each of the Parties agrees to
provide, or cause its respective Subsidiaries to provide, the applicable
services ("Services") set forth in any Work Schedule to Abbott or Hospira,
respectively, and/or any of their Subsidiaries as designated in the Work
Schedule. Each of the Parties further agrees to use good faith in negotiating
any Work Schedules which are not completed as of the Effective Date. This
Agreement is a master agreement, the terms of which may be incorporated by
reference into one or more individual Companion Agreements, the form of which is
set forth in SCHEDULE C. The Parties intend that the Companion Agreements be
used to implement this Agreement in countries other than the United States and
to reflect differences required by applicable law. Each of the Parties,
respectively, shall be responsible and liable for all the obligations under this
Agreement (including all Companion Agreements) of each of their respective
Subsidiaries that performs Services hereunder or thereunder.
(b) TRANSITION SERVICES AGREEMENT AND CONFLICTS. The Parties have
entered into that certain U.S. Transition Services Agreement and that certain
Ex-U.S. Transition Services Agreement (collectively, the "TSA") dated as of the
same date as this Agreement. The TSA is intended to cover all services described
therein that the Parties will require to continue to operate their respective
businesses after the Distribution Date, including, without limitation,
information technology services. This Agreement is intended to cover all
additional work effort that must be performed, and Materials that must be
developed or procured, to separate the information technology systems and
services that (i) are currently shared between the Parties and/or their
respective Subsidiaries, (ii) are currently provided by one of the Parties or
its Subsidiary to the other Party or one or more of its Subsidiaries under the
TSA, or (iii) are to be implemented by mutual agreement of the Parties. If there
is a conflict regarding Services provided under this Agreement, and similar
services described in the TSA, this Agreement shall govern and control over such
Services. If there is a conflict between the provisions of this Agreement and
those of the Separation and Distribution Agreement, this Agreement shall govern
and control with respect to the subject matter addressed in this Agreement. In
addition, if there is a conflict between this Agreement and any Intellectual
Property License Agreement, the Intellectual Property License Agreement, shall
govern and control solely with respect to the subject matter of such
Intellectual Property License Agreement.
(c) PERFORMANCE OF SERVICES.
(i) Each of the Parties shall, and shall cause its
Subsidiaries to, perform its duties and responsibilities hereunder in good faith
and in a timely manner. Neither Abbott nor Hospira, nor any of their respective
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 Abbott
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or Hospira, or any of their respective Subsidiaries, does or refrains from doing
in good faith, except in the case of their gross negligence or willful
misconduct.
(ii) Nothing in this Agreement shall require either Party or
its Subsidiaries to perform or cause to be performed any Service in a manner
that would constitute a violation of applicable law.
(iii) (A) Neither Party 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 other Party under
this Agreement, and its Subsidiaries, and (B) EXCEPT AS EXPRESSLY PROVIDED IN AN
APPLICABLE WORK SCHEDULE, EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL SERVICES
ARE PROVIDED ON AN "AS-IS" BASIS, AND THAT EACH PARTY MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, 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 AND PERFORMANCE OF SEPARATION PROJECTS.
(i) ESTIMATED CHARGES. Each Work Schedule shall specify the
Party that shall bear the costs and expenses of the Services, including the
acquisition, procurement, leasing or licensing of Materials, and all other costs
and expenses associated with a Party completing a particular Separation Project
(all such costs and expenses are collectively referred to as the "Charges"). The
Charges for completing Separation Projects shall be borne by the Parties
according to the terms set forth in SCHEDULE D; provided, that the Charges shall
exclude any and all amounts for services performed by a Third Party that is not
an agent, supplier, subcontractor or independent contractor of the Party
providing the Services under such Work Schedule. The Charges set forth in a Work
Schedule shall be a good faith estimate of the charges for the Services covered
by that Work Schedule, and shall neither be binding on the Party providing such
estimate nor convert the Work Schedule into a fixed-price contract. Any such
estimate is for informational purposes only, and the actual fees payable for any
Services may be higher or lower than that estimate, with such higher amounts, if
applicable, to be paid by the Party responsible for such Charges under the
applicable Work Schedule.
(ii) REPORTING OBLIGATIONS. The Project Executive or their
designee shall be responsible for overseeing the Separation Projects and the
progress of the Services in light of the estimated Charges. As described in more
detail in each applicable Work Schedule, each Party shall report to the other
Party regarding the status of each Separation Project in the manner and with the
frequency described in the applicable Work Schedule (including the
identification of any known overages in the estimated Charges and an updated
estimate to complete such Separation Project), and, in any event, no less
frequently than monthly during the term of this Agreement. Unless otherwise
agreed in writing, the Parties shall provide such reporting using the form of
status report attached hereto as SCHEDULE G.
