SUPPLY AGREEMENT
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT AND THE NON-PUBLIC INFORMATION HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
This SUPPLY AGREEMENT (this "Agreement"), dated as of May 8, 2009 (the "Effective Date''), is by and between BIOZONE LABORATORIES, INC., a California corporation (“Supplier”), and ZICAM, LLC., an Arizona limited liability company ("Zicam").
1.1. Packages Manufactured, Assembled and Purchased. With respect to each of the products described on Schedule A hereto (the "Products"), Supplier shall provide the Product manufacturing, assembly, packaging, labeling, and packing services, and provide the Product components, as described on Schedule A hereto, and Zicam shall purchase the Products from Supplier pursuant to purchase orders submitted by Zicam to Supplier from time to time in accordance with Section 3.4. The Products shall be manufactured, assembled, packaged, labeled, and packed for shipping in strict compliance with the procedures, standards, requirements, and other specifications set forth on Schedule B hereto (the "'Specifications"). Schedule B will be amended to reflect any Specifications agreed upon in writing by Zicam and Supplier after the execution of this Agreement. The Products will be manufactured, assembled, packaged, labeled, and packed at the facilities designated in Schedule B and Supplier may not use any other facility for such work without Zicam's written consent. All facilities must comply with Section 5.4.
(d) Invoices; Payment. Supplier shall issue invoices to Zicam within two (2) Business Days after the Products are shipped to Zicam. Zicam shall pay Supplier within (7) days from the date of receipt or each invoice that is properly supported by complete and correct bills of lading. All payments shall be made in U.S. dollars. As used herein, '"Business Day" means any day other than a Saturday or Sunday or any other day on which banks in Arizona are permitted or required by applicable law to be closed.
(e) Cost Reduction Initiatives. Supplier shall use all commercially reasonable efforts to establish and implement cost reduction initiatives. Supplier shall disclose to and discuss with Zicam any cost reduction derived from the successful implementation of such initiatives and the parties shall negotiate an agreed upon allocation of such cost savings.
As used herein, "Competing Product" means any product in the cough/cold market segment of the United States with an oral or nasal preparation containing zinc and /or intended to lessen the severity and/or reduce the duration of the common cold.
2
3
(a) Supplier shall test or cause to be tested each lot of Product purchased pursuant to this Agreement as per the Specifications. For each lot of Product tested, each test shall set forth the items tested, specifications, and test results in a certificate of analysis, which Supplier shall send or cause to be sent to Zicam. Zicam is entitled to rely on such certificates for all purposes of this Agreement.
(b) Supplier shall provide or cause to be provided a certificate of manufacturing compliance or manufacturing lot record that will certify that the Products were manufactured in accordance with the Specifications and applicable cGMPs.
4
(a) Supplier agrees to host inspections from any federal, state or provincial regulatory authority responsible for the supervision of Supplier's operations, even after the termination of this Agreement.
(b) Supplier shall immediately inform Zicam of any regulatory inspections which may involve the Products or related processes, shall make its best effort to prepare for such inspections and shall permit representative(s) from Zicam to be present (including debriefing sessions with the inspection agency) if required by Zicam. Supplier shall (i) furnish Zicam with copies of all reports and analyses relating to such inspections and (ii) provide to Zicam duplicate samples of the Products given to government agencies and duplicates of any photographs taken during the inspections (unless such pictures contain confidential or trade secret information). Supplier shall inform Zicam of the findings of such an inspection and immediately provide a copy of the correspondence with the authorities, provided that the Products are concerned.
(c) In the above cases a copy of any regulatory report, FDA Form 483, or letter shall be provided to Zicam within three (3) business days of receipt if it relates to the Products, the facilities used to manufacture the Products, or the quality systems of the Supplier.
(d) Supplier agrees to provide draft copies of any response to a regulatory report concerning the Products at least three (3) business days prior to submission of the response to any regulatory body.
