MANUFACTURING AND SALES AGREEMENT
This Manufacturing and Sales Agreement (this "Agreement") is made and
entered into as of July 11, 1997 by and between J.B. Williams Company, Inc., a
Delaware corporation, with its offices at 65 Harristown Road, Glen Rock, New
Jersey 07452 ("Williams"), and Summa Rx Laboratories Inc., a Delaware
corporation, with its offices at 2940 FM 3028, Mineral Wells, Texas 76067
("SUMMA"), for the purposes set forth hereafter.
WHEREAS, SUMMA has the non-exclusive right to manufacture and sell patented
zinc acetate products that were invented by George Eby and for which United
States Letters of Patent (the "Patents") have been issued; and
WHEREAS, SUMMA wishes to manufacture and sell zinc acetate lozenges to
Williams, and Williams wishes to purchase such products from SUMMA, for resale
in the jurisdictions, regions or territories presently known as the United
States of America (including its territories and possessions), Greenland,
Canada, Mexico, Puerto Rico, the Bahamas, Jamaica, Bermuda, the Virgin Islands,
Haiti, the Dominican Republic, Trinidad and Tobago, Netherlands Antilles, and
all other islands, countries, jurisdictions, territories and possessions located
in the Caribbean Sea whether or not specifically named herein other than Cuba
and South American jurisdictions (the "Territory"), pursuant to the terms and
conditions set out in this Agreement; and
WHEREAS, SUMMA has the exclusive right to use the trademark "ColdCure(TM)",
and all other marks, logos and other intellectual property rights related
thereto or derivative thereof including, without limitation, the designation
"C/C" or any designation similar thereto, used on zinc acetate products
manufactured by SUMMA (collectively, the "Trademarks"); and
WHEREAS, Williams wishes to obtain the exclusive right to the use of the
Trademarks in the Territory and SUMMA is willing to grant Williams such
exclusive use pursuant to the terms and conditions set out in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set out in this Agreement, the sufficiency of which is mutually
acknowledged by Williams and SUMMA and is evidenced by their execution of this
Agreement, the parties do agree as follows:
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1. GENERAL.
SUMMA agrees to manufacture and sell zinc acetate lozenges (the
"Products"), in the packaging and quantities described on Exhibit A, and in such
other form, packaging and/or quantities as the Products may be manufactured and
packaged by SUMMA during the term of this Agreement including any extensions or
renewals hereof, to Williams pursuant to the terms and provisions set out in
this Agreement for marketing, distribution and sale by Williams in the
Territory. Williams agrees to purchase the Products from SUMMA pursuant to the
terms and provisions set out in this Agreement for marketing, distribution and
sale in the Territory.
2. MANUFACTURE, PACKAGING AND DELIVERY OF THE PRODUCTS.
A. SUMMA agrees to manufacture the Products for Williams according to
the specifications as are set out in the Patents and according to the formulas
and quality standards developed by Mr. George Eby and SUMMA (collectively, the
"Product Specifications") utilizing current Good Manufacturing Practices, as
such term is defined in the Federal Food, Drug and Cosmetic Act, as amended (the
"FD&C Act"). Within five (5) business days following the date of this Agreement,
SUMMA agrees to deliver to Williams a full and complete description of the
Product Specifications. Thereafter during the term of this Agreement (including
any renewals or extensions thereof), SUMMA shall provide Williams with sixty
(60) days advance written notice of any changes to the Product Specifications
proposed by SUMMA. For purposes of this Agreement, the term "business day" shall
mean a day during which SUMMA is conducting its normal business operations,
regardless of weekends and holidays, as the case may be.
B. Subject to any superior rights of American Longevity, LLC
("American"), SUMMA agrees that Williams shall have a first right to negotiate
the purchase of products (other than the Products) manufactured according to new
formulas developed hereafter by SUMMA for distribution and sale in the
Territory. That right shall exist for sixty (60) days after SUMMA's notice to
Williams of the availability of a new product formula. If Williams, after the
expiration of that period of time, does not take any action to inform SUMMA that
it wishes to have the right to the formula, then SUMMA shall have the right to
offer the formula to any of its other customers.
C. Upon mutual written agreement, SUMMA and Williams may add and
delete other products to or from Exhibit A from time to time hereafter.
