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EXHIBIT 10.152
AGREEMENT made as of this 12th day of March, 1982, between ALLEGHANY
PHARMACAL CORPORATION, a New York corporation, having its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Licensor") and MEM
COMPANY, INC., a New York corporation, having its principal place of business at
Xxxxxxxxx, Xxx Xxxxxx 00000 ("Licensee").
WITNESSETH:
WHEREAS, Licensor is the holder of the exclusive right throughout the
Territory (as hereinafter defined), to manufacture, promote, sell, use and
distribute cosmetic products bearing the trademark "HEAVEN SENT" under a license
agreement (the "License") dated as of September 30, 1980 with the trademark
owner, Xxxxxx Xxxxxxxxxx, Inc. ("Trademark Owner") and, with the consent of the
Trademark Owner, may sub-license its rights therein; and
WHEREAS, Licensee is a manufacturer and distributor of cosmetic
products and wishes to produce and sell cosmetics bearing the trademark "HEAVEN
SENT" in the Territory, and Licensor is willing to grant a sub-license of its
right under the License on the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, it is agreed:
1. Definitions. When used in this agreement, unless
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the context otherwise requires:
(a) The term "Licensed Trademark" means the trade name and trademark
"HEAVEN SENT", together with the registration thereof attached hereto as Annex
A;
(b) The term "Territory" means the United States of America and all its
territories and possessions, excluding the Commonwealth of Puerto Rico;
(c) The term "Products" means the cosmetics and toiletries listed on
Schedule B attached hereto, as it may be amended from time to time, designed or
intended to be poured, sprinkled or spread upon the human body to promote the
beauty and appearance of the user;
(d) The term "Licensed Products" means Products bearing the Licensed
Trademark;
(e) The term "Contract Year" means a twelve month period commencing
with the execution and delivery of this agreement, and each anniversary thereof:
(f) The term "net selling price" shall mean gross sales less the sum of
returns, allowances, excise tax and sales tax.
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2. Grant.
(a) Licensor hereby grants to Licensee the sole and exclusive right and
license to use the Licensed Trademark solely on, and in connection with the
manufacture and sale of, Products in the Territory. Licensee shall not use the
Licensed Trademark as or part of its corporate or business name or the name of
any business entity which is controlled by Licensee, nor shall Licensee use the
name of the Trademark Owner in conjunction with the Licensed Trademark whether
on the Products or in connection with any advertising, promotional materials or
otherwise of the Licensed Products other than in a legend on the Licensed
Products stating "Manufactured and distributed under license from Xxxxxx
Xxxxxxxxxx."
(b) Licensee shall have no right to sub-license any of the rights in
the Licensed Trademark conveyed under this agreement.
(c) Licensee shall not affix or use the Licensed Trademark on any
cosmetic or toiletry other than the Products without Licensor's prior written
consent.
(d) Licensee shall use its best efforts to exploit the rights herein
granted throughout the Territory and to manufacture and sell the maximum number
of Licensed Products consistent with good business practice.
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3. Ownership of Marks. Licensee recognizes the Trademark Owner's
ownership and Licensor's license of the Licensed Trademark and covenants it will
make no claim which is adverse to their right, title or interest therein, unless
the Trademark Owner purports to terminate the License. All use by Licensee of
the Licensed Trademark shall inure to their benefit, and Licensee will make no
use thereof except as permitted by this Agreement.
4. Trademark Notice. Licensee covenants that it will cause to appear on
all Licensed Products, or on the labels, labelling or packaging thereof, and on
all material originating with it and used to promote the sale of Licensed
Products in the Territory, such trademark notices as may be required by law to
protect the Trademark Owner's ownership of and Licensee's interest in the
Licensed Product.
5. Quality Control. Licensee covenants that Licensed Products
manufactured for or by it and sold in the Territory shall be of a high standard
and quality so as to reflect favorably upon the business of both Licensor and
Licensee and the good will associated therewith. To effectuate the foregoing:
(a) Prior to the time that Licensee shall sell or offer for sale, in
the regular course of business, any Licensed Product in the Territory, Licensee
shall submit to Licensor, for its approval, samples thereof as well as samples
of all
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materials used to sell or to promote the sale of Licensed Products including,
but not limited to, labels, labelling, packaging materials, advertising and
other promotional materials, Thereafter, Licensee shall not make any change in
such Licensed Product or in such materials used to sell or promote the sale of
Licensed Products without first submitting such changes to Licensor and
obtaining its approval.
