PECOS PHARMACEUTICAL, INC. - S-4/A - 20040804 - EXHIBIT_10
Exhibit 10.33
Execution Copy
Amended and Restated and
Manufacturing Agreement
Portions of this Exhibit were omitted and filed separately with the Securities
and Exchange Commission pursuant to a request for confidential treatment. Such
portions are marked by a series of asterisks.
AMENDMENT NO. 4
AND
RESTATEMENT OF CONTRACT MANUFACTURING AGREEMENT
WHEREAS, on May 1, 2002 The Procter & Gamble Company, an Ohio corporation
(referred to hereafter as "Supplier" or "P&G") and Prestige Brands
International, Inc., a Virginia corporation (hereinafter together with its
Affiliates, referred to as "Prestige") entered into a Contract Manufacturing
Agreement of even date, (the "Manufacturing Agreement") pursuant to which
Manufacturing Agreement the Supplier agreed to perform certain contract
manufacturing services of Comet products for the benefit of Prestige under
certain conditions; and
WHEREAS, the parties agreed to amend the Manufacturing Agreement pursuant
to the terms and conditions set forth in the Amendment No. 1 of Manufacturing
Agreement (the "First Amendment") effective as of August 25, 2002; and
WHEREAS, the parties agreed to amend the Manufacturing Agreement pursuant
to the terms and conditions set forth in the Amendment No. 2 of Manufacturing
Agreement (the "Second Amendment") effective as of November 12, 2002; and
WHEREAS, the parties agreed to amend the Manufacturing Agreement pursuant
to the terms and conditions set forth in the Amendment No. 3 of Manufacturing
Agreement (the "Third Amendment") effective as of January 7,2003; and
WHEREAS, the parties now agree to further amend the Manufacturing Agreement
pursuant to the terms and conditions set forth in this Amendment No. 4 and
Restatement of Manufacturing Agreement (the "Amendment Agreement") effective as
of May 1, 2003; and
WHEREAS, the parties wish to reaffirm and restate the Manufacturing
Agreement, as well as amend it in order to reflect the amendments agreed upon by
both parties;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
SECTION 1
The parties hereby reaffirm and restate the Manufacturing Agreement, as amended
and restated in Section 2 hereunder,
SECTION 2
The text of the Manufacturing Agreement, as amended and restated, will
henceforth read as follows:
Execution Copy
Amended and Restated and
Manufacturing Agreement
CONTRACT MANUFACTURING AGREEMENT
This is a CONTRACT MANUFACTURING AGREEMENT ("Supply Agreement"), between The
Procter & Gamble Manufacturing Company, an Ohio corporation (collectively with
its affiliates, "Supplier"), and Prestige Brands International, Inc., a Virginia
corporation. ("Buyer"), This Supply Agreement will have an effective date of
May 1, 2002. Supplier and Buyer are sometimes collectively referred to herein as
.parties" and individually as "party."
WHEREAS, Supplier and Buyer have previously entered into an Asset Sale and
Purchase Agreement, dated as of August 27, 2001 ("Sale Agreement"), pursuant to
which Buyer purchased the Acquired Assets (as defined in the Sale Agreement),
and on the same day, Supplier and Buyer simultaneously entered into a
Transitional Services Agreement ("Services Agreement") to expire April 30, 2002
and a Transitional Supply Agreement ("Transitional Supply Agreement") to expire
April 30, 2002.
WHEREAS, upon expiration of the Transitional Supply Agreement and in connection
with the Sale Agreement, Buyer wishes that Supplier, upon Buyer's request and
according to the terms and conditions set forth herein, continue Manufacturing
(as defined hereinafter) Products (as defined hereinafter) or, subject to
Buyer's prior written approval, which will not be unreasonably withheld,
arranging for the Contract Manufacturing (as defined hereinafter) of Products on
Buyer's behalf for the period(s) set forth herein;
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, agreements, and conditions contained herein, the parties hereto agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 GENERAL. Any capitalized term used but not defined herein will have the
meaning set forth in the Sale Agreement.
1.02 "AFFILIATE" means, with respect to a Person, another Person that
directly, or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such Person.
"Control," whether or not capitalized, means, with respect to a Person,
the ownership by another Person of greater than 50% of the income or
voting interests of such Person or such other Person of greater than 50%
of the income or voting interests of such Person or such other
arrangement as constitutes the direct or indirect ability to direct the
management, affairs or actions of such Person.
1.03 "PACKAGING MATERIALS SUPPLIERS" means those companies who Supply
packaging materials to Supplier.
1.04 "BUSINESS" means the manufacturing. packaging, distributing, marketing
and selling of the Products under one or more Trademarks in the United
States or Canada.
1.05 "CLOSING DATE" means October 2, 2001, the date when Buyer purchased the
Business from Supplier.
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1.06 "CONTRACT MANUFACTURING" means the sourcing and warehousing of raw and
packaging materials, compounding, component preparation, production,
manufacturing, incoming and outgoing quality control, fabrication,
filling, inspecting, labeling, packing, packaging, or any part thereof,
as well as associated activities, in accordance with the Specifications
and the terms and conditions of this Supply Agreement, in each case, by
any non-Affiliate third party pursuant to Contract Manufacturing
Agreement(s) with the Supplier or any of Supplier's Affiliates. The
terms "CONTRACT MANUFACTURE", "CONTRACT MANUFACTURER" and "CONTRACT
MANUFACTURED" will have the appropriate derivative meanings.
1.07 "CONTRACT MANUFACTURING AGREEMENT" means any purchase order, contract,
agreement or other obligation, including without limitation, outsourcing
arrangement, between Supplier or any of Supplier's Affiliates and any
non-Affiliate third party pursuant to which any non-Affiliate third
party Contract Manufactures Products.
1.08 "CONTRACT PLANT" means that portion of a Contract Manufacturer's
facilities used in the Contract Manufacture of Products.
1.09 [RESERVED]
1.10 "DELIVERY DATE" means the date on Supplier's Production Forecast that
designates the date when Supplier will have Products available for Buyer
to pick-up.
1.11 "EFFECTIVE DATE" means May 1, 2002.
1.12 "MANUFACTURING" means the sourcing and warehousing of raw and packaging
materials, compounding, component preparation, production,
manufacturing, incoming and outgoing quality control, fabrication,
filling, inspecting, labeling, packing, packaging and/or warehousing of
any Products, or any part thereof, as well as associated activities, in
accordance with the Specifications and the terms and conditions of this
Supply Agreement, in each case, by Supplier or any of Supplier's
Affiliates. The terms "MANUFACTURE" and "MANUFACTURED" will have the
appropriate derivative meanings.
1.13 "MATERIALS" means works in progress and raw and packaging materials
related to the Business.
1.14 "PERSON" means (as the context requires) an individual, a corporation, a
partnership, an association, a trust, a limited liability company, or
other entity or organization, including a Governmental Entity.
1.15 "PRODUCTS" means collectively, except where specifically qualified in
this Supply Agreement, those powder and spray SKU's of the Business
produced as of the Signing Date of this agreement for sale in the United
States and Canada, and set forth on Schedule 1.15, whether Manufactured
or Contract Manufactured as of the effective date of this Supply
Agreement, together with any Alterations and/or Modifications. Beginning
when the first purchase order for Comet Orange (as defined herein) is
submitted. which is
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anticipated to be on or about May 1, 2003, the term Products will also
include Comet Orange. For purposes of clarification. the term Products
does not include special pack products or displays.
1.16 "PRODUCT CATEGORY" means the particular type of Product, as set forth on
Schedule 1.15. For purposes of this Supply Agreement, a Product may be
categorized as one of the following: Powder or Spray.
1.17 "SIGNING DATE" means May 1, 2002.
1.18 "SKUS" means Stock Keeping Units.
1.19 "SPECIFICATIONS" means the procedures, requirements, formula(e) and
standards related to Products employed by or on behalf of Supplier as of
the Signing Date and provided to Buyer under the Sale Agreement, as
amended pursuant to this Supply Agreement.
1.20 "SUPPLIER'S PLANT" means that portion of Supplier's and Supplier's
Affiliates' facilities located in St. Louis, Missouri that is used in
the Manufacture of Products and/or such other facilities of Supplier or
Supplier's Affiliates as may be used in the Manufacture of Products.
