Irinquiries@prestigebrands.com
Prestige Consumer Healthcare Inc.
660 White Plains Road – Ste 250
Tarrytown, NY 10591
Telephone: 914-524-6819
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of
Report (Date of earliest event reported): September
25, 2006
PRESTIGE
BRANDS HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
001-32433
|
20-1297589
|
|
(State
or other jurisdiction
|
(Commission
File Number)
|
(IRS
Employer
|
|
of
incorporation)
|
Identification
No.)
|
90
North Broadway, Irvington, New York 10533
(Address
of principal executive offices, including Zip Code)
(914)
524-6810
(Registrant’s
telephone number, including area code)
Check
the
appropriate box if the Form 8-K filing is intended to simultaneously satisfy
the
filing obligation of the registrant under any of the following
provisions:
[
]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[
]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[
]
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
[
]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Item
1.02 Termination of a Material Definitive Agreement.
On
September 25, 2006, Prestige Brands Holdings, Inc. (the “Registrant”), on behalf
of Medtech Products Inc., an indirect wholly-owned subsidiary of the
Registrant (“Medtech”), sent a Notice of Non-renewal to OraSure Technologies,
Inc. (“OraSure”) in which OraSure was advised that Medtech (i) does not intend
to renew the Distribution Agreement dated April 24, 2003 (the “Distribution
Agreement”), as amended, by and between Medtech and OraSure; and (ii) intends to
purchase its requirements for the Compound W Freeze-Off® business
through December 31, 2007, the expiration date of the Distribution Agreement.
Pursuant
to the terms of the Distribution Agreement, Medtech has been appointed by
OraSure as OraSure’s exclusive distributor in the over-the-counter market (the
"OTC Market") in the U.S. and Canada for that certain cryosurgical removal
system (the “Product”) utilized by Compound W Freeze-Off®. Subject to
the terms and conditions of the Distribution Agreement, OraSure has agreed
to
sell to Medtech, and Medtech shall purchase from OraSure, all of Medtech’s
requirements for the Product. For more information regarding the Distribution
Agreement, please see Exhibit 10.27 to Prestige Brands, Inc.’s Form S-4/A filed
with the Securities and Exchange Commission on August 4, 2004, which is
incorporated herein by reference.
On
February 10, 2006, OraSure, Medtech Holdings, Inc. (“Medtech Holdings”) and
Medtech entered into Amendment No. 1 to the Distribution Agreement pursuant
to
which (i) Medtech Holdings assigned its rights and obligations under the
Distribution Agreement to Medtech; (ii) the parties added a new promotional
product for distribution in the OTC Market in the U.S. and Canada; and (iii)
the
Registrant guaranteed Medtech’s obligations set forth in the Distribution
Agreement, as amended.
Item
7.01. Regulation FD Disclosure.
The
information set forth in Item 1.02 above is incorporated by reference as if
fully set forth herein. A copy of the Notice of Non-renewal to OraSure is
furnished with this report as Exhibit 99.1.
Item
9.01 Financial Statements and Exhibits.
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(d) Exhibits.
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|
Exhibit
|
|
Description
|
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10.1
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Distribution
Agreement, dated April 24, 2003, by and between Medtech Holdings,
Inc. and
OraSure Technologies, Inc. (filed as Exhibit 10.27 to
Prestige Brands, Inc.’s Form S-4/A filed on August 4, 2004 and
incorporated herein by reference).
|
|
|
10.2
|
Amendment
No. 1 to Distribution Agreement, dated as of February 10, 2006, between
OraSure Technologies, Inc., Medtech Holdings, Inc. and Medtech Products
Inc.
|
|
|
99.1
|
|
Notice
of Non-renewal to OraSure Technologies, Inc. dated September 25, 2006
(furnished only).
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| Dated: September 29, 2006 | PRESTIGE BRANDS HOLDINGS, INC. |
| By: /s/ Charles N. Jolly | |
| Name: Charles N. Jolly | |
| Title: Secretary and General Counsel |
&#
160;
EXHIBIT
INDEX
|
Exhibit
|
Description
|
|
|
10.1
|
Distribution
Agreement, dated April 24, 2003, by and between Medtech Holdings,
Inc. and
OraSure Technologies, Inc. (filed as Exhibit 10.27 to
Prestige Brands, Inc.’s Form S-4/A filed on August 4, 2004 and
incorporated herein by reference).
|
|
|
10.2
|
Amendment
No. 1 to Distribution Agreement, dated as of February 10, 2006, between
OraSure Technologies, Inc., Medtech Holdings, Inc. and Medtech Products
Inc.
