DSCM » Topics » SECTION 11. MISCELLANEOUS

This excerpt taken from the DSCM 8-K filed Sep 4, 2008.

SECTION 11. MISCELLANEOUS

11.1 Binding Effects; No Assignment; Sale of Assets or Capital Stock. This Agreement shall be binding on and inure to the benefit of the parties hereto, and the legal representatives, successors in interest and permitted assigns, respectively, of each such party. This Agreement shall not be assigned in whole or in party by any party without the prior written consent of the other party, such consent not to be unreasonably withheld; provided, however, that a party may, without consent of the other party, assign this Agreement to an Affiliate of the assignor, or to an entity acquiring all or substantially all of the assets or capital stock of the assignor due to. merger, acquisition or consolidation so long as (a) the assignor remains liable for the full and faithful performance of its obligations hereunder, (b) such Affiliate or successor assumes in writing all of the obligations of the assignor under this Agreement and agrees to comply with the terms set forth in this Agreement, and (c) a copy of the assignment is provided to the non-assigning party. The respective rights and obligations of the parties under this Agreement shall survive any transaction pursuant to which a Third Party acquires all or substantially all of the assets or capital stock of either party, whether due to merger, acquisition, consolidation or otherwise.

11.2 Severability. If any term or condition of this Agreement shall be held invalid in any respect by any court or governmental agency of competent jurisdiction and all appeals have been exhausted, the parties shall use commercially reasonable efforts to agree on either (a) an amendment which would restore the validity of the term or condition or (b) a comparable, valid term or condition. If no such Agreement can be reached, the other provisions of this Agreement that are valid are severable and remain in effect.

11.3 Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and may be given by any of the following methods: (a) personal delivery by hand; (b) facsimile transmission, followed within one business day by overnight delivery or (c) overnight delivery service. Notices shall be sent to the appropriate party at its address or facsimile number given below (or at such other address or facsimile number for such party as shall be specified by notice given hereunder):

If to Rite Aid, to:

Rite Aid Hdqtrs. Corp.

30 Hunter Lane

Camp Hill, PA 17011

Attention: General Counsel

Facsimile: (717) 760-7867

Telephone: (717) 761-2633

 

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If to drugstore.com, to:

DS Pharmacy, Inc.

411 108th Avenue N.E., Suite 1400

Bellevue, WA 98004

Attention: General Counsel

Facsimile: (425) 372-3808

Telephone: (425) 372-3200

All such notices, requests, demands, waivers and communications shall be deemed received upon (x) actual receipt thereof by the addressee, (y) actual delivery thereof to the appropriate address or (z) in the case of a facsimile transmission, upon transmission thereof by the sender and issuance by the transmitting machine of a confirmation slip that the number of pages constituting the notice has been transmitted without error.

11.4 No Waiver. No delay or omission by either party hereto to exercise any right or power hereunder shall impair such right or power or be construed to be a waiver thereof. A waiver by any of the parties hereto of any of the covenants to be performed by any other party or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained.

11.5 Written Amendments. No modification, amendment, supplement to, or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by the party against whom enforcement thereof is sought.

11.6 No Third Party Beneficiaries. This Agreement is intended to benefit the parties hereto and their respective successors and permitted assigns, and shall not confer upon any other person or entity any rights or remedies.

11.7 Survival. The terms of Sections 3.4, 4.5, 7, 9, and 10 shall survive any termination of this Agreement. Except with respect to such sections, upon the termination of this Agreement, neither party shall have any liability to the other, except for (a) any breach or default of any provision of this Agreement and (b) any Damages (including, but not limited to, past due amounts as specified in Sections 3.6) incurred prior to the termination.

 

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11.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware as to all matters, including but not limited to, matters of validity, construction, effect, performance and remedies, but without regard to conflicts of laws principles applicable therein; provided, however, that to the extent legally required, the provision of Pharmacy Services will be governed by the law of the situs in which the Pharmacy Services are provided and/or the law of the situs in which the Serviced Order is delivered to drugstore.com by Rite Aid.

11.9 Relationship of Parties. Each of Rite Aid and drugstore.com and their respective employees and agents are independent contractors in relation to the other party to this Agreement with respect to all matters arising hereunder. Nothing herein shall be deemed to establish a partnership, joint venture, association, agency or employment relationship between Rite Aid and drugstore.com. Each of Rite Aid and drugstore.com shall remain responsible for, and shall indemnify and hold harmless the other party against, any and all Federal, state and local personal income, sickness and disability insurance taxes, payroll levies or employee benefit obligations now existing or hereinafter incurred by Rite Aid or drugstore.com, as applicable, with respect to its employees and agents.

11.10 Headings. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement.

11.11 Entire Agreement. This Agreement, and the schedule(s) hereto, set forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersede all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by an officer, director, employee, agent or representative of any party hereto.

11.12 Confidentiality. The parties intend for the terms set forth in this Agreement to be confidential and subject to the terms of the Mutual Confidentiality Agreement dated of even date herewith.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Pharmacy and Private Label Supply and Services Agreement to be duly executed as of the date set forth above. This Agreement may be executed in several counterparts, each of which shall be an original and all of which when taken together shall constitute but one and the same agreement.

 

RITE AID HDQTRS. CORP.
By:   /s/ James J. Comitale
Name:   James J. Comitale
Title:  

Vice President and Assistant

General Counsel

DS PHARMACY, INC.
By:   /s/ Dawn Lepore
Name:   Dawn Lepore
Title:   Chief Executive Officer

 

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