CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN OMITTED AND
FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
COMMISSION
UNITED STATES EXCLUSIVE SUPPLY AGREEMENT
----------------------------------------
This Agreement dated March 17, 1997, is made by and between The ▇▇▇▇▇▇▇
Corporation, a Nevada corporation with offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ (hereafter referred to as "▇▇▇▇▇▇▇"), and ▇▇▇▇, Inc., a
Pennsylvania corporation with offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇ (hereafter referred to as "▇▇▇▇").
▇▇▇▇▇▇ ▇▇▇, III ("▇▇▇") is the owner of a certain use patent for the
use of zinc gluconate to reduce the duration of the common cold (Patent RE
33,465). ▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") is the owner of certain patents for flavoring
for zinc supplements for oral use (Patent 4,684,528 and 4,758,439). ▇▇▇ and
▇▇▇▇▇▇▇ granted to ▇▇▇▇▇▇▇ the exclusive worldwide right to manufacture,
distribute and sell zinc gluconate lozenges pursuant to certain license
agreements with ▇▇▇ dated August 24, 1996 and a certain Exclusive Representation
and Distribution Agreement with ▇▇▇▇▇▇▇ dated May 4, 1992.
▇▇▇▇ has demonstrated that it is capable of producing the Product, as
defined herein, utilizing the product formulation. including the Patents, all as
more particularly set forth in Exhibit A hereto (collectively, the "Formula") .
(Lozenges produced pursuant to the Formula and any revision thereto, are
referred to herein individually as the "Lozenge" and collectively as the
"Product" or "Lozenges".) The Product is currently marketed and sold by ▇▇▇▇▇▇▇
under the trademark COLD-EEZE (the "Trademark") . The Trademark is owned by
▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ also plans to market and sell the Lozenges in bulk, or in
packaging which may not use the Trademark.
▇▇▇▇▇▇▇ desires ▇▇▇▇ to produce its total United States requirements
for the Product and ▇▇▇▇ desires to undertake this requirement of this Agreement
in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, ▇▇▇▇▇▇▇ and ▇▇▇▇, in consideration of the mutual
covenants and conditions hereinafter set forth, and intending to be legally
bound, hereby agree as follows:
1. INCORPORATION OF RECITALS AND EXHIBITS. The above recitals and
each Exhibit identified in this Agreement are made a part of this Agreement by
such reference.
2. SERVICES AND SPECIFICATIONS. ▇▇▇▇ shall manufacture the
Product in accordance with the Formula and in accordance with applicable laws,
rules and regulations, Good Manufacturing Practices are promulgated by the U.S.
Food and Drug Administration ("FDA") from time to time prevailing in the
industry (collectively, the "Specifications").
3. EXCLUSIVE UNITED STATES SUPPLY. To enable ▇▇▇▇ to manufacture
the Products pursuant to the terms and conditions of this Agreement, ▇▇▇▇▇▇▇
grants to ▇▇▇▇ a United States exclusivity to manufacture the Product using the
Formula, which includes the Patents, as defined in the following sentence. The
Patents shall include the patents listed in Exhibit A, including without
limitation all reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, and any other pending and future patents
necessary or useful to manufacture the Product (collectively called the
"Patents"). In the event that ▇▇▇▇ is unable to meet the manufacturing demands
of ▇▇▇▇▇▇▇ and with the written permission of ▇▇▇▇▇▇▇, ▇▇▇▇ shall have the right
to appoint approved third parties to manufacture the Product in accordance with
the Formula; provided said approved third party executes a confidentiality
agreement as set forth in paragraph 10, ▇▇▇▇ shall have the responsibility of
such approved parties, as if ▇▇▇▇ was the manufacturer of the Product.
4. PRODUCTION. Because the Product is a new product, ▇▇▇▇▇▇▇ has
not yet accurately forecast the number of Lozenges that it will require for the
calendar year 1997. In addition, during calendar 1997, ▇▇▇▇ will be in the
process of transitioning other business and expanding its production
capabilities to exclusively produce the Product. For these reasons, ▇▇▇▇ cannot
guarantee that it will be able to supply all of ▇▇▇▇▇▇▇'▇ total requirements in
1997. Therefore, for the calendar year 1997, ▇▇▇▇ shall have met its obligations
under this Agreement if ▇▇▇▇ uses its best efforts to supply all of ▇▇▇▇▇▇▇'▇
requirements.
Beginning in January of 1998, ▇▇▇▇ agrees to supply all of ▇▇▇▇▇▇▇'▇
requirements for Product provided that throughout the term of this Agreement,
▇▇▇▇▇▇▇ shall provide ▇▇▇▇ with estimated annual forecasts and quarterly rolling
forecasts which will allow ▇▇▇▇ to plan for ▇▇▇▇▇▇▇'▇ production and inventory
requirements. ▇▇▇▇▇▇▇'▇ forecasts shall be based on a good faith analysis of the
market for the Product as is ascertained from prior years sales. ▇▇▇▇▇▇▇ agrees
that ▇▇▇▇ shall have met its obligations under this Agreement if ▇▇▇▇ meets
▇▇▇▇▇▇▇'▇ quarterly forecasts. ▇▇▇▇▇▇▇ shall provide its forecast for 1998 to
▇▇▇▇ on or before December 1, 1997.
Pursuant to paragraph 3 of this Agreement, in order to meet ▇▇▇▇▇▇▇'▇
requirements ▇▇▇▇ may contract with approved third parties to manufacture the
Product. Within the United States marketplace, ▇▇▇▇▇▇▇ shall not produce itself,
or acquire from an
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approved third party, any Product during the term of this Agreement.
5. ORDERS FOR PRODUCT: INVENTORY. Product shall be held in
inventory in JOEL's warehouse located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, pending receipt of orders and shipping instructions from ▇▇▇▇▇▇▇.