(a) Each party represents and warrants to the other party that it has the full right and authority to enter into and perform this Agreement, that its performances hereunder will not cont1ict with or breach any other agreement to which it is a party, and that it is free of any obligations that would prevent or tend to impair the full performance of its obligations hereunder.
(b) Each party represents and warrants to the other party that any and all services performed by it hereunder shall be of a professional quality consistent with generally accepted industry standards for the performance of such types of services and will comply with all Laws.
(c) Except for the intellectual property of Zicam referred to in Article VI hereof, Supplier owns all right, title and interest in and to, or otherwise has lawful rights to use, the intellectual property used by Supplier in the manufacturing, assembly, packaging, labeling, and packing of the Products and Supplier has not received notice of any present or threatened claim, action or proceeding alleging that any part of its intellectual property infringes any third party's intellectual property rights, and Zicam and its Affiliates may freely market and sell the Products without infringing any third party's intellectual property rights and without any royalty, fee or similar payment of any kind being or becoming due or payable by Zicam or its Affiliates to any third party.
5
(d) Supplier represents and warrants to Zicam (i) that the Products or any components or parts thereof purchased for the Products will not infringe upon the intellectual property of any third party, and (ii) that Supplier has obtained all necessary licenses, permits and permissions to use any third party intellectual property.
(e) Zicam represents and warrants to that, to its actual knowledge as of the Effective Date, the Specifications for the Products will not infringe upon the patent, copyright or trademark rights of any third party. Zicam further represents and warrants that it maintains all necessary governmental licenses, permits and approvals related to the sale and distribution of the Products.
(a) ''Affiliate" shall mean, with respect to any person, any other person who directly or indirectly controls or is controlled by, or is under common control with, such person; and "control" means, with respect to any person, the direct or indirect ability to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise.
(b) "Zicam Confidential Information" means any and all infom1ation or Technology that (i) concerns or relates to any aspect of the Products or the business of Zicam and/or Matrixx Initiatives, Inc. ("Matrixx"); (ii) is owned or used by Zicam and/or Matrixx; or (iii) is, for any reason, identified or otherwise treated as confidential by Zicam and/or Matrixx, in each instance, whether or not reduced to writing or other tangible medium of expression, and whether or not patented, patentable, capable of trade secret protection or protected as an unpublished or published work under the United States Copyright Act of 1976, as amended, except such information or Technology that Supplier can clearly show (A) was publicly known prior to the date of this Agreement; (B) subsequent to the date of this Agreement has become publicly known through no fault of Supplier; (C) was known to and documented by Supplier prior to the date of this Agreement and with respect to which Supplier was not and is not under any obligation of confidentiality; or (D) was disclosed to Supplier without restriction on disclosure or use by a third party who was not under any obligations of confidentiality (contractual or otherwise).
(c) "Supplier Confidential Information" means any and all manufacturing processes, technologies, procedures or any information regarding any of Supplier's other manufacturing customers that relates to the manufacture of any products by Supplier, except such information or Technology which Zicam and/or Matrixx can clearly show (A) was publicly known prior to the date of this Agreement: (B) subsequent to the date of this Agreement has become publicly known through no fault of Zicam and/or Matrixx: (C) was known to and documented by Zicam and/or Matrixx prior to the date or this Agreement and with respect to which Zicam and Matrixx were not and are not under any obligation of confidentiality; or (D) was disclosed to Zicam and/or Matrixx without restriction on disclosure or use by a third party who was not under any obligations of confidentiality (contractual or otherwise).
(d) "Patents" shall mean all United States and foreign patents and applications therefore (including continuations, divisionals, provisional, continuations-in-part, or reissues of patent applications and patents issuing thereon) owned by Zicam or its Affiliates and relating to or concerning or on which any issued or pending claim reads on the Products, use of the Products, and/or manufacture of the Products.
(e) "Technology" means ideas, concepts, know-how, techniques, methods, models, processes, designs, data, software, apparatus, devices, molds, tooling, packaging or packaging materials, techniques, formulations, How charts, block diagrams, reports, systems, sketches, compositions of matter, discoveries, developments, improvements, and inventions (whether or not patentable), patents, patent applications, works of authorship (whether or not copyrightable), information, algorithms, trade secrets, procedures, notes, summaries, results and conclusions.