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(e) CHANGE CONTROL PROCEDURES. During the term of this Agreement,
Abbott and/or Hospira may desire a change in the scope of the effort, including
modifying, updating and/or refining any Work Schedule or the Separation Projects
Plan. Requests for all changes shall be made in writing and delivered to the
appropriate Project Executive. The Project Executives from both Parties shall
review the proposed change and: (i) approve it; (ii) return it with a request
for more detail or information; or (iii) reject it. The Project Executives shall
agree on any Charges for such change, including the charges for investigating
such change if applicable. If the change is authorized, the Parties' Project
Executives shall so indicate in writing, which writing shall constitute approval
for the change and the applicable Charges. The writing shall also indicate the
effect that the change will have on the other terms and conditions of the
applicable Work Schedule(s). Except as may otherwise be agreed in writing, the
Party requesting a change shall compensate the other party for investigating and
preparing any proposed addendum or change to a Work Schedule.
(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 and
completion of the Separation Projects.
(g) COOPERATION. In the event that (i) there is nonperformance of any
Service as a result of an event described in SECTION 7(d), 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 Separation Project
may be accomplished.
(h) USE OF THIRD PARTIES.
(i) THIRD PARTIES USED TO PROVIDE THE SERVICES. Either Party
may perform its obligations herein through its Subsidiaries or through agents,
suppliers, subcontractors or independent contractors of such Party, or of its
Subsidiaries; provided, that each such agent, supplier, subcontractor or
independent contractor (and the individual employees of such Persons) used by a
Party shall be subject to the reasonable prior approval of the other Party. The
Parties hereby approve the use of any of the suppliers listed in SCHEDULE E;
provided, however, that each Party reserves the right to reasonably approve or
reject individual employees of such suppliers. In addition, if in connection
with the provision of Services or Materials a Party uses any agent, supplier,
subcontractor or independent contractor who has been fired, dismissed or
relieved of its obligations by the other Party or its Subsidiary due to poor
performance or other cause, the other Party shall be entitled to cause the
hiring Party to promptly remove and replace such agent, supplier subcontractor
or independent contractor.
(ii) THIRD PARTIES USED FOR MATTERS OUTSIDE THE SCOPE OF THE
SERVICES. Each Party shall also have the right to engage agents, suppliers,
subcontractors or independent contractors to provide services that are outside
the scope of the Services, provided that such Third Parties will not, either
individually or in connection with one or more other agents, suppliers,
subcontractors or independent contractors (including the Third Parties described
in SECTION 2(h)(i)) materially adversely affect the Services without the other
Party's reasonable consent; and further, provided that the engaging Party shall
be solely responsible for all such agents, suppliers, subcontractors or
independent contractors.
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(iii) TERMS APPLICABLE TO ALL THIRD PARTIES USED BY A PARTY.
Each Party shall cooperate with and work in good faith with the agents,
suppliers, subcontractors and independent contractors engaged by the other Party
in connection herewith or in connection with related services that require the
cooperation of such Party. Such cooperation may include providing reasonable
access to the facilities, systems, equipment and/or software required by the
other Party to provide the Services or such related services, solely to the
extent necessary for such agents, suppliers, subcontractors and independent
contractors to perform the work assigned to them. The engaging Party shall cause
all such agents, suppliers, subcontractors and independent contractors to comply
with the other Party's security and confidentiality requirements.
Notwithstanding anything in this Agreement to the contrary, a Party shall not be
relieved of its obligations under this Agreement by use of any Subsidiaries,
agents, suppliers, subcontractors or independent contractors.
(i) SECURITY PROCEDURES. Each Party's respective security
administration groups shall, subject to the reasonable approval of the other
Party, establish and maintain environmental, safety and facility procedures,
data security procedures and other safeguards against the destruction, loss,
unauthorized access or alteration of systems or Materials of the other Party
which are (i) no less rigorous than those maintained by a Party for its own
information of a similar nature, and (ii) adequate to meet the requirements of
the other Party's security policies and applicable law. In the event a Party
discovers or is notified of a breach or potential breach of security relating to
systems or Materials of the other Party, such Party will expeditiously under the
circumstances notify the other Party, and will cooperate in the investigation
and remediation of the effects of such breach or potential breach of security.
(j) CONSENTS.