Upon receipt of orders from ▇▇▇▇▇▇▇, ▇▇▇▇ shall pack and ship Product in
accordance with such order and shipping instructions. All shipping costs shall
be borne by ▇▇▇▇▇▇▇. ▇▇▇▇ shall provide ▇▇▇▇▇▇▇ with such shipping records
attached to a copy of the packing list/invoice identifying the customer, P/O
number, carrier and destination, along with any other relevant information
and/or documentation as ▇▇▇▇▇▇▇ shall reasonably request to determine compliance
with shipping instructions.
Within sixty (60) days of execution of this Agreement, ▇▇▇▇ shall
notify ▇▇▇▇▇▇▇ of the maximum number of units of Packaged Product, as defined in
paragraph 15 which it can store in inventory at its current warehouse. In no
event may ▇▇▇▇▇▇▇ require ▇▇▇▇ to maintain inventory in excess of such number.
Should it become necessary or desirable to maintain inventory levels in excess
of such number, ▇▇▇▇ shall, within such time period as is reasonable under the
circumstances, make arrangements for additional warehouse space, the costs of
which shall be borne by ▇▇▇▇▇▇▇.
6. ▇▇▇▇▇▇▇'▇ RESPONSIBILITIES. ▇▇▇▇▇▇▇ shall be responsible for
all advertising, marketing, sales and delivery of the Product. Throughout the
term of this Agreement ▇▇▇▇▇▇▇, at its sole cost and expense, shall use its best
efforts to diligently and continuously promote, develop and maintain a
substantial, permanent and expanding business for the Product.
7. PAYMENT. ▇▇▇▇▇▇▇ shall pay ▇▇▇▇ according to the payment
schedule set forth on Exhibit B. The parties acknowledge that the number of
Lozenges per package and the type of packaging required by ▇▇▇▇▇▇▇ may vary, as
more fully set forth in Exhibit B. The term "Unit" as used herein shall mean any
one of the Product items listed on Exhibit B. JOEL shall submit daily invoices
to ▇▇▇▇▇▇▇ identifying the number of Units of each Product items produced. In
the event ▇▇▇▇ contracts with approved third parties to produce the Product,
▇▇▇▇ shall include on the daily invoices all Product items produced and shipped
by such parties during the preceding week. Payment for Product produced by
approved third parties shall be made by ▇▇▇▇▇▇▇ to ▇▇▇▇ in accordance with the
payment schedule set forth on Exhibit B. JOEL shall be responsible for paying
such approved third parties out of payments from ▇▇▇▇▇▇▇. All invoices from ▇▇▇▇
shall be due and payable by ▇▇▇▇▇▇▇ in full within thirty (30) business days
from the date of each invoice, subject to a two percent reduction for payments
made within ten (10) days.
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8. PRICE ADJUSTMENT . Within 60 days of execution of this
Agreement, ▇▇▇▇ shall provide ▇▇▇▇▇▇▇ with a detailed list of JOEL's current
cost for ingredients and other supplies, (the "Original Procurement Cost"). In
the event JOEL's actual costs increase with reference to the Original
Procurement Cost, then ▇▇▇▇ shall provide ▇▇▇▇▇▇▇ detailed data concerning its
actual costs of procuring the ingredients and other supplies. The per Unit price
payable to ▇▇▇▇ shall be increased by the total per Unit cost increase of all
ingredients and other supplies. Such price adjustment shall be effective with
respect to all invoices issued to ▇▇▇▇▇▇▇ thirty (30) days after notice of the
procurement cost change is received by ▇▇▇▇▇▇▇. In addition, in the event JOEL's
total production costs increase by more than ten percent (10%) over JOEL's total
production costs as of the date of this Agreement, the parties shall negotiate,
in good faith, and mutually agree upon an increase in the price of the Product.
In the event that the parties cannot agree to such an increase, ▇▇▇▇ shall have
the right to seek arbitration and both parties will be subject to its findings.
In the event of a market driven decrease in ▇▇▇▇▇▇▇'▇ wholesale prices, ▇▇▇▇▇▇▇
shall have the right to negotiate a reduced manufacturing cost from ▇▇▇▇. In the
event that the parties cannot agree to such a decrease, ▇▇▇▇▇▇▇ shall have the
right to seek arbitration and both parties will be subject to its findings.
9. RISK OF LOSS; INSURANCE. Risk of loss to Product passes to
▇▇▇▇▇▇▇ when the manufacturing process is completed. ▇▇▇▇▇▇▇ shall be
responsible for insuring all Product in the care, custody or control of ▇▇▇▇ and
any other suppliers of Product, against loss or damage from perils covered by an
"all risk" property insurance policy in the amount of the market value of such
Product. Additionally, ▇▇▇▇▇▇▇ shall carry and maintain, at all times and at
▇▇▇▇▇▇▇'▇ sole cost and expense, (a) Commercial General Liability coverage,
including Product/Completed Operations, in the amounts of at least One Million
Dollars ($1,000,000.00) any one occurrence and Two Million Dollars
($2,000,000.00) Products/Completed Operation Aggregate. Two Million Dollars
($2,000,000.00) policy General Aggregate; (b) property coverage for
comprehensive perils to protect the interests of ▇▇▇▇▇▇▇ and ▇▇▇▇ as respects
property of ▇▇▇▇▇▇▇ in the care, custody and control of ▇▇▇▇ to a limit of at
least Ten Million Dollars ($10,000,000.00). ▇▇▇▇ and any other suppliers of
Product shall be named as an additional named insured in the policies described
in (a) and (b) above. Such policies shall be carried with insurance companies
acceptable to ▇▇▇▇ and each shall provide that its terms and conditions shall
not be altered, cancelled or changed until ten (10) days after termination or
cancellation of this Agreement. A certificate of such insurance coverage shall
be furnished to ▇▇▇▇.