1.21 "SUPPLY PERIOD" means that period commencing on May 1, 2002 and running
until this Agreement expires pursuant to Section 14.1 of this Supply
Agreement or is terminated pursuant to Article XV of this Supply
Agreement.
1.22 OTHER DEFINITIONS. Other terms defined in this Agreement, and the
2.01 SUPPLIER'S OBLIGATIONS. Subject to the limitations and conditions of
this Supply Agreement, during the applicable Supply Period, Supplier
will Manufacture, or arrange for the Contract Manufacture of, and sell
to Buyer Buyer's requirements (up to the maximums set forth in Schedule
2.02) of Products. Except as set forth in Section 7.01 herein, Supplier
will be responsible for ensuring that all Product sold to Buyer
hereunder complies with Specifications.
2.02 BUYER'S OBLIGATIONS. Subject to the limitations and conditions of this
Supply Agreement, during the applicable Supply Period, Buyer will
purchase from Supplier Buyer's requirements subject to the maximum and
minimum requirements set forth in Schedule 2.02 of Products within the
applicable Product Category, at the prices set forth on Schedule 9.01 or
at such other prices as may be determined in accordance with this Supply
Agreement. Buyer will also be responsible for paying certain other
expenses, as expressly set forth elsewhere in this Supply Agreement.
2.03 FORECAST REQUIREMENT. Subject in all respects to Article III of this
Supply Agreement, all Manufacturing or Contract Manufacturing under this
Supply Agreement will be covered by the Production Forecast set forth in
Section 3.02 below. The terms of this Supply Agreement will govern the
performance of all firm purchase orders and, in the event of any
inconsistency between this Supply Agreement and any firm purchase order,
this Supply Agreement will prevail.
ARTICLE III
FORECASTS/ORDERS/LOCATIONS
3.01 BUYER'S FIRM WRITTEN FORECAST. Pursuant to the terms of this Supply
Agreement, Buyer will be submitting to Supplier an eighteen (18) month
rolling firm, written forecast (the "Forecast") of its requirements and
forecasted shipments of Products, by month, for the term of the Supply
Agreement. The Forecast will be updated biweekly, and Buyer will
continue this process of providing and updating the Forecast under this
Supply Agreement for the Supply Period. Such monthly updates will be
provided to Supplier on the 1st and 15th of each calendar month.
3.02 PRODUCTION FORECAST AND SUBSEQUENT FIRM PURCHASE COMMITMENTS. Buyer will
also provide to Supplier inventory buffer targets, based on which both
parties will then mutually agree on and establish inventory buffer
targets acceptable to both Supplier and Buyer. Pursuant to these
conditions, Supplier will use Buyer's Forecast, the established
inventory buffer targets, and the minimums and maximums set forth in
Schedule 2.02, to determine its production schedule of Products (the
"Production Forecast"), which Supplier will then submit to Buyer. The
first four weeks of the Production Forecast will become binding purchase
commitments on Buyer and will constitute a firm written
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purchase order, unless Buyer notifies Supplier otherwise in writing no
more than two (2) days after receipt of such Production Forecast from
Supplier. Based on the production schedule so established, Supplier will
manufacture and Buyer will arrange to pickup Products to fulfill such
Production Forecast.
3.03 REPORTS BY SUPPLIER. If requested by Buyer, Supplier will use
commercially reasonable efforts to provide Buyer with quarterly reports
on raw material, packing material and finished Products reflecting
Manufacturing, Contract. Manufacturing, shipments, inventories, and
non-binding projections related thereto.
3.04 CHANGE TO PARTIAL OR FULL CONTRACT MANUFACTURING OR RELOCATION OF
MANUFACTURING. Unless otherwise agreed to by the parties, if Supplier
shall relocate any Manufacturing or Contract Manufacturing to a
facility(ies) different from the facility(ies) currently Manufacturing
or Contract Manufacturing or if Supplier shall decide to switch from
Manufacturing Products to partial or full Contract Manufacturing of
Products, Supplier will provide Buyer with six (6) months prior written
notice of such change for Buyer's approval, which shall not be withheld
unless such relocation materially increases Buyer's total delivered
costs of the Products to Buyer's distribution center in the United
States. Further, in the event of such a switch from Manufacturing
Products to partial or full Contract Manufacturing of Products, such
contract manufacturer shall meet Supplier's normal quality requirements,
including product quality standards and financial stability.
Notwithstanding the foregoing, no such relocation or change shall affect
Supplier's agreements or obligations hereunder, including Schedules 2.02
and 9.01 hereto, unless agreed to by both parties.
ARTICLE IV
MATERIALS AND EQUIPMENT; CAPACITY
4.01 SOURCES OF MATERIALS. During the Supply Period, Supplier will source or
arrange for the sourcing of all raw and packaging materials required for
Manufacturing or Contract Manufacturing Products from vendors reasonably
selected by or on behalf of Supplier consistent with Supplier's ordinary
past business practices and in quantities reasonably calculated to meet
Buyer's Orders in a cost-effective manner. Supplier agrees to maintain
adequate inventories of raw materials and componentry reasonably
calculated to meet the reasonable requirements of Buyer in a timely
manner. Supplier agrees to use commercially reasonable efforts to obtain
competitive pricing. Buyer may identify lower cost sources for supply
materials, which Supplier will evaluate through the Cost and Feasibility
Process set forth in Section 6.04, which evaluation shall not be
unreasonably withheld.
4.02 NORMAL REPAIR AND REPLACEMENT OF EQUIPMENT. Supplier will be responsible
for all repairs and replacement of equipment or facilities used in the
Manufacture of Products at Supplier's Plant.
4.03 CAPACITY. Supplier is not required to install additional production
capacity or additional production lines to perform its supply
obligations hereunder.
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4.04 MATERIAL SUPPLY. In the event that Supplier cannot, or does not,
pursuant to Sections 2.01, 15.01 or 15.02 of this Supply Agreement,
continue to produce Buyer's requirements, Supplier will use commercially
reasonable efforts to separately supply Materials for Buyer's use at
other contract manufacturers to produce Buyer's requirements.
Notwithstanding the foregoing, Buyer's use of the Materials at another
manufacturer is subject to Section 12.01 below.
4.05 START UP CAPITAL COSTS FOR COMET ORANGE. As soon as the Specifications
for Comet Orange have been defined by Buyer and mutually agreed to
between Buyer and Supplier after May 1, 2003, Supplier will cover and
pay for, on a one time basis, any initial capital cost for tooling,
manufacturing equipment, and any onetime costs related to initial
stability testing services, initial pilot-batch testing services, and
any other onetime start-up testing services provided by Supplier, and
similar related initial start-up costs and expenses required to produce
an annual volume equivalent to 180,000 physical cases of Comet Orange.
Buyer will be responsible for and pay all other costs, fees and
expenses, including without limitation, all manufacturing expenses and
raw and packaging costs, future capital costs, additional capital or and
equipment requirements, related to Comet Orange, and Supplier will not
be responsible for or pay for any costs, fees or expenses other than
those specifically set forth in the first sentence of this Section 4.05.
For purposes of this Supply Agreement, the term "Comet Orange" will mean
a Comet powder line extension product which consists of a chlorine-free
Comet cleansing powder with an orange scent. The Specifications for
Comet Orange will be mutually agreed to between Buyer and Supplier prior
to any capital expenditure for or manufacturing or producing of Comet
Orange.
ARTICLE V
SHIPPING AND USE OF MATERIALS
5.01 PRODUCT SHIPPING. Buyer will arrange for the shipment of Products in
full truckload quantities (on common carriers selected by Buyer). where
possible, and at Buyer's expense (including without limitation any
duties payable in respect of any shipment) and title and risk of loss of
Products will pass from the Supplier's Plant or Contract Plant (i.e.,
F.O.B. Supplier's dock at Supplier's Plant or F.O.B. dock at Contract
Plant). Buyer will be responsible for all actual reasonable costs and
expenses of month-to-month storage and warehousing of Products, wherever
stored or warehoused. Buyer must arrange to pick up its ordered
requirements from the dock at Supplier's Plant or Contract Plant on the
Delivery Date(s) specified in the Production Forecast.