(i) HOSPIRA IT AGREEMENTS. Subject to the Parties obtaining
any required Consents, Abbott or the applicable Abbott Subsidiary shall assign
to Hospira or the applicable Hospira Subsidiary any Hospira IT Agreement. The
assignment shall be subject to the terms of the Separation and Distribution
Agreement, and the rights and obligations under such IT Agreement shall be
Hospira Assets and Hospira Liabilities and, if applicable, Delayed Transfer
Assets and Delayed Transfer Liabilities, as such terms are defined in the
Separation and Distribution Agreement. The costs of obtaining any required
Consent in connection with the assignment of any Hospira IT Agreement shall be
borne solely by Hospira. If, despite using their commercially reasonable
efforts, the Parties are unable to obtain a Consent in connection with a Hospira
IT Agreement, then, unless and until such Consent is obtained, the Parties shall
use their commercially reasonable efforts to use mutually acceptable alternative
approaches to provide the Services or to deliver substantially similar benefits
at the sole cost and expense of Hospira.
(ii) SHARED IT AGREEMENTS. Subject to the Parties obtaining any
required Consents, Abbott or the applicable Abbott Subsidiary shall assign to
Hospira or the applicable Hospira Subsidiary that portion of any Shared IT
Agreement that relates to the Hospira Business. The partial assignment shall be
subject to the terms of the Separation and Distribution Agreement, and the
rights and obligations under the assigned portion of such IT Agreement shall be
Hospira Assets and Hospira Liabilities and, if applicable, Delayed Transfer
Assets and Delayed Transfer Liabilities, as such terms are defined in the
Separation and Distribution Agreement. The costs of obtaining any required
Consent in connection with the partial
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assignment of any Shared IT Agreement shall be borne solely by Hospira. If,
despite using their commercially reasonable efforts, the Parties are unable to
obtain a Consent in connection with a Shared IT Agreement, then, unless and
until such Consent is obtained, the Parties shall use their commercially
reasonable efforts to use mutually acceptable alternative approaches to provide
the Services or to deliver substantially similar benefits at the sole cost and
expense of Hospira. Notwithstanding the foregoing in this SECTION 2(j)(ii), if
the partial assignment of a Shared IT Agreement to Hospira or a Hospira
Subsidiary will obligate Abbott or an Abbott Subsidiary to pay a penalty,
transfer fee or other amount(s) to a Third Party to account for reduced volume,
revenue or other commitments (a "Third Party Payment") under that portion of the
Shared IT Agreement that would remain with Abbott or the Abbott Subsidiary after
the partial assignment, then the Parties will work together in good faith to
agree on cost allocation principles in connection with the Third Party Payment.
Such cost allocation principles shall take into account the benefits received
by, and the additional costs incurred by, each Party in connection with the
partial assignment of the Shared IT Agreement, if undertaken, and the Party who
will receive the primary benefit of any such partial assignment.
Section 3. OWNERSHIP AND LICENSE RIGHTS IN MATERIALS.
(a) OWNED MATERIALS.
(i) Abbott shall be the sole and exclusive owner of Materials
which are used in connection with the Services and are owned by Abbott, or
licensed from Third Parties by Abbott, or any of its Subsidiaries, including all
enhancements and Derivative Works of such Materials, including United States and
foreign intellectual property rights in such Materials and shall retain all of
Xxxxxx'x, its Subsidiaries' and Third Party licensors' rights in such Materials
(all such owned, licensed, developed and provided Materials, "Abbott Owned
Materials"). Subject to the terms of any Consents, Abbott grants to Hospira, its
Subsidiaries and their contractors and agents a non-exclusive, non-transferable,
worldwide, limited right and license to use, execute, reproduce, display,
perform, modify and distribute the Abbott Owned Materials for the sole purpose
of providing and/or receiving the Services during the term of this Agreement;
PROVIDED, that this license does not give Hospira and its Subsidiaries, or their
contractors or agents, the right, and Hospira and its Subsidiaries, and their
contractors and agents, are not authorized, to sublicense such Materials or use
them for the benefit of other customers or for any other purpose without
Xxxxxx'x prior written consent. Abbott may, in its sole discretion and upon such
terms and at such prices as the Parties may agree, grant Hospira a license to
use the Abbott Owned Materials for other purposes and to sublicense such
Materials.