▇▇▇▇ shall, at all times and at JOEL's sole cost and expense, carry and
maintain (a) Commercial General Liability coverage, including Product/Completed
Operations, in the amounts of at least
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One Million Dollars ($1,000,000.00) any one occurrence and Two Million Dollars
($2,000,000.00) Products/Completed Operation Aggregate. Two Million Dollars
($2,000,000.00) policy General Aggregate; (b) property coverage for
comprehensive perils to protect the interests of ▇▇▇▇▇▇▇ and ▇▇▇▇ as respects
property of ▇▇▇▇▇▇▇ in the care, custody and control of ▇▇▇▇ to a limit of at
least Ten Million Dollars ($10,000,000.00) and (c) such statutory worker's
compensation insurance as is required by local law for JOEL's employees engaged
in providing services hereunder. ▇▇▇▇▇▇▇ shall be named as an "additional
insured" upon JOEL's Commercial General Liability policy described in (a) above
and as "loss Payee" under the ▇▇▇▇ Property policy described in (b) above. Such
policies shall be carried with insurance companies acceptable to ▇▇▇▇▇▇▇ and
each shall provide that its terms and conditions shall not be altered, cancelled
or changed until ten (10) days after termination or cancellation of this
Agreement. A certificate of such insurance coverage shall be furnished to
▇▇▇▇▇▇▇.
10. CONFIDENTIALITY. All business and technical information,
whether in written or oral form and including, but not limited to the Formula,
which ▇▇▇▇▇▇▇ may disclose to ▇▇▇▇, or to any employee, agent or representative
of ▇▇▇▇, shall be received and retained by ▇▇▇▇ and its employees, agents and
representatives as strictly confidential and, except as provided for herein, may
not be disclosed to any third party. ▇▇▇▇ shall only use such information in
connection with the production and packaging of Product, and shall not disclose
the same to any person not having a need to know. ▇▇▇▇ shall inform each of its
officers, employees or agents working with or otherwise having access to such
information of his or her obligation to maintain the confidentiality of
▇▇▇▇▇▇▇'▇ confidential and proprietary information. Nothing in this paragraph
shall prohibit ▇▇▇▇ from disclosing such information to any approved third party
who is manufacturing the Product for ▇▇▇▇, provided the approved third party has
entered into a written confidentiality agreement with ▇▇▇▇▇▇▇.
All business and technical information, whether in written or oral form
and including, but not limited to, packaging, manufacturing processes, quality
control standards, coding systems and all business information such as supplier
lists, costs and the like, which ▇▇▇▇ may disclose to ▇▇▇▇▇▇▇, or to any
employee, agent or representative of ▇▇▇▇▇▇▇, shall be received and retained by
▇▇▇▇▇▇▇ and its employees, agents and representatives as strictly confidential
and, except as provided for herein, may not be disclosed to any third party.
▇▇▇▇▇▇▇ shall not disclose the same to any person not having a need to know.
▇▇▇▇▇▇▇ shall inform each of its officers, employees or agents working with or
otherwise having access to such information of his or her obligation to maintain
the confidentiality of ▇▇▇▇ is confidential and proprietary information.
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Neither party shall have an obligation of confidentiality with respect
to information which:
(a) was publicly available at the time of receipt from
the disclosing party or subsequently becomes publicly available without
breach of an obligation assumed or duty owed by the nondisclosing
party; or
(b) was known and can be shown to have been known by the
nondisclosing party at the time of receipt from the disclosing party
and was not acquired on a confidential basis; or
(c) becomes known to the nondisclosing party on a
non-confidential basis through a third party whose own acquisition and
disclosure were independent of the nondisclosing party, not in breach
of any obligation hereunder and not on a confidential basis; or
(d) is required by law, after prior notice is given to
the disclosing party; or
(e) is approved for disclosure by the disclosing party in
writing.
11. RETURN OF DOCUMENTS, ETC. All originals and copies (in
whatever format) of written business and technical information and extracts
thereof identified or reasonably identifiable as confidential or proprietary to
▇▇▇▇▇▇▇ or ▇▇▇▇ shall be and remain the exclusive property of the disclosing
party at all times, and shall be returned to the disclosing party upon the
termination of this Agreement or upon the disclosing party's request.
12. JOEL'S REPRESENTATIONS. ▇▇▇▇ represents and warrants that as
of the date the Product is produced and packed by ▇▇▇▇, such Product will meet
the Specifications.
13. FORMULA OWNERSHIP. ▇▇▇▇▇▇▇ represents and warrants that it is
the owner of the worldwide manufacturing, distribution and marketing rights to
the Formula and has the authority to grant to ▇▇▇▇ the right to use the same in
the manufacture of the Product for ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ has taken, or shall take
such actions as are necessary to secure and protect the right to sell the
Product in the United States.
14. APPROVED THIRD PARTY MANUFACTURING. In accordance with
paragraph 3 of this Agreement, ▇▇▇▇ shall have the right to contract with
approved third parties to manufacture the Product for ▇▇▇▇▇▇▇, contingent upon
approved third parties fulfilling paragraph 10 of this Agreement.
15. PACKAGING. ▇▇▇▇ shall be responsible for packaging the
Product, and ▇▇▇▇▇▇▇ agrees that ▇▇▇▇ may contract with approved
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third party suppliers for such packaging. The packaging material used with the
Product, as well as every use of any ▇▇▇▇▇▇▇ trademarks, shall be subject to the
prior written approval of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ hereby approves the packaging,
including the use of the Trademarks on such packaging, currently in use (the
"Packaged Product"). ▇▇▇▇ shall not adhere any label or other printed material
on Product which has not received prior written approval by ▇▇▇▇▇▇▇. ▇▇▇▇ agrees
that it shall include such trademark and copyright notices on the Product
packaging as ▇▇▇▇▇▇▇ may designate.