(a) Zicam (and its Affiliates) and Supplier agree that, as between them, Zicam and its Affiliates are the sole and exclusive owner of all rights, intellectual and otherwise, to (i) the Patents, (ii) all Technology relating to, concerning or incorporated in the Products, including, without limitation, (A) the formula for the Products, (B) processing techniques and operating procedures for manufacturing, assembling, packaging, labeling, and packing for shipment the Products (regardless of whether existing on the Effective Date or later developed by Zicam, Supplier and/or any of their respective Affiliates), (C) any Technology jointly developed by Zicam and Supplier and/or any of Supplier's Affiliates exclusively in connection with Supplier's performance hereunder (and specifically excluding the Supplier IP (as defined below)), (D) any Technology developed by Supplier and/or any of Supplier's Affiliates exclusively in connection with Supplier's performance hereunder, and (iii) the trademarks, trade names and trade dress used in connection with the packaging, marketing and sale of the Products. Supplier agrees that, as a result of performing under this Agreement, Supplier does not acquire any right, title or interest in any property, intellectual or otherwise, owned or controlled by Zicam or its Affiliates.
(b) Zicam and Supplier agree that, as between them, Supplier is the sole and exclusive owner of all rights, intellectual and otherwise, to (i) Supplier's proprietary processing techniques and proprietary operating procedures for filling and packaging the Products, developed independently by Supplier, without the use of Zicam Technology, and (ii) all of Suppliers intellectual property, trade secrets processes and applications in existence prior to the Effective Date as set forth in Schedule G (the items set forth in clauses (i) and (ii) are collectively, the "Supplier IP"). Zicam agrees that, as a result of performing under this Agreement, Zicam does not acquire any right, title or interest in any property, intellectual or otherwise, owned or controlled by Supplier.
6
(c) If the Agreement is terminated by Zicam pursuant to Section 2.2(a), 2.2(b), 2.2(c), or 2.2(d), Zicam is hereby automatically granted by Supplier an irrevocable, transferable, royalty-free, worldwide license to use and exploit the Supplier IP and all Supplier Technology required to manufacture the Products.
(d) During the Term of this Agreement, Zicam shall sell the Products purchased from Supplier pursuant to this Agreement under its own trademarks and trade dress. Supplier acknowledges that such trademarks, trade dress, and any other designations of the Product labels and packages are the sole and exclusive property of Zicam and its Affiliates, and that Supplier's labeling of the Product under Zicam's trademarks and trade dress shall not be construed as granting any right in such trademarks or trade dress to Supplier.
(e) Each party covenants and agrees that it will not, nor will it cause or permit any of its Affiliates to, take or omit to take any action that is in any manner inconsistent with, or tends to diminish or impair the other party's or the other party's Affiliate's rights as set forth in this Section 6.2. Supplier agrees to assist in every proper and legal way to obtain, maintain and protect Zicam's rights in such property in the United States and all foreign countries. Supplier hereby assigns, and agrees to assign, to Zicam all right, title and interest in the United States and all foreign countries in and to Zicam's rights as set forth in this Section 6.2, which may otherwise initially vest with Supplier, including any and all patents, patent applications, copyright registrations, trade secrets, rights under international treaties or any other protection available in any country.
(a) During the Term of this Agreement, and for the longer of either (i) ten (10) years after termination of this Agreement or (ii) for so long as the Zicam Confidential Information shall not be publicly known, Supplier shall not use any Zicam Confidential Information, except to perform its obligations under this Agreement, or disclose any Zicam Confidential Information to any third party, except, as authorized in writing by Zicam or as required by applicable Laws. Upon termination of this Agreement or upon written request by Zicam, Supplier shall deliver to Zicam all Zicam Confidential Information. as well as all documents, media, items and Technology comprising, embodying or relating to Zicam Confidential Information, as well as any other documents or things belonging to Zicam that may be in Supplier's possession.