|
|
|
99.1
|
|
Notice
of Non-renewal to OraSure Technologies, Inc. dated September 25, 2006
(furnished only).
|
AMENDMENT
NO. 1 TO DISTRIBUTION AGREEMENT
This
Amendment No. 1 to Distribution Agreement (this “Amendment”), dated as of
February 10, 2006, is between OraSure Technologies, Inc., a Delaware corporation
(“OSUR”), and Medtech Holdings, Inc. (“Medtech Holdings”) and Medtech Products
Inc. (“Medtech Products”), each of which are Delaware corporations and
wholly-owned subsidiaries of Prestige Brands Holdings, Inc. (Medtech Products,
as the assignee of Medtech Holdings hereunder, is referred to as
“Distributor”).
BACKGROUND
OSUR
and
Distributor previously entered into that certain Distribution Agreement, dated
as of April 24, 2003 (the “Original Agreement”), pursuant to which OSUR agreed
to manufacture and supply the Original Product (as defined below) for
distribution by the Distributor into the OTC Market in the Territory.
Capitalized terms not otherwise defined in this Amendment shall have the
meanings set forth in the Original Agreement. The parties desire to amend the
Original Agreement in order to provide for (i) the assignment of the Original
Agreement as amended hereby by Medtech Holdings to Medtech Products and (ii)
the
distribution of a new promotional product into the OTC Market in the Territory,
pursuant to the terms set forth in the Original Agreement as amended by this
Amendment.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing, and the other mutual promises
and
covenants contained in this Amendment, OSUR and Distributor, intending to be
legally bound, hereby agree as follows:
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1.
|
Definitions.
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1.1 “Freezone®
Product”
means salicylic acid corn and callus remover that is manufactured, marketed
and
sold by Distributor or its Affiliates under the Freezone®
trade
name, together with all modifications and improvements that may be made by
Distributor to such product from time to time.
1.2 “Freezone®
Specifications” means the Freezone®
Product
specifications set forth in Exhibit 1.2 to this Amendment.
1.3 “Original
Product” means the cryosurgical wart removal product supplied by OraSure to
Distributor under the Original Agreement and originally defined as the
“Product” therein.
1.4 “Promo
Footcare Product” means the Original Product and the Freezone®
Product
either singly or combined with non-medicated (containing no salicylic acid
or
other pharmacologically active substance) woven “comfort pads” contained in a
single package for promotional purposes.
1.5 “Promo
Unit” means a single unit of the Promo Footcare Product, consisting of (i) one
(1) Unit of the Original Product, (ii) one (1) bottle of the corn and callus
remover used in the Freezone®
Product,
and (iii) one (1) resealable plastic bag containing twelve (12) non-medicated
(containing no salicylic acid or other pharmacologically active substance)
woven
“comfort pads”.
2. Assignment.
Medtech Holdings hereby transfers and assigns to Medtech Products all of its
rights, and delegates all of the duties and obligations, under the Original
Agreement as amended by this Amendment, and Medtech Products hereby accepts
such
rights and assumes such duties and obligations. As a result of such transfer
and
assignment, Medtech Products shall be deemed to be Distributor under the
Original Agreement and this Amendment. OSUR hereby consents to the foregoing
assignment and assumption.
3. Promo
Footcare Product.
Subject to the terms and conditions of this Amendment and the Original
Agreement, OSUR shall assemble and supply the Promo Footcare Product to
Distributor, and Distributor shall purchase the Promo Footcare Product for
distribution solely in the OTC Market in the Territory. Except as provided
herein and subject to the terms of this Amendment, the Promo Footcare
Product shall be deemed to be an additional Product for purposes of the Original
Agreement as amended hereby.
4. Supply
of Distributor Components.
The following shall constitute the Distributor Components for the Promo Footcare
Product, which Distributor shall supply, at its sole cost, to the Assembly
Contractor for use in packaging and assembling each Promo Unit purchased by
Distributor:
(i) one
(1)
box for each Promo Unit with labeling mutually approved by OSUR and
Distributor;
(ii)
package
insert or instructions for the Original Product in form approved by
OSUR;
(iii)
package
insert or instructions for use for the Freezone®
Product
in form mutually approved by OSUR and Distributor, to the effect that the
Freezone®
Product
and Original Product should not be used together;
(iv)
shipping
case (standard corrugated);
(v) shipping
case label in form mutually approved by OSUR and Distributor;
(vi) security
detection devices (Checkpoint or SensorMatic);
(vii) transparent
tamper-resistant labels for box lids (if required);
(viii)
a
bottle
of the Freezone®
salicylic acid corn and callus remover containing labeling which complies with
Section 5
below;
and
(ix)
twelve
(12) untreated “comfort pads” contained in a resealable plastic
bag.