16. INDEMNITY BY ▇▇▇▇▇▇▇. In the event of (i) consumer, customer,
governmental agency or other third party complaints, demands, claims or legal
actions alleging illness, injury, death or damage as a result of the consumption
or use of any Product except for any claim arising from JOEL's failure to
manufacture the Product according to the Specifications, (ii) claims or legal
action alleging patent or copyright infringement, violations of any patent
rights or copyrights or unfair competition or trade secrets or trademarks or
other rights of any approved third party which arise out of or relate to the
Product, Formula or packaging; or (iii) any other claim arising out of or
related to JOEL's production, storage or use of the Product or Formula, except
to the extent attributable to ▇▇▇▇, ▇▇▇▇▇▇▇ shall indemnify, defend and hold
▇▇▇▇ harmless from and against any and all liability, loss or damage (including
lost profits), cost or expense (including court costs and reasonable attorney's
fees), arising out of, resulting from or in any way connected with such
complaint, demand, claim, or legal action. ▇▇▇▇▇▇▇ shall assume full
responsibility for, and pay the expense of, the investigation, defense, legal
fees, settlement costs and payment of all such complaints, demands, claims and
legal actions, provided that ▇▇▇▇ may, at its expense, participate in any legal
action through counsel of its own choice. ▇▇▇▇ shall promptly notify ▇▇▇▇▇▇▇ of
any such complaint, demand, claim or legal action and cooperate in the defense
thereof.
17. INDEMNITY BY ▇▇▇▇. In the event of consumer, customer,
governmental agency, or third party complaints, demands, claims or legal actions
alleging illness, injury, death or damage as a result of the consumption or use
of any Product arising from JOEL's failure to manufacture Product according to
Specifications, ▇▇▇▇ shall indemnify, defend and hold ▇▇▇▇▇▇▇ harmless from and
against any and all liability, loss or damage (including lost profits), cost or
expense (including court costs and reasonable attorney's fees), arising out of,
resulting from or in any way connected with such complaint, demand, or claim.
▇▇▇▇ shall assume full responsibility for, and pay the expense of, the
investigation, defense, legal fees, settlement costs and payment of all such
complaints, demands, claims and legal actions, provided that ▇▇▇▇▇▇▇ may, at its
expense, participate in any legal action through counsel of its own choice.
▇▇▇▇▇▇▇ shall promptly notify
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▇▇▇▇ of any such complaint, demand, claim or legal action and cooperate fully in
the defense thereof.
18. BOOKS AND RECORDS. During the term of this Agreement, each
party shall prepare, maintain and retain complete and accurate books and records
relating to the respective party's obligation under this Agreement, including
the production, storage, packaging, marketing, sale, purchase and distribution
of the Product. All such books and records prepared, maintained or retained
pursuant to this Agreement shall be made available to the other party for
inspection upon reasonable notice and during regular business hours.
19. INSPECTION BY ▇▇▇▇▇▇▇ . At any time while this Agreement
remains in effect, ▇▇▇▇▇▇▇ shall have the right to send one or more of its
authorized employees or representatives to observe and inspect, upon reasonable
notice and during scheduled business and manufacturing hours, the Product
manufacturing and packaging process, JOEL's plant and any other facilities
utilized in providing the services, including the inventory and storage of
Product.
20. TERM. This Agreement shall be effective as of the date set
forth in the first paragraph of this Agreement and shall continue in effect for
a period of three years, with yearly renewal thereafter, unless terminated by
either party upon two (2) years written notice.
21. TERMINATION RIGHT. Either party may also terminate this
Agreement in the following circumstances:
(a) Where the other party has failed to perform or meet
any material term or condition hereof and has failed to correct the
same within thirty (30) days after written notice of such failure by
the non-breaching party, or if the breach is incapable of cure within
thirty (30) days after notice, if the breaching party has not commenced
efforts to correct the same within the thirty (30) day period; or
(b) If the other party files a petition in bankruptcy or
is adjudicated a bankrupt, or if a petition in bankruptcy is filed
against it which is not dismissed within thirty (30) days, or if such
party becomes insolvent, or makes an assignment for the benefit of
creditors, or an arrangement pursuant to any bankruptcy law, or
discontinues its business or if a receiver is appointed who is not
discharged within thirty (30) days.
22. EFFECT OF TERMINATION. Upon termination of this Agreement, the
rights granted hereunder shall terminate and ▇▇▇▇ shall discontinue all use of
the Formula. Also, upon termination, ▇▇▇▇ shall either: 1) deliver all completed
Product to a location
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designated by ▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇'▇ expense, or 2) make the Product available for
pick-up by ▇▇▇▇▇▇▇. In either case, ▇▇▇▇▇▇▇ shall pay ▇▇▇▇ for such completed
Product.
23. FORCE MAJEURE. Either party shall be excused from performance
and liability under this Agreement to the extent that such performance is
prevented by an Act of God, strike or other labor dispute, war condition, civil
disorder, embargo, fire, flood, accident or any other casualty beyond the
reasonable control of such party.
24. NONCOMPETITION. ▇▇▇▇ agrees that, while this Agreement remains
in effect and until termination of the Patents, it will not manufacture,
process, or package any zinc-based lozenges, provided ▇▇▇▇▇▇▇ purchases all of
its United States requirements from ▇▇▇▇ or approved third parties. Beginning on
or before January 1, 1998, while this Agreement remains in effect ▇▇▇▇ shall not
produce any other zinc lozenges for any third party, provided ▇▇▇▇▇▇▇ purchases
all of its United States requirements from ▇▇▇▇ or approved third parties.