5.02 ORDER OF USE FOR RAW AND PACKAGING MATERIALS AND INVENTORY BY SUPPLIER.
Supplier will, and will cause any Contract Manufacturer to, use raw and
packaging materials on a first-in, first-out basis ("FIFO") consistent
with past ordinary business practices. Any Products Materials as of the
Effective Date will likewise be used first to satisfy Buyer's
requirements.
5.03 COMMON CARRIER CLAIMS. All claims by or to common carriers in connection
with Products will be the responsibility of Buyer, except to the extent
any such claim by a
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common carrier is the proximate result of the negligence, gross
negligence or intentional misconduct of, or breach of this Supply
Agreement by, Supplier.
5.04 PALLETS. Products will be shipped to Buyer on CHEP pallets. Buyer will
be responsible to establish a lease contract for such pallets directly
with the applicable third party and Buyer will pay all costs, fees and
expenses relating to CHEP pallets, upon transfer of such pallets to
Buyer.
ARTICLE VI
CHANGES TO SPECIFICATIONS
6.01 ALTERATIONS. During the Supply Period, Buyer may alter the
Specifications for artwork and label copy of Products ("Alterations") by
utilizing the Cost and Feasibility Process set forth below in Section
6.04 in order to seek the necessary prior written consent of Supplier,
which consent will not be unreasonably withheld. Once an Alteration has
been approved, Buyer will provide a finished artwork directly to the
Packaging Materials Suppliers designated by Supplier. Once the artwork
has been received by the Packaging Materials Suppliers, the process to
order the materials and have the materials in the plant requires
approximately nine (9) weeks. Buyer will be responsible at the time of
consent for:
(a) providing materials required or prudent for implementation of such
Alterations, including, without limitation, artwork and print
tooling;
(b) having secured from any Governmental Entity any approvals that may
be necessary in connection with any Alteration;
(c) any resulting increases in costs;
(d) all liabilities, costs or expenses, including, without limitation,
those of third parties, arising out of or related to Alterations,
including, without limitation, those related to the failure or
alleged failure of the Alterations to comply with applicable laws
and regulations, provided the alterations are implemented by
Supplier in accordance with the new specifications; and
(e) all scrapping costs associated with any Alterations. However
Supplier will use reasonable efforts to use all Materials on a
"first in, first out basis".
6.02 BUYER'S MODIFICATIONS. All changes to Specifications, including, but not
limited to, new product SKU introductions (collectively
"Modifications"), require the prior written consent of Supplier, such
consent not to be unreasonably withheld. Buyer will utilize the Cost and
Feasibility Process set forth below in Section 6.04 in order to seek the
necessary prior written consent of Supplier. Buyer will be responsible
for any costs and expenses associated with such Modifications,
including, but not limited to any testing required for such
Modifications and any costs and expenses thereof.
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6.03 SUPPLIER MODIFICATIONS. If Supplier initiates a change in packaging and
Buyer agrees to such change in writing and in advance, Supplier will
bear the cost of any change parts and any cost increase or decrease in
the production of the Product(s) will be passed through to Buyer.
6.04 COST AND FEASIBILITY PROCESS. Any Modifications or Alterations requests
from Buyer are subject to Supplier's cost and feasibility determination
as to whether such modification can be accomplished ("Cost and
Feasibility Process.). Supplier will provide Buyer with the cost and
feasibility form set forth on Schedule 6.04 for submitting requests for
such Modifications or Alterations to Supplier's Cost and Feasibility
Process. Supplier will respond to Buyer's cost and feasibility request
within three (3) weeks of receipt of the cost and feasibility form.
ARTICLE VII
QUALITY ASSURANCE
7.01 QUALITY CONTROL TESTS. Supplier will perform or cause to be performed
quality control tests and assays on raw and packaging materials and on
Products in accordance with Specifications. Buyer will perform or cause
to be performed quality control tests associated with any sampling uses
of the Products.
7.02 STABILITY TESTS. Based on the stability testing requirements and
appropriate documentation, test methodologies and specification which
Buyer will provide to Supplier, Supplier will maintain a stability
testing program for the products; provided, however, that Buyer will be
solely responsible for conducting stability tests for the Products in
the event Buyer modifies, alters or changes the product formulas or
formulations for the Products.
7.03 BUYER INSPECTIONS. Supplier will permit Buyer's designated
representatives to inspect and visit the Comet-related portion of
Supplier's Plant from time to time for the purpose of determining
compliance with this Supply Agreement. Such inspections will occur
during regular business hours after at least twenty-four (24) hours
written notice to Supplier. Buyer will not disrupt Supplier's
operations. Buyer's designated representatives will be permitted to
inspect and visit from time to time any Contract Plant for the purpose
of determining Supplier's compliance with this Supply Agreement, if, and
only to the extent, Supplier obtains the applicable Contract
Manufacturer's consent. In the event Supplier will not be able to secure
the consent of such Contract Manufacturer, Supplier shall allow Buyer to
contact such Contract Manufacturer for the sole and only purpose of
requesting such Contract Manufacturer's consent to Buyer's inspection.
7.04 BUYER TESTS. At Buyer's request, Supplier will cause to be sent, at
Buyer's expense, a reasonable number of Product samples to Buyer for
examination and testing, at Buyer's expense, to assure conformity with
Specifications.
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ARTICLE VIII
COMPLIANCE WITH LAWS
8.01 LAWS RELATED TO MANUFACTURING. Supplier will maintain and require all
Contract Manufacturers to maintain all necessary permits, licenses and
certifications necessary for the Manufacturing of the Product. Supplier
will comply and will require all Contract Manufacturers to comply with
laws and regulations relating to environmental matters, wages and hours,
equal employment opportunity, tax withholding on payrolls, working and
sanitary conditions and workers' compensation. in each case, as well as
all other applicable laws, regulations, ordinances and other rules of
the federal, state or local authorities, with respect to maintenance and
operation of Supplier's Plant or Contract Plant (as the case may be),
except where not material.
8.02 RELATED TO PRODUCTS. Notwithstanding Section 8.01, Buyer will be
responsible for complying in all material respects with all other laws
and regulations relating to Products (without regard to whether such
Products have been the subject of any Alteration or Additional
Modification), including, without limitation, laws relating to the
registration, identification, formulation, transportation, labeling,
sale. marketing or distribution of Products. Buyer will be responsible
for conducting product recalls and for other duties and obligations
imposed by law, rule or regulation arising from or related to Product
purchased by Buyer from Supplier during the Term hereof, Buyer will also
be responsible for documentation, investigation and action regarding
drug adverse events, reports and records. and the like, arising from or
related to Buyer's sales of the Products during the Term hereof.
ARTICLE IX
PRICE
9.01 PRICING AND COST ASSUMPTIONS. Schedule 9.01 sets forth, by SKU, the
price Buyer will pay Supplier for Products. Schedule 9.01 also sets
forth major assumptions concerning the costs of Products (collectively
"Manufacturing Costs"). Supplier will adjust any raw materials and
packaging costs (due to normal market fluctuations, leading to price
changes that are typical in the industry) on a quarterly basis and will
adjust any other manufacturing costs on an annual basis, on or before
January 1st of each calendar year. In the event of any decrease of
material costs from Supplier initiating design changes or negotiating
lower pricing (requiring effort above the normal negotiation process),
Supplier and Buyer will share any such decrease on an equal basis after
the Supplier has recovered its expenses directly related to the
obtaining of that lower price. There will be no circumstance under which
the expenses will exceed the savings and result in additional charges to
Buyer.
In accordance with Supplier's adjustment of these costs, Supplier will
notify Buyer in writing of any such increase or decrease in raw
materials and packaging costs on a quarterly basis, and will notify
Buyer in writing of any such increase or decrease in other manufacturing
costs on an annual basis, on or before January 1st of each calendar
year. The notice will include:
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(a) the reason for the increase or decrease;
(b) the date when the increase or decrease will take effect; and
(c) the amount of the increase or decrease.
(d) reference to any documentation in support of any increase. Such
documentation shall be available, after Buyer's request, for
inspection by Buyer at Supplier's offices during regular office
hours.
Supplier will use its reasonable efforts to minimize cost increases
consistent with its ordinary past business practices; provided, however,
that this requirement will not limit Supplier's ability to switch from
Manufacturing Products to partial or full Contract Manufacturing of
Products.