(b) During the Term of this Agreement, and for the longer of either (i) ten (10) years after termination of this Agreement or (ii) for so long as the Supplier Confidential Information shall not be publicly known, Zicam shall not use any Supplier Confidential Information, except to perform its obligations under this Agreement, or disclose any Supplier Confidential Information to any third party, except as authorized in writing by Supplier or as required by applicable Laws. Upon termination of this Agreement or upon written request of Supplier, Zicam shall deliver to Supplier all Supplier Confidential Information, as well as all documents, media, items and Technology comprising, embodying or relating to the Supplier Confidential Information, as well as any other documents or things belonging to Supplier that may be in Zicam's possession.
(c) The provisions of this Section 6.5 shall supersede any other confidentiality agreements between the parties with respect to the subject matter hereof and such confidentiality agreements are hereby terminated as between Zicam and Supplier. Zicam and Supplier hereby confirm that all proprietary information previously disclosed by one to the other prior to the date of this Agreement shall be deemed Zicam Confidential Information or Supplier Confidential Information as applicable, as long as Zicam or Supplier, respectively, have complied with the provisions of this Agreement to protect such Zicam Confidential Information or Supplier Confidential Information.
7
8
If to Zicam LLC:
Zicam, LLC
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
If to Supplier:
BioZone Laboratories, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Fax: (000) 000-0000
9
or to such other address as the parties may give notice to the others by like means. All such notices and communications, if mailed, shall be effective upon the earlier of (a) actual receipt by the addressee, or (b) the date shown on the return receipt of such mailing. All such notices and communications, if not mailed, shall be effective upon the earlier of (a) actual receipt by the addressee, (b) with respect to facsimile and similar electronic transmission, the earlier of (i) the time that electronic confirmation of a successful transmission is received or (ii) the date of transmission, if a confirming copy of the transmission also is sent by overnight courier service on the date of transmission, or (c) with respect to delivery by overnight courier service, one (1) day after deposit with such courier service, if delivery on such day by such courier is confirmed with the courier or the recipient. The parties further agree that delivery of a notice or other communication required or permitted to be given hereunder in writing may be given via email addressed to: (a) with respect to Zicam, xxxxxxx@xxxxxxxxxxxx.xxx. and (b) with respect to Supplier, xxxxxxxx@xxxxxxxxxxx.xxx. Such email notices and communications shall be effective on the date of transmission if a confirming copy of the transmission also is sent via overnight courier service on the date of transmission.
9.9. Construction. This Agreement has been submitted to the scrutiny of, and has been negotiated by all parties hereto and their counsel, and shall be given a fair and reasonable interpretation in accordance with the terms hereof, without consideration or weight being given to its having been drafted by any party hereto or its counsel.
10
9.13. Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona U.S.A., without regard to conflict of law principles. All disputes, claims and other matters in controversy arising directly or indirectly out of or related to this Agreement, or the breach hereof, whether contractual or non-contractual, shall be determined by arbitration and shall be settled by a majority vote of three arbitrators, one of whom shall be appointed by Zicam, one of whom shall be appointed by Supplier and the third of whom shall be appointed by the first two arbitrators. Persons eligible to be selected as arbitrators shall be limited to attorneys who have been in practice at least ten ( 1 0) years specializing in corporate matters, who have had both training and experience as arbitrators and who have had no prior relationship or business dealings with either Zicam or Supplier or their respective directors and officers. If either Zicam or Supplier fails to appoint an arbitrator within ten (10) days of a request in writing by the other party to do so or if the first two arbitrators cannot agree on the appointment of the third arbitrator, then the third arbitrator shall be appointed by the American Arbitration Association (the "AAA"), provided that such arbitrator also must meet the foregoing eligibility requirements. The arbitration shall be conducted in the English language in the City of Phoenix, Arizona in accordance with the commercialness of the AAA then in effect, subject to any modifications agreed to in writing by the parties. The U.S. Federal Arbitration Act (the "FAA") shall apply to the construction and interpretation of this Agreement to arbitrate. The arbitrators shall base their award on applicable law and judicial precedent and, unless both parties agree otherwise, shall include in such award the findings of fact and conclusions of law upon which the award is based and may include equitable relief Judgment on the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The arbitrators shall award recovery of reasonable attorneys' fees and costs to the prevailing party. The arbitrators' resolution of the dispute shall be final and binding. except that any party can appeal to the federal courts of the United States of America (located in the City of Phoenix) or. if such federal courts do not have jurisdiction, to the courts of the State of Arizona (located in the City of Phoenix), to vacate and remand, or modify or correct the arbitration award for any of the grounds specified in the FAA or if the arbitrators committed prejudicial error in the application of substantive law to the established facts. The procedures specified in this Section 9.13 shall be the sole and exclusive procedures for resolution of disputes; provided, however, that nothing contained herein shall preclude any party from filing a judicial proceeding seeking equitable or injunctive relief.