(b) Licensor shall have the right, at all times and upon reasonable
advance notice to Licensee, to inspect the manufacturing operations of Licensee
where Licensed Products are made, and Licensee shall submit to Licensor, without
charge, at reasonable intervals throughout the term of this agreement, a
reasonable number of samples of Licensed Products in order that Licensor may
satisfy itself that such Licensed Products conform to the samples thereof
approved by Licensor.
(c) No approval required of Licensor under this paragraph shall be
unreasonably withheld or delayed, and any sample of a Licensed Product or
materials used to sell or promote the sale of Licensed Products which have not
been disapproved within ten business days after receipt thereof shall be deemed
to have been approved.
(d) Licensee may only change the formula of any of the Licensed
Products or add Licensed Products not listed on
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Annex B with Licensor's prior written approval.
6. Royalties. As full consideration for the license and all rights
granted under this agreement, Licensee shall pay Licensor, and Licensor shall
accept:
(a) The sum of $1,500,000 upon execution and delivery of this agreement
as a non-refundable advance royalty, to be credited against royalty payments of
$150,000 per year for the first ten years of the License, which shall be in
addition to the percentage royalty payments provided for in paragraph 6(b);
provided, however, that the $1,500,000 shall be held in escrow by Xxxx & Xxxxx
pursuant to a separate escrow agreement; and
(b) A percentage royalty in each Contract Year throughout the term of
this agreement on the net aggregate selling prices of Licensed Products of:
(i) 10% in the first, second and third Contract Years of this
Agreement;
(ii) 7 1/2% in the fourth, fifth and sixth Contract Years of this
agreement; and
(iii) 5% in each Contract Year thereafter.
At any time during the term of this agreement, after having paid to
Licensor the aggregate royalties equal to $7,000,000 including the advance
royalty provided for in paragraph 6(a), Licensee may pay to Licensor a lump sum
of $500,000, and
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thereupon, its sales of the Licensed Products for the duration of the term of
this agreement shall be royalty free. Alleghany will report all sums provided
for payment under paragraph 6 as ordinary income.
(c) Commencing with the Contract Year beginning March 1, 1983, Licensee
covenants and warrants to Licensor the percentage royalty payable to Licensor in
each Contract Year on its net aggregate sales of Licensed Products in the
Territory computed at the applicable rate specified in paragraph 6(b) above,
shall not be less than $500,000. If, for any Contract Year, the actual
percentage royalty paid by Licensee is less than the minimum amount stated
above, Licensor shall have the right and option, but not the obligation, to
terminate this agreement upon fourteen days' written notice to Licensee,
provided, however, that prior to giving such notice, Licensor will meet and
discuss with Licensee, in good faith, arrangements under which the License may
be continued. If, prior to the end of the fourteen day notice period, Licensee
pays to Licensor the difference between $500,000 and the percentage royalty paid
or payable on the actual aggregate net sales of Licensed Products with respect
to that Contract Year, Licensor's election to terminate this agreement as
provided herein shall be voided and without force or effect. Termination of this
agreement shall be Licensor's sole remedy for the failure by Licensee to pay the
minimum royalty.
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7. Payment and Reporting of Royalties.
(a) (i) The percentage royalty payable under paragraph 6(b) above,
shall be paid quarterly to Licensor within thirty days following the last day of
March, June, September and December computed on the basis of the aggregate net
selling prices of the Licensed Products sold during such calendar quarter at the
rates specified in paragraph 6(b) above.
(ii) At Licensor's option, it may direct Licensee to make payment of
part or all of the royalties payable hereunder directly to the Trademark Owner.
Upon notice from the Trademark Owner that Licensor is delinquent in making
payments required under the License, Licensee shall pay the royalties due
hereunder to Licensor, directly to the Trademark Owner. The Trademark Owner
shall account to Licensor within ten days of the receipt of such payment for any
moneys due Licensor under this agreement. The receipt of the Trademark Owner
shall be conclusive evidence of such payments and the satisfaction of Licensee's
obligations under paragraph 6(b) above.
