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DS- 7162, ?c?? [Home Allegheny County - Department of Court Records Civil/Family Division Docket Report GD-07-001856 *****CASE TRANSFERRED TO CUMBERLAND COUNTY**** Run Date: 11/26/2008 Run Time: 10:58:29 AM Court Type: General Docket Case Type: Contract Related Cases: Judge: Strassburger III Eugene B. Jury Requested. Yes Current Status: Case Transferred Amount In Dispute: $.00 Parties -- Litigants -- ID 11-Name FName MI Type Address Phone Attorney @1451455 MXM Essential Formulas Inc. ' ' -- Plaintiff Park Building 355 Fifth Avenue Suite 1200 Behrend Kenneth R Pittsburgh PA 15222 , Allegheny County ACDCR Department of Court --- "' Interested Party No Default Address Available Records L@1 84302 Rite Aid Corporation H Defendant 30 Hunter ill PA 17011 Lane Camp H John K n -- Attorney -- ID 37961 LName Behrend FName Kenneth MI R Type Plaintiffs Attorney 1 Address 355 5th Ave Suite 1200 Pittsburgh PA 15222 1 Phone 12) [31,912515 H Eson E] H iAttorneyDefendant's chnader Harrison Segal 120 Fifth Avenue, . 0 5th Avenue Place Pittsburgh A 15222 to 270 F(412) 577 295 -- Non Litigants -- ID :111-Name FName MI Type Address Phone JSTRASSBU Strassburger III Eugene FB- l Judge No Default Address Available (412)3507138 Docket Entries F Date iling Docket Type 11 Docket Text Filing Party Praecipe for MXM Essential 0Writ of Returnable 02/24/07. Formulas Inc. Summons Rite Aid Corporation was served by Served - Agent or person in 02/08/2007 Sheriff Return charge of Defendant(s) office or usual place of business Service Upon JAIME KREITZER with Writ of Summons on 2/1/2007. MXM Essential Formulas Inc. PARALEGAL 06/19/2007 Complaint in Civil Action MXM Essential Formulas Inc. 06/10/2008 Amended MXM Essential I Complaint Formulas nc. 07/25/2008 l Preliminary brief in support and proposed order (Strassburger) Rite Aid Corporation Objections 07/29/2008 Praecipe for of John K.Gisleson,Esquire & Emily M.Ayoub,Esquire on behalf Rite Aid Appearance of Rite Aid Corporation. Corporation 08/13/2008 l Re to deft's P O 's I i MXM al EssentI y p . . nc . Formulas Dated 09/11/08, Order that: 1. Discovery shall be completed by November 10, 2008. 2. Deft's. Brief shall be filed, with a copy on Order of the Court and opposing counsel, by or before November 24, Strassburger III 09/12/2008 Court 2008. 3. Pltfs. Brief shall be filed, with a copy served on the Eugene B. Court and opposing counsel, by or before December 8, 2008.4. Briefs shall not exceed 5 pages. Strassburger J. eodie copies mailed. 09/23/2008 Notice of Of plaintiffs first set of discovery concerning venue has been MXM Essential I Service set to all parties and counsel of record on Sept 22,2008 nc. Formulas 10/24/2008 Notice of of answers to first set of discovery. MXM Essential las Inc F Service . ormu Allegheny Case As per Order of Court dated 11 /25/08. Case is transferred to County 11/26/2008 Transferred Cumberland County, PA.`Strassburger, J. Department of Court Records Dated 11/25/08. Ordered that this lawsuit is transferred to Motion & Cumberland County with parties preserving any and all of their Rite Aid 11/26/2008 Order claims and defenses available as of the filing of the complaint in Corporation this court. Strassburger J. CERTIFIED FROM THE RECGrit.: DIRECTOR: DEPT. OF COURT RECORLk BY C rk C: Cl) co o ? IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. c? aQr 7 co U)y x 0c ,. Q CL. JURY TRIAL DEMANDED CIVIL DIVISION CASE NO.: GD-07-001856 UNCONTESTED MOTION TO TRANSFER CASE TO CUMBERLAND COUNTY Filed on Behalf of Defendant, Rite Aid Corporation Counsel of record for this party: John K. Gisleson, Esquire PA Id. #62511 Schnader Harrison Segal & Lewis LLP Firm #061 Fifth Avenue Place, Suite 2700 120 5th Avenue Pittsburgh, PA 15222 os 9e 4 ON 000Z PHDATA 31489771 110101 OD-,),7-pp1856.MOTOR.11 • • IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION Plaintiff, CASE NO.: GD-07-001856 V. RITE AID CORPORATION, Defendant. UNCONTESTED MOTION TQ TRANSFER CASE TO CUMBERLAND COUNTY Plaintiff MXM Essential Formulas, Inc. ("MXM") and Defendant, Rite Aid Hdqtrs. Corp. ("Rite Aid") (incorrectly named Rite Aid Corporation in the First Amended Complaint), by and through their undersigned counsel, move this Court to transfer the case to the Court of Common Pleas of Cumberland County, Pennsylvania, and aver as follows: 1. MXM filed this lawsuit in Allegheny County, under docket number GD-07- 001856. 2. Rite Aid filed a Prelimlinary Objection Raising Questions of Venue on July 25, 2008, arguing that the case should have been brought in Cumberland County, Pennsylvania, and thus should be transferred from Allegheny County to Cumberland County. 