9.14. Consent to Jurisdiction. With respect to each matter, which is not subject to the mandatory arbitration provisions of Section 9.13, each of the parties hereby irrevocably and unconditionally consents to submit to the jurisdiction of the federal courts of the United States of America (located in the City of Phoenix) or, if such federal courts do not have jurisdiction. to the courts of the State of Arizona (located in the City of Phoenix) for any litigation arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any litigation arising out of this Agreement or the transactions contemplated hereby by the courts of the United States of America or the State of Arizona, in each case, located in the City of Phoenix, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum. Any judgment or other decision of any such court shall be enforceable, without further proceedings, against the named party anywhere in the world where such party is located, does business or has assets.
[Signature Page Follows]
11
SIGNATURE PAGE TO SUPPLY AGREEMENT
ZICAM:
By:_______________________
Title:
SUPPLIER:
By: ___________________________
Title:
12
SCHEDULE A
PRODUCTS AND SERVICES
The completed Products (i.e. Products manufactured, assembled, packaged, labeled, and packed for shipment) shall be priced as follows:
Product Name
|
Unit
|
||
201025
|
Zicam Oral Mist
|
1.0 oz bottle
|
[*]
|
209150
|
Zicam Canada Oral Mist
|
1.0 oz bottle
|
[*]
|
204120
|
Zicam Extreme Congestion
|
.55 oz bottle
|
[*]
|
209210
|
Zicam Canada Extreme Congestion
|
.55 oz bottle
|
[*]
|
204020
|
Zicam Sinus Relief
|
.5 oz bottle
|
[*]
|
209200
|
Zicam Canada Sinus Relief
|
.5 oz bottle
|
[*]
|
206150
|
Zicam Cough Max
|
.5 oz bottle
|
[*]
|
Supplier will perform the following services with respect to the Products:
|
·
|
Pack 1 filled and security sealed bottle into 1 unit carton boxes and insert product literature
|
|
·
|
Shrink wrap 6 completed cartons together in front to back panel configuration
|
|
·
|
Place 4 shrink wrapped 6-packs into a shipper (side by side in a single layer)
|
|
·
|
Place 2 shipper labels around opposite diagonal corners of the shipper with the center tick xxxx on each label on the corner of the shipper
|
|
·
|
Print each completed shipper with a lot and expiration date on end panel (coding must not interfere with shipping label)
|
|
·
|
Palletize completed cases (9 cases per layer, 7 layers high, for a total of 63 cases per pallet)
|
|
·
|
Place Corrugated pallet corner protectors on all 4 edges of the pallet
|
|
·
|
Stretch-wrap pallet
|
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
A-1
SCHEDULE A
PRODUCTS AND SERVICES
(Continued)
Supplier will supply the following materials for the Products:
• Raw materials to formulate products
• Bottles
• Sprayers
• Cartons
• Inserts
• Labels
• Shippers
• Shipper labels
• Exterior shipping materials (pallets, stretch wrap, corner guards)
Zicam will require Supplier to use the following vendors:
Product Name
|
Zicam Oral Mist/
Zicam Canada Oral Mist
|
|
Zicam Product Number
|
201025/209150
|
|
BioZone Product Number
|
GT18
|
|
Ingredient
|
Primary Supplier
|
Secondary Supplier
|
Zinc Gluconate Dihydrate U.S.P
|
[*]
|
|
Zinc Acetate Dihydrate ACS/USP