(b) Licensee shall make written reports to Licensor with a copy to the
Trademark Owner at the time each percentage royalty payment is due, showing in
detail the number, description and aggregate net selling prices of Licensed
Products sold during the preceding three calendar months. Such written report
shall be furnished to Licensor and the Trademark Owner whether or not any
Licensed Products have been sold during the period
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with respect to which such report is due.
(c) Licensee also agrees to make a written report to Licensor with a
copy of it to the Trademark Owner within thirty days after the date of any
termination of this agreement, stating the number, description and aggregate net
selling prices of all Licensed Products sold and upon which a percentage royalty
not previously reported to Licensor is payable.
8. Records. Licensee will maintain records showing the Licensed
Products sold by it under this agreement, such records to be in sufficient
detail to enable the royalties payable to Licensor to be determined. Licensee
will also permit its books and records to be examined, from time to time and
upon reasonable advance notice, to the extent necessary to verify the reports
provided for in paragraph 7, such examination to be made at the expense of
Licensor by a representative of Licensor, provided Licensee shall not be
obligated to retain records or permit inspection of its books with respect to
sales of Licensed Products for a period of more than two years after the date of
such sale.
9. Licensor's Representations, Warranties and Indemnity. Licensor
represents and warrants:
(a) The execution and delivery of this agreement and the performance by
Licensor of the transactions contemplated hereby, have been duly authorized by
all appropriate corporate action;
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(b) The grant of the rights and license hereby granted does not and
will not constitute a breach or violation of any other agreement or
understanding, written or oral, to which it is a party;
(c) Licensor is the sole licensee of the Licensed Trademark in the
Territory and the use by Licensee of the Licensed Trademark as contemplated in
this agreement will not infringe upon or violate the rights of any other person,
firm or corporation.
(d) There are no proceedings, claims or actions pending, or to the
knowledge of Licensor, threatened, relating to the Licensed Trademark.
Licensor shall indemnify Licensee and hold it harmless from and against
all claims, actions, suits and proceedings and all loss, liability, damages,
costs and expenses incurred in connection therewith (including reasonable
attorneys' fees) for which Licensee may become liable or incur or be compelled
to pay and arising out of a breach of any of the foregoing representations and
warranties. If Licensee is threatened with any claim, action, suit or proceeding
based upon an allegation that Licensor has breached the representation and
warranty set forth in subparagraph (c) above, Licensee shall, in lieu of paying
any royalties or other sum due or to become due to Licensor under this
agreement, deposit such royalty or
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sum in a segregated bank account until such time as such claim, action, suit or
proceeding has been settled or finally determined, whereupon Licensee shall
deliver to Licensor under this agreement, all funds held in such bank account,
less any amounts required to reimburse Licensee in accordance with the indemnity
provided in this paragraph 9. If the funds held in such bank account are not
sufficient to fully reimburse Licensee as herein provided, Licensor shall pay to
Licensee such additional sums as may be required to fully indemnify Licensee in
accordance with the terms and provisions of this paragraph 9.
10. Licensee's Representations, Warranties and Indemnity. Licensee
represents and warrants:
(a) The execution and delivery of this agreement and the performance by
Licensee of the transactions contemplated hereby have been duly authorized by
all appropriate corporate action;
(b) The performance by Licensee of any of the terms and conditions of
this agreement on its part to be performed will not constitute a breach or
violation of any other agreement or understanding, written or oral, to which it
is a party;
(c) The Licensed Products, and the manufacture and sale thereof by
Licensee, shall comply, in all material respects,
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with all applicable laws and governmental regulations.
Licensee shall indemnify Licensor and hold it harmless from and against
all claims, actions, suits and proceedings and all loss, liability, damages,
costs and expenses incurred in connection therewith (including reasonable
attorneys' fees) for which Licensor may become liable or incur or be compelled
to pay and arising out of a breach of any of the foregoing representations and
warranties.
11. Licensee's Product Liability Insurance. Licensee covenants and
agrees that it shall, throughout the term of this agreement, obtain and keep in
full force and effect, product liability insurance with respect to the Licensed
Products manufactured or sold in the Territory with policy limits of not less
than $500,000 for each occurrence in the aggregate for bodily injury and
property damage in a combined single limit. Each such policy of insurance shall
name Licensor, the Trademark Owner and Licensee as insureds, and, to the extent
obtainable, will constitute an agreement by the insurer that it will not cancel
such policy except after ten days' prior written notice to Licensor. Licensee
shall deliver to Licensor on request, a certificate of the insurer or other
reasonable evidence showing that the insurance required hereunder has been
obtained and is in full force and effect. Alleghany will maintain its product
liability insurance for inventory of Licensed Products manufactured and produced
by Alleghany.