(ii) Hospira shall be the sole and exclusive owner of Materials
which are used in connection with the Services and are owned by Hospira, or
licensed from Third Parties by Hospira, or any of its Subsidiaries, including
all enhancements and Derivative Works of such Materials, including United States
and foreign intellectual property rights in such Materials and shall retain all
of Hospira's, its Subsidiaries' and Third Party licensors' rights in such
Materials (all such owned, licensed, developed and provided Materials, "Hospira
Owned Materials"). Subject to the terms of any Consents, Hospira grants to
Abbott, its Subsidiaries and their contractors and agents a non-exclusive,
non-transferable, worldwide, limited right and license to use, execute,
reproduce, display, perform, modify and distribute the Hospira Owned Materials
for the sole purpose of providing and/or receiving the Services during the term
of this
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Agreement; PROVIDED, that this license does not give Abbott and its Subsidiaries
or their contractors or agents, the right, and Abbott and its Subsidiaries, and
their contractors and agents, are not authorized, to sublicense such Materials
or use them for the benefit of other customers or for any other purpose without
Hospira's prior written consent. Hospira may, in its sole discretion and upon
such terms and at such prices as the Parties may agree, xxxxx Xxxxxx a license
to use the Hospira Owned Materials for other purposes and to sublicense such
Materials.
(b) DEVELOPED MATERIALS.
(i) OWNERSHIP. The Parties shall jointly own all intellectual
property rights in all Developed Materials. The Parties will, without
limitation, retain the right to make, have made, use, lease, import, offer for
sale, or sell and practice methods used in the creation or provision of products
or services that incorporate the Developed Materials to the extent that such
actions do not infringe upon the intellectual property rights of the other
Party. Each Party shall retain the right to grant non-exclusive licenses to any
intellectual property right in the Developed Materials without any payment or
accounting to the other Party.
(ii) COST SHARING OF DEVELOPED MATERIALS. Each Party agrees to
pay one-half (1/2) the costs associated with obtaining and perfecting any
intellectual property rights in the Developed Materials. If, within ninety (90)
days of receiving notice from the other Party of payments made by the other
Party associated with obtaining and perfecting intellectual property rights in
the subject Developed Materials in a particular jurisdiction, a Party
subsequently fails to provide its share of the costs, it will promptly assign,
transfer and convey to the other Party any and all intellectual property rights
in the subject Developed Materials, and such assignment of rights shall be the
paying Party's sole and exclusive remedy for the assigning Party's exercise of
its option not to pay one-half (1/2) of the costs of obtaining or perfecting any
such rights in the Developed Materials. The assigning Party shall deliver to the
other Party, upon request therefor, such documentation and assignments of
interest as may be necessary to evidence its ownership and enforce its interests
in the assigned rights. In any event, both Parties agree, at their own expense,
to cooperate fully with the other Party in obtaining and perfecting intellectual
property rights in the Developed Materials, or in assisting in such efforts.
(iii) EMBEDDED MATERIALS. To the extent that Abbott Owned
Materials or Hospira Owned Materials are embedded in any Developed Materials by
the owner of such Materials, the owner of such Materials shall not be deemed to
have assigned its intellectual property rights in such owned Materials to the
other Party, but subject to the terms and restrictions of any Consent, the owner
of such embedded Materials hereby grants to the other Party and its Subsidiaries
a worldwide, perpetual, irrevocable, non-exclusive, fully paid-up license, with
the right to grant sublicenses, to use, execute, reproduce, display, perform,
modify, enhance, distribute and create Derivative Works of such embedded
Materials for the benefit and use of the other Party and its Subsidiaries for so
long as such Materials remain embedded in such Developed Materials.
Notwithstanding the foregoing, neither Party shall embed any Abbott Owned
Materials or Hospira Owned Materials into Developed Materials without the
express written agreement of both Parties to do so, as set forth in the
applicable Work Schedule. In addition, should either Party incorporate into
Developed Materials any intellectual property subject to Third Party patent,
copyright or license rights, any ownership or license rights granted herein with
respect to such Materials shall be limited by and subject to any such patents,
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copyrights or license rights; PROVIDED that, prior to incorporating any such
intellectual property in any Materials, the Party incorporating such
intellectual property in the Materials has disclosed this fact and obtained the
prior written approval of the other Party and has obtained any Consents.
(iv) SOURCE CODE AND DOCUMENTATION. If either Party requests
that the source code for particular Materials be placed in escrow for the
benefit of the requesting Party, then the Parties shall cooperate in good faith
to establish such source code escrow arrangements on terms and conditions that
shall be reasonably acceptable to both Parties.
(c) GENERAL RIGHTS AND OBLIGATIONS REGARDING MATERIALS.
(i) COPYRIGHT LEGENDS. Each Party agrees to reproduce
copyright legends which appear on any portion of the Materials which may be
owned by the other Party or Third Parties.
(ii) NO IMPLIED LICENSES. Except as expressly specified in this
Agreement, nothing in this Agreement shall be deemed to grant to one Party, by
implication, estoppel or otherwise, license rights, ownership rights or any
other intellectual property rights in any Materials owned by the other Party or
any Subsidiary of the other Party.