9.02 ***
ARTICLE X
PAYMENT
10.01 INVOICING AND PAYMENT. Supplier will send Buyer an invoice for each
shipment of Products. All invoices will be based upon the bill of lading
describing the Products and quantity of Products shipped to Buyer. Buyer
will be responsible for promptly paying each invoice in a manner for
Supplier to receive such payments in its bank accounts within thirty
(30) calendar days after the receipt of such invoice. and payment will
not be delayed pending delivery of Products by any common carrier or
resolution of any disputes between Buyer and any common carrier
regarding the shipment. Buyer will pay Supplier a late payment charge of
twelve percent (12%) per annum on any payment not received within thirty
(30) calendar days after the receipt of the relevant invoice; provided.
however. that Buyer will not owe any late payment charge with respect to
any disputed payment amount pending resolution of such dispute. Payment
will be made by wire transfer of immediately available funds in United
States dollars and will be sent to the location designated in advance by
Supplier.
ARTICLE XI
SUPPLIER'S REPRESENTATIONS, WARRANTIES AND DISCLAIMER
11.01 TITLE TO PRODUCTS. Supplier represents and warrants it will pass to
Buyer good and. marketable title to Products, free and clear of all
material liens, claims, security interests and encumbrances of any kind.
11.02 COMPLIANCE WITH SPECIFICATIONS. Supplier represents and warrants the
Products will be in compliance with Specifications within normal
variation at the time such Products are delivered to the common carrier
for shipment to Buyer.
11.03 LIMITATION OF WARRANTIES. SUPPLIER MAKES NO WARRANTY, OTHER THAN THE
WARRANTIES SET FORTH HEREIN OR IN THE SALE AGREEMENT. THE
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WARRANTIES SET FORTH HEREIN AND THEREIN ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE XII
INTELLECTUAL PROPERTY
12.01 OWNERSHIP OF INTELLECTUAL PROPERTY. All intellectual property
constituting the Acquired Assets or constituting the Excluded Assets
shall be owned by and will at all times be and remain the exclusive
property of Buyer or Supplier (or Supplier's Affiliates), respectively,
and this Supply Agreement will not constitute a license, except to the
extent required to fulfill each party's obligations hereunder.
12.02 OWNERSHIP OF COMET ORANGE, MARK AND INTELLECTUAL PROPERTY. In addition
to. and not in limitation of. the provisions of Section 12.01 hereof,
the parties hereto acknowledge and agree that, to the extent not covered
by any intellectual property, trade dress. trademark. patent rights,
know how or trade secrets of Supplier, whether or not covered under the
Patent and Technology License Agreement between Buyer and Supplier dated
October 2, 2001 and/or the Sale Agreement, Buyer shall own all right,
title and interest in and to (i) the COMET ORANGE name and mark, (ii)
the Specifications related to Comet Orange, (iii) the formulae. know how
and patents used to create, produce or manufacture Comet Orange, (iv)
all trademarks, trade dress. copyrights, logos. trade names and other
identifying marks used with Comet Orange, including the name and mark
COMET ORANGE, and (v) all other proprietary rights and intellectual
property related to Comet Orange.
ARTICLE XIII
SUPPLIER'S AND CONTRACT MANUFACTURER'S
USE OF BUYER'S PROPERTY
13.01 BOOKS AND RECORDS. During the Supply Period with respect to any Product
Category, Supplier will be permitted, at no cost to Supplier, to retain
and use any Books and Records transferred to the Buyer pursuant to the
Sale Agreement to the extent reasonably necessary for Supplier to
fulfill its obligations under this Supply Agreement with respect to such
Product Category.
ARTICLE XIV
TERM
14.01 TERM. This Supply Agreement will be in effect from the Effective Date
until May 1, 2010 (the "Term"), unless earlier terminated by either
party pursuant to Section 15.01 or Section 15.02.
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ARTICLE XV
TERMINATION
15.01 NOTICE OF DEFAULT. In addition to any other rights or remedies Buyer or
Supplier may have under the Sale Agreement or at law or in equity, a
party not in default under this Supply Agreement (the "Non-Defaulting
Party") may terminate this Supply Agreement or any Supply Period by
giving written notice to the other party (the "Defaulting Party") of the
Non-Defaulting Party's intention to terminate this Supply Agreement or
any Supply Period upon the occurrence of either or both of the following
events:
(a) a material breach by the Defaulting Party of any of its
obligations hereunder, or
(b) the filing by or against the Defaulting Party of a petition in
bankruptcy, or any appointment of a receiver for the Defaulting
Party or any substantial part of its assets, or any assignment for
the benefit of the Defaulting Party's creditors,
Such notice will identify a date for termination of this Supply
Agreement or any Supply Period, which date will not be sooner than five
(5) Business Days after receipt of such notice by the Defaulting Party
("Termination Date"). If the event on which the notice is based is not
cured prior to the Termination Date, then this Supply Agreement or any
Supply Period will terminate on the Termination Date pursuant to such
notice.
15.02 TERMINATION WITHOUT CAUSE. After May 1, 2008, Buyer or Supplier may
terminate early this Supply Agreement or any Supply Period at any time
without cause by giving twelve (12) months prior written notice to the
other party, subject to the terms set forth below. Without limiting the
foregoing and for avoidance of any doubt, the earliest possible
effective date of any termination without cause pursuant to this Section
15.02, would be May 1, 2009.
(a) If either (x) Buyer terminates this Supply Agreement without cause
in accordance with this Section 15.02, or (y) if this Supply
Agreement is terminated pursuant to the terms of Section 16.11,
then Buyer, its respective successor and/or permitted assignee,
will be liable to Supplier for all costs, and expenses related to
the then existing Inventory and Materials.
(b) If Supplier terminates this Supply Agreement for a default by
Buyer under Section 15.01, or without cause in the manner
described in this Section 15.02, Supplier shall in no event be
liable to Buyer for any termination fee or penalty.
15.03 EFFECT ON OTHER AGREEMENTS/SURVIVAL OF CERTAIN PROVISIONS. Termination
of this Supply Agreement or any Supply Period will have no effect on any
other agreements between Buyer and Supplier, unless an effect is
mutually and specifically agreed in writing between the parties, and
such termination will not relieve either party of any liability to the
other based on acts or omissions prior to such termination. The
following Articles and Sections will survive any such termination:
Article XI, Article XII, and Sections 15.03, 15.04, 16.03, 16.05, 16.06,
16.07, 16.08, 16.09 and 16.10.
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15.04 UNSHIPPED PRODUCTS AND MATERIALS.
(a) Upon any termination of this Supply Agreement or any Supply Period
with respect to any Product Category, Supplier will arrange for
the prompt shipment to Buyer at the addressees) designated by
Buyer pursuant to Section 5.01, and Buyer will purchase:
(i) any unshipped Products within such Product Categor(ies) as
of the Termination Date at the price(s) set forth in
Schedule 9.01 as modified pursuant to Section 9.01; and
(ii) any unused but usable works in progress or Materials
exclusively related to Products within such Product
Categor(ies), at actual cost.
Buyer will be responsible for paying for the shipment of, and will bear
the risk of loss for, usable Materials and Products to the designated
location(s).
(b) In the event this Supply Agreement or any Supply Period is
terminated by reason of an uncured default of Buyer (including,
without limitation, non-payment of any costs, fees and" expenses
due to Supplier hereunder), Supplier shall, in addition and
notwithstanding any other rights, actions or remedies available to
Supplier, have the unrestricted rights, which Buyer hereby
irrevocably grants to Supplier, to sell, transfer, or otherwise
dispose of any inventory, unfinished products, raw materials,
finished Products and/or works in progress, as the case may be, as
Supplier may see fit.
ARTICLE XVI
MISCELLANEOUS
16.01 ENTIRE AGREEMENT. This Supply Agreement constitutes the entire agreement
between Supplier and Buyer with respect to, among other things, the
Manufacture and Contract Manufacture of Products. In the event of any
inconsistency between this Supply Agreement and any subsequently-issued
document, including without limitation, an Order, this Supply Agreement
will prevail, unless such subsequently-issued document expressly and
specifically supercedes the terms of this Supply Agreement.