|
[*]
|
|
Sucralose NF (Powder)
|
[*]
|
|
Peppermint Flavor WS, Natural & Artificial
|
[*]
|
|
Benzalkonium Chloride 50% NF
|
[*]
|
|
Glycerin 99.7% USP
|
[*]
|
|
Sprayer, Oral
DR# 5015.00010 (500611)
|
[*]
|
|
Bottle, 26ml. Boston Round W /Locking Neck DR#
0782C3-01 (500014)
|
[*]
|
|
Label, Extreme Bottle (500090)
|
[*]
|
|
Carton, Extreme ( 500091)
|
[*]
|
|
Insert, Extreme ( 500092)
|
[*]
|
|
Band, Tamper Evident 50mm (500175)
|
[*]
|
|
Shipper, Blank 11.5X8.68X4.875 (500377)
|
[*]
|
|
Label, Shipper 204020 (500384)
|
[*]
|
|
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
|
A-2
Product Name
|
Zicam Extreme Congestion I Zicam
Canada Extreme Congestion
|
|
Zicam Product Number
|
204120 I 209210
|
|
BioZone Product Number
|
GT01
|
|
Ingredient/Component
|
Primary Supplier
|
Secondary Supplier
|
GDS-12
|
[*]
|
|
Precept 8120
|
[*]
|
|
Hydroxyethyl Cellulose HX Pharm
|
[*]
|
|
Aloe Xxxx Powder
|
[*]
|
|
Disodium EDTA/Kelate 100
|
[*]
|
|
Sodium Phosphate Dibasic
|
[*]
|
|
Sodium Phosphate Monobasic
|
[*]
|
|
Benzalkonium Chloride 50% NF
|
[*]
|
|
Oxymetazoline HCL USP
|
[*]
|
|
Benzyl Alcohol, NF
|
[*]
|
|
Glycerin 99.7% USP
|
[*]
|
|
Sprayer, Nasal DR# 4753.00007 (500015)
|
[*]
|
|
Bottle, 13ml. Boston Round DR# 0781C3-01 (500014)
|
[*]
|
|
Label, Extreme Bottle (500090)
|
[*]
|
|
Carton, Extreme (500091)
|
[*]
|
|
Insert, Extreme (500092)
|
[*]
|
|
Band, Tamper Evident 50mm (500175)
|
[*]
|
|
Shipper, Blank 11.5X8.68X4.875 (500377)
|
[*]
|
|
Label, Shipper 204120 (500457)
|
[*]
|
Product Name
|
Zicam Sinus Relief I
Zicam Canada Sinus Relief
|
|
Zicam Product Number
|
204020 I 209200
|
|
BioZone Product Number
|
GT02
|
|
Ingredient/Component
|
Primary Supplier
|
Secondary Supplier
|
Polysorbate-80
|
[*]
|
|
GDS-12
|
[*]
|
|
Precept 8120
|
[*]
|
|
DL-Alpha Tocopherol
|
[*]
|
|
Hydroxyethyl Cellulose HX Pharm
|
[*]
|
|
Aloe Xxxx Powder
|
[*]
|
|
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
|
A-3
Disodium EDTAIKelate100
|
[*]
|
|
Sodium Phosphate Dibasic
|
[*]
|
|
Sodium Phosphate Monobasic
|
[*]
|
|
Benzalkonium Chloride 50% NF
|
[*]
|
|
L-Menthol
|
[*]
|
|
Oxymetazoline HCL USP
|
[*]
|
|
Eucalyptol USP
|
[*]
|
|
Benzyl Alcohol, NF
|
[*]
|
|
Glycerin 99.7% USP
|
[*]
|
|
Sprayer, Nasal DR#4753.00007 (500015)
|
[*]
|
|
Bottle, 13ml. Boston Round (500014)
|
[*]
|
|
Label, Sinus Bottle (500078)
|
[*]
|
|
Carton, Sinus (500079)
|
[*]
|
|
Insert, Sinus (500080)
|
[*]
|
|
Band, Tamper Evident 50mm (500175)
|
[*]
|
|
Shipper, Blank 11.5X8.68X4.875 (500377)
|
[*]
|
|
Label, Shipper 201025 (500528)
|
[*]
|
Product Name
|
Zicam Cough Max
|
|
Zicam Product Number
|
206150
|
|
BioZone Product Number
|
GT17
|
|
Ingredient/Component
|
Primary Supplier
|
Secondary Supplier
|
Polysorbate 60
|
[*]
|
|
Precept 8120
|
[*]
|
|
Polyethylene Glycol 3350
|
[*]
|
|
Sucralose NF (Powder)
|
[*]
|
|
Natural Masking Flavor #71092
|
[*]
|
|
Natural Wild Cherry Flavor
|
[*]
|
|
Natural Masking Flavor, #F-115457
|
[*]
|
|
Citric Acid
|
[*]
|
|
Potassium Sorbate
|
[*]
|
|
L-Menthol
|
[*]
|
|
Dextromethorphan Hydrobomide USP (Monohydrate)
|
[*]
|
|
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
|
A-4
Glycerin 99.7% USP
|
[*]
|
|
Sprayer, Oral
DR# 5015.00010 (500611)