(iii) RESIDUALS. Nothing in this Agreement shall restrict any
employee or representative of a Party from using general ideas, concepts or
know-how relating to the Services or Materials that are retained solely in the
unaided memory of such employee or representative after performing the
obligations of a Party under this Agreement, except to the extent that such use
infringes upon any patent, copyright or other intellectual property right of a
Party or its Subsidiaries; provided, however, that this Section shall not be
deemed to limit either Party's obligations under this Agreement with respect to
the disclosure or use of confidential Information or Materials of the other
Party. An individual's memory is unaided if the individual has not intentionally
memorized the confidential Information or subject Materials for the purpose of
retaining and subsequently using or disclosing it.
(iv) REQUIRED CONSENTS. Subject to SECTION 2(j) above, each
Party shall, at its own expense, use commercially reasonable efforts to obtain
all Consents necessary in connection with (i) in the case of Xxxxxx, all Xxxxxx
Owned Materials, and (ii) in the case of Hospira, all Hospira Owned Materials.
Each of the Parties will reasonably cooperate with the other in obtaining such
Consents.
Section 4. BILLING; TAXES.
(a) PROCEDURE. Each Work Schedule shall set forth the types of, and
where possible, the amount of, Charges that each Party shall be financially
responsible for in connection with the Services and the Materials to be
developed, procured or provided pursuant to a Work Schedule. Where Charges are
to be paid to a Third Party for Services or Materials under a Work Schedule, the
Party listed as the responsible Party under the Work Schedule shall pay such
Charges directly to the Third Party. Where Charges are to be paid to the other
Party, the Party who is entitled to reimbursement for Services or other Charges
pursuant to a Work Schedule shall issue an invoice detailing such charges to the
other Party. Amounts payable
11
pursuant to the terms of this Agreement shall be paid to the invoicing Party 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. The Party who is primarily responsible for payment for
Charges under a particular Work Schedule shall pay any and all Taxes incurred in
connection with the Services under that Work Schedule, including all sales, use,
value-added and similar Taxes, but excluding Taxes based on the other Party's
net income. Each Party shall be responsible for all sales, service, value-added,
lease, use, personal property, excise, consumption, and other taxes and duties,
including VAT, payable by such Party on any goods or services used or consumed
by such Party in providing Services where the tax is imposed on such Party's
acquisition or use of such goods or services.
(d) NO SET-OFF. The obligation to pay Charges or to make any other
required payments under this Agreement shall not be subject to any right of
offset, set-off, deduction or counterclaim, however arising.
Section 5. TERM; TERMINATION OF WORK SCHEDULES; TRANSFER ASSISTANCE.
(a) TERM. This Agreement will expire two (2) years after the
Distribution Date unless extended in writing by duly authorized representatives
of each Party (the "Expiration Date"). No later than three (3) months prior to
the Expiration Date, the Parties shall meet and confer to discuss the status of
all uncompleted Work Schedules and, where feasible, develop a plan to complete
such Work Schedule on or before the Expiration Date, and to negotiate a new
agreement for any Services that the Parties reasonably believe will extend
beyond the Expiration Date.
(b) TERMINATION OF WORK SCHEDULES.
(i) TERMINATION FOR CONVENIENCE. Upon receipt by the other
Party of at least thirty (30) days prior written notice, either Party may
terminate a Work Schedule without the consent of the other Party solely for the
purpose of transferring the control and responsibility for the Services under
such Work Schedule to the terminating Party; provided, that (A) the terminating
Party shall be solely responsible for completing such Work Schedule during the
term of this Agreement, and (B) upon receipt of such notice, the terminated
Party shall be released from all responsibility in connection with the
terminated Work Schedule, except as provided in SECTION 5(b)(ii).
(ii) TRANSFER ASSISTANCE. Upon receipt of a notice to terminate
a Work Schedule pursuant to SECTION 5(b)(i), each Party shall provide to the
other Party such assistance as is reasonably necessary to permit the orderly
transfer of the Services to be performed under such Work Schedule to the
terminating Party, including providing reasonable access to any facilities,
systems, equipment and/or software being used by the other Party to provide the
12
Services under the terminated Work Schedule; provided, that the terminating
Party shall comply with the other Party's security and confidentiality
requirements in connection with such access.
Section 6. CONFIDENTIALITY; PROTECTIVE ARRANGEMENTS.