16.02 TAXES. Buyer and Supplier agree to pay all Taxes assessed on all
materials, excluding Products, to which each of them has title. Buyer
will be responsible for paying all taxes assessed on Products.
16.03 SUPPLIER'S EMPLOYEES AND INDEPENDENT CONTRACTOR STATUS. During the term
hereof, and for a period of two (2) years after the termination of this
Supply Agreement, Buyer will not. and will cause its Affiliates not to,
without Supplier's prior written agreement, directly or indirectly
solicit for employment or hire any employees of Supplier or Supplier's
Affiliates who have worked in connection with the performance of this
Supply
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Agreement. Supplier is acting pursuant to this Supply Agreement as an
independent contractor.
16.04 FORCE MAJEURE. Neither party (the "Affected Party") will be liable to
the other (the "Non-Affected Party") for failure to perform any part of
this Supply Agreement if such failure results from an act of God, war,
revolt, revolution, sabotage, actions of a Governmental Entity, laws,
regulations, embargo, fire, strike, other labor trouble, insolvency or
other financial difficulty of any Contract Manufacturer or any cause
beyond the Affected Party's control. Upon the occurrence of any such
event which results in, or will result in, delay or failure to perform
according to the terms of this Supply Agreement, the Affected Party will
promptly give notice to the Non-Affected Party of such occurrence and
the effect and/or anticipated effect of such occurrence. The Affected
Party will use its reasonable efforts to minimize disruptions in its
performance and to resume performance of its obligations under this
Supply Agreement as soon as practicable, provided, however, the
resolution of any strike or labor trouble will be within the sole
discretion of the Affected Party.
16.05 NO RIGHT OF SET-OFF. Notwithstanding any other provisions of this Supply
Agreement or any other agreement between the parties, all payments to be
made by either party under this Supply Agreement will be made free of
any set-off and will be promptly remitted to the party entitled to
receive payment hereunder.
16.06 LIMITATION. Any Action pursuant to this Supply Agreement, including,
without limitation, any Action with respect to any indemnity obligation,
must be commenced within two (2) years after the termination of this
Supply Agreement.
16.07 INDEMNIFICATION BY SUPPLIER.
(a) Subject to the terms and conditions of this Supply Agreement,
Supplier will jointly and severally defend, indemnify and hold
harmless Buyer and its affiliates and each of their respective
officers, directors, employees, shareholders, agents and
representatives, and their successors and assigns (collectively
the "Buyer Indemnities") from and against all claims, losses,
liabilities, damages, costs and expenses (including without
limitation reasonable fees and expenses of attorneys incurred in
investigation or defense of any Action) (collectively "Claims")
arising out of or related to: (I) Excluded Liabilities as set
forth in the Sale Agreement, (Ii) any breach of any covenant or
agreement of Supplier contained in this Supply Agreement; (iii)
any negligence, gross negligence, or willful or intentional
misconduct by Supplier or any of its personnel; and (iv) any
breach of any representation or warranty of Supplier contained in
this Supply Agreement;
(b) Promptly after receipt by Buyer of notice of any third-party
Action in respect of which indemnity may be sought against
Supplier hereunder (for purposes of this Section 16.01, a "Buyer's
Assertion"), Buyer will notify Supplier in writing of the Buyer's
Assertion, but the failure to so notify Supplier will not relieve
Supplier of any liability it may have to Buyer, except to the
extent Supplier has suffered
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actual prejudice thereby. Supplier will be entitled to participate
in and, to the extent Supplier elects by written notice to Buyer
within thirty (30) days after receipt by Supplier of notice of
such Buyer's Assertion, to assume the defense of such Buyer's
Assertion, at Supplier's own expense, with counsel chosen by it
which will be reasonably satisfactory to Buyer. With respect to
any such Buyer's Assertion, Buyer will promptly provide Supplier
with: (i) notice and copies of any documents served upon Buyer;
and (ii) all reasonable cooperation which Supplier deems necessary
to defend such Buyer's Assertion, including, without limitation,
providing Supplier and its outside attorneys access to any
potentially relevant documents, information, or individuals within
the control of Buyer, other than any privileged documents. If
business information of Buyer other than that pertaining to the
Business is contained in such documents or information, Supplier
and Buyer will enter into appropriate secrecy commitments to
protect such documents or information. Notwithstanding that
Supplier may have elected by written notice to assume the defense
of any Buyer's Assertion, Buyer will have the right to participate
in the investigation and defense thereof, with separate counsel
chosen by Buyer, but in such event the fees and expenses of Buyer
(above those which would otherwise have been incurred) and such
separate counsel will be paid by Buyer.
(c) Notwithstanding anything in this Section 16,07 to the contrary:
(i) Supplier will have no obligation with respect to any Buyer's
Assertion if, in connection therewith, Buyer, without the written
consent of Supplier, which consent will not be unreasonably
withheld, settles or compromises any Action or consents to the
entry of any judgment; and (ii) Supplier will not without the
written consent of Buyer with respect to any Buyers Assertion: (A)
settle or compromise any Action or consent to the entry of any
judgment which does not include as an unconditional term thereof
the delivery by the claimant or plaintiff to Buyer of a duly
executed written release of Buyer from all liability in respect of
such Action, which release will be reasonably satisfactory in form
and substance to counsel for Buyer, or (B) settle or compromise
any Action in any manner that, in the reasonable judgment of Buyer
or its counsel, will adversely affect Buyer other than as a result
of money damages or other money payments.
(d) Upon the payment of any settlement or judgment pursuant to this
Section 16.07 with respect to any Buyer's Assertion, Supplier will
be subrogated to all rights and remedies of Buyer against any
third party in respect of such Buyer's Assertion to the extent of
the amount so paid by Supplier.
(e) The indemnity provided for by this Section 16.07 will be Buyer's
exclusive source of recovery against Supplier with respect to
matters covered hereby.
16.08 INDEMNIFICATION BY BUYER.
(a) Subject to the terms and conditions of this Agreement, Buyer will
defend, indemnify and hold harmless Supplier and its affiliates
and each of their
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respective officers, directors, employees, shareholders, agents
and representatives, and their successors and assigns
(collectively the "Supplier Indemnities") from and against all
Claims arising out of or related to: (i) Assumed Liabilities as
defined in the Sale Agreement, (ii) any breach of any covenant or
agreement of Buyer contained in this Supply Agreement; and (iii)
any breach of any representation or warranty of Buyer contained in
this Supply Agreement.
(b) Promptly after receipt by Supplier of notice of any Action in
respect of which indemnity may be sought against Buyer hereunder
(for purposes of this Section 16.08, a "Supplier's Assertion"),
Supplier will notify Buyer in writing of the Supplier's Assertion,
but the failure to so notify Buyer will not relieve Buyer of any
liability it may have to Supplier, except to the extent Buyer has
suffered actual prejudice thereby, Buyer will be entitled to
participate in and, to the extent Buyer elects by written notice
to Supplier within thirty (30) days after receipt by Buyer of
notice of such Supplier's Assertion, to assume the defense of such
Supplier's Assertion, at its own expense, with counsel chosen by
it, which will be reasonably satisfactory to Supplier. With
respect to any such Supplier's Assertion, Supplier will promptly
provide Buyer with: (i) notice and copies of any documents served
upon Supplier; and (ii) all reasonable cooperation which Buyer
deems necessary to defend such Supplier's Assertion, including
without limitation providing Buyer and its outside attorneys
access to any potentially-relevant documents, information, or
individuals within the control of Supplier, other than any
privileged documents. If business information of Supplier other
than that pertaining to the Business is contained in such
documents or information, Supplier and Buyer will enter into
appropriate secrecy commitments to protect such documents or
information. Notwithstanding that Buyer may have elected by
written notice to assume the defense of any Supplier's Assertion,
Supplier will have the right to participate in the investigation
and defense thereof, with separate counsel chosen by Supplier, but
in such event the fees and expenses. of Supplier (above those
which would otherwise have been incurred) and such separate
counsel will be paid by Supplier.