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12. Maintenance and Protection of Licensor's Trademarks. Licensor
covenants and agrees, through the terms of this agreement, not to commit any act
or otherwise impair its license of the Licensed Trademarks so they may be used
in connection with the manufacture and sale of Licensed Products as contemplated
by this agreement. Licensor further covenants and agrees it will use its best
efforts to protect the Licensed Trademarks from infringement by any other
person, firm or corporation in the Territory and in connection therewith, will
cause the Trademark Owner to prosecute promptly and diligently all actions and
proceedings which may be necessary or appropriate. Licensee shall have the
right, but not the obligation, at its own cost and expense, to participate in
all such actions and proceedings by counsel of its choice. All sums recovered as
a result of any such action or proceeding shall, after the deduction of the
reasonable expenses actually incurred by Licensor or the Trademark Owner in
connection therewith, be divided equally between Licensor or the Trademark Owner
as the case may be, and Licensee. No settlement of any such action or proceeding
shall be made by Licensor or the Trademark Owner without obtaining Licensee's
prior approval, and if Licensee should object to such settlement, such
settlement shall not be made by Licensor or the Trademark Owner, as the case may
be, if Licensee assumes the prosecution of such action or proceeding and all
expenses thereof. Any sums
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thereafter recovered shall be divided equally between Licensor or the Trademark
Owner and Licensee after deduction of the reasonable expenses actually incurred
by Licensee in connection therewith. If Licensor fails to perform any of the
covenants or agreements set forth in this agreement, Licensee may, but shall not
be obligated to perform such covenants and agreements and deduct all costs and
expenses incurred by it in connection therewith from the payment of any royalty
or other sums which may become due and owing to Licensor under this agreement,
and Licensor hereby appoints Licensee as its attorney-in-fact to execute and
deliver any and all documents and take any and all action which it may deem
necessary or appropriate to perform the aforesaid covenants and agreements upon
Licensor's behalf.
13. Term of License. This agreement and the License hereby granted
shall become effective immediately upon the execution and delivery hereof and
unless terminated as hereinafter provided, shall be perpetual. Notwithstanding
any other provisions of this agreement to the contrary, this agreement may be
terminated:
(a) By either party if the other fails punctually and faithfully to
observe and perform any of the terms, covenants and conditions on its part to be
performed under this agreement and such failure continues for a period of
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sixty days after notice thereof to such other party; or
(b) By either party forthwith if the other party becomes insolvent,
makes an assignment for the benefit of creditors or commits any act amounting to
a business failure or proceedings in bankruptcy or reorganization or for an
appointment of a receiver or trustee for or over such party's property are
instituted by or against such party in any court having jurisdiction thereof,
and such proceedings be not vacated, set aside or stayed within ninety days
thereof, or if such party attempts to extend or enter into a general compromise
of its liabilities; or
(c) By Licensee, on thirty days' written notice to Licensor, given
within ten days after the end of any Contract Year.
The rights of termination as herein provided shall be in addition to
all other rights and remedies which either party may have to enforce this
agreement or to secure damages for the breach thereof, and the exercise of any
right of termination as herein provided by either party shall not relieve the
other of any of its obligations under this agreement accruing prior to the
effective date of termination, including but not limited to, the obligation to
pay royalties or to render reports with respect thereto.
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14. Rights upon Termination.
(a) Upon termination of this agreement, Licensor shall purchase from
Licensee its inventory of finished goods, raw materials and components of each
of the Licensed Products, provided, however, that Licensor shall not be
obligated to purchase such inventory if the termination is made by Licensee
pursuant to paragraph 13(a), 13(b) or 13(c) above. If Licensor elects to
purchase such inventory, it shall so notify Licensee within seven days after
termination of this agreement.