25. RIGHT OF FIRST OFFER. ▇▇▇▇▇▇▇ shall have a right of first
offer to purchase JOEL's business as set forth herein. ▇▇▇▇ shall give ▇▇▇▇▇▇▇
written notice of JOEL's election to offer its entire business for sale to third
parties. ▇▇▇▇▇▇▇ shall have thirty (30) business days after the receipt of said
notice (the "Offer Period") to make a written offer (the "Offer") to ▇▇▇▇ which
shall set forth the basic terms and conditions upon which ▇▇▇▇▇▇▇ would be
willing to enter into a binding agreement for the purchase of JOEL's business.
Upon JOEL's acceptance of the Offer, the parties shall negotiate in good faith
for a period of not more than sixty (60) business days after such acceptance
(the "Negotiation Period") in order to enter into a binding agreement for the
sale of the business to ▇▇▇▇▇▇▇ in accordance with the terms and conditions of
the accepted Offer. The right of first offer shall automatically expire and
terminate upon the earlier of: (i) ▇▇▇▇▇▇▇'▇ failure to make an Offer within the
Offer Period; (ii) JOEL's good faith rejection of the offer within the Offer
period; or (iii) the failure or inability of ▇▇▇▇▇▇▇ and ▇▇▇▇ in good faith to
enter into a binding purchase agreement within the Negotiation Period. Upon the
expiration of the Right of First Offer, ▇▇▇▇ shall be permitted to offer the
business for sale to any third party and neither ▇▇▇▇▇▇▇ nor ▇▇▇▇ shall have any
further rights or obligations under the terms of this paragraph, provided that
the manufacture of the Products by a purchasing party shall require ▇▇▇▇▇▇▇'▇
permission and approval for such manufacture and such permission and approval
shall not unreasonably be withheld.
26. RELATIONSHIP. The relationship between ▇▇▇▇▇▇▇ and ▇▇▇▇ is
that of independent contractor. This Agreement shall not be construed as
creating between ▇▇▇▇▇▇▇ and ▇▇▇▇ the relationship of principal and agent, joint
venturers, co-partners or any other
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similar relationship, nor shall ▇▇▇▇ be considered in any sense an affiliate or
subsidiary of ▇▇▇▇▇▇▇. Neither party shall have any authority to create or
assume, in the other's name, any obligation, express or implied, or to act or
purport to act as the other's agent or legally empowered representative for any
purpose whatsoever. Neither party shall be liable to any third party in any way
for any engagement, obligation, commitment, contract, representation,
transaction, act or omission of the other except as expressly provided herein.
27. SEVERABILITY. In the event that any provision of this
Agreement is declared invalid or contrary to any law, rule, regulation or public
policy of the United States or any state, all of the remaining provisions hereof
shall continue in full force and effect.
28. SURVIVAL OF REPRESENTATIONS. The provisions set forth in
paragraphs 7, 10, 11, 16, 17, 24, and 19 of this Agreement, as well as all of
the representations, warranties, indemnities and guarantees of ▇▇▇▇ and ▇▇▇▇▇▇▇
contained in this Agreement, shall survive the termination or cancellation of
this Agreement.
29. GOVERNING LAW. This Agreement shall in all respects be
governed by the laws of the Commonwealth of Pennsylvania. The parties further
specifically agree that any action or proceeding arising out of or in connection
with this Agreement shall be venued in the Federal District Court for the Middle
District of Pennsylvania sitting in Harrisburg, or, if appropriate, the Court of
Common Pleas for Dauphin County, Pennsylvania, and hereby consent to the
jurisdiction of each of said courts or if appropriate, the Court of Common Pleas
for Bucks County, Pennsylvania and hereby consent to the jurisdiction of each of
said courts.
30. NOTICES. Any notice or other communication required or
permitted to be given pursuant to this Agreement shall be deemed to have been
sufficiently given if in writing and delivered by hand or by telefax
transmission (with a mandatory written confirmation, via a recognized overnight
courier, as provided below) or sent by registered or certified mail (postage
prepaid) or by express courier or express mail, fees prepaid, addressed as
indicated below:
(a) If to ▇▇▇▇▇▇▇:
The ▇▇▇▇▇▇▇ Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Fax No. (▇▇▇)▇▇▇-▇▇▇▇
-10-
With a copy to:
▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇ and ▇▇▇▇, P.C.
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. 18901-4350
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Fax No. (▇▇▇)▇▇▇-▇▇▇▇
(b) If to ▇▇▇▇:
▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. Deck
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Fax No. (▇▇▇)▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esquire
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Nurick
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Post Office Box 1166
Harrisburg, PA. 17108 -1166
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Fax No. : (▇▇▇)▇▇▇-▇▇▇▇
Either party may, by notice as aforesaid, designate a different address for
notices or other communications intended for it.
Any notice which is delivered in the manner provided herein (provided
mandatory confirmation copies are sent) shall be deemed to have been duly given
to the party to whom it is directed upon actual receipt by such party.
31. ASSIGNMENT. Neither party shall assign or transfer this
Agreement or their rights or obligations hereunder without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
32. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties relating to the subject matter of this
Agreement and supersedes and cancels any and all previous contracts, irrevocable
corporate purchase orders, agreements or understandings between the parties with
respect thereto. This Agreement may not be altered or amended except by a
written instrument executed by duly authorized representatives of ▇▇▇▇▇▇▇ and
▇▇▇▇. Unless expressly agreed by both parties, this Agreement shall not be
altered or amended by any purchase order issued by
-11-
▇▇▇▇▇▇▇. No waiver hereunder shall be asserted or effective except upon a
written instrument executed by the party against whom the waiver is asserted.
33. HEADINGS. The headings contained herein are inserted for
convenience only and shall not be deemed to have any substantive meaning.
34. NO WAIVER. Any failure to either party to notify the other of
a violation, default or breach of this Agreement or to terminate this Agreement
on account thereof shall not constitute a waiver of such violation, default or
breach, or a consent, acquiescence or waiver of any later violation, default or
breach, whether of the same or a different character.