(c) Notwithstanding anything in this Section 16.08 to the contrary:
(i) Buyer will have no obligation with respect to any Supplier's
Assertion if, in connection therewith, Supplier, without the
written consent of Buyer, settles or compromises any Action or
consents to the entry of any judgment; and (ii) Buyer will not,
without the written consent of Supplier, which consent will not be
unreasonably withheld, with respect to any Supplier's Assertion:
(A) settle or compromise any Action or consent to the entry of any
judgment which does not include as an unconditional term thereof
the delivery by the claimant or plaintiff to Supplier of a duly
executed written release of Supplier from all liability in respect
of such Action, which release will be reasonably satisfactory in
form and substance to counsel for Supplier, or (B) settle or
compromise any Action in any manner that. in the reasonable
judgment of Supplier or their counsel, will materially adversely
affect Supplier other than as a result of money damages or other
money payments.
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(d) Upon the payment of any settlement or judgment pursuant to this
Section 16.08 with respect to any Supplier's Assertion, Buyer will
be subrogated to all rights and remedies of Supplier against any
third party in respect of such Supplier's Assertion to the extent
of the amount so paid by Buyer.
(e) The indemnity provided for by this Section 16.08 will be
Supplier's exclusive source of recovery against Buyer with respect
to matters covered hereby.
16.09 DISPUTE RESOLUTION.
(a) Any Action asserted by Supplier against Buyer or by Buyer against
Supplier (a "Claim") arising out of or related to this Supply
Agreement, including without limitation any Claim for
indemnification pursuant to Sections 16.07 and 16.08 above, hereof
or any issue as to whether or not a Claim is arbitrable, will be
resolved pursuant to the procedures described in this Section
16.09.
(b) Should any Claim arise, Supplier and Buyer will first attempt to
resolve such Claim by entering into good faith negotiations by or
among their appropriate employees or officers. Such negotiations
will commence as soon as practicable after either Supplier or
Buyer has received notice from the other party of such Claim, but
no later than ten (10) days after such receipt, and will terminate
thirty (30) calendar days after such commencement. During
negotiations, Supplier and Buyer will not have the right to any
discovery, unless agreed by each of Supplier and Buyer.
(c) Any Claim which has not been resolved pursuant to Section 16.09(b)
of this Agreement will be referred to good faith negotiations by
or among one or more officers of Supplier and Buyer. Such
negotiations will commence as soon as practicable after
termination of the negotiations described in Section 16.09(b), but
not later than ten (10) business days thereafter, and will
terminate thirty (30) calendar days after such commencement.
During the negotiations, Supplier and Buyer will not have the
right to any discovery, unless agreed by Supplier and Buyer.
(d) Any Claim which has not been resolved pursuant to Section 16.09(c)
of this Agreement will be determined by arbitration. The
arbitration will be conducted by one arbitrator, who will be
appointed pursuant to the Commercial Arbitration Rules of the
American Arbitration Association (AAA). The arbitration will be
held in Cincinnati, Ohio and will be conducted in accordance with
the Commercial Arbitration Rules of the AAA, except that the rules
set forth in this Section 16.09(d) will govern such arbitration to
the extent they conflict with the rules of the AAA. Supplier and
Buyer will use their best efforts to cause the arbitration to be
conducted in an expeditious manner. Supplier and Buyer will use
their best efforts to cause the arbitration to be completed within
sixty (50) days after selection of the arbitrator. In the
arbitration, Delaware law will govern, except to the extent that
those laws conflict with the Commercial Arbitration
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Rules of the AAA and the provisions of this Section 16.09(d).
There will be no discovery, except as the arbitrator will permit
following a determination by the arbitrator that the person
seeking such discovery has a substantial, demonstrable need. All
other procedural matters will be within the discretion of the
arbitrator. In the event a Person fails to comply with the
procedures in any arbitration in a manner deemed material by the
arbitrator, the arbitrator will fix a reasonable period of time
for compliance and, if the Person does not comply within said
period, a remedy deemed just by the arbitrator, including an award
of default, may be imposed. The determination of the arbitrator
will be final and binding on the Supplier and Buyer. Judgment upon
the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof.
16.10 DAMAGE LIMITATIONS. Notwithstanding anything to the contrary in the this
Agreement, none of Supplier's Indemnified Parties nor Buyer's
Indemnified Parties will be permitted to recover any consequential,
indirect, special or punitive damages arising out of or related to this
Agreement, regardless of the form of the Claim or Action, including
without limitation Claims or Actions for indemnification, tort, breach
of contract, warranty, representation or covenant. Any provision herein
to the contrary notwithstanding, the maximum liability of Supplier to
any person, firm or corporation whatsoever arising out of or in the
connection with the purpose of this Agreement, the services provided
hereunder by Supplier, or the Products delivered to Buyer hereunder,
whether such liability arises from any claim based on breach or
repudiation of contract, warranty, tort or otherwise, shall in no case
exceed the actual price paid to Supplier by Buyer hereunder for the
Products.
16.11 SUCCESSORS AND ASSIGNS. This Supply Agreement will be binding upon and
will inure to the benefit of the signatories hereto and their respective
successors and permitted assigns. Buyer may not assign this Supply
Agreement, or any of its rights or liabilities hereunder, without the
prior written consent of Supplier. In the event Supplier withholds its
consent to any such assignment, Buyer shall have the option to purchase
up to six (6) months of inventory of Products, subject to the minimum
and maximum requirements set forth in Schedule 2.02. Notwithstanding the
foregoing, Buyer may assign this Supply Agreement, without Supplier's
consent, only in the event of a sale, disposition, merger or
consolidation that involves substantially all of the assets of the
Business or capital stock of Buyer, provided that Buyer may in no event
assign this Agreement, in whole or in part, to anyone or more of the
entities, companies and their respective Affiliates, listed on Schedule
16.11. Notwithstanding the foregoing, if, in the event of a sale,
disposition, merger or consolidation that involves substantially all of
the assets of the Business or capital stock of Buyer, Buyer assigns this
Supply Agreement to The Dial Corporation, this Supply Agreement shall
terminate six (6) months from the date of such assignment, subject to
the terms of Section 15.02(a). Any assignment will however not relieve
the party making the assignment from any liability under this Supply
Agreement. Notwithstanding the foregoing, in no event shall this Supply
Agreement or any rights granted hereunder inure to the benefit of any
trustee in bankruptcy, receiver or other successor of buyer whether by
operation of law or otherwise, without the written consent
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of Supplier and any assignment or transfer without such consent and
approval shall be null and void.
16.12 NOTICES. All notices required or permitted to be given under this Supply
Agreement will be in writing and will be deemed to be properly given
when actually received by the Person entitled to receive the notice at
the address stated below, or at such other address as Supplier or Buyer
may provide by notice to the other:
SUPPLIER:
The Procter & Gamble Manufacturing Company
169 East Grand Avenue
Saint Louis, MO 63147
Attention: John Long
Telephone: 314-622-8473
Fax: 314-622-8278
With a copy to:
The Procter & Gamble Company
Legal Division
One Procter & Gamble Plaza
Cincinnati, Ohio 45202
Attention: Marco R. Kerschen
Telephone: (513) 983-7572
Fax: (513) 983-4274
BUYER:
Prestige Brands International, Inc.
26811 South Bay Drive
Suite 300
Bonita Springs, FL 34134
Attention: Ted Host
Telephone: (941) 948-8545
Fax: (941) 948-8551
With a copy to:
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, VA 23219
Attention: T. Justin Moore III Esq.
Telephone: (804) 788-8200
Fax: (804) 788-8218
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IN WITNESS WHEREOF, the parties have signed this Supply Agreement on the date
set forth below.
SUPPLIER: BUYER:
THE PROCTER & GAMBLE PRESTIGE BRANDS INTERNATIONAL,
MANUFACTURING COMPANY INC.
By: /s/ R.A. MCDONALD By: /s/ CYNTHIA B. SATTERWHITE
------------------------------------------ ------------------------------------
Name printed: R.A. McDonald Name printed: Cynthia B. Satterwhite
-------------------------------- --------------------------
Title: President, Fabrics & Home Care G.B.U. Title: CFO & VP
--------------------------------------- ---------------------------------
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Portions of this Exhibit were omitted and filed separately with the Securities
and Exchange Commission pursuant to a request for confidential treatment. Such
portions are marked by a series of asterisks.