-2-
Distributor
shall ensure that all of the foregoing Distributor Components are manufactured,
stored and supplied in accordance with the Specifications (as defined in the
Original Agreement), the Freezone®
Specifications and in compliance with all applicable treaties, laws, rules
and
regulations within the Territory. Distributor shall supply the foregoing
Distributor Components with sufficient lead times and in sufficient quantities
as directed by OSUR to permit the packaging and assembly of Promo Footcare
Products purchased by Distributor and delivery to Distributor in accordance
with
Distributor’s Purchase Orders.
5. Price.
Pricing
for the Promo Footcare Products when produced in facilities of OSUR or the
Assembly Contractor shall be as specified in Schedule 5 to this Amendment (as
amended from time to time). OSUR shall have no obligation to supply the Promo
Footcare Products produced in facilities of OSUR or the Assembly Contractor
unless the pricing therefor is agreed to by the parties.
6. Labeling;
Compliance with Law; Specifications.
Distributor shall ensure that the Freezone®
Product
is manufactured, packaged and labeled in compliance with all applicable
treaties, laws, rules and regulations, including all applicable FDA or other
regulatory approvals, clearances or registrations required for the manufacture,
sale or distribution of the Freezone®
Product.
Distributor shall also ensure that all packaging and labeling provided for
the
Promo Footcare
Product contains language (including applicable warnings and cautionary
language) required under all applicable treaties, laws, rules and regulations
for the inclusion of the Freezone®
Product
as a component of the Promo Footcare Product, including under all applicable
FDA
or other regulatory approvals, clearances or registrations. Distributor
represents, warrants and agrees that the Freezone®
Product
shall be manufactured in accordance with and shall comply with the
specifications set forth in the Freezone®
Specifications. Distributor shall be solely responsible for obtaining and
maintaining, at its sole cost, all regulatory approvals, clearances or
registrations, including all applicable FDA approvals, required for
the manufacture,
sale or distribution of the Freezone®
Product
in the OTC Market. In the event one or both of the parties is advised by the FDA
or it is otherwise determined that a labeling or packaging change or a 510(k)
or
other regulatory approval or clearance is required in order to continue to
promote, market, distribute and sell the Promo Footcare Product in the OTC
Market, Distributor shall be responsible for,
and
shall defend, indemnify
and hold OSUR harmless from and against, all necessary out-of-pocket costs,
liabilities, claims and obligations associated therewith, including without
limitation the reasonable out-of-pocket costs of OSUR’s internal personnel and
the fees and expenses of its attorneys. To the extent that any costs or expenses
are discretionary, no cost or expense shall be for the account of Distributor
unless specifically agreed to in writing by Distributor.
7. Repackaging Product.
The
parties acknowledge that Distributor has previously purchased 30,000 Units
of
Original Product and anticipates purchasing 50,000 additional Units within
the
next six months, all of which it desires to repackage and reassemble into Promo
Units of the Promo Footcare Product (the “Repackaged Promo Units”). Subject to
the terms of this Amendment, Distributor shall be permitted to perform the
repackaging of such Original Product; provided that Distributor shall do so
at
its sole cost and expense and shall assume all risk of loss for such Original
Product and Repackaged Promo Units. The foregoing repackaging shall be performed
solely at the facilities of the Assembly Contractor. Distributor shall not
be
permitted
-3-
to
repackage any Units of Original Product except in accordance with the terms
of
this
Section 7. Except as expressly permitted in this Section 7, Distributor shall
not be permitted to repackage or otherwise modify, alter or supplement any
Original Product or Promo Footcare Product, including any labeling, packaging,
product insert, warnings or cautionary language contained therein or
thereon.
8. Branding
and Packaging.
The
Promo Footcare Product labeling, packaging and package inserts shall be subject
to Section 5 of the Original Agreement. The Freezone®
trademark shall be considered a Distributor Trademark for all purposes hereof.
No license is conferred to OSUR for the use of Freezone®
except
as specifically provided herein.
9.