(b) If Licensor elects or is obligated to purchase inventory pursuant
to paragraph 14(a), the following shall be the terms of such purchase: Within
fourteen days after the termination of this agreement, Licensee shall deliver to
Licensor the entire inventory of finished goods, raw materials and components
used in fabricating the Licensed Products in its possession or subject to its
control. Delivery shall be f.o.b. Licensor's warehouse or the plant of any
outside supplier or contractor holding components or raw materials on Licensee's
behalf. After delivery to Licensor's warehouse, the inventory shall be insured
by Licensor at the same value as before its delivery, with Licensee as the named
insured. Within five days after the delivery of the inventory, representatives
of Licensor and Licensee shall take a physical inventory to determine which of
the finished goods, raw materials and components used in
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fabricating the Licensed Products are useable. No later than ten days after the
physical inventory is completed, Licensee shall provide Licensor a schedule
showing the cost of each item (the "Schedule").
(i) As used herein, the term "cost" shall mean Licensee's cost of
materials, direct and indirect labor and manufacturing overhead.
(ii) As used herein, the term "useable" shall mean:
A. With respect to raw materials and components, a condition allowing
their use in the fabrication of finished product without material refurbishing;
B. With respect to finished goods, a condition permitting shipment
without requiring refurbishing at an expense in excess of 15% of the cost
appearing on the Schedule, but subject to the limitation that any finished
goods, raw materials and components which are not capable of being sold or
exhausted within twelve months after the termination of this agreement shall not
be deemed to be useable. Any inventory that is not deemed useable and not
acquired pursuant to this agreement, shall be returned to Licensee f.o.b.
Licensor's premises.
(c)(i) Within five days after receiving the
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Schedule, Licensee and Licensor shall agree on the valuation of the items
appearing on the Schedule. If the parties fail to reach an agreed valuation,
Licensee shall be free to dispose of the inventory as provided in paragraphs
14(c)(iii) and (iv) below.
(ii) Licensee shall sell to Licensor and Licensor shall purchase from
Licensee, each of the items appearing on the Schedule. Title shall pass with
respect to finished goods when such products are shipped by Licensor to its
accounts and with respect to raw materials and components when used by Licensor
in the fabrication of finished products.
(iii) Within ten days after the end of each month commencing with the
delivery of the inventory, Licensor shall prepare and submit to Licensee a
schedule showing the inventory drawn down by Licensor that month, together with
a check in payment of each item. The purchase price of any finished goods
remaining unshipped and any raw materials or components not fabricated into
finished goods within twelve months after delivery of the inventory shall be
paid by Licensor ten days after the end of said twelve month period.
(iv) If Licensor is not required or chooses not to repurchase
Licensee's inventory of Licensed Products, as the case may be, Licensee shall
have the right to sell or otherwise
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dispose of any Licensed Product and any raw materials and components relating
thereto which it may have on hand or in production on the date of such
termination, provided all such sales or dispositions shall be completed within
one year of the date of termination. All such sales and dispositions shall be
subject to the applicable royalty and reporting provisions as herein provided.
Except as required in connection with such sales and dispositions, Licensee will
discontinue and cease using the Licensed Trademark and cancel as promptly as
possible after termination, all promotional activities relating thereto.
15. Status of Parties. The status of the parties under this agreement
shall be that of independent contractors and nothing herein contained shall
constitute a partnership or joint venture between them. Neither party shall have
the right to enter into any agreements on behalf of the other nor shall it
represent to any person, firm or corporation that it has such right or
authority.
16. Benefit and Assignment.
(a) This agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. No person,
firm or corporation other than the parties and their successors and permitted
assigns shall derive any rights or benefits under this agreement.
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(b) Licensee may not assign this agreement without Licensor's prior
written consent. Licensor's consent shall not be withheld in the event this
agreement is assigned as part of a sale of all or substantially all of
Licensee's assets.
(c) If Licensor assigns this agreement to the Trademark Owner, the
Trademark Owner may, thereafter and from time to time, assign this agreement,
its rights hereunder and the royalties or any other sums at any time due or to
become due, or at any time owing or payable, by Licensee to the Trademark Owner
under paragraph 6(b) of the provisions hereof. Any such assignment may either be
absolute or as collateral security for indebtedness of the Trademark Owner. No
such assignee for collateral purposes shall be obligated to perform any duty,
covenant or condition required to be performed by the Trademark Owner under this
agreement and Licensee, by its execution hereof, hereby acknowledges and agrees
that notwithstanding any such assignment, each and all such covenants,
agreements, representations and warranties of the Trademark Owner, if any, shall
survive any such assignment and shall be and remain the sole liability of the
Trademark Owner and of every person, firm or corporation succeeding to all or
substantially all of the business assets or good will of the Trademark Owner.