SCHEDULE 1.15
PRODUCTS
PRODUCTS PRODUCT CATEGORY BRAND CODE SIZE
---------------------------------------------------------------------------------------
Comet Powder Cleanser Regular Powder 00003362 25 Oz. (4 cans)
Comet Power Cleanser Regular Powder 84900079 25 Oz. (4 cans)
Pallet Display Units
Comet Powder Cleanser Regular Powder 84901390 11 Oz. AVDP
Comet Powder Cleanser Regular Powder 00003697 14 Oz. AVDP
Comet Powder Cleanser Regular Powder 00003529 21 Oz. AVDP
Comet Bathroom Spray Spray 00006588 17 Oz. Fluid
Comet Bathroom Spray Spray 00031110 32 Oz. Fluid
Comet Lemon Powder cleanser Powder 00003732 17 Oz. AVDP
Comet Powder Canada Powder 00002535 400 gr
Comet Powder Lemon Canada Powder 00002577 400 gr
Comet Powder Canada Powder 00002615 600 gr
Comet Powder Canada Powder 00017629 750 gr (6 pack)
Comet Powder Canada Powder 00017643 750 gr (6 pack)
Pallet Display Units
Comet Powder Cleanser Regular Powder 84914165 25 Oz.
(US - Dollar General SKU)
Comet Orange [**] Powder [**] [**] Oz.
** Once the Comet Orange product
Specifications have been agreed to by Buyer and Supplier, Buyer and Supplier
will mutually agree to a Comet Orange product size, brand code, the minimum and
maximum production requirements, and the price per physical case of Comet
Orange.
SCHEDULE 2.02
MAXIMUM AND MINIMUM REQUIREMENTS
1. MAXIMUM REQUIREMENTS
The following sets forth the maximum number of Statistical Units Supplier can be
produced in any calendar month during this Supply Agreement.
Supplier will be open to consider deviations beyond this on a case-by-case basis
and will use commercially reasonable efforts to accommodate such deviations. If
Buyer's annual requirements are forecasted to increase more than 10% versus
previous year, Buyer and Supplier agree to develop a mutually agreeable plan to
meet the demand.
* Statistical Unit Equals:
Comet spray
10 Liters
Comet powder
19 Kilograms
** Once the Comet Orange product
Specifications have been agreed to by Buyer and Supplier, Buyer and Supplier
will mutually agree to a Comet Orange product size, brand code, the minimum and
maximum production requirements, and the price per physical case of Comet
Orange.
2. MINIMUM REQUIREMENTS
The following sets forth the minimum number of Statistical Units (or Cases) for
any consecutive production run during the term of this Supply Agreement.
* Statistical Unit Equals:
Comet spray
10 Liters
Comet powder
19 Kilograms
** Once the Comet Orange product
Specifications have been agreed to by Buyer and Supplier, Buyer and Supplier
will mutually agree to a Comet Orange product size, brand code, the minimum and
maximum production requirements, and the price per physical case of Comet
Orange.
SCHEDULE 3.02
FORM OF FORECAST
PRESTIGE BRANDS INTERNATIONAL
TO: PROCTER & GAMBLE SHIP TO:
tbd
DATE PICK UP DATE SHIP VIA PURCHASE ORDER NO.
---- ------------ -------- ------------------
PRODUCT BRAND CODE SIZE
--------------------------------------------------------------
Comet Powder Lemon 3732 17 Oz.
Comet Powder Lemon-Fiber 84914780 17 Oz.
Dollar General
Comet Powder Regular 84901390 11 Oz.
Comet Powder Regular 3697 14 Oz.
Comet Powder Regular 3529 21 Oz.
Comet Powder Regular- 84914165 25 Oz.
Dollar General
Comet Powder Regular 3362 25 Oz.
Comet Powder Regular 84916618 21 Oz. Pallet
Display
Units
Comet Powder Regular 84900079 25 Oz. Pallet
Display
Units
Comet Powder Lemon Canada 2577 400 Gr.
Comet Powder Reg. Canada 2535 400 Gr.
Comet Powder Reg. Canada 2615 600 Gr.
Comet Powder Reg. Canada 17629 750 Gr.
Comet Powder Reg. Canada 17643 750 Gr. Pallet
Display Units
Comet Powder Reg. Canada-Bonus 84916981 720 Gr.
Comet Bathroom Spray 6588 17 Oz.
Comet Powder 21 oz Bonus 13529 25.2 Oz.
Comet Bathroom Spray 31110 32 Oz.
Comet Bathroom Spray- 84914486 17 Oz.
Bonus Dollar General
Comet Bathroom Spray 84914485 64 Oz.
Comet Bathroom Spray 84916979 650 ml
Comet Orange Powder [**] [**]
***
* Once the Comet Orange product
Specifications have been agreed to by Buyer and Supplier, Buyer and Supplier
will mutually agree to a Comet Orange product size, brand code, the minimum and
maximum production requirements, and the price per physical case of Comet
Orange.
SCHEDULE 16.11
RESTRICTED COMPETITOR ASSIGNMENTS
SC Johnson & Son, Inc.
Colgate Palmolive Inc.
Clorox
Uniliver
Reckitt Benckiser
Orange Glo International
And any trade customers of Supplier.
Exhibit 10.34
Portions of this Exhibit were omitted and filed separately with the Securities
and Exchange Commission pursuant to a request for confidential treatment. Such
portions are marked by a series of asterisks.
April 15, 2004.
Mr. Peter Mann
Chief Executive Officer
Prestige Brands Inc.
90 North Broadway
Irvington, NY 10533
Dear Peter:
This letter will confirm our appointment by Prestige Brands Inc. to serve as
advertising agency on behalf of Prestige Brands Inc. ("Prestige") and its units,
The Spic and Span Company and Medtech, and will set forth our mutual
understanding as to the basis upon which we will so act:
1. SERVICES
We will devote our best efforts to further Prestige interests and endeavor
in every proper way to make their advertising successful. We will understand
Prestige businesses, provide advertising plans, create the advertising, and
provide such other advertising services as may be necessary within your budget
limitations. We will plan media and coordinate media buying activity with
Horizon, your media buying service.
2. PRODUCTS
It is understood that this appointment covers the advertising for brands as
follows:
a) Medtech: Cutex, Compound W, New Skin, Denorex, Chloraseptic, Clear
Eyes, Murine (strategic consulting only, excluding creative and media)
b) The Spic and Span Company: Comet
3. COMPENSATION
Set forth below are the charges we will bill you for the services we are to
render and the expenditures we are to make for your account. Any references to
our "net cost" mean the actual amount we are required to pay or credit to a
third party to purchase materials or services or both, for your account; i.e.
the gross amount charged by the third party, less commissions, applicable
discounts, rebates, shipping and taxes.
(a) ACCOUNT MANAGEMENT AND CREATIVE
Beginning April 1, 2004, CDA will be compensated ***.
(b) MEDIA ADVERTISING - SPACE AND TIME
Beginning April 1, 2004, CDA will be compensated ***.
(c) ARTWORK, PRODUCTION, TALENT, TESTIMONIALS, RESEARCH, ETC.
You will be billed for the following items purchased for you pursuant
to your written authorization at net cost to us without commission or markup.
Items to be billed on this basis include:
(1) Artwork (such as semi-comprehensives, comprehensives, finished
art, special but not rough layouts, storyboards) and mechanical
production (photographs, photostats, typesetting and proofs,
engraving, electrotypes, mats, mechanicals, printing and similar
items);
(2) Talent and production for radio, print and television programs
and commercials, motion pictures, slides and slide films;
(3) Expenditures incurred in securing testimonials and the right to
use names and/or likeness of individuals and copyrighted
materials; and
(4) Research costs incurred or contracted for by the agency with your
approval.
(d) CHARGES FOR INTERNAL SERVICES AND PRODUCTION
Internal services and finished artwork provided by us (as
distinguished from services bought outside our organization) such as special
comprehensive layouts, booklets, package designs, displays, catalogues, public
relations and publicity, sales representations, extraordinary research, etc.
will be charged at our then current rates, or at a fee to be mutually agreed
upon in writing prior to undertaking such work.
(e) OUT-OF-POCKET EXPENSES
You will reimburse us for all authorized out-of-pocket expenses for
the servicing of your account. For example:
(1) Travel transportation, accommodations, etc. -- for trips outside
the New York metropolitan area; which are authorized or requested
by you in writing; also travel expenses of our personnel in
connection with advertising material preparation to the extent
agreed upon in advance.