THE
EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 7.1 OF THE ORIGINAL
AGREEMENT SHALL NOT APPLY TO (i) THE FREEZONE®
PRODUCT
OR ANY LABELING,
PACKAGING, PACKAGE INSERTS OR PRODUCT WARNINGS OR CAUTIONARY
LANGUAGE SPECIFICALLY RELATED THERETO, OR (ii) ANY LABELING,
PACKAGING, PACKAGE INSERTS OR PRODUCT WARNINGS OR CAUTIONARY
LANGUAGE REQUIRED OR INCLUDED IN OR ON A PROMO FOOTCARE
PRODUCT BECAUSE OF THE INCLUSION OF THE FREEZONE®
PRODUCT
AS
A
COMPONENT THEREOF. OSUR HEREBY DISCLAIMS ANY AND ALL REPRESENATIONS,
WARRANTIES AND OBLIGATIONS OF ANY KIND RELATING TO THE
FOREGOING, EXPRESS OR IMPLIED, WHETHER ARISING FROM A COURSE OF DEALING
OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON
INFRINGEMENT.
10. Additional Representations and Indemnification by Distributor.
10.1
In
addition to its representations and warranties set forth in the Original
Agreement, Distributor represents and warrants to OSUR as follows: (a) no
authorization, consent, approval or similar action of or by any third party
(including the FDA) is required for or in connection with Distributor’s
authorization, execution, delivery or performance of this Amendment or the
inclusion of the Freezone®
Product
as a component of the Promo Footcare Product; (b) the use of the
Freezone®
trademark by OSUR or Distributor will not constitute an infringement or dilution
of any third party’s trademark rights in the Territory, and (c) the manufacture,
sale and use of the
Freezone®
Product
will not infringe upon, or constitute a misappropriation of, any third party’s
intellectual property rights.
10.2 In
addition to its indemnification obligations set forth in the Original Agreement,
Distributor shall indemnify, defend and hold harmless OSUR, its Affiliates,
and
the respective directors, officers, employees, agents and representatives of
each of the foregoing, from and against any and all Claims and Losses: (a)
for
bodily injury, personal injury, death, property damage or other injury or damage
caused by or arising from, directly or indirectly, the defective design or
manufacture of the Freezone®
Product,
the inclusion of the Freezone®
Product
as a component of the Promo Footcare Product, the use by a customer of the
Freezone®
Product
in any manner including with the Original Product, or the inadequacy, inaccuracy
or insufficiency of any product labeling or inserts (including but not limited
to “CAUTION” and
-4-
“WARNING”
labeling) in or on the Freezone®
Product
or which is required or included in or on the Freezone®
Product
or in or on the Promo Footcare Product as a result of the inclusion of the
Freezone®
Product
as a component thereof; (b) arising out of or in connection with a material
breach by Distributor of any of its obligations hereunder, including any
representations or warranties set forth herein; (c) arising out of any claim
that the Freezone®
trademark constitutes an infringement or dilution of a third party’s trademark
rights in the Territory; or (d) arising out of a claim that any of the
manufacture, marketing, import, sale or use of the Freezone®
Product
infringes upon any lawful patent rights; provided, however, that Distributor
shall have no liability to OSUR for any Claims or Losses to the extent that
any
such Claims or Losses result from or arise out of: (1) the negligence or
willful
misconduct of OSUR or its Affiliates, subdistributors, employees, agents
or any
person for whose action OSUR is legally liable; or (ii) a material breach
by
OSUR of any of its obligations under the Original Agreement or this
Amendment.
10.3 In
no
event shall OSUR have any obligation or liability to Distributor, its Affiliates
or any other party in connection with the Freezone®
Product
or any labeling, packaging, package inserts or product warnings associated
therewith, notwithstanding any provision of the Original Agreement, except
for
OSUR’s limited obligation to include such items (subject to Distributor’s
fulfillment of its obligation to provide Distributor Components as provided
herein and otherwise comply with this Amendment), when assembling and providing
Promo Units for Distributor hereunder.
10.4 Any
claim
for indemnification pursuant to this Section 10 shall be handled in
accordance with Section 8.2.3 of the Original Agreement.
11. Recalls
and Complaints.
Distributor shall be solely responsible for, and shall reimburse OSUR for,
any
costs associated with any recall, replacement or other similar action involving
the Promo Footcare Product to the extent arising from the Freezone®
Product
or the use thereof in any manner or any labeling or warnings related thereto.
In
addition, Distributor shall have primary responsibility for investigating and
responding to all complaints or adverse events or reactions related to the
Freezone®
Product
or the use thereof. OSUR shall be solely responsible for, and shall reimburse
Distributor for any “direct costs” (as defined in Section 9.1 of the Original
Agreement) associated with any recall, replacement or other similar action
involving the Original Product to the extent arising solely from the Original
Product or the use thereof in any manner or any labeling or warnings related
solely thereto.
12. Effect
of Amendment.