35. AUTHORIZATION: ACCEPTANCE. Each party hereto warrants and
represents to the other that all necessary corporate actions and approvals have
been taken and given, and that upon execution by its duly authorized
representative, this Agreement shall be a binding obligation of such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
The ▇▇▇▇▇▇▇ Corporation
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇▇▇, Inc.
By: /S/ ▇▇▇▇▇ ▇. DECK
--------------------
Name: ▇▇▇▇▇ ▇. Deck
Title: President
-12-
EXHIBIT A
▇▇▇▇, INC. PHARMALOZ AND SIMON DIVISION
--------------------------------------------------------------------------------
SUBJECT: SPECIFICATION SHEET FOR ▇▇▇▇▇▇▇ COLD EEZE CHERRY FLAVOR
--------------------------------------------------------------------------------
--------------------------
RX:301
--------------------------
Stability
Sensory Tests Action Limits Limits Release Limits
------------- ------------- ---------- --------------
Appearance NMT 3* NMT 3* Oval lozenge with convex side
Color NMT 3* NMT 3* Light ▇▇▇▇▇
Odor NMT 3* NMT 3* Sweet no off odors
Taste NMT 3* NMT 3* Astringent with sweet undertones
Physical Properties
-------------------
Shape
Length 22.60mm + or - .75mm
width 17.00mm + or - .60mm
thickness 11.20mm + or - .93mm
Weight 4.50grams + or - .20grams
Moisture Content NMT 2% 1.5% + or - .5%
Active Ingredient
-----------------
Ionic zinc from Zincum Gluconicum
13.3 mg/lozenge
95.0% to 115.0% 90.0% to 120% of 90.0% to 120% of
of Label Claim Label Claim Label Claim
Inactive Ingredient
-------------------
Liquid Sucrose -2534.71 mg/lozenge None None None
Corn Syrup - 1769.04 mg/lozenge None None None
Glycine [text omitted] ____ ____ ____
Copper sulfate [text omitted] ____ ____ ____
Cherry flavor - 4.31 mg/lozenge None None None
Product Imprinting - "Q" imprinted on two sides of lozenge All lozenges
manufactured at
Pharmaloz Division
must have "Q"
imprinted on one
side
Note: At present Simon Division product
without "Q" imprinting on lozenges.
Imprinting will be added after May 5,
1997.
Assay Testing for Active Ingredient Levels (Method:TI001-P)
------------------------------------------
Page 1 of 2
Wrap and Packaging
------------------
Wrap style: Lozenges individually wrapped in bright red PVC film.
Bright red PVC film contains "COLD-EEZE" in white
lettering.
Package style: PRINTED BAG STYLE:
Bag material is an adhesive lamination of
polypropylene film with an interiaminar coating of
PVDC to enhance the oxygen barrier. All printing is
trapped within layers of lamination. Bags are heat
sealed and coded with packaging code on the front
window panel. Lozenge count 18 per bag.
PRINTED BOX STYLE:
Clear cello bag packed in printed box. Clear bags are
heat sealed and coded with packaging code on front
pannel of bag. Lozenge count per bag packed in box -
18 lozenges
--------------------------------------------------------------------------------
*LEGEND CODES FOR DETAILS ON PAGE 1
NMT - Not More Than
NC - No Change
1- Very slight change; noticeable to trained laboratory personnel
2- Definite Change; noticeable to trained laboratory personnel
3- Change barely noticeable to consumer
4- Definite change; noticeable to consumer
5- Extreme Change
--------------------------------------------------------------------------------
Page 2 of 2
EXHIBIT A
▇▇▇▇, INC. PHARMALOZ AND SIMON DIVISION
--------------------------------------------------------------------------------
SUBJECT: SPECIFICATION SHEET FOR ▇▇▇▇▇▇▇ COLD EEZE CITRUS FLAVOR
--------------------------------------------------------------------------------
--------------------------
RX:302
--------------------------
Stability
Ssnsory Tests Action Limits Limits Release Limits
------------- ------------- ---------- --------------
Appearance NMT 3* NMT 3* Oval lozenge with convex side
Color NMT 3* NMT 3* Light ▇▇▇▇▇
Odor NMT 3* NMT 3* Sweet no off odors
Taste NMT 3* NMT 3* Astringent with sweet undertones
Physical Properties
-------------------
Shape
Length 22.60mm + or - .75mm
width 17.00mm + or - .60mm
thickness 11.20mm + or - .93mm
Weight 4.50grams + or - .20grams
Moisture Content NMT 2% 1.5% + or - .5%
Active Ingredient
-----------------
Ionic zinc from Zincum Gluconicum
13.3 mg/lozenge
95.0% to 115.0% 90.0% to 120% of 90.0% to 120% of
of Label Claim Label Claim Label Claim
Inactive Ingredient
-------------------
Liquid Sucrose -2534.71 mg/lozenge None None None
Corn Syrup - 1769.04 mg/lozenge None None None
Glycine - [text omitted] [ ] [ ] [ ]
Copper Sulfate [text omitted] [ ] [ ] [ ]
Lime Oil - 4.93 mg/lozenge None None None
Lemon Oil - 2.13 mg/lozenge None None None
Product Imprinting - "Q" imprinted on two sides of lozenge All lozenges
manufactured at
Pharmaloz Division
must have "Q"
imprinted on one
side
Note: At present Simon Division product
without "Q" imprinting on lozenges.
Imprinting will be added after May 5,
1997.
Assay Testing for Active Ingredient Levels (Method:TI001-P)
------------------------------------------
Wrap and Packaging
------------------
Wrap style: Lozenges individually wrapped in bright red PVC film.
Bright red PVC film contains "COLD-EEZE" in white
lettering.
Package style: PRINTED BAG STYLE:
Bag material is an adhesive lamination of
polypropylene film with an interiaminar coating of
PVDC to enhance the oxygen barrier. All printing is
trapped within layers of lamination. Bags are heat
sealed and coded with packaging code on the front
window panel. Lozenge count 18 per bag.