(2) Packaging, shipping, delivery and communications -- all
authorized expenses incurred in connection with forwarding
advertising material on your behalf (engraving mats, recordings)
and telegraph, cable, messenger and other delivery charges
incurred to provide you with special information or to meet
emergency situations for which we are not responsible, all of
which are outside of the routine correspondence in the ordinary
course of business.
(f) PAYMENTS AND CASH DISCOUNTS
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(1) Our invoices to you are payable by you within 10 days.
(2) Media invoices, if any, will be issued to you in time as
necessary to take advantage of available cash discounts. Cash
discounts received will be detailed as to the amount on our
invoices and will be billed to you provided we receive payment on
or before the date specified on our invoice.
(3) Production costs on projects or jobs will be billed 75% on
approved estimate and 25% on completion.
We reserve the right, in the case of delinquency in your payment to us or upon
learning of circumstances that may reasonably be expected to affect your ability
to make payments on these due dates, to change the requirements as to terms of
payment under this agreement.
(g) MEDIA PLANS AND PRODUCTION ESTIMATES
Media plans for proposed expenditures for advertising in publications,
on radio and television, etc., and production estimates for proposed
expenditures for costs and services related to the production of advertising and
advertising materials, will be submitted to you for approval. Your written
approval of such plans/estimates will constitute our authorization to enter into
contracts and make purchases for your account.
(h) MONTHLY FEE PAYMENT SCHEDULE
CDA will be compensated by monthly fees as set forth above *** payable
on or before the 15th day of each month during the term hereof.
4. GENERAL PROVISIONS
(a) Except as provided in paragraph 4(b) below you will indemnify, defend
and hold us harmless from and against any loss, cost, liability or damages
(including attorneys' fees) resulting from any claim, suit or proceeding made or
brought against us based upon assertions made for Prestige products or services
in any advertising or other promotional materials which we may prepare and which
you approve in writing before publication or broadcast, as well as for any
claim, suit or proceeding arising out of the nature or use of Prestige products
or services.
(b) We will defend and indemnify you against any loss, costs, or damages
including attorney's fees, made against you arising out of any advertising
prepared and placed by us which is based on libel, slander, piracy, plagiarism,
invasion of privacy or infringement of copyright. We presently carry, and shall,
at our sole cost and expense, during the term of this agreement, continuously
maintain in force, advertising liability insurance coverage in the amount of
$2,000,000.
(c) You reserve the right, in your own best interests to modify, reject,
cancel or stop any and all agreements or commitments entered into by us on your
behalf, as well as all plans, schedules or work in progress. In this event, we
shall promptly take appropriate steps to carry out your instructions. In turn
you agree (i) to pay us, in accordance with the provisions of this
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agreement, any and all proper charges earned and incurred by us in connection
with such work up to the time of its discontinuance, cancellation or
modification; and (ii) to indemnify us for all claims and actions by third
parties for damages and expenses in consequence of our carrying out your
instructions.
(d) We will use our best efforts to safeguard any and all of your property
entrusted to our custody or control, but in absence of gross negligence on our
part or willful disregard by us of your property rights, we are not to be held
responsible for any loss, damage, destruction or unauthorized use by others of
such property.
(e) We will use our best efforts to guard against any loss to you through
failure of media or suppliers properly to execute their commitments but we shall
not be held responsible for any such failure except that we shall make every
reasonable effort to obtain appropriate make-goods.
(f) If we are called upon to place advertising on your behalf, we will
verify all media invoices by obtaining from the media tear sheets of space
advertising, station affidavits or similar proof of performance of radio and
television time placed by us and will confirm the accuracy of all media charges
by comparison of such proof of performance with the billings rendered.
(g) Unless specifically requested before the release of an advertisement,
we are not responsible for the return of engravings after their use in
publications.
(h) At any reasonable time during the life of this agreement and upon
reasonable notice, you may examine our files and records pertaining directly to
the handling of your advertising, but not including information related to
individual employee compensation.
(i) All talent employed by us for use in any advertising prepared on your
behalf shall be hired as our employees or through subcontractors; as such we
will be responsible for the payment and reporting of all payroll taxes for such
employees to the applicable governmental agencies provided for, and we shall, as
appropriate perform and discharge all obligations imposed upon employers under
Federal, state and local laws. If this agreement is terminated for any reason,
any contract we have entered into (with your approval) with talent who have
performed or are to perform in your advertising or promotional activities,
shall, simultaneously on the effective date of such termination, be
automatically assigned to you and you shall assume all the rights and
obligations under said contract, and we shall be relieved of any further
responsibility or liability with respect thereto. You shall indemnify us against
any expense or loss we may incur as a result of a claim by such talent or a
third party arising after the assignment of said contract.
(j) We will act as agent for you as a disclosed principal with regard to
the purchase, upon prior approval, of materials and services on your behalf.
5. TERM AND TERMINATION OF AGREEMENT
(a) This agreement shall become effective as of the date hereof (with
Monthly Fees to begin in April) and shall continue thereafter unless terminated
by either party giving at least sixty
4
days notice. All notices shall be delivered by registered mail to the principal
place of business of the party to whom such notice is addressed.
(b) Our respective duties, responsibilities and rights shall continue in
full force during the period of notice of termination, and we shall be entitled
to our Monthly Fees throughout the notice period. Upon receipt of notice of
termination we shall not commence work on or place orders for any new
advertising, but shall complete and place all advertising previously approved by
you.
(c) Upon termination of this agreement, you are to pay for all authorized
work in progress, and you shall assume our liability under and indemnify us with
respect to all outstanding contracts and agreements made on your behalf and with
your approval.
(d) Provided that there is no overdue indebtedness then owing by you to
us, we shall transfer, assign and make available to you or your representative
all property and materials in our possession or control belonging to you, and
all information, contracts, options, reservations and orders concerning your
advertising. We will also give you all reasonable cooperation toward
transferring, with the approval of third parties in interest, all reservations,
contracts, and arrangements with advertising media or others, of advertising
space, broadcast time, or materials yet to be used and all rights and claims
thereto and therein, upon our being duly released from the obligations thereof.
(e) You shall own any and all plans, preliminary outlines, layouts, copy,
artwork, films, and other property of advertising material which we prepared for
you or purchased for your account hereunder and which you paid for in accordance
with this agreement, provided such material was produced in final form,
published, displayed, broadcast, distributed, or otherwise presented prior to
the termination hereof. Any unproduced or unpublished advertising programs,
campaigns, plans and ideas prepared by us shall remain our property, provided
that any use we make of the same shall not involve the release of any
confidential information regarding your business or methods of operation.
6. MISCELLANEOUS
(a) This agreement and all matters or issues shall be governed by the laws
of the State of New York applicable to contracts made and performed entirely
therein.
(b) This letter represents the entire agreement between you and us and
supersedes all prior agreements, arrangements and understandings, written or
oral with respect to the subject matter hereof. No modification of this
agreement will be effective unless in writing and signed by both parties.
(c) Except as otherwise provided in this agreement, neither party may
assign any rights or delegate any duties hereunder without prior written consent
of the other party except nothing in this agreement shall preclude us from using
subcontractors in providing our agreed advertising services to you
(d) Any controversy or claim arising out of or relating to this Agreement,
or any breach hereof, shall be settled by arbitration or in the sole event
mediation fails, by arbitration
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before a single arbitrator in White Plains, New York in accordance with the
rules of the American Arbitration Association, then in effect and judgment upon
such award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The costs and expenses of such arbitration may be
allocated between the parties as determined by the arbitrator. No party to this
Agreement shall be precluded from applying to a proper court for preliminary
injunctive relief by reason of the prior or subsequent commencement of
arbitration proceeding as herein provided.
Your signature together with ours below will constitute this a binding agreement
between us.
CARRAFIELLO DIEHL & ASSOCIATES, INC.
By: /s/ GERALD A. CARRAFIELLO
-----------------------------------
Gerald A. Carrafiello
President
ACCEPTED AND AGREED
Prestige Brands Inc.
By: /s/ PETER C. MANN
--------------------------------
Peter Mann
Chief Executive Officer
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