|
[*]
|
|
Bottle, 26ml. Boston Round
W/Locking Neck DR#
0782C3-01 (500014)
|
[*]
|
|
Label, Extreme Bottle (500090)
|
[*]
|
|
Carton, Extreme (500091)
|
[*]
|
|
Insert, Extreme (500092)
|
[*]
|
|
Band, Tamper Evident 50mm (500175)
|
[*]
|
|
Shipper, Blank 11.5X8.68X4.875 (500377)
|
[*]
|
|
Label, Shipper 206150 (500538)
|
[*]
|
Zicam will supply the following materials for the Products:
None
Zicam will have the right, in its sole discretion, to assume responsibility for some or all of such materials upon written notice to Supplier.
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
A-5
SCHEDULE B
SPECIFICATIONS
PRODUCT SPECIFICATIONS
• Zicam Cold Oral Mist / Zicam Canada Cold Oral Mist 1.0 oz Specifications
• Zicam Extreme Congestion / Zicam Canada Extreme Congestion 0.5 oz Specifications
• Zicam Sinus Nasal Gel / Zicam Canada Sinus Nasal Gel 0.5 oz Specifications
• Zicam Cough Max Cool Cherry .55oz Specifications
• Bottle specs [*]
• Nasal Pump Sprayers 13ml [*]
• Oral Pump Sprayers 26ml Locking neck [*]
• Lot Code / Expiration dating
• BOM / Packaging Specifications
• Quality Control Specification
• Finished Product Testing Specification
[See attached specifications] [**]
APPROVED SUPPLIER FACILITY
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
[**] 23 pages of attached product specification documents has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
SCHEDULE C
PRICING
The completed Products (i.e. Products manufactured, assembled, packaged, labeled, and packed for shipment) shall be priced as follows:
Product Name
|
Unit
|
||
201025
|
Zicam Oral Mist
|
1 bottle
|
[*]
|
209150
|
Zicam Canada Oral Mist
|
1 bottle
|
[*]
|
204120
|
Zicam Extreme Congestion
|
1 bottle
|
[*]
|
209210
|
Zicam Canada Extreme Congestion
|
1 bottle
|
[*]
|
204020
|
Zicam Sinus Relief
|
1 bottle
|
[*]
|
209200
|
Zicam Canada Sinus Relief
|
1 bottle
|
[*]
|
206150
|
Zicam Cough Max
|
1 bottle
|
[*]
|
Supplier will be responsible for price negotiations with designated suppliers of all Product raw materials. During the last month of each Contract Year during the Initial Term, the parties shall, upon the written request of either party, negotiate in good faith to determine whether an increase or decrease in the Product Fees is appropriate for the following Contract Year. The parties agree that any cost increases or decreases in the raw materials purchased and used by Supplier will increase or decrease the Product Fees on a dollar for dollar basis (with a proportional increase or decrease per Product unit); provided, that (a) the Product Fees shall not be increased unless the total actual cost to the Supplier to manufacture, assemble, package, label, and pack for shipment the Products has increased during the past Contract Year, and (b) the maximum Product Fee increase shall not exceed 2% of the Product Fee in effect immediately prior to such increase. Both parties must agree in writing to any Product Fee adjustment, and any Product Fee adjustments will take effect only for any purchase orders submitted by Zicam after such adjustments are agreed to in writing. The parties agree that there will be no raw material related Product fee adjustment during the first Contract Year.