Except as amended hereby, the Original Agreement shall remain in full force
and
effect. All references to the Original Agreement shall be deemed to mean the
Original Agreement as amended by this Amendment.
13. Governing
Law.
This Amendment shall be governed by and construed in accordance with the laws
of
the Commonwealth of Pennsylvania, excluding its conflict of law
principles.
14. Counterparts.
This Amendment may be executed by the parties in more than one counterpart,
each of which, when executed and delivered, shall be deemed to be an original,
and
-5-
all
such
counterparts shall constitute a single instrument. A facsimile transmission
of a
signed original shall have the same effect as delivery of the signed
original.
15. Term.
This
Amendment shall be effective as of the first day of February, 2006 and shall
remain in effect until the last day of the fifth Contract Year of the Original
Agreement or on such earlier date of termination of the Original Agreement
as
provided in Section 11.2 of the Original Agreement. To the extent that the
Original Agreement is subject to a Renewal Term this Amendment shall remain
in
full force and effect during such Renewal Term.
IN
WITNESS WHEREOF, this Amendment has been executed by OSUR, Medtech Holdings
and
Medtech Products as of the date first written above.
ORASURE
TECHNOLOGIES,
INC.
By: /s/
Douglas A. Michels
Name:
Douglas
A. Michels
Title:
President and CEO
MEDTECH
HOLDINGS, INC.
By: /s/
Peter J. Anderson
Name:
Peter
Anderson
Title:
Chief
Financial Officer
MEDTECH
PRODUCTS, INC.
By: /s/
Peter J. Anderson
Name:
Peter
Anderson
Title:
Chief
Financial Officer
Guarantee
Prestige
Brands Holdings, Inc. (“Prestige”) hereby irrevocably and unconditionally
guarantees, to and for the benefit of OraSure Technologies, Inc. (“OSUR”),
the due and punctual payment in full by Medtech Products, Inc. (“Medtech
Products”) of all amounts which are or may become due and payable by, and the
due and punctual performance and discharge by
-6-
Medtech
Products of all other agreements, covenants, obligations and liabilities of,
Medtech Products under the Distribution Agreement, dated as of April 24, 2003,
as amended by the foregoing Amendment and as otherwise amended from time to
time
(the “Obligations”), in case of any failure or inability of Medtech Products
duly and punctually to perform, observe and discharge any such Obligations,
Prestige hereby irrevocably and unconditionally agrees to perform, observe
and
discharge the same or cause the same to be performed, observed or discharged
forthwith, without the requirement that OSUR first proceed against Medtech
Products for such performance. This is a present and continuing guaranty of
payment and performance and not of collection, and the obligations of Prestige
hereunder shall be absolute and unconditional irrespective of the enforceability
or validity of any Obligation or any other circumstance that might constitute
a
defense available to, or discharge of, a guarantor or surety, other than full
performance.
Agreed
To And
Accepted:
PRESTIGE
BRANDS
HOLDINGS, INC.
<
font id="TAB2" style="LETTER-SPACING: 9pt"> By:
/s/
Charles
N. Jolly
Name:
Charles N. Jolly
Title:
Secretary & General
Counsel
Date:
February 10,
2006
-7-
[PRESTIGE
BRANDS INC. LOGO]
Charles
N. Jolly
Secretary
and General Counsel
September
25, 2006
VIA
FEDERAL EXPRESS
Douglas
A. Michels
President
& CEO
OraSure
Technologies, Inc.
220
East
First Street
Bethlehem,
PA 18015-1360
Jack
E.
Jerrett, Esquire
Senior
VP
& General Counsel
OraSure
Technologies, Inc.
220
East
First Street
Bethlehem,
PA 18015-1360
Gentlemen:
Notice
of Non-renewal
Pleased
be advised that it is the intention of Medtech Products, Inc./Prestige Brands
Holdings, Inc. (“Prestige”) not to renew the Distribution Agreement dated April
24, 2003. Prestige is aware that the Term of the Agreement extends to December
31, 2007 and fully intends to purchase its requirements for the Compound W
Freeze-Off® business through that date.
Having
advised you that the existing Agreement will not be renewed, I also wish to
affirm that Prestige would have considerable interest in negotiating a new
agreement whereby the commercial relationship between the two companies would
continue. Such an arrangement would necessarily involve a substantial
improvement in pricing as well as recognizing the changed circumstances of
Prestige’s ownership of the Wartner® business.
We
would
be pleased to meet and discuss this matter at your convenience.
Very
truly yours,
/s/
Charles N. Jolly
Charles
N. Jolly