(a) CONFIDENTIALITY OBLIGATIONS. Subject to SECTION 6(c), Xxxxxx, on
behalf of itself and each Xxxxxx 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 Effective Date, all Information and
Materials concerning the other (or its business) and the other's Subsidiaries
(or their respective businesses) that is either in its possession (including
Information and Materials in its possession prior to the Effective Date) 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 or Materials other than for such purposes as may be expressly
permitted hereunder, except, in each case, to the extent that such Information
or Materials 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 or Materials 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 such Information
or Materials to any other Person, except its directors, officers, employees,
agents, accountants, counsel, lenders, investors and other advisors and
representatives who need to know such Information or Materials, and except in
compliance with SECTION 6(c). Without limiting the foregoing, when any
Information or Materials furnished by the other Party after the Effective Date
pursuant to this Agreement is no longer needed for the purposes contemplated by
this Agreement, each Party shall, at such Party's option, promptly after
receiving a written request from the other Party either return to the other
Party all such Information and Materials 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 Materials (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 or Materials 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 or Materials 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 Materials and shall cooperate at
the expense of the requesting Party in seeking any reasonable protective
arrangements requested by such other Party. Subject to the foregoing, the Person
that received such request may thereafter disclose or
13
provide Information and Materials to the extent required by such law (as so
advised by counsel) or by lawful process or such Governmental Authority.
Section 7. MISCELLANEOUS.
(a) MUTUAL COOPERATION. The Parties and their respective Subsidiaries
shall cooperate with each other in connection with the performance of the
Services hereunder and the completion of the Separation Projects, including
producing on a timely basis all Information and Materials that is reasonably
requested with respect to the performance of Services and the completion of the
Separation Projects, by 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 (AND ANY SUBSEQUENT PERIODS) COMMENCING ON EACH ANNUAL
ANNIVERSARY THEREOF, THE MAXIMUM LIABILITY OF EACH PARTY AND ITS SUBSIDIARIES
TO, AND THE SOLE REMEDY OF, EACH PARTY 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 PROFITS OF THE PARTY PROVIDING THE SERVICES HEREUNDER, WHICH SHALL BE DEEMED
TO BE EQUAL TO THE AMOUNT OF THE XXXX-UP RECEIVED BY THE PARTY PROVIDING THE
SERVICES DURING SUCH TWELVE (12) MONTH PERIOD, AS SUCH AMOUNT IS SPECIFIED IN
SCHEDULE D AND AS MAY BE ADJUSTED PURSUANT TO THE TERMS OF SCHEDULE D.
(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, CONSEQUENTIAL, INCIDENTAL 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
7(b) shall not apply to: (i) either Party's liability for breaches of
confidentiality under SECTION 6 (Confidentiality), and (ii) either Party's
obligations under SECTION 7(c) (Third Party Claims).
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(c) THIRD PARTY CLAIMS AND INFRINGEMENT.
(i) Except for Third Party Claims addressed in SECTION
7(c)(iv) below, Xxxxxx shall indemnify, defend and hold harmless Hospira and 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 "Hospira Indemnitees"), from and against any and all Third Party claims
relating to, arising out of or resulting from Hospira, its Subsidiaries and/or
any of their respective officers, directors, employees, agents or contractors,
furnishing or failing to furnish the Services or Hospira Owned Materials
required to be provided by Hospira under this Agreement, other than Third Party
claims arising out of gross negligence or willful misconduct of Hospira, its
Subsidiaries and/or any of their respective directors, officers, employees,
agents or contractors.
(ii) Except for Third Party Claims addressed in SECTION
7(c)(iii) below, Hospira shall indemnify, defend and hold harmless Xxxxxx and
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 "Xxxxxx Indemnitees"), from and against any and all Third
Party claims relating to, arising out of or resulting from Xxxxxx, its
Subsidiaries and/or any of their respective officers, directors, employees,
agents or contractors, furnishing or failing to furnish the Services or Xxxxxx
Owned Materials required to be provided by Xxxxxx under this Agreement, other
than Third Party claims arising out of gross negligence or willful misconduct of
Xxxxxx, its Subsidiaries and/or any of their respective directors, officers,
employees, agents or contractors.
(iii) For any Xxxxxx Owned Materials used or provided by Xxxxxx
or any Xxxxxx Subsidiary in connection with Xxxxxx'x or any Xxxxxx Subsidiary's
provision of Services hereunder, but excluding any Materials provided or
licensed under any Hospira IT Agreement or any Shared IT Agreement, Xxxxxx shall
indemnify, defend and hold harmless the Hospira Indemnitees from and against any
and all Third Party claims alleging that such Materials infringe upon the
intellectual property rights of any such Third Party.
(iv) For any Hospira Owned Materials used or provided by
Hospira or any Hospira Subsidiary in connection with Hospira's or any Hospira
Subsidiary's provision of Services hereunder, but excluding any Materials
provided or licensed under any Shared IT Agreement, Hospira shall indemnify,
defend and hold harmless the Xxxxxx Indemnitees from and against any and all
Third Party claims alleging that such Materials infringe upon the intellectual
property rights of any such Third Party.
(v) In connection with any Third Party Claim alleging
infringement regarding any Materials, the indemnifying Party shall have the
right in connection with such affected Materials to (i) modify or replace the
affected Materials so that they are not infringing; (ii) procure a license for
the indemnified Party in the affected Materials such that use of the affected
Materials may continue in the required manner; or (iii) at the indemnifying
Party's sole option, the indemnifying Party may cease use of the affected
Materials, and, subject to any rights and obligations set forth in SECTION 2(j),
thereafter the Parties shall cooperate in good faith and use commercially
reasonable efforts to arrive at an alternative solution or workaround that
eliminates the need for the affected Materials.
15
(vi) The indemnification rights and obligations set forth in
SECTIONS 7(c)(iii), 7(c)(iv) and 7(c)(v) shall be the sole and exclusive remedy
for the indemnified Party with respect to claims of infringement of intellectual
property rights.
(vii) NOTICE OF THIRD PARTY CLAIMS. If at or following the date
of this Agreement an Indemnitee receives notice or otherwise learns of the
assertion or commencement by a Person (including any Governmental Authority)
other than Xxxxxx or Hospira and their respective Subsidiaries of any proceeding
with respect to which an indemnifying Party may be obligated to provide
indemnification to such Indemnitee pursuant to SECTION 7(c) (collectively, a
"Third Party Claim"), such Indemnitee shall give such indemnifying Party written
notice thereof within twenty (20) days after becoming aware of such Third Party
Claim. Any such notice must describe the Third Party Claim in reasonable detail.
Notwithstanding the foregoing, the failure of any Indemnitee or other Person to
give notice as provided in this SECTION 7(c)(vii) shall not relieve the related
indemnifying Party of its obligations under SECTION 7(c), except to the extent
that such indemnifying Party is actually prejudiced by such failure to give
notice.
(d) 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
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,
viruses or similar disabling devices, or breaches of network or system security.
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 5 hereof.
(e) RELATIONSHIP GOVERNANCE. Each of the Parties shall appoint a
separation services project executive or their designee from time to time (each
a "Project Executive") who has responsibility for overseeing the completion of
the Services, respectively, and who shall have the authority to act on behalf of
the Parties, respectively, for all day-to-day matters pertaining to this
Agreement. These Project Executives shall meet no less frequently than monthly
to review status, consider changes to the Separation Project Plan, review and
sign Work Schedules, discuss, and if possible, resolve disputes, and provide
direction to the team members performing the Services. Additionally, each Party
will have the option, but will not be obligated, to designate additional
representatives who will be authorized to make certain decisions (e.g.,
regarding emergencies) if the Project Executive is not available. Each Party
shall cooperate with the other by, among other things, making available, as
reasonably requested by the other Party, management decisions, Information,
Materials, approvals and acceptances so that each Party may accomplish its
obligations and responsibilities hereunder. All transfers of Developed Materials
and communications regarding the scope of work shall be accomplished through the
Project Executives. In addition, the Project Executives shall arrange and chair
any progress review meetings, be responsible for ensuring that each Party's
responsibilities have been
16
met on a timely basis and shall control all changes to the applicable Work
Schedule(s). Either Party may change the person designated to be its Project
Executives for any Work Schedule at any time upon written notice to the other
Party's Project Executive. As of the Effective Date, except as otherwise
designated on an applicable Work Schedule, the Parties have designated the
following positions as the Project Executives for purposes of this Agreement:
Xxxxxx: Vice President, Information Technology
Hospira: Vice President, Information Technology
(f) ACCEPTANCE. Acceptance shall occur when the Services and
Materials described in the Work Schedule meet the agreed upon acceptance
criteria as described in the Work Schedule. If the Services and Materials do not
meet the acceptance criteria as set forth in the Work Schedule when they are
ready for acceptance evaluation, a Party may give the other Party detailed
written notification of the deficiency or non-conformance within thirty (30)
business days of delivery of the Services or Materials. The providing Party then
shall either correct the deficiency or non-conformance or provide a plan
acceptable for correcting the deficiency or non-conformance. If the deficiency
or non-conformance is not corrected or if an acceptable plan for correcting such
deficiency or non-conformance is not established during such period, then the
aggrieved Party may initiate an ADR proceeding pursuant to SECTION 7(k).
(g) AUDIT ASSISTANCE.
(i) GENERALLY. 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
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, the other
Party shall provide 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. The Parties may execute a Work Schedule if mutually desired
to document the work effort and Charges that may be required in connection with
an audit.
(ii) CONTROLS. After the Effective Date and continuing no
longer than required in accordance with the maintaining Party's applicable
document retention policies, subject to the provisions of the TSA, each of the
Parties will maintain in effect, at its own cost and expense, adequate controls
to the extent reasonably necessary to enable the other Party to satisfy its
reporting, accounting, audit and other obligations.
(h) 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.
17
(i) NO THIRD PARTY BENEFICIARIES. Except as expressly provided in
SECTION 7(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 Hospira
Indemnitees and the Xxxxxx 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.
(j) 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.
(k) ADR PROCEDURES; EQUITABLE RELIEF. The Parties acknowledge that
from time to time during the term of this Agreement a dispute 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
7(k) and SCHEDULE F, the result of which shall be binding upon the Parties.
(i) NOTICE. To initiate the ADR process, a Party first must
send written notice to the other Party in accordance with the provisions of
SECTION 7(p) 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. Second stage negotiations shall
be conducted between the respective CEOs or Presidents (or their designees) of
the Parties within 14 days following the conclusion of first stage negotiations.
If the dispute has not been resolved within the 14 days provided for second
stage negotiations, either Party may initiate an ADR proceeding as provided in
SCHEDULE F. The Parties shall have the right to be represented by counsel in
such a proceeding.
18
Notwithstanding the foregoing, the Parties acknowledge that the
breach of SECTION 3 (Ownership and License Rights in Materials), SECTION 6
(Confidentiality), and/or SECTION 2(i) (Security Procedures) 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 7(k) and
SCHEDULE F 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.
(l) 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. "Section" and
"Schedule" references are to the 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 or any other
agreements contemplated herein shall be deemed to refer to this Agreement or
such other agreement as of 11:59 pm Eastern Daylight Time on the Distribution
Date and as such time may be amended thereafter, unless otherwise specified.
(m) SURVIVAL. SECTION 1 (Definitions), SECTION 3 (Billing; Taxes),
SECTION 5 (Confidentiality), SECTIONS 2(b), 2(c)(iii), 2(d), 2(e) (with respect
to those portions of SCHEDULE F that survive termination), 7(b) (Liability),
7(c) (Third Party Claims), 7(g) (Audit Assistance), and 7(i) (No Third Party
Beneficiaries) THROUGH 7(s) (Severability) shall survive any expiration or
termination of this Agreement.
(n) AMENDMENT; ASSIGNMENT. No amendment to this Agreement shall be
effective unless it is in writing and signed by a duly authorized representative
of each Party or, in the case of an amendment (including an early termination)
of a Work Schedule, signed by the contact listed on the applicable Work
Schedule, or by such contact's senior management. Neither this Agreement nor any
of the rights and obligations of a Party hereunder shall be assignable or
transferable by such Party without the prior written consent of the other Party;
provided, however, that this Agreement shall be assignable by either Party with
the prior written consent of the other Party (which consent shall not be
unreasonably withheld, delayed or conditioned) in connection with a sale, by
sale of stock, sale of assets, merger or otherwise, of all or substantially all
of one or more businesses, business units or product lines of the assigning
Party. The acquirer or surviving entity shall agree in writing to be bound by
the terms and conditions of this Agreement.
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(o) 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 not exclusive of any rights or remedies which they would otherwise have
hereunder. No provision 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.
(p) 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:
To Xxxxxx: Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx X00, Xxxxxxxxxx 334
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Vice President, Information Technology
Facsimile Number: (___) ___-____
with a copy to: Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX0X, Department 364
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
Facsimile Number: (000) 000-0000
To Hospira: Hospira, Inc.
Dept. 98F
000 Xxxxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxx Xxxxxx, Xxxxxxxx 00000-0000
Attn: [Project Executive]
Facsimile Number: (___) ___-____
with a copy to: Hospira, Inc.
Legal Department
Dept. _______;
000 Xxxxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxx Xxxxxx, Xxxxxxxx 60045-5045
Attn: General Counsel
Facsimile Number: (224) 212-____
Any Party may, by notice to the other Party, change the address to which
such notices are to be given.
20
(q) 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.
(r) ENTIRE AGREEMENT. This Agreement and the Schedules hereto contain
the entire agreement and understanding between the Parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
whether written or oral, relating to such subject matter; provided, that except
as otherwise expressly agreed by the Parties.
(s) 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 a suitable and equitable provision to effect the original intent of the
Parties.
* * * * *
21
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
XXXXXX LABORATORIES
By:
-----------------------------------
Name:
Title:
HOSPIRA, INC.
By:
-----------------------------------
Name:
Title:
