EXHIBIT 10(u)(2)
AGREEMENT dated as of October 31, 1996 between Playtex Products, Inc.
("Playtex") and XxXxxx-PPC, Inc. ("XxXxxx").
A. TERMINATION
1. The Agreements dated October 17, 1994 between Playtex and XxXxxx for the sale
of plastic applicator tampons and November 15, 1994 for the sale of cardboard
applicator tampons (both Agreements called the "Agreements") are hereby
terminated in all respects effective October 31, 1996, except for Sections 9 and
13. There shall be no continuing obligations concerning exclusivity, minimum
commitments, dedicated capacity or competing products, or any other obligations
under the Agreements, except as aforesaid.
2. XxXxxx will reimburse Playtex no later than December 15, 1996 for all
finished product and packaging materials on hand as of the termination date
(estimated $83,000, see Exhibit 1), except for materials to be maintained by
Playtex as will service the continued sale of product pursuant to Section 3
(estimated $172,000, see Exhibit 2), and for which XxXxxx will be ultimately
responsible. XxXxxx shall have the right to audit such amounts. Playtex will at
XxXxxx'x request and expense ship the non-retained product and material to
XxXxxx'x destination.
B. FUTURE SUPPLY
3. Playtex will, subject to its own needs first, and to the terms of this
Agreement
1
continue to supply XxXxxx'x needs for plastic applicator tampons ("Products")
for sale to XxXxxx on a non-exclusive basis for resale only in the countries of
Brazil, New Zealand and Spain (the "Territory"). The type of tampon applicator
will be the same as currently supplied by Playtex to XxXxxx, and XxXxxx will not
have rights to product changes or improvements unless agreed to by Playtex.
XxXxxx will provide Playtex with 3-month rolling forecasts for Product.
4. XxXxxx will pay Playtex for Product purchased under Section 3 in an amount
equal to Playtex's standard and incremental costs in producing the Product, plus
20%, provided all such incremental costs which are capital costs incurred solely
on account of Buyer shall be reimbursed at 100% of such costs. All other
incremental costs shall be charged to and paid by Buyer at 120% of such cost. A
list of current costs are attached on Exhibit 1. The risk of loss with respect
to Products shall remain with Playtex until delivered to the carrier at Dover,
Delaware. Unless otherwise requested by XxXxxx, Playtex will pack all Products
ordered hereunder in a manner suitable for ocean freight shipment. Payment terms
on all orders shall be net 45 days from delivery to the carrier, payable in U.S.
dollars.
5. XxXxxx will have the right to use the Gentle Glide(R) trademark (the
"Trademark") owned by Playtex in the country of New Zealand. XxXxxx shall have
no right to use said trademark anywhere else. However, XxXxxx shall be entitled
to sell off all existing inventory, including existing packaging, containing the
Gentle Glide name in the ordinary course. XxXxxx acknowledges that Playtex is
the sole owner of the Trademark, and shall have no
2
proprietary interest therein, and shall not register it in the Territory.
Playtex makes no representations as to the validity or enforceability of the
Trademark. Nothing herein shall limit Playtex's right to use the Trademark in
the Territory, including New Zealand, during or after the Term.
6. (a) Playtex warrants that the Products purchased under Section 3 will
conform to Playtex specifications (which include Standard Operating
Procedures and quality acceptance procedures), copies of which have
been provided to XxXxxx, together with the applicable packaging and
labeling specifications heretofore provided to XxXxxx, and will
comply with applicable U.S. FDA laws and regulations, including Good
Manufacturing Practice regulations.
(b) XxXxxx will be responsible for compliance with applicable laws and
regulations and patent rights in each country where product is sold
per Section 3.
(c) Neither party shall be liable for delay for failure to perform by
reason of force majeure.
-------------
(d) EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6(a), PLAYTEX MAKES NO
EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE PRODUCTS.
(e) Playtex shall indemnify XxXxxx for all losses, including reasonable
attorney's fees, arising from claims for personal injury arising out
of or resulting from any
3
breach by Playtex of any representation or warranty herein, provided
that to the extent such claims are for personal injury of the types
and causes described in a letter dated September 22, 1994 from
Playtex's counsel to XxXxxx'x counsel, and at incidence levels at or
below the historical rates shown in said letter, then such claims
shall not be included in the scope of this indemnity. XxXxxx shall
indemnify Playtex for all losses, including reasonable attorney
fees, arising from claims of personal injury resulting from use of
the Products, except insofar as such injury results from the breach
by Playtex of any representation or warranty herein. The foregoing
indemnity provisions will survive the termination of this Agreement.
7. The Term of this Supply Agreement (Sections 3-9) shall be two years, or
earlier if XxXxxx finds an alternate supplier. Either party may terminate for
(a) insolvency of the other party; or (b) breach of a material representation,
warranty or covenant if such breach remains uncured for thirty days after
notice.. Neither party shall be entitled to any consequential damages. Upon
termination for any reason, XxXxxx shall reimburse Playtex the costs of all
packaging and Product inventory on hand and produced for XxXxxx at XxXxxx'x
request under this Agreement. No termination of this Supply Agreement for any
reason shall revive or give either party any rights under the terminated
agreements referenced in Section (A)(1).
8. Each party will keep confidential the non-public, proprietary information
received by it from the other. In addition, XxXxxx will not communicate any such
confidential information of
4
Playtex to any employee or agent principally engaged in the U.S., Canada or
Mexico tampon business of XxXxxx or its affiliates. This provision will survive
the termination of this Agreement.
9. The Agreement shall be governed by the laws of the State of New York. Any
controversy or claim arising out of or relating to this Agreement, or the
parties' decision to enter into this Agreement or the breach thereof, shall be
settled by arbitration before a single arbitrator in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitration shall be held in New York, New
York, and the arbitrator shall apply the substantive law of New York except that
the interpretation and enforcement of this arbitration provision shall be
governed by the Federal Arbitration Act. The arbitrator shall not award any of
the parties punitive damages and the parties shall be deemed to have waived any
right to such damages. This provision shall survive any termination of this
Agreement.
PLAYTEX PRODUCTS, INC. MC XXXX-PPC, INC.
By: Personal Products Worldwide Division
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxx
--------------------------- ---------------------------
5