As used herein, ''Contract Year" means the 12 month period commencing on the Effective Date, and each successive 12 month period thereafter; and "raw materials" means those inactive or active chemical ingredients contained in a Zicam-approved formula used to manufacture the Zicam Products, and does not include any components related to the labeling or packaging for such Products (including, without limitation, cartons, labels, bottles, sprayers, inserts, shipping cases, security bands, etc.).
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
C-1
Component Related Adjustments
Zicam will be responsible for price negotiations with designated suppliers of all Product components. Any cost increases or decreases in such Product components will increase or decrease the Product Fee on a dollar for dollar basis (with a proportional increase or decrease per Product unit). All Product Fee adjustments will take effect for any purchase orders submitted by Zicam after such adjustments are agreed to in writing between Zicam and such Product component suppliers. The parties agree that there will be only one (1) Product component-related Fee adjustment per Contract Year.
As used herein. "components" means those labeling or packaging materials used for the Zicam Products (including, without limitation, cartons, labels. bottles, sprayers, inserts, shipping cases, security bands, etc.), but not including any raw materials (as defined above).
C-2
SCHEDULE D
SUPPLIER CAPACITY
Completed Products (manufactured, assembled, packaged, labeled and packed for shipment)
Supplier warrants the production capacity set forth above for any mix of Products. Such mix will be determined by Zicam in its sole discretion.
|
·
|
8 hours per day, 1 shift per day (5 days per week) production
|
|
·
|
90% efficiency
|
|
·
|
Supplier can expand capacity by adding a second or third shift, or add a second production line with proper notification and planning.
|
SCHEDULE E
PRODUCTION FORECAST/ PURCHASE ORDER
PRODUCTION FORECAST
Zicam agrees to issue the non-rolling, non-binding production forecasts set forth below:
Period
|
Months Covered in Forecast
|
Date Forecast Will Be Issued
|
FY 2009
|
Effective Date – March 31, 2010
|
Effective Date
|
FY 2010
|
April 1, 2010 – March 31, 2011
|
On or before April 1, 2010
|
FY 2011
|
April 1, 2011 – end of Initial Term
|
On or before April 1, 2011
|
On or before the 1st day of each calendar month, Zicam will issue a firm purchase order for Products to be delivered by Supplier (i) ninety (90) days from the date of such purchase order (or such later date as is set forth therein), or (ii)a date that is less than ninety (90) days from the date of such purchase order; provided, that Supplier must agree to such earlier date. With respect to a given purchase order, the total quantity of Products ordered therein and the delivery date is firm.
For example, Products ordered by Zicam pursuant to a purchase order submitted to Supplier on March 1, 2009 would be delivered by Supplier on May 29, 2009 (unless Zicam designated a later date, or Zicam and Supplier mutually agreed to a date prior to May 29th).
SCHEDULE F
CERTIFICATE OF INSURANCE
[See attached certificates]
[*]
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.
SCHEDULE G
Supplier Intellectual Property
PRODUCTS
[*]
[*] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion.