EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated this 29th day of April, 2002 (the
"Agreement") among The Lamaur Corporation, a Delaware corporation ("Lamaur" or
"Seller"), and Alleghany Pharmacal Corporation, a New York corporation (
"Buyer") (Buyer and Seller being collectively sometimes referred to as the
"Parties)".
WITNESSETH:
WHEREAS, the Seller desires to sell certain assets relating to its
Salon Style product lines, including certain intellectual property and
inventory, as further defined in this Agreement, and Buyer desires to purchase
such assets from Seller;
NOW, THEREFORE, in consideration of the warranties, representations,
covenants and agreements hereinafter set forth, the Seller and Buyer hereby
agree as follows:
Article 1
Transfer of Assets, Intellectual Property and Inventory
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1.1 Transfer of Assets. Subject to the terms and conditions herein
expressed, Seller agrees to sell, assign, convey and transfer to Buyer on the
Closing Date (defined in Section 2.1) Seller's trademarks, trademark rights,
trade names, licenses, copyrights and Inventory (as defined below) in each case
relating to Seller's Salon Style product line, including the right to use the
name "Salon Style" and any derivation or modification thereof, and Seller's
Salon Style customer and supplier lists, goodwill, brochures, sales literature,
advertising, promotional and training materials, and product formulations and
methods of manufacture and any other materials and intellectual property using
or relating to Seller's Salon Style trademark and product line
Exhibit 10.1-1
throughout the world, in each case as set forth on Schedule A attached hereto
and incorporated herein by reference (collectively, the "Assets").
1.2 Royalties. In exchange for the Assets of the Seller to be acquired
by Buyer as described in Section 1.1 of this Agreement, and the other rights
assigned to Buyer hereunder, on the terms and subject to the conditions of this
Agreement, Buyer shall deliver and pay to the Seller the following amounts on
the dates and in the manner set forth below:
(a)(i) On the Closing Date, Buyer shall transfer to Congress
Financial Corporation (Central) ("Congress") via wire transfer $300,000.00, in
the form of a non-refundable advance against future royalties payable in
accordance with the terms hereof, as a credit against Seller's outstanding
obligations to Congress.
(ii) Seller has requested that Buyer refrain from personally
investigating the Salon Style SKUs per customer, and has instead given Buyer
Schedule G, upon which Buyer is relying for the accuracy of that information.
Buyer shall pay Seller by regular check, an additional $50,000 within 60 days of
closing, and $50,000 within ninety (90) days of Closing, upon Buyer's
determination that Schedule G is accurate. In the event of any inaccuracy, Buyer
shall be entitled to a proportionate credit against the $100,000 due, measured
by comparing the number of SKU's missing to the numbers of SKUs represented in
Schedule G. Lamaur shall have the right to verify any claimed inaccuracies.
(iii) A. If, within the 12 months immediately following
Closing (as defined below), Buyer's Net Sales of Salon Style Products equals a
minimum of $1,333,333.00, a royalty in an amount equal to 30% of Buyer's monthly
Net Sales of Salon Style Products for the balance of such 12-month period
(including any part of the month in which such Buyer's Net Sales of Salon Style
Products equals such amount). This royalty shall be payable, if it becomes due,
by
Exhibit 10.1-2
wire transfer to the account of Congress, within 21 days from the end of each
thirty day period during the twelve months from Closing for which it is payable.
B. In the event that Buyer's Net Sales of Salon Style
Products within the 12 months immediately following Closing do not reach
$1,333,333.00, then 30% of the difference between $1,333,333.00 and Buyer's
actual Net Sales shall be a credit to Buyer against any royalties due under
paragraph 1.2(a)(iv) and (v) hereof, provided that in no event shall Seller's
liability for any such credit exceed the amounts of the royalties due Seller
under paragraph 1.2(a)(iv) and (v).
For example, if Buyer's Net Sales of Salon Style
Products for the first ten months after Closing reaches $1,333,333.00, Buyer
shall pay Seller, in addition to the non-refundable royalty advance due under
Section 1.2(a)(i) above, 20% of Buyer's Net Sales of Salon Style Products during
the next two months.
If Buyer's Net Sales of Salon Style Products for the
12 months after Closing is $1,233,333.00, Buyer shall receive a credit of
$30,000.00 (1,333,333.00 - 1,233,333.00 = 100,000 x 30% = 30,000) to be applied
against any royalties due under paragraph 1.2(a)(iv) and (v) below, provided
that in no event shall Seller's liability for any such credit exceed the amounts
of the royalties due Seller under paragraph 1.2(a)(iv) and (v).
(iv) A royalty based upon 15% of Buyer's annual Net Sales of
Salon Style Products for the one year beginning on the first day of the month
following 12 months from the Closing Date. Such additional royalty payments are
to be made quarterly within 45 days from the end of each such period.
(v) At the end of the second one year period, which is two
years from the Closing Date, an additional royalty for the next two years based
upon Net Sales of Salon Style
Exhibit 10.1-3
Products. The royalty rate for each year of such two year period shall be 1% of
Buyer's annual Net Sales of Salon Style Products.
(vi) At the end of the four year period from the Closing Date
no further royalties shall be due.
(vii) Net Sales, as used in this Agreement, shall mean Buyer's
invoiced sales, less cash discounts, of Salon Style Products sold to an
independent third party purchaser. Salon Style Products, as used in this
Agreement, shall mean all Seller's products using the Salon Style trademarks set
forth on Schedule A. Excluded from Net Sales shall be expenses for co-op
advertising media, free standing inserts, coupon redemption from clearing
houses, rebates cleared via clearing houses, and quarterly payments for planned
promotional activities. Invoiced sales shall deduct retailer promotional
allowances such as prepayment for unit "scan-downs," and other allowances
reflected in a reduced invoice price per item, or charged back.
1.3 Inventory. On the Closing Date, Buyer agrees to purchase all of the
useable and saleable Salon Style Products (including finished goods, raw
materials and components, but excluding obsolete Salon Style Products) which are
either in Seller's possession as of the Closing Date or which have been ordered
prior to the Closing Date but not yet received by Seller (collectively,
"Inventory"). The purchase price for each piece of Inventory shall equal
Seller's internal standard direct cost rate as set forth in Schedule B. Unless
Congress otherwise agrees in writing, all payments due Seller hereunder shall be
made to The Lamaur Corporation, X.X. Xxx 0000, Xxxxxxxxxxx, XX 00000. The
parties hereby agree that the following additional provisions shall govern the
terms pursuant to which Buyer agrees to purchase the Inventory from Seller:
(a)(1) The Parties agree that following Closing, Buyer shall
be entitled to move from Seller's facilities, or facilities in which Seller
houses Inventory, to Buyer's facilities, all or a
Exhibit 10.1-4
portion of the Inventory that it is purchasing pursuant to the terms hereof,
provided that Seller shall pay any and all costs associated with moving such
Inventory, exclusive of freight and/or shipping costs (collectively, the "Moved
Inventory"). The Parties agree that Buyer shall, within thirty (30) days of the
date on which it moves the Moved Inventory, pay Seller an amount equal to the
aggregate purchase price of the Moved Inventory (which shall be determined in
accordance with the prices set forth on attached Schedule B), less One Hundred
Thousand Dollars ($100,000.00), which shall be paid to Buyer by Seller in
accordance with the provisions set forth below (such amount being referred to
herein as the "Inventory Setoff"). Seller agrees that it shall continue to pay
all Inventory storage costs until such time as the Inventory, including the
Moved Inventory, is moved by Buyer to Buyer's facilities.
(a)(2) The Parties further agree that following Closing,
Seller shall continue to fill orders it receives for Inventory in accordance
with Seller's past practices, and that Seller will remit to Buyer within thirty
(30) days from the date of shipment the proceeds of all such sales, less an
amount equal to Seller's shipping and handling costs, broker commissions owed on
such sales, freight costs and cash discounts (collectively, the "Related
Costs"). Additionally, Buyer shall deduct from the proceeds of any such sale the
cost of the shipped Inventory. The Parties agree that the Related Costs on any
Inventory shipment filled by Seller in accordance with the foregoing shall be
11.0% of the aggregate price of any such Inventory shipment.
(a)(3) The Parties further agree that the Inventory Setoff
shall be promptly paid by Buyer to Seller on the date that is twelve (12) months
from the Closing Date, less only any payments due to Buyer, including retailer
chargebacks to Buyer which are Seller's responsibility.
(ii) Any Inventory not sold by Buyer within six months from the Closing
Date shall be deemed to be not useable or saleable Inventory. Such Inventory may
thereafter be sold by
Exhibit 10.1-5
the Parties as a closeout or destroyed, upon the mutual agreement of the Parties
regarding price and customer. Any such closeout sales shall accrue as a sale by
Seller, with Buyer to be reimbursed by Seller for Buyer's cost of such
Inventory, if previously paid by Buyer, and no royalty payments to be due from
Buyer. Any Salon Style Products which are returned as returns or damages to
Seller or Buyer after six months from the Closing Date shall be the
responsibility of Buyer; such returns or damages may be sent back to Buyer or
may be sold by the Parties as a closeout, upon the mutual agreement of the
Parties regarding price and customer, with no royalty payments due to Seller on
any such closeout sales. Buyer shall utilize Seller's Inventory before using
alternative suppliers for use in manufacturing Salon Style Products, provided
that such products are useable and saleable. Buyer agrees that any finished
goods, raw materials or components which it purchases from other vendors for use
in the production, manufacture, marketing, and/or advertising of the Salon Style
Products during the time period for which royalty payments are due to Seller
under this Agreement shall be at least equal to the quality of Seller's products
and packaging (in the reasonable judgment of Seller).
(iii) At a time to be determined upon written request made by Buyer to
Seller after Closing, all Inventory sold to Buyer by Seller after the date of
such request shall bear Buyer's UPC Codes label. Any relabeling necessary to
meet this requirement shall be at Seller's expense.
(v) Seller has secured a letter agreement from Tiro Industries, Inc.
("Tiro") to extend the same benefits enjoyed by Seller under its Manufacturing
Agreement with Tiro to Buyer until December 22, 2002. A copy of this letter
agreement is attached to this Agreement as Schedule F.
Exhibit 10.1-6
1.4 Designation of Funds.
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(a) It is agreed by the parties that the intent of the
non-refundable advance against future royalties as discussed in Sections 1.2
(a),(i),(ii),(iii) is to be the royalty amount due for the first 12 months
immediately following Closing, subject to adjustment as provided in Section 1.2
(a)(iv) and (v) and (vi).
(b) This classification of funds will by no means change the
fact that the Parties agree and understand that the $400,000, or such other sum
as determined under 1.2(a)(i) and 1.2(a)(ii) is to be applied as a credit
against future royalty payments.
(c) The clarification of the assignment of values in items
(a) and (b) above in no way limits or expands the rights or obligations of the
parties.
(d) Monies paid pursuant to this Agreement will be
specifically designated and assigned as an Inventory payment or as a Royalty
payment.
Article 2
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Closing and Closing Date
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2.1(a) The term "Closing" as used herein shall refer to the actual
conveyance, transfer, assignment and delivery of the Assets described in Section
1.1 of this Agreement to Buyer, in exchange for the payment to, and the promises
to pay, Seller the purchase price described in Section 1.2 of this Agreement on
the Closing Date and the royalties set forth in Section 1.2 on the date therein
specified. The Closing shall take place on April 29, 2002 (the "Closing Date"),
or at such other time as shall be agreed upon in writing by the Seller and
Buyer, at a location to be determined in New York City.
(b) Buyer and Seller have been exchanging confidential
information about each other's business in connection with the negotiations
leading up to this Agreement, and will
Exhibit 10.1-7
continue to exchange such information after Closing. All information, written or
oral, obtained through such exchanges and investigations from nonpublic sources
shall be held in confidence by Buyer and Seller and their representatives and
not used or disclosed to any third party, except on a confidential basis. This
obligation shall survive any termination of this Agreement. If this transaction
is not consummated, all written material acquired from Seller or Buyer or their
representatives or developed by or for Seller or Buyer shall be delivered to
Buyer or Seller as applicable.
2.2 At the Closing on the Closing Date:
(a) The Seller shall deliver to Buyer:
(i) Such instruments of assignment, transfer, and
conveyance as will be sufficient or requisite, in the opinion of Buyer and its
counsel, to vest in Buyer, its successors and assigns, the full, complete,
absolute, legal and equitable title in and to the Assets of the Seller described
in Section 1.1 hereof, including a written assignment of the trademarks,
trademark rights and trade names listed in Schedule A attached hereto in
recordable form for the United States, and listed foreign countries, xxxx of
sales, and the written consent and release of any third party holding a lien or
any other similar interest to the assets conveyed to Buyer.
(ii) The opinion of counsel for Seller, dated as of
the Closing Date, to the following effect:
(A) The Seller is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation;
(B) Seller has full right and power to enter
into, and perform its obligations under this Agreement and it has taken all
requisite corporate action to authorize the execution, delivery and performance
of this Agreement and the consummation of the sale and
Exhibit 10.1-8
purchase of the Assets and the other transactions contemplated by the Agreement;
and this Agreement has been duly executed and delivered by the Seller and is a
valid, enforceable and binding obligation of Seller, subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights in general (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(C) The bills of sale, assignments and other
documents and instruments of sale, assignment, conveyance and transfer delivered
to Buyer by Seller have been duly executed and delivered by Seller and are
binding upon, and enforceable against, Seller and are sufficient to convey and
transfer to, and to vest in Buyer, all right, title and interest, of record and
otherwise, of Seller in and to the Assets described in Section 1.1 of this
Agreement, free and clear of any claims, liens, or encumbrances.
(iii) Files, documents and records pertaining to the
business of the Salon Style Products which are to be transferred to Buyer
hereunder, including formulas, methods of manufacture, and suppliers of each
product and such documents as will identify the location of such products and
all other Assets throughout the world (unless they are delivered to Buyer prior
to the Closing Date).
(b) Buyer shall deliver to Seller:
(i) The purchase price described in Section 1.2 (a)
of this Agreement;
(ii) The opinion of Buyer's legal counsel, dated as
of the Closing Date, to the following effect:
A. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York.
Exhibit 10.1-9
B. Buyer has full right and power to enter
into and perform its obligations under this Agreement and has taken all
requisite corporate action to authorize the execution, delivery and performance
of this Agreement and the consummation of the sale and purchase of the Assets
and the other transactions contemplated by this Agreement; and this Agreement
has been duly executed and delivered by Buyer and is a valid, enforceable and
binding obligation of Buyer, subject to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of creditors' rights in
general.
(c) The Seller and Buyer will take any and all such other
actions and do any and all such other things as may be reasonably necessary or
desirable to consummate the sale and purchase of the Assets contemplated by this
Agreement and to enable such sale and purchase to become effective on the
Closing Date in accordance with the terms and conditions of this Agreement.
Article 3
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Warranties and Representations of Seller
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The warranties in this Article 3 shall survive the Closing for the
period of the applicable statute of limitations on written contracts. The Seller
warrants and represents to Buyer, its successors and assigns as follows:
3.1 Seller is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has the corporate
power and holds all rights, privileges, franchises, immunities, licenses,
permits, authorizations and approvals (governmental or otherwise) necessary to
own and operate its properties and to carry on and conduct its business.
3.2 The Seller has full right and power to enter into, and perform its
obligations under, this Agreement; has taken all requisite corporate action to
authorize the execution,
Exhibit 10.1-10
delivery and performance of this Agreement and the consummation of the sale and
purchase of the Assets described in Section 1.1 and the other transactions
contemplated by this Agreement; and this Agreement has been duly authorized,
executed and delivered by the Seller and is binding upon, and enforceable
against, the Seller in accordance with its terms.
3.3 Seller has and will have at the Closing good and marketable title
to all of the Assets covered by this Agreement, free and clear of all claims,
liens and encumbrances.
3.4 There is no product warranty or liability claim, no litigation at
law or in equity, no arbitration proceeding, and no proceeding or investigation
before or by any commission, agency or other administrative or regulatory body
or authority, pending or, to the knowledge of the Seller, threatened against or
affecting Seller, or the Salon Style Products, which would impair or adversely
affect the Assets, or prohibit the sale of the rights, properties or Assets
contemplated by this Agreement.
3.5 Schedule A contains a true, accurate and complete schedule setting
forth all trademarks, trade names, and copyrights, other intellectual property
and all related registrations, rights, privileges, franchises and immunities and
all applications pending or to be filed therefor, related to the Salon Style
Products. Except as disclosed in Schedule A, no licenses, sublicenses,
covenants, agreements or other arrangements have been granted or entered into by
Seller in respect of any of such trademarks and copyrights, rights, privileges,
franchises, immunities or applications pending or to be filed therefor.
3.6 Schedule B and C contain a true, accurate and complete schedule
setting forth the costs and sales data reflected therein.
3.7 No claims or lawsuits have been asserted within the last three
years by any third party alleging that Seller does not have the right to use the
marks set forth in Schedule A in its
Exhibit 10.1-11
present business. To the best of Seller's knowledge, there are no infringements
by third parties of the "Salon Style" xxxx, material to Seller's present
business.
3.8 No contract rights of any third party shall affect Buyer with
regard to any Assets conveyed herein, except as set forth on Schedule D annexed
hereto.
3.9 Neither this Agreement nor the sale and purchase of the Assets or
any other transaction contemplated by this Agreement was induced or procured
through any person, firm, corporation or other entity acting on behalf of, or
representing the Seller as a broker, finder, investment banker, financial
advisor or acting in any similar capacity.
3.10 Schedule E reflects the promotional schedule and costs committed
by Seller with respect to the Salon Style Products as of the date of Closing.
Seller agrees that it will pay the cost of all such promotions scheduled for
April as outlined on Schedule E. Seller also agrees to pay for those promotions
scheduled for May totaling $21,550.00 and for portions of certain promotions
scheduled for June and the losses associated with the Rite Aid Freebate Program
as outlined on Schedule E and the balance of all such promotional costs shall be
Buyer's responsibility. If Seller has failed to list on Schedule E a promotion
that was scheduled by Seller, Seller shall pay the cost of that promotion. Buyer
retains the right to cancel any of the promotions listed on Schedule E after the
date of Closing.
Exhibit 10.1-12
Article 4
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Warranties and Representations of Buyer
---------------------------------------
The warranties in this Article 4 shall survive the Closing for the
period of the applicable statute of limitations on written contracts. Buyer
warrants and represents to Seller, its successors and assigns as follows:
4.1 Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York.
4.2 Buyer has full right and power to enter into, and perform its
obligations under this Agreement and has taken all requisite corporate action to
authorize the execution, delivery and performance of this Agreement and the
consummation of the sale and purchase of the Assets and the other transactions
contemplated by this Agreement; and this Agreement has been duly executed and
delivered by the Buyer and is binding upon, and enforceable against the Buyer in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of creditors rights in
general and the general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.3 Neither this Agreement nor the sale and purchase of the Assets or
any other transaction contemplated by this Agreement was induced or procured
through any person, firm, corporation or other entity acting on behalf of, or
representing the Buyer as a broker, finder, investment banker, financial advisor
or acting in any similar capacity.
Exhibit 10.1-13
Article 5
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Covenants of the Parties
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5.1 (a) Seller covenants that it will make available to Buyer an
employee of Seller who is knowledgeable about the Salon Style business for
consultation up to 10 hours per week, for 12 months from the Closing Date. Buyer
will pay all travel and other out of pocket expenses incurred by such employee
in the fulfillment of such consultation services, which expenses shall not
include the employee's salary, bonuses, benefits, contributory health insurance,
payroll taxes and other costs incidents to all Seller's employees.
(b) Seller covenants that it will continue to operate the
Salon Style line of products business in the usual and customary manner until
the Closing Date.
(c) Seller covenants that it will not sell products designed
to compete with the Salon Style Products in the United States for a period of
five (5) years from the Closing Date. For the purposes of this Agreement,
products designed to compete with the Salon Style Products shall be defined as
any new line of hair care products, (i) using the words "salon," "style," "clean
mist," "body boost," "design elements," "salon developed and tested," "flexible
hold," as a trademark or brand, or in a manner that gives those words
conspicuous or special prominence, (ii) using the same product descriptors,
formulas, colors and fragrances as those sold to Buyer herein.
(d) Seller covenants that it will not use any of the
trademarks, tradenames, trademark rights, trade dress or copyrights listed on
Schedule A and assigned to the Buyer hereunder, as long as the Buyer, or its
successors and assigns, shall have legal rights in such trademarks, tradenames,
trademark rights, trade dress and copyrights.
Exhibit 10.1-14
(e)(i) For six months following Closing, subject to (iii)
below, Seller covenants that it will accept all returns of products (including
returns and damages), chargebacks, credits or allowances of every kind,
including, without limitation, such allowances as slotting allowances, new store
allowances, planogram allowances, arising from products manufactured, sold or
otherwise conveyed or granted by Seller bearing or using the trademarks or
copyrights listed on Schedule A hereto, from the trade, whether received from
the trade by Seller or Buyer. Seller will credit or otherwise fully satisfy the
claims of the parties returning such products, or credit Buyer who shall satisfy
the claims, in the event the products are returned to, or credits demanded from
Buyer. However, for the second 3 months following Closing, Buyer shall be
responsible for any such credits totaling during such period to less than
$5,000.00 from any one account.
(ii) Buyer may deduct any such credits or allowances paid or
credited by Buyer from any monies owed to Seller. Any such credits due Buyer
which exceeds the amount owed to Seller, shall be paid within 30 days of billing
to Seller. Buyer shall promptly advise Seller of all credits or allowances paid
or credited by Buyer which it seeks to deduct from monies owed to Seller or to
invoice to Seller.
(iii) With regard to any audits conducted or credits withheld
by Seller's accounts after Closing, for Salon Style Products sold by Seller
prior to Closing, Seller's liability shall be for the full amount that any such
audit finds to be due or any such credits withheld, regardless of how long after
Closing the audit and claim for credit takes place.
5.2 Buyer covenants that it will use commercially reasonable efforts to
optimize the profits of Salon Style Products during the time period for which
royalties are due to Seller under this Agreement. Buyer will not suspend,
depress or delay any sales which optimize profits of Salon Style Products for a
period of two years from the Closing Date.
Exhibit 10.1-15
Article 6
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Indemnification of the Buyer by the Seller
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6.1 (a) The Seller shall indemnify the Buyer against, and hold the
Buyer harmless from: (i) any and all costs, damages, expenses, liabilities,
claims, obligations or losses (including reasonable attorneys' fees and other
reasonable legal costs and expenses incurred in connection therewith) resulting
from, or arising out of, any material inaccuracy or misrepresentation in, or
breach of, or default in performance of or compliance with, any of the
warranties, representations, covenants or agreements made by the Seller in this
Agreement, and (ii) any and all costs, damages, expenses, liabilities, claims,
obligations or losses (including reasonable attorneys' fees and other reasonable
legal costs and expenses incurred in connection therewith) resulting from or
arising out of the use by any person of the Inventory. In addition to all other
rights or remedies Buyer may have against Seller, Buyer shall have the right of
offset against any royalties due in years two, three and four following Closing,
in such sums as Buyer is entitled to indemnity hereunder.
(b) Seller shall maintain liability insurance of at least five
million dollars covering the products it has manufactured and sold to Buyer,
naming Buyer as a third party insured. For any such products Seller's insurance
shall be primary.
6.2 Upon receipt of notice of any claim or demand which could give rise
to a claim for indemnification under Section 6.1 hereof, Buyer shall promptly
notify Seller of such claim or
Exhibit 10.1-16
demand and Seller shall have a reasonable time (not to exceed thirty (30) days)
after receipt of such notice to elect to defend such claim or demand on behalf
of Buyer. If Seller so elects to defend such claim or demand, Buyer shall make
available to Seller and its agents and representatives all records and other
materials which are required in the defense of such claim or demand and shall
otherwise cooperate with, and assist, Seller in the defense of such claim or
demand.
Article 7
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Indemnification of the Seller by the Buyer.
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7.1 The Buyer shall indemnify the Seller against, and hold the Seller
harmless from: any and all costs, damages, expenses, liabilities, claims,
obligations or losses (including reasonable attorneys' fees and other reasonable
legal costs and expenses incurred in connection therewith) resulting from, or
arising out of: (i) any material inaccuracy or misrepresentation in, or breach
of, or default in performance of or compliance with, any of the warranties,
representations, covenants or agreements made by Buyer in this Agreement, and
(ii) the use of any product bearing or using any trademarks or copyrights
assigned or conveyed to Buyer pursuant to this Agreement indicating a date of
manufacture subsequent to the Closing Date.
7.2 Upon receipt of notice of any claim or demand which could give rise
to a claim for indemnification under Section 7.1 hereof, the Seller shall
promptly notify the Buyer of such claim or demand and the Buyer shall have a
reasonable time (not to exceed thirty (30) days) after receipt of such notice to
elect to defend such claim or demand on behalf of the Seller. If the Buyer so
elects to defend such claim or demand, the Seller shall make available to the
Buyer and its agents and representatives all records and other materials which
are required in the defense of such claim or demand and shall otherwise
cooperate with, and assist, Buyer in the defense of such claim or demand.
Exhibit 10.1-17
Article 8
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Miscellaneous
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8.1 Expenses. The Parties will pay their own costs and expenses
(including attorneys' fees, accountants' fees and other professional fees and
expenses) in connection with the negotiation, preparation, execution and
delivery of this Agreement and the consummation of the sale and purchase of the
Assets and the other transactions contemplated by this Agreement.
8.2 Notices. Unless and until notified otherwise in writing, any and
all notices and other communication required or permitted under this Agreement
shall be effectively delivered for all purposes, if delivered personally or by
telecopier, upon the date delivered or the telecopied message is received, or if
mailed, upon deposit in the United States mail, first class postage prepaid,
and, if directed to the Buyer, properly addressed to Alleghany Pharmacal
Corporation, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxx Xxxx, 00000 Attention:
Xxxxx Xxxxxx with a copy to Xxxxxx X. Xxxxxxx, Esq., 00 Xxxx Xxxxxx, Xxxxx 000,
Xxxxx Xxxxxx, Xxx Xxxx 00000 and, if directed to the Seller, properly addressed
to The Lamaur Corporation, 0000 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxx, 00000-0000,
Attention: Xxx Xxxxx., with a copy to Xxxxxx Xxxxxxxxxx, Esq., Xxxxxxx, Street
and Deinard Professional Association, Suite 2300, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, 00000.
8.3 Amendments. Waivers and Consents. Amendments to this Agreement, and
waivers and consents with respect to this Agreement, may be made by an
instrument or instruments in writing signed by authorized representatives of the
Parties and no amendment to this Agreement, and no waiver or consent with
respect to this Agreement shall be effective unless and until made by such an
instrument or instruments in writing.
Exhibit 10.1-18
8.4 Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, and enforceable against the Parties and their
successors and assigns.
8.5 Severability. If any term or provision of this Agreement is
prohibited or made unenforceable by any law, regulation or ordinance, such term
or provision will have no force and effect to the extent prohibited or made
unenforceable but shall not invalidate or terminate any other provisions of this
Agreement.
8.6 Bulk Sales Statute. The Buyer waives compliance with any applicable
bulk sales statute.
8.7 Arbitration. Any disputes arising under this Agreement shall be
resolved by three arbitrators under the rules of the American Arbitration
Association. The arbitrators shall apply the law of Minnesota and shall apply
the terms of this Agreement. Any award by the arbitrators may be confirmed and
enforced in an appropriate court. Any arbitrators chosen pursuant to the terms
hereof may permit such discovery as they, in their discretion, deem appropriate.
Nothing herein shall be construed to prohibit any party from seeking in any
court of competent jurisdiction any injunctive relief to which it is entitled
hereunder, and provided further,.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
among the Parties and supercedes all prior agreements, proposals,
representations and understandings, both written and oral, among the parties
with respect to the purchase of the Assets hereunder, and no purported variation
of this Agreement shall be effective unless made in writing signed by the
parties.
8.9 Headings. The headings herein are for convenience of reference
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any, of the provisions hereof.
Exhibit 10.1-19
8.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall have the force
and effect of an original.
8.11 Right to Audit. For the period from the Closing Date until two
years after the end of the royalty period specified in Section 1.2(a)(v) of this
Agreement, Seller shall have the right to conduct audits of the books, accounts
and records of the Buyer upon reasonable notice and during normal business
hours, for the purpose of confirming Buyer's compliance with this Agreement.
Buyer may substitute for such an audit, at its election, statements which set
forth the amount of the royalty payment and describe in reasonable detail the
bases for such amounts and which are certified by KPMG LLP or other certified
public accountant consented to by the Seller, which consent shall not be
unreasonably withheld, attesting to the accuracy of the statements and the
compliance of such statements with generally accepted accounting principles
which have been consistently applied.
IN WITNESS WHEREOF, the Parties have executed and delivered this
Agreement on the day and year first above written.
Exhibit 10.1-20
ALLEGHANY PHARMACAL CORPORATION
a New York Corporation
By /s/ Xxxxx Xxxxxx Date: April 29, 2002
Its President
THE LAMAUR CORPORATION
a Delaware Corporation
By /s/ Xxx X. Xxxxx Date: April 29, 2002
Xxx X. Xxxxx
Its Vice President of Finance
Exhibit 10.1-21
List of Excluded Schedules
Schedule A: Intellectual property using or relating to Lamaur's
---------- Salon Style trademark and product line
Schedule B: Lamaur's internal standard Salon Style inventory
---------- direct cost rate
Schedule C: Net sales by customer by product 2001
----------
Schedule D: Third party contracts effecting the conveyed assets
----------
Schedule E: Schedule of promotional obligations and costs
----------
Schedule F: Tiro letter agreement
----------
Schedule G Salon Style SKU schedule with discontinuances
----------
Exhibit 10.1-22
