EXHIBIT 10.8
AMENDMENT TO UNITED STATES EXCLUSIVE SUPPLY AGREEMENT
WHEREAS, THE QUIGLEY CORPORATION, a Nevada corporation with its
offices at 621 Shady Retreat Road, Doylestown, PA 18901 (hereinafter referred to
as "Quigley"), and JOEL, INC., a Pennsylvania corporation with offices at 31
North Spruce Street, Elizabethtown, PA. 17022 (hereinafter referred to as
"JOEL") entered into a United States Exclusive Supply Agreement on March 17,
1997, extended by an Amendment to United States Exclusive Supply Agreement dated
March 2000; and
WHEREAS, Paragraph 32 of the Agreement states that the Agreement may
be amended by a written instrument executed by duly organized representatives of
Quigley and JOEL; and
WHEREAS, the parties wish to continue the Agreement of March 17,
1997 in full force and effect as amended by the March 2000 Amendment to United
States Exclusive Supply Agreement.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
20. Term. This Agreement shall be effective for an
additional period of two (2) years from March 17, 2002, with
yearly renewal thereafter.
All other terms and conditions of the Agreement between
the parties dated March 17, 1997 and the Amendment to United
States Exclusive Supply Agreement dated March 2000 are
incorporated into this Amendment, and shall continue in full
force and effect as fully set forth herein.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
parties hereto have caused this Amendment to be executed by their duly
authorized representatives on the 29th day of June, 2001.
THE QUIGLEY CORPORATION
Attest: By:__________________________
Name:________________________
____________________________ Title:_________________________
JOEL, INC.
Attest: By:__________________________
Name:________________________
____________________________ Title:_________________________
AGREEMENT
This Agreement is entered this 14th day of March 2001, by and
between JOEL, INC., a Pennsylvania business corporation ("JOEAL"), and THE
QUIGLEY CORPORATION, a Nevada corporation ("Quigley").
WITNESSETH:
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WHERAS, JOEL and Quigley entered into a certain United States
Exclusive Supply Agreement, dated March 17, 1997, as amended by a certain
Amendment to United States Exclusive Supply Agreement (collectively, the "Supply
Agreement"), pursuant to which JOEL is Quigley's exclusive supplier of certain
zinc gluconate lozenges marketed and sold by Quigley under the trademark
"Cold-Eeze" in the United States (the "Product"); and
WHEREAS, Paragraph 31 of the Supply Agreement provides that "Neither
party shall assign or transfer this Agreement or their rights or obligations
hereunder without prior written consent of the other party, which consent shall
not be unreasonably withheld"; and
WHEREAS, JOEL's Pharmaloz Division (the "Division") manufactures the
Product at its Lebanon, Pennsylvania facility (the "Facility"); and
WHEREAS, JOEL has recently engaged in negotiations to sell certain
assets of the Division (the "Assets") to Perrigo Company ("Perrigo"); and
WHEREAS, certain disputes arose between Quigley and JOEL related to
JOEL's negotiations with Perrigo and the disposition of the Supply Agreement;
and
WHEREAS, Quigley filed an action in the Court of Common Pleas of
Bucks County, Pennsylvania (the "Bucks County Court"), captioned THE QUIGLEY
CORPORATION V. JOEL, INC. and docketed to No. 20002095-14-2 (the "Bucks County
Action"); and
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WHEREAS, JOEL and Perrigo have ceased their negotiations, and JOEL
now intends to offer the Assets for sale to other prospective, third-party
purchasers (each, a "Purchaser", and collectively, "Purchasers"); and
WHEREAS, JOEL and Quigley desire to enter into this Agreement in
order to establish the procedure the parties shall follow with respect an
assignment or transfer of the Supply Agreement to a Purchaser, and to establish
a procedure for resolving the disputes which arose between JOEL and Quigley
related to the prior negotiations with Perrigo.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants herein contained and intending to be legally bound, the
parties hereto agree as follows:
1. RECITALS. The recitals above are incorporated by reference and
are intended to constitute material terms of this Agreement.
2. QUIGLEY CONSENT PROCEDURE. Quigley agrees to provide JOEL, from
time to time, with Quigley's decision as to whether Quigley consents to either
(i) the assignment of the Supply Agreement to a Purchaser (an "Assignment"), or
(ii) a Purchaser's appointment as a subcontractor under the Supply Agreement (a
"Subcontract"), within twenty (20) days of JOEL's providing Quigley with written
request for same. A copy of such request shall be contemporaneously sent to
Quigley's counsel, Thomas F. J. MacAniff, Eastburn and Gray, P.C., 60 East Court
Street, P.O. Box 1389, Doylestown, Pennsylvania 18901-0137; FAX: (215) 345-
9142.
(a) The written request from JOEL to Quigley shall
include such information regarding the Purchaser as shall be
reasonably necessary in order for Quigley to determine whether to
grant its consent thereto.
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(b) A decision by Quigley that it consents to a
Subcontract, but not to an Assignment, shall be supported by such
evidence as shall be reasonably necessary in order to support such a
decision.
(c) Quigley's decision (i) shall be provided in writing,
(ii) shall be signed by an authorized representative of Quigley, and
(iii) shall be delivered to JOEL's counsel, Bruce R. Spicer, Wallace
& Nurick, 100 Pine Street, Harrisburg, Pennsylvania 17101; FAX:
(717) 237-5300. In the event Quigley fails to provide its decision
in accordance with the foregoing within the twenty-day period
provided above, Quigley shall be deemed for all purposes to have
consented to and agreed to an Assignment (or, at JOEL's election, to
a Subcontract).
(d) The foregoing notwithstanding, Quigley agrees that
it shall consent to either (i) an Assignment, or (ii) a Subcontract
so long as:
(i) The particular Purchaser agrees to fully comply
with and be bound by the terms of the Supply Agreement,
including the confidentiality provisions thereof; and
(ii) The particular Purchaser agrees to manufacture
private label lozenges, lozenges for sale in the United
Kingdom and Canada, and "Zigg" powder for sal to Quigley, so
long as the terms and conditions of such manufacture and sale
are commercially reasonable; and
(iii) The particular Purchaser agrees not to use the
Formula (as defined in the Supply Agreement) for non-Quigley
products (i.e., products for the
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manufacture and sale to a party other than Quigley)
without Quigley's prior written consent; and
(iv) The particular Purchaser agrees to make
no representation on any non-Quigley products that such
products have been or are manufactured at the same
facility or on the same "line" as the Product, it being
expressly understood and agreed, however, that the
Purchaser shall otherwise have the right to manufacture
non-Quigley products (including zinc lozenges) at the
Facility; and
(v) JOEL agrees to continue to perform
historical shipping and storage services for Quigley's
inventory of the Product, or to arrange for the
Purchaser to continue to provide those services on
commercially reasonable terms; provided, however, that
(A) JOEL acknowledges that Quigley has pre-paid for
certain shipping and storage services, and (B) JOEL
agrees that any arrangement with a Purchaser to continue
to provide services to Quigley hereunder shall take into
account such pre-payments, so that Quigley is not
economically disadvantaged thereby.
3. DISCONTINUANCE OF ACTION. Quigley shall discontinue, without
prejudice, the Bucks County Action within five (5) days of executing this
Agreement.
4. MUTUAL RELEASE. Provided that each party complies with the terms
of this Agreement, upon the consummation of any closing on the sale of the
Assets JOEL and Quigley shall execute and deliver a mutual release of all claims
between JOEL and Quigley related to the negotiations with Perrigo and all claims
which were brought or could have been brought by either party in the Bucks
County Action.
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5. MISCELLANEOUS PROVISIONS.
(a) Any notice or other communication required or which
may be given hereunder shall be made in accordance with Paragraph 30
of the Supply Agreement.
(b) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns.
(c) This Agreement sets forth all of the promises,
covenants, agreements, conditions and understandings between the
parties hereto with respect to the procedure for the sale of the
Assets to third party purchasers. This Agreement shall not otherwise
amend, modify, or supersede the Supply Agreement.
(d) This Agreement may not be amended, modified,
superseded, canceled, renewed or extended except by a written
instrument or document signed by all parties hereto.
(e) Jurisdiction, venue, and governing law for all
disputes hereunder shall be determined in accordance with Section 29
of the Supply Agreement; provided, however, that the Bucks County
Court shall retain jurisdiction over this Agreement for purposes of
resolving any disputes hereunder or any term or condition hereof.
(f) The captions of the various sections, subsections
and clauses of this Agreement are solely for the convenience of the
parties hereto and shall not control or affect the meaning or
construction of this Agreement.
(g) This Agreement may be executed in any number of
counterparts (and delivered by overnight express mail, or by fax
with confirmation in writing delivered by overnight express mail),
each of which shall be deemed to be an original as against any
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party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement
shall be binding when one or more counterparts hereof, individually
or taken together, shall bear the signatures of all of the parties
reflected on this Agreement as the signatories.
IN WITNESS WHEREOF and intending to be legally bound hereby, the
parties, by the signatures of their authorized representatives, have entered
into this Agreement on the date set forth above.
ATTEST: JOEL, INC.
By: ___________________ By______________________
David B. Deck
Corporate Secretary President
ATTEST: THE QUIGLEY CORPORATION
By: ___________________ By______________________
Guy J. Quigley
Corporate Secretary President
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AMENDMENT TO UNITED STATES EXCLUSIVE SUPPLY AGREEMENT
WHEREAS, THE QUIGLEY CORPORATION, a Nevada corporation with its
offices at 621 Shady Retreat Road, Doylestown, PA. 18901 (hereinafter referred
to as "Quigley"), and JOEL, INC., a Pennsylvania corporation with offices at 31
North Spruce Street, Elizabethtown, PA. 17022 (hereinafter referred to as
"JOEL") entered into a United States Exclusive Supply Agreement on March 17,
1997; and
WHEREAS, Paragraph 32 of the Agreement states that the Agreement may
be amended by a written instrument executed by duly authorized representatives
of Quigley and JOEL; and
WHEREAS, the parties wish to continue the Agreement on March 17,
1997 in full force and effect.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
20. Term. This Agreement shall be effective for an
additional period of two (2) years until March 17, 2002, with
yearly renewal thereafter.
All other terms and conditions of the Agreement
between the parties dated March 17, 1997 are incorporated
into this Amendment; and shall continue in full force and
effect as fully set forth herein.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
parties hereto have caused this Amendment to be executed by their duly
authorized representatives on the 14th day of March, 2000.
THE QUIGLEY CORPORATION
Attest: By:__________________________
Name:________________________
____________________________ Title:_________________________
JOEL, INC.
Attest: By:__________________________
Name:________________________
____________________________ Title:_________________________
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