D. SUMMA warrants that the Products sold to Williams as of the date of
each shipment shall not be adulterated within the meaning of the FD&C Act and
will be goods that may be introduced into interstate commerce under applicable
law.
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E. SUMMA warrants to replace the Products to the extent that the same
do not conform to the specifications referred to in Paragraphs 2A and 2D above.
In addition to and without limiting the rights and remedies of Williams
contemplated and permitted by Paragraph 13A of this Agreement, REPLACEMENT OF
PRODUCTS SHALL BE WILLIAMS' EXCLUSIVE REMEDY, AND THE WARRANTY MADE HEREIN IS
EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED
(EXCEPT AS TO TITLE), INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
F. Williams shall make all claims and requests for replacements or
returns of Products as soon as reasonably possible following Williams' receipt
of each shipment. Williams' claims or requests for replacements or returns shall
be deemed waived if not received by SUMMA within forty (40) days after Williams'
receipt of a shipment.
G. If delivery of a shipment is delayed for reasons attributable
solely to Williams or its shippers, or their respective agents, storage and
other additional costs will be charged to Williams and the Products will be at
Williams' risk from the date of the commencement of the delay.
H. Packaging of the Products may initially be done by a third party,
and thereafter shall be done by SUMMA. The description of the size, shape and
other specifications of the packaging of the Products shall be agreed to and
amended, from time to time, upon the written agreement of SUMMA and Williams,
hereafter.
I. Content and regulatory notice and disclosures on packaging, and
form of labeling of the Products, shall be the sole responsibility of Williams.
SUMMA shall provide Williams with the specific list of ingredients to be
included on the labeling. Williams shall pay all costs of additional art work,
dies, plates, etc., that may be incurred by SUMMA, and for all labels that may
be rendered unusable by reason of regulatory changes or changes requested by
Williams.
J. Delivery of, transfer of risk of loss and passage of title of the
Products shall be deemed to have been made to Williams upon delivery of each
shipment of the Products to Williams' shipper at SUMMA's shipping dock, Mineral
Wells, Texas.
K. SUMMA shall ship in accordance with Williams' instructions, and
Williams shall be responsible for insuring its shipments. Where Williams gives
no shipping instructions, or where SUMMA deems such instructions to be
unsuitable, SUMMA reserves the right to ship by the most appropriate method
provided that any shipper so selected for Williams is retained by or on behalf
of Williams and Williams is given adequate advance notice of the shipper to
obtain insurance in respect of such shipment.
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L. If at any time Williams determines that SUMMA has manufactured
Products that do not meet the standard of quality required by this Agreement,
then Williams may request that the Products in question be submitted to an
independent testing laboratory to be tested. The decision of such laboratory
shall be binding as to whether or not the Products in question were manufactured
to the standard of quality required by this Agreement. The testing laboratory
shall be selected by both parties, or, in the absence of an agreement within
sixty (60) days, then it shall be a laboratory appointed by an arbitrator
pursuant to Paragraph 14 below. The costs of the arbitrator and laboratory tests
will be borne by the party whose analysis was in error as determined by the
arbitrator.
M. In the event of any inspection of SUMMA's operations, facilities or
records conducted by any governmental authority, that in any manner relates to
the Products, then SUMMA will advise Williams of such inspection (including
information as to the nature, extent, and scope thereof) as soon as SUMMA
becomes aware that the same has taken or will take place. In addition, SUMMA
will promptly provide Williams copies of all governmental reports regarding the
Products.
N. After the date of this Agreement, SUMMA agrees to develop other
products for Williams as Williams may request from time to time. Williams agrees
to pay SUMMA its costs of development of any such additional product(s). Prior
to any work being done to develop a new product, Williams and SUMMA shall first
agree in writing as to the amount of costs that Williams shall pay for such
product development.
O. Within five (5) business days from the date of execution of this
Agreement, SUMMA agrees to enter into a valid and enforceable amendment to the
Manufacturing and Sales Agreement, dated May 16, 1997 (the "American
Agreement"), by and between SUMMA and American, to exclude from the territory
set forth in the American Agreement the Territory as defined herein effective as
of the date of this Agreement and continuing thereafter until expiration or
termination of this Agreement. SUMMA acknowledges that its satisfaction of its
obligations under this Paragraph 2O are a material inducement to William's
entering into this Agreement.
3. ORDERS, SALES AND PAYMENT FOR THE PRODUCTS; PAYMENTS TO AMERICAN.
A. Williams shall deliver its purchase orders for Products to SUMMA at
SUMMA's offices set forth on the first page of this Agreement. Such purchase
orders shall state the quantity, packaging and the delivery schedules for the
Products being ordered.
B. Simultaneously with its delivery of a purchase order pursuant to
the preceding Paragraph, Williams shall pay SUMMA a deposit equal to one half of
the total purchase price of Products then being ordered or Five Hundred Thousand
Dollars
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($500,000.00), whichever sum is the lesser. Payment of the balance due on each
such purchase order shall be made within ten (10) business days from the date of
the notice that such Products have been delivered to Williams' shipper as
provided in Paragraph 2J above. SUMMA shall provide Williams with notice of each
such delivery date. All payments shall be made by wire transfer of funds
according to written instructions given by SUMMA to Williams, from time to time
hereafter.
C. The prices to be paid by Williams for the Products shall be as set
forth on Exhibit A. In the event SUMMA's costs to manufacture the Products
increases or decreases more than five percent (5%), SUMMA shall adjust the
prices for the Products quarterly in an amount equal to its actual cost increase
or decrease subject to the terms of this Agreement. Any increase in overhead
costs shall not exceed the amount of the cumulative percentage increase in the
Consumer Price Index during the period commencing from the date of this
Agreement or the period commencing with the most recent increase in SUMMA's
overhead costs hereunder, if any, and ending with the date of determination. Any
price increase based on increase in labor costs shall not exceed the cumulative
percentage increase in the Department of Labor Bureau of Statistics, Producer
Price Index, for the commodity code of the Products, for the period commencing
from the date of this Agreement or the period commencing with the most recent
increase in SUMMA's labor costs hereunder, if any, and ending with the date of
determination. SUMMA shall provide Williams sixty (60)days written notice prior
to any such price adjustment.
D. The price to be paid by Williams to SUMMA per tablet of the
Products, or package/container of Products, shall be in writing and set forth on
the individual Product specification sheets that make up Exhibit A.
E. The cost increases for the Products contemplated by Paragraph 3C
shall be determined in accordance with such paragraph and, in addition to the
foregoing, shall be reasonable and subject to the prior approval of Williams,
which approval shall not be unreasonably withheld or delayed. In the event the
parties cannot agree on the amount of such increased or decreased costs within
thirty (30) days following Williams' receipt of written notice from SUMMA of the
proposed costs as provided in Paragraph 3C, then the matter shall be submitted
to arbitration in accordance with Paragraph 14 of this Agreement. The reasonable
costs, as determined by any arbitrator as provided in Paragraph 14, shall be
effective sixty (60) days following the date of the costs notice from Summa.
Williams shall have the right to review all such documents related to SUMMA's
costs as herein contemplated at SUMMA's offices during reasonable business hours
and at Williams' own expense upon not less than twenty (20) days prior written
notice to SUMMA.
F. Williams shall purchase a minimum annual volume of Fifty Five
Million (55,000,000) tablets of the Products for the first two (2) years of this
Agreement.
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Thereafter and for the remainder of this Agreement (including any renewals or
extensions of the term hereof), Williams shall purchase a minimum annual volume
of Ninety Million (90,000,000) tablets of the Products. In the event Williams
fails to purchase the minimum annual volume of the Products in any year pursuant
to this Paragraph 3F, Williams shall pay to SUMMA that amount of dollars
determined by multiplying $7.25 for each 1,000 tablets, times the number of
tablets below such annual minimum that Williams failed to purchase. Any such
payment shall be made within sixty (60) days following each annual anniversary
date of this Agreement during the term of this Agreement or any extensions or
renewals hereof.
G. Upon execution of this Agreement, Williams shall provide SUMMA a
twelve (12) month manufacture, delivery and purchase forecast schedule (the
"Forecast Schedule") for each of the Products that is a part of Exhibit A, and
the Forecast Schedule and monthly amendments thereto shall be a part of this
Agreement. The Forecast Schedule shall list the names of the Products and
quantity of units to be manufactured by SUMMA for the period listed. Williams
shall amend and update the Forecast Schedule in writing on a monthly basis. The
quantity of units of the Products listed for manufacture and delivery during the
first three (3) months of the Forecast Schedule shall be Williams' firm purchase
orders for such Products. Thereafter, following the expiration of the first
month of each such three month period, the quantity of the Products listed on
the Forecast Schedule for manufacture and sale during each succeeding three (3)
month period shall be Williams' firm purchase orders for such Products during
that three month period.
H. Williams shall pay and be responsible for the payment of all
applicable sales, use, wholesale, gross receipts and similar taxes, duties and
tariffs solely in respect of its marketing, distribution and sale of the
Products in the Territory.
I. SUMMA agrees that, within ten (10) business days following its
receipt of full payment of the Products from Williams as provided in Paragraph
3B above, it shall pay to American the amounts of the Product Prices payable to
American set forth in Exhibit A annexed hereto, to the address of American set
forth in the American Agreement .
4. EXCLUSIVE RIGHT TO USE OF THE TRADEMARKS.
A. During the term of this Agreement, and any renewals or extensions
hereof, SUMMA grants to Williams the exclusive right to use the Trademarks for
its sale of the Products within the Territory. Following the termination of this
Agreement, Williams may continue to sell previously purchased Products under the
Trademarks as is provided in Paragraph 6C. However, Williams Recognizes that the
Trademarks are being or have been registered in the United States, Canada and
Mexico, and Williams agrees that its use in the other nations in the Territory
will be at its own risk. With respect to any
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registrations of the Trademarks in such other nations, SUMMA shall cause such
registrations to be applied for and prosecuted fully at the request of Williams
subject to the prior agreement of the parties as to the payment of the costs and
expenses associated therewith. SUMMA agrees that it will promptly inform
Williams, and will promptly provide Williams with copies of all correspondence,
reports and other materials, relating to such registrations as they are received
or are otherwise communicated to SUMMA.
B. Williams shall maintain its exclusive right to the use of the
Trademarks so long as it shall satisfy its minimum purchase obligations for the
Products as set forth in Paragraph 3F of this Agreement.
C. Williams shall have the right to use such other brand names as it
may develop from time to time, so long as such other names are not similar to or
are such as they may cause confusion with such other brand names that are owned
or used by SUMMA for sale of zinc based products. In the event that Williams
shall use a name that in the reasonable opinion of SUMMA is similar to or causes
confusion with the names of other zinc based products sold by SUMMA, Williams,
upon receipt of a notice from SUMMA, shall cease using that product name until
the dispute as to name is resolved according to this Agreement.
5. TERM.
A. Subject to the provisions herein for earlier termination, this
Agreement shall be effective on of the date first set forth above and shall
continue in full force and effect for a period of five (5) years (the "Initial
Term"), unless sooner (as herein permitted) terminated, and shall automatically
renew for unlimited consecutive five (5) year terms during the life of the
Patents (including any new patents or extensions of the Patents insofar as they
relate to or are derivative of the Patents, and Summa has manufacturing rights
in respect of the products covered thereby) (each a "Consecutive Term") if,
during the Initial Term and each such Consecutive Term, Williams has satisfied
its minimum purchase obligations for the Products as set forth in Paragraph 3F
of this Agreement. The amount of such purchases shall be determined by the
parties at least sixty (60) days prior to the expiration of the Initial Term and
each Consecutive Term and shall include Williams' firm purchase orders for
Products as set forth in the in Forecast Schedule covering the three (3) month
period prior to expiration of the Initial Term or such Consecutive Term, as
applicable. If such purchase minimum has not been met by Williams during the
Initial Term or any such Consecutive Term, then this Agreement may be terminated
by written notice from either party prior to the expiration thereof, in which
case this Agreement shall terminate on expiration of the Initial Term or the
applicable Consecutive Term unless the parties shall otherwise agree in a
writing signed by Williams and SUMMA.
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6. TERMINATION.
A. Either party may terminate this Agreement forthwith by notice in
writing:
(i) if the other of them is in material breach of this Agreement
provided that notice of termination may only be given if the other party has
failed to remedy the breach within thirty (30) days of the receipt of a request
in writing from the party not in breach to remedy the breach such request
indicating that failure to remedy the breach may result in termination of this
Agreement; or
(ii) if the other of them shall become insolvent or seek relief
under any bankruptcy, debtor relief or similar law or if any proceedings against
them under any such law remains stayed for a period of thirty (30) consecutive
days.
B. Williams may terminate this Agreement forwith by notice in writing
in the event that the Patents are (i) invalidated by a final and nonappealable
order entered by a court of competent jurisdiction or the United States Patent
and Trademark Office and/or (ii) the subject matter of any claim, action,
lawsuit, investigation, arbitration or other legal proceeding brought by any
person or entity challenging the validity of the Patents and/or asserting that
the use of the Patents infringes the intellectual property rights of such person
or entity or any other person or entity, and Williams, based on the advice of
patent counsel and with prior consultation with SUMMA, has determined that there
is a reasonable basis for such challenge or assertion.
C. The termination of this Agreement, however arising, will be without
prejudice to the rights and duties of either party accrued prior to termination.
Any termination of this Agreement by Williams as permitted in this Paragraph 6
and elsewhere in this Agreement shall fully terminate and shall fully relieve
Williams of any annual or other minimum payment obligations for the Products or
the Trademarks as set forth in Paragraphs 3F and 4B of this Agreement after the
date of such termination that would have otherwise been payable during the term
of this Agreement or any renewals or extensions thereof. Conversely, any
termination of this Agreement shall not relieve Williams of its obligation to
pay SUMMA under the provisions of Paragraph 3G through the date of such
termination.
D. After the date of termination of this Agreement, Williams will
forthwith cease to solicit additional orders for the Products. SUMMA shall fill
those orders for which it has received full payment prior to termination or
within thirty (30) days thereafter. Williams shall be able to sell all of the
Products in its inventory during the one (1) year period following the date of
such termination. After such a termination, SUMMA shall have the right to sell
the Products to Williams' customers, and Williams shall provide SUMMA with
detailed information regarding names and contacts with such customers.
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E. In the event of the bankruptcy of Williams or similar condition
that renders it impossible for Williams to timely pay for the Products, Williams
hereby grants to SUMMA a secured interest in and to the Products purchased from
SUMMA and the proceeds to be received from the sale thereof to secure payment of
the Products. SUMMA shall be treated as a secured party in relation to the
unpaid amount due SUMMA, and SUMMA shall have the option to terminate all
additional shipment of goods and products that may be remaining.
7. NON-CONVEYANCE OF RIGHTS.
A. Except as is provided in this Agreement, SUMMA has not granted,
given, assigned or transferred in any manner whatsoever to Williams the right to
give, grant, sell, transfer, assign, trade, license, or authorize the right to
give, grant, sell, transfer, assign, trade or license the Patents, the
Trademarks or any other trademarks to any other person or entity.
8. REPRESENTATIONS AND WARRANTIES OF WILLIAMS.
Williams represents and warrants to SUMMA as follows:
A. That Williams is not the subject of any lawsuit or other action
that would render this Agreement ineffective.
B. Williams has full power, authority and legal right to execute and
deliver, and to perform its obligations under this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed by Williams and constitutes a
legal, valid and binding obligation of Williams, enforceable in accordance with
its terms.
C. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Williams without the intervention of
any other person in such manner as to give rise to any valid claim for a
finder's fee, brokerage commission or other like payment.
D. No approval of any government agency or commission of any
jurisdiction is necessary for the execution, delivery or performance by Williams
of any of the terms of this Agreement, or for the validity and enforceability
hereof or with respect to the obligations of Williams hereunder.
E. That Williams shall be solely responsible for compliance with all
laws, ordinances, regulations, rules and standards relating to its sale of the
Products (but not to the manufacture thereof).
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F. On the date of execution of this Agreement Williams has or shall
have obtained all necessary governmental approvals, permits, judicial and/or
administrative orders, licenses and agreements as may be necessary for it to
sell the Products. SUMMA, when necessary, shall assist Williams in obtaining all
such permits, licenses, agreements and approvals.
G. Williams shall forthwith notify SUMMA of the date, reaction and the
specific item of the Products when it learns that a user of any of the Products
has suffered an adverse reaction to the Products.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SUMMA.
SUMMA represents, warrants and covenants to Williams as follows:
A. That SUMMA is not the subject of any lawsuit or other action that
would render this Agreement ineffective.
B. That there are no agreements between SUMMA and any other person or
entity that preclude sale of the Products to Williams and Williams' sale of the
products, in each case as contemplated hereby.
C. SUMMA has full power, authority and legal right to execute and
deliver, and to perform its obligations under this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed by SUMMA and constitutes a
legal, valid and binding obligation of SUMMA, enforceable in accordance with its
terms.
D. No approval of any government agency or commission of any
jurisdiction is necessary for the execution, delivery or performance by SUMMA of
any of the terms of this Agreement, or for the validity and enforceability
hereof or with respect to the obligations of SUMMA hereunder.
E. That SUMMA shall be solely responsible for compliance with all
laws, ordinances, regulations, rules and standards relating to its manufacture
of the Products and its sale of the Products to Williams.
F. To the Knowledge (as defined below) of SUMMA, Williams' use of the
rights to the Trademarks and any other trademarks, tradenames, logos or similar
items owned or assigned by SUMMA to Williams in connection with the matters
contemplated hereby in the United States (including its territories and
possessions), Canada and Mexico, will not infringe upon or misappropriate any
trademark or other similar proprietary or intellectual property right of any
person or entity under any applicable law, order, statute, rule, regulation or
ordinance protecting the proprietary or intellectual property rights of any
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person or entity of each such jurisdiction. As used in the Paragraph 9F, the
term "Knowledge" shall mean any infringement or misappropriation that Summa
knows or should have reason to know of.
10. NONCIRCUMVENTION.
SUMMA agrees that it shall not knowingly contact, solicit, manufacture
or sell the Products to Williams' customers or to persons or entities
specifically identified by Williams as its potential customers. All customer
information provided by Williams to SUMMA shall be deemed Confidential
Information of Williams as defined in Paragraph 12 below. However, in the event
that a Williams "customer" is a pre-existing customer or prospect of SUMMA's,
then SUMMA shall have all right to continue doing business with that customer or
to solicit that customer's business. Further, SUMMA shall not be responsible for
the actions of other SUMMA customer's who independently may solicit business
from one or more of the Williams "customer's."
11. INTELLECTUAL PROPERTY.
A. Williams agrees that during the term of this Agreement it will not
authorize or cooperate in any manner whatsoever with any other person or entity
to provide any such other person or entity the use of, or any information
regarding the Products, save and except by written permission of SUMMA.
Provided, however, SUMMA agrees that Williams shall provide all information that
is required to be produced to regulatory authorities having jurisdiction over
the Products.
B. Williams will promptly report to SUMMA in writing the particulars
of any infringement of the Patents or the Trademarks or any other trademark or
trade name owned and/or used by SUMMA and assigned to Williams hereunder, of
which Williams becomes aware. Williams will assist SUMMA in any proceedings
commenced by SUMMA in relation thereto. Williams will not take any action in
relation to any such infringement without the prior written consent of SUMMA.
C. If Williams becomes aware that any person alleges that the Patents,
or the Trademarks or any other trade marks, trade names, logos, etc. owned
and/or used by SUMMA and assigned to Williams hereunder, infringe the rights of
any person, Williams will not make any admission in relation to such allegations
but will promptly report them to SUMMA. Unless otherwise agreed in writing,
SUMMA will control and conduct all proceedings relating to such intellectual
property rights, at its own expense.
12. CONFIDENTIALITY.
A. Each party agrees to provide to the other party such information as
shall be necessary to permit performance of their respective obligations
hereunder. All
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information that is provided by either party to the other shall be considered
confidential ("Confidential Information") unless it is specifically identified
in writing at or before the time it is provided to such other party as
non-confidential.
B. Neither Party hereto will, without the prior written consent of the
party providing Confidential Information, (i) use any portion of such
Confidential Information for any purpose other than the performance of this
Agreement, or (ii) disclose any portion of such Confidential Information to any
persons or entities other than the officers and employees of such party who
reasonably need to have access to the Confidential Information for purposes of
performance under this Agreement, and who are to be bound by appropriate
confidentiality agreements and commitments consistent with this Agreement.
Provided, however, that SUMMA shall provide all information that is required to
be produced to regulatory authorities having jurisdiction over the Products.
C. The obligations of a recipient party with respect to Confidential
Information shall remain in effect (during and after the term of this Agreement
including any renewals or extensions hereof) except to the extent that (i) such
Confidential Information becomes generally available to the public, other than
as a result of unauthorized disclosure by the recipient or persons to whom the
recipient has made the information available, (ii) such Confidential Information
has been released without restriction by the party providing the Confidential
Information to another person or entity, (iii) such Confidential Information was
received by the recipient on a non-confidential basis from a third party
lawfully possessing and lawfully entitled to disclose such information, or (iv)
the recipient party is able to establish that the Confidential Information was
independently developed or discovered by employees or agents of such party who
had no knowledge of the Confidential Information by reason of the disclosure
hereunder.
D. Confidential Information shall remain the property of the
disclosing party and shall be returned to the disclosing party or shall be
destroyed upon termination of this Agreement. Each recipient party agrees to
safeguard Confidential Information utilizing reasonable care.
E. In the event that either party shall be required by any court order
or extraordinary regulatory agency order to disclose any of the information
deemed by this Agreement to be confidential and/or proprietary, that party shall
give immediate written notice to the other party. Upon receipt of same, the
party whose information may be the subject of such Court Order or extraordinary
regulatory agency order shall be accorded the right to interpose all objections
it may have to the disclosure of its information. The foregoing obligations
shall survive the termination or expiration of this Agreement and shall continue
until the earlier of three (3) years from the date of such termination or
expiration or until a specific written release is exchanged by both Williams and
SUMMA.
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13. INDEMNIFICATION AND LIMITATION OF LIABILITY.
A. SUMMA agrees to hold Williams harmless and indemnify and defend it
from and against any and all claims, losses, liability, demands, causes of
action or costs, including, but not limited to, attorney's fees, which Williams
may be called upon to pay as a result of SUMMA's manufacture of the Products or
any breach of its representations, obligations or covenants hereunder.
B. Williams will indemnify and hold SUMMA harmless from all costs,
claims, expenses, losses, liabilities, judgments, proceedings and demands of
whatsoever nature (including legal fees) arising out of any suit or action
brought against SUMMA based upon a claim arising out of the sale of the Products
by Williams and based on any statement or advertising made by Williams regarding
the Products, or any breach of its representations, obligations or covenants
hereunder.
C. Neither SUMMA or Williams shall be obligated to hold harmless or
defend the other from or against any liability resulting from the negligence or
willful misconduct of the other party.
D. The foregoing obligations shall survive the expiration of this
Agreement and shall continue until a specific written release is exchanged by
Williams and SUMMA.
14. ARBITRATION.
A. If SUMMA and Williams become involved in an irreconcilable dispute
between them, and the dispute cannot be settled within thirty (30) days, the
issue shall be submitted to arbitration for resolution. The rules of the
Williams Arbitration Association shall be followed in the arbitration proceeding
which shall be held in front of a professional arbitrator and the decision of
the arbitrator shall be binding on the parties involved in the dispute.
B. The arbitrator used hereunder shall be located in Tarrant County,
Texas.
C. Any arbitrator used as provided herein must be acceptable to both
parties. If the parties are unable to agree upon an acceptable arbitrator, the
principal American Arbitration Association office in Tarrant County, Texas,
shall designate an arbitrator.
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15. EXCUSE OF PERFORMANCE - FORCE MAJEURE.
A. Neither Williams nor SUMMA shall be in default in the performance
of its obligations hereunder to the extent that performance of such obligations
is delayed, hindered, or prevented by any cause which is beyond the reasonable
control of either party, including but not limited to inclement weather,
strikes, lockouts, inability to procure labor, materials, or fuels due to
shortage, fires, riots, incendiarism, interference by civil or military
authorities, compliance with the regulations or order of any governmental
authority, or the outbreak of war or insurgence, or acts of war - (declared or
undeclared).
B. In the event SUMMA is unable to fulfill its obligations hereunder
by reason of any cause that would excuse its performance under Paragraph 15A, or
such other causes including, without limitation, by reason of an voluntary or
involuntary bankruptcy of SUMMA, then it shall promptly notify Williams of the
cause or event. In the event SUMMA shall not be able to rectify the cause or
event within a period not to exceed forty five (45) consecutive days so as not
to be able to supply Williams with Products according to this Agreement and
Williams stands ready to perform hereunder, then SUMMA and Williams shall locate
a manufacturer suitable to Williams and SUMMA and SUMMA shall assign all its
rights hereunder to such manufacturer; provided, however, should SUMMA be able
to fully correct its inability to fulfill its obligations hereunder within one
hundred and eighty (180) days following the date of such assignment, then SUMMA
shall thereafter have the right to perform hereunder as if such inability had
not occurred. Any such assignment by SUMMA shall not relieve SUMMA of its
obligations (other than the obligation to supply the Products) under this
Agreement. In the event that SUMMA's inability to perform is based on the
inability or refusal of any of its suppliers to perform, then Williams shall
assist SUMMA to rectify that cause or event, or locate a new supplier, and the
provisions of this Paragraph 15B shall not become effective.
16. MISCELLANEOUS PROVISIONS.
A. WAIVER - No waiver of breach of any of the provisions of this
Agreement shall be construed to be a waiver of any succeeding breach of the same
or any other provision.
B. SEPARABILITY - If any Paragraph, sentence or clause of this
Agreement shall be adjudged illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the legality, validity or
enforceability of this Agreement as a whole or of any Paragraph, sentence or
clause hereof not so adjudged.
C. SUCCESSOR AND ASSIGNS - The covenants and agreements contained in
this Agreement shall apply to, inure to the benefit of and be binding upon the
parties hereto and upon their respective successors and assigns. Neither party
shall assign
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their rights or obligations under this Agreement without the prior written
approval of the other party (such approval not to be unreasonably withheld).
D. NOTICE - Any notice required or permitted hereunder shall be deemed
sufficient if given in writing and delivered personally, by facsimile
transmission, by reputable overnight courier service or United States mail,
postage prepaid, to the addresses shown below or to such other addresses as are
specified by similar notice, and shall be deemed received upon personal
delivery, upon confirmed facsimile receipt, two days following deposit with such
courier service, or three (3) days from deposit in the United States mails, in
each case as herein provided:
If to Williams: If to SUMMA:
J.B. Williams Company, Inc. Summa Rx Laboratories, Inc.
65 Harristown Road P.O. Box 147
Glen Rock, New Jersey 07452 Mineral Wells, Texas 76068-0147
Attention: Mr. Dario Margve Attention: Mr. Jerry A. Nelson
President President
Phone (201) 251-8100 Phone (940) 325-0771
Fax (201)251-8097 Fax (940) 325-0807
Either party may change its address and the name of its designated
recipient of copies of notices for purposes of this Agreement by giving the
other party written notice of the new name, address of its designated recipient.
E. CAPTIONS - Any article or paragraph titles or captions contained in
this Agreement are for convenience only and shall not be deemed to amplify,
modify or give full notice of the provisions thereof.
F. INTERPRETATION - When the context in which words are used in this
Agreement indicate that such is the intent, words in the singular shall include
the plural and the plural shall include the singular. Words in the masculine
gender shall include the feminine and neuter genders.
G. ENTIRE AGREEMENT - This Agreement and its amendments, attachments
and Exhibits represent the final expression of the entire understanding and
agreement between Williams and SUMMA, and that all previous oral or written
agreements are null and void and superseded in their entirety by this Agreement.
H. AMENDMENTS - This Agreement may be amended or modified only by a
written amendment executed by Williams and SUMMA.
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I. INDEPENDENT CONTRACTOR - Neither party is an agent or employee of
the other party. Each party is and shall at all times remain an independent
contractor. NEITHER PARTY IS GRANTED ANY RIGHT OR AUTHORITY TO ASSUME OR CREATE
ANY OBLIGATION, EXPRESS OR IMPLIED ON BEHALF OF OR IN THE NAME OF THE OTHER
PARTY.
J. LAW AND JURISDICTION - The formation, construction, performance and
validity of this Agreement shall be governed by the laws of the State of Texas
and the parties hereby agree to submit to the exclusive jurisdiction of the
Court in Parker County, Texas having jurisdiction over the matter in dispute.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
multiple counterparts, each of which shall be an original, on July 11,1997.
SUMMA RX LABORATORIES, INC. J.B. WILLIAMS COMPANY, INC.
By: /s/ Jerry A. Nelson By: /s/ Dario Margve
------------------------------ -----------------------------
Jerry A. Nelson, President Dario Margve, President