PRINTED BOX STYLE:
Clear cello bag packed in printed box. Clear bags are
heat sealed and coded with packaging code on front
pannel of bag. Lozenge count per bag packed in box -
18 lozenges
--------------------------------------------------------------------------------
*LEGEND CODES FOR DETAILS ON PAGE 1
NMT - Not More Than
NC - No Change
1- Very slight change; noticeable to trained laboratory personnel
2- Definite Change; noticeable to trained laboratory personnel
3- Change barely noticeable to consumer
4- Definite change; noticeable to consumer
5- Extreme Change
--------------------------------------------------------------------------------
Page 2 of 2
EXHIBIT A
▇▇▇▇, INC. PHARMALOZ AND SIMON DIVISION
--------------------------------------------------------------------------------
SUBJECT: SPECIFICATION SHEET FOR ▇▇▇▇▇▇▇ COLD EEZE TROPICAL PUNCH FLAVOR
--------------------------------------------------------------------------------
------------------------
RX:303
------------------------
Stability
Ssnsory Tests Action Limits Limits Release Limits
------------- ------------- ---------- --------------
Appearance NMT 3* NMT 3* Oval lozenge with convex side
Color NMT 3* NMT 3* Light ▇▇▇▇▇
Odor NMT 3* NMT 3* Sweet no off odors
Taste NMT 3* NMT 3* Astringent with sweet undertones
Physical Properties
-------------------
Shape
Length 22.60mm + or - .75mm
width 17.00mm + or - .60mm
thickness 11.20mm + or - .93mm
Weight 4.50grams + or - .20grams
Moisture Content NMT 2% 1.5% + or - .5%
Active Ingredient
-----------------
Ionic zinc from Zincum Gluconicum
13.3 mg/lozenge
95.0% to 115.0% 90.0% to 120% of 90.0% to 120% of
of Label Claim Label Claim Label Claim
Inactive Ingredient
-------------------
Liquid Sucrose -2534.71 mg/lozenge None None None
Corn Syrup - 1769.04 mg/lozenge None None None
Glycine - [text omitted] [ ] [ ] [ ]
Copper Sulfate [text omitted] [ ] [ ] [ ]
Tropical Punch Flavor - 3.81 mg/lozenge None None None
Product Imprinting - "Q" imprinted on two sides of lozenge All lozenges
manufactured at
Pharmaloz Division
must have "Q"
imprinted on one
side
Note: At present Simon Division product
without "Q" imprinting on lozenges.
Imprinting will be added after May 5,
1997.
Assay Testing for Active Ingredient Levels (Method:TI001-P)
------------------------------------------
Page 1 of 2
Wrap and Packaging
------------------
Wrap style: Lozenges individually wrapped in bright orange cello.
Package style: PRINTED BAG STYLE:
Bag material is an adhesive lamination of
polypropylene film with an interiaminar coating of
PVDC to enhance the oxygen barrier. All printing is
trapped within layers of lamination. Bags are heat
sealed and coded with packaging code on the front
window panel. Lozenge count 18 per bag.
PRINTED BOX STYLE:
Clear cello bag packed in printed box. Clear bags are
heat sealed and coded with packaging code on front
pannel of bag. Lozenge count per bag packed in box -
18 lozenges
--------------------------------------------------------------------------------
*LEGEND CODES FOR DETAILS ON PAGE 1
NMT - Not More Than
NC - No Change
1- Very slight change; noticeable to trained laboratory personnel
2- Definite Change; noticeable to trained laboratory personnel
3- Change barely noticeable to consumer
4- Definite change; noticeable to consumer
5- Extreme Change
--------------------------------------------------------------------------------
Page 2 of 2
EXHIBIT A
▇▇▇▇, INC. PHARMALOZ AND SIMON DIVISION
--------------------------------------------------------------------------------
SUBJECT: SPECIFICATION SHEET FOR ▇▇▇▇▇▇▇ COLD EEZE PLUS CHERRY FLAVOR
--------------------------------------------------------------------------------
--------------------------
RX:304
--------------------------
Stability
Ssnsory Tests Action Limits Limits Release Limits
------------- ------------- ---------- --------------
Appearance NMT 3* NMT 3* Oval lozenge with convex side
Color NMT 3* NMT 3* Light ▇▇▇▇▇
Odor NMT 3* NMT 3* Sweet no off odors
Taste NMT 3* NMT 3* Astringent with sweet undertones
Physical Properties
-------------------
Shape
Length 24.97mm + or - .75mm
width 18.84mm + or - .60mm
thickness 9.64mm + or - .93mm
Weight 4.50grams + or - .20grams
Moisture Content NMT 2% 1.5% + or - .5%
Active Ingredient
-----------------
Ionic zinc from Zincum Gluconicum
13.3 mg/lozenge
95.0% to 115.0% 90.0% to 120% of 90.0% to 120% of
of Label Claim Label Claim Label Claim
Inactive Ingredient
-------------------
Liquid Sucrose - 2585.52 mg/lozenge None None None
Corn Syrup - 1905.12 mg/lozenge None None None
Glycine [text omitted] [ ] [ ] [ ]
Copper sulfate [text omitted] [ ] [ ] [ ]
Cherry flavor - 4.98 mg/lozenge None None None
Product Imprinting - "Q" imprinted on two sides of lozenge All lozenges
manufactured at
Pharmaloz Division
must have "Q"
imprinted on one
side
Assay Testing for Active Ingredient Levels (Method:TI001-P)
------------------------------------------
Page 1 of 2
Wrap and Packaging
------------------
Wrap style: Lozenges individually wrapped in bright red PVC film.
Bright red PVC film contains "COLD-EEZE" in white
lettering.