Without limiting the foregoing, Licensee further acknowledges and agrees that
from and after receipt by
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it of written notice of assignment from the Trademark Owner and its assignee:
(i) If so directed in writing by the Trademark Owner, all royalties and
other sums which are the subject matter of the assignment shall be paid to the
assignee thereof at the place of payment designated in the notice;
(ii) If such assignment was made for collateral purposes, the rights of
any such assignee in and to the royalties and other sums payable by the Licensee
under any provisions of this agreement shall be absolute and unconditional and
shall not be subject to any abatement whatsoever or any defense, setoff,
counterclaim or recoupment whatsoever by reason of any indebtedness or liability
howsoever or whenever arising of the Trademark Owner to the Licensor or to the
Licensee, and,
(iii) The assignee shall have the sole right to exercise all rights,
privileges or remedies (either in its own name or in the name of the Trademark
Owner) which by the terms of this agreement or by applicable law are permitted
or provided to be exercised by the Trademark Owner. Licensee shall be entitled
to rely on any notice of assignment given by the Trademark Owner and its
assignee without verifying the authority under which it is given.
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17. Notices. Every notice permitted or required under this agreement
shall be in writing, and shall be deemed duly given when mailed by registered or
certified mail to any party at the address set forth below, until such address
is changed by the giving of notice thereof in like manner.
If to Trademark Owner: Coscelebre, Inc.
000 Xxxxxxx Xxx
XX, XX 00000
Att: Xxxxx Xxxxxxx, Esq.
If to Licensor: Alleghany Pharmacal Corporation
000 Xxxxxxxx Xxxx.
Xxxxx Xxxx, X.X. 00000
If to Licensee: MEM Company, Inc.
Xxxxxxxxx, Xxx Xxxxxx 00000
Att: Gay X. Xxxxx, President
18. Applicable Law. Regardless of the place of execution and delivery
of this agreement, this agreement shall be governed by and construed according
to the laws of the State of New York.
19. Waivers. The failure of either party to insist upon the strict
performance of the terms, conditions and provisions of this agreement shall not
be a waiver of future compliance or a waiver of any other provisions hereof. No
waiver by either party of any provision hereof shall be deemed to have been made
unless expressed in writing and signed by a duly authorized officer of such
party.
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20. Entire Agreement. This agreement contains the entire understanding
of the parties with respect to the subject matter hereof. There are no
representations, warranties, covenants or undertakings other than those
expressly set forth herein. No modification of any of the terms of this
agreement shall be valid unless expressed in writing and signed by a duly
authorized officer.
21. Further Documents and Actions. The parties shall execute and
deliver any and all further documents and take any and all further actions which
either of them may deem necessary or appropriate to effectuate the intents and
purposes of this agreement.
22. Paragraph Headings. The headings of the paragraphs herein are for
the convenience of the parties only and are not to be considered part of this
agreement in construing the same.
23. Counterparts. This agreement may be executed in one or more
counterparts, each of which shall be considered an original.
IN WITNESS WHEREOF, the parties have duly executed
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this agreement as of the date first above written.
MEM COMPANY, INC.
By /s/ [signature illegible]
-------------------------------
Vice President
ALLEGHANY PHARMACAL CORPORATION
By /s/ [signature illegible]
-------------------------------
For value received, the undersigned Trademark Owner hereby consents and
agrees to be bound by the foregoing sub-license.
XXXXXX XXXXXXXXXX, INC.
By /s/ [signature illegible]
-------------------------------
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ADDENDUM TO LICENSE AGREEMENT DATED July 14, 1987
The parties acknowledge that despite Licensor's best efforts, as of the
date of this Agreement, the Territory shall not include New Zealand. Licensor
represents it shall continue to use its best efforts to cancel the existing
license of the Licensed Trademark in New Zealand and thereby include it within
the Territory.
COSCELEBRE, Inc.
by: /s/ [signature illegible]
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MEM COMPANY, Inc.
by: /s/ [signature illegible]
-------------------------------
Executive V. P.
ALLEGHANY PHARMACAL CORPORATION
by: /s/ Xxxxx Xxxxxx
-------------------------------