Package style: PRINTED BAG STYLE:
Bag material is an adhesive lamination of
polypropylene film with an interiaminar coating of
PVDC to enhance the oxygen barrier. All printing is
trapped within layers of lamination. Bags are heat
sealed and coded with packaging code on the front
window panel. Lozenge count 30 per bag.
PRINTED BOX STYLE:
Clear cello bag packed in printed box. Clear bags are
heat sealed and coded with packaging code on front
pannel of bag. Lozenge count per bag packed in box -
18 lozenges
--------------------------------------------------------------------------------
*LEGEND CODES FOR DETAILS ON PAGE 1
NMT - Not More Than
NC - No Change
1- Very slight change; noticeable to trained laboratory personnel
2- Definite Change; noticeable to trained laboratory personnel
3- Change barely noticeable to consumer
4- Definite change; noticeable to consumer
5- Extreme Change
--------------------------------------------------------------------------------
Page 2 of 2
EXHIBIT A
▇▇▇▇, INC. PHARMALOZ AND SIMON DIVISION
--------------------------------------------------------------------------------
SUBJECT: SPECIFICATION SHEET FOR ▇▇▇▇▇▇▇ COLD EEZE PLUS CITRUS FLAVOR
--------------------------------------------------------------------------------
-----------------
RX:305
-----------------
Stability
Ssnsory Tests Action Limits Limits Release Limits
------------- ------------- ---------- --------------
Appearance NMT 3* NMT 3* Oval lozenge with convex side
Color NMT 3* NMT 3* Light ▇▇▇▇▇
Odor NMT 3* NMT 3* Sweet no off odors
Taste NMT 3* NMT 3* Astringent with sweet undertones
Physical Properties
-------------------
Shape
Length 24.970mm + or - .75mm
width 18.84mm + or - .60mm
thickness 9.64mm + or - .93mm
Weight 4.50grams + or - .20grams
Moisture Content NMT 2% 1.5% + or - .5%
Active Ingredient
-----------------
Ionic zinc from Zincum Gluconicum
13.3 mg/lozenge
95.0% to 115.0% 90.0% to 120% of 90.0% to 120% of
of Label Claim Label Claim Label Claim
Inactive Ingredient
-------------------
Liquid Sucrose - 2585.52 mg/lozenge None None None
Corn Syrup - 1905.12 mg/lozenge None None None
Glycine - [text omitted] [ ] [ ] [ ]
Copper sulfate [text omitted] [ ] [ ] [ ]
Lime Oil - 7.52 mg/lozenge None None None
Lemon Oil - 5.44 mg/lozenge None None None
Assay Testing for Active Ingredient Levels (Method:TI001-P)
------------------------------------------
Page 1 of 2
Wrap and Packaging
------------------
Wrap style: Lozenges individually wrapped in clear cello.
Package style: PRINTED BAG STYLE:
Bag material is an adhesive lamination of
polypropylene film with an interiaminar coating of
PVDC to enhance the oxygen barrier. All printing is
trapped within layers of lamination. Bags are heat
sealed and coded with packaging code on the front
window panel. Lozenge count 30 per bag.
PRINTED BOX STYLE:
Clear cello bag packed in printed box. Clear bags are
heat sealed and coded with packaging code on front
pannel of bag. Lozenge count per bag packed in box -
18 lozenges
--------------------------------------------------------------------------------
*LEGEND CODES FOR DETAILS ON PAGE 1
NMT - Not More Than
NC - No Change
1- Very slight change; noticeable to trained laboratory personnel
2- Definite Change; noticeable to trained laboratory personnel
3- Change barely noticeable to consumer
4- Definite change; noticeable to consumer
5- Extreme Change
--------------------------------------------------------------------------------
Page 2 of 2
EXHIBIT B
PRICE SCHEDULE ON ▇▇▇▇▇▇▇ PRODUCTS
COLD-EEZE(TM) CHERRY - 18 LOZENGES PER BOX; 12 BOXES PER CASE; 12
CASES PER MASTER CASE. (13.3 MG IONIC ZINC)
$________.
COLD-EEZE(TM) CITRUS - 18 LOZENGES PER BOX; 12 BOXES PER CASE; 12
CASES PER MASTER CASE. (13.3 MG IONIC ZINC)
$_______.
COLD-EEZE(TM) CHERRY - 18 LOZENGES PER BAG; 24 BAGS PER CASE;
$_______. (13.3 MG IONIC ZINC)
COLD-EEZE(TM) CITRUS - 18 LOZENGES PER BAG; 24 BAGS PER CASE;
$_______. (13.3 MG IONIC ZINC)
COLD-EEZE(TM) TROPICAL FRUIT - 18 LOZENGES PER BAG; 24 BAGS PER CASE;
$_______. (13.3 MG IONIC ZINC)
COLD-EEZER PLUS CHERRY - 30 LOZENGES PER BAG; 56 BAGS PER CASE;
$_______. (14.2 MG IONIC ZINC)
COLD-EEZER PLUS CITRUS - 30 LOZENGES PER BAG; 56 BAGS PER CASE;
$_______. (14.2 MG IONIC ZINC)
COLD-EEZER PLUS CHERRY - 60 LOZENGES PER BAG; 28 BAGS PER CASE;
$______. (14.2 MG IONIC ZINC)
COLD-EEZER PLUS CITRUS - 60 LOZENGES PER BAG; 28 BAGS PER CASE;
$______. (14.2 MG IONIC ZINC)
COLD-EEZE(TM) CHERRY - 3000 LOZENGES PER CARTON
$______. (13.3 MG IONIC ZINC)
COLD-EEZE(TM) CITRUS - 3000 LOZENGES PER CARTON
$______. (13.3 MG IONIC ZINC)
COLD-EEZE(TM) TROPICAL FRUIT - 3000 LOZENGES PER CARTON
$______. (13.3 MG IONIC ZINC)
PRICES EFFECTIVE FEBRUARY 1, 1997