3. MXM and Rite Aid have stipulated to transfer the case to Cumberland County, as shown by the Stipulation Concerning IIVenue, attached hereto as Exhibit A. 2 PHDATA 31489771 WHEREFORE, NMm and Rite Aid respectfully request that this COwR entCr the attached order transferring the case to the Court of Common Pleas of Cumberland County, Pennsylvania. submitted, J4. Gisleson, Esquire ` p No. 62511 Ilarri3on Segal & L V%de LLP cite 2700, Fifth Av=ue Place 120 Filth Avenue Pittsburgh, PA 15222 Attorneys for Defendant CONSENTED TO: Kexu?eth R. Be ad, Esquire Behrend euad Ernsberger, P,C. Park Building, 12"h 355 Fifth Avenue Pittsburgb, PA 15222 Attarneyr for Plaintiff PHDATA }14Wn 1 0 • 0 0 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION Plaintiff, CASE NO.: GD-07-001856 V. RITE AID CORPORATION, Defendant. STIPULATION CONCERNING VENUE Plaintiff MXM Essential Formulas, Inc. ("MXM") and Defendant, Rite Aid Hdqtrs. Corp. ("Rite Aid") (incorrectly named Rite Aid Corporation in the First Amended Complaint), by and through their undersigned counsel, helreby enter the following stipulation: 1. Rite Aid and Triad M Marketing, Inc. ("Triad") entered a Guaranteed Sales Agreement and two companion agreements ("Agreements") pertaining to the sale of a calcium product (Coral Calcium Daily). 2. MXM alleges in this 1 wsuit that Triad assigned the Agreements to it. 3. MXM filed suit in this (''Court seeking to enforce the Agreements against Rite Aid and recover monies allegedly owed by Rite Aid to Triad under the Agreements. 4. The Guaranteed Sales Agreement contains a forum selection clause that provides in pertinent part as follows: "[a]ny lawsuit brought with regard to this Guaranteed Sales Agreement will be venued in the Court of Common Pleas, Cumberland County, Pennsylvania. (Guaranteed Sales Agreement at ¶ 6) PHDATA 31470132 • • 5. The parties hereby stipulate and agree that this lawsuit, including any and all claims and defenses, shall be transferred to the Court of Common Pleas of Cumberland County, Pennsylvania as provided ba the Agreement. b T)ae patties further stipulate and agree that the transfer shall not affect a>ty chit or defenses that either party had or may have as of the filing of the Corztplaint in Allegheny County and that all such claims ana defenses available in the lawsuit filed in Allegheny County shall be available in the transferred lawsuit in Cumberland County as if the lawsuit had originally been filed in Cumberland County. 7. Rite Aid shall answer, move, or otherwise respond to the Complaint within twenty (20) days after the Complaint is filed in. Cumberland County and served on Rite Aid. STIPULATED AND AGREED: TED AND AGREED: emteth R. Brhmad, Esquire Behrend and Ernsberger, P.C. Park Building, l 355 Fifth Avenue Pittsburgh, PA 15222 Attorneys for Plairttff Jo . Gisleson, Esquire Sc er Harrison Segal & Lewis LLP Sul 2700, Fiiffi Avenue Place 120 Fifth Avenue Pittsburgly PA 15222 Attorneys for Defendant FKDATA M70132 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION Plaintiff, CASE NO.: GD-07-001856 V. RITE AID CORPORATION, Defendant. ORDER AND NOW, th' y of 4101C 2008, upon consideration of the Uncontested Motion to Transfer Venue to Cumberland County, it is hereby ORDERED, ADJUDGED and DECREED, that th s lawsuit is hereby TRANSFERRED to the Court of Common Pleas of Cumberland Count, with the parties preserving any and all of their claims and defenses available as of the filing; of the Complaint in this Court. COURT: PHDATA 31489771 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Uncontested Motion to Transfer Case to Cumberland County, was served via U.S. Mail, First Class, postage pre-paid, this)S'h day of November, 2008, upon the following: Kenneth R. Behrend, Esquire Behrend and Ernsberger, P.C. Park Building, 12th 355 Fifth Avenue Pittsburgh, PA 15222 Attorneys for Plaintiff PHDATA 31489771 f 0 IN THE COURT OF COMMON LEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC., Plaintiff, No. GD e 17 Code: 011 V. RITE AID CORPORATION, Defendant. Issue No. PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION - JURY TRIAL DEMANDED Filed on Behalf of )+II M Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222__ (412) 391-2515 (412) 391-2762 Fax lle' 07 -t t JURY TRIAL DEMANDED SHERIFF RETURN Case No: Case Description: Defendant: Service Address: Writ Type: Issue Date: Service Status: Served Upon: Served By: Served on: Service Method: Additional Fee/Charges: • GD-07-001856 MXM Essential Formulas Inc. vs Rite Aid Corp. Rite Aid Corporation 30 Hunter Lane Camp Hill, PA, 17011 Cumberland Writ of Summons Issued: 1/25/2,007 3:26:35 PM SERAP JAIME KRETT'ZER SHANNON SIHERTZER 2/1/2007 12:00:00 AM at 09:40 Deputize (none) MXM Essential Formulas Inc.; Vs Rite Aid Corporation; IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. No. GD 07-1856 Code: 011 Issue No. COMPLAINT IN CIVIL ACTION Filed on Behalf of MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax JLIRY'TRW. DEMANDED ?_ ?s 0 0 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, CIVIL DIVISION No. 07-1856 V. RITE AID CORPORATION, Defendant. NOTICE TO DEFEND You have been sued in Court.' If you wish to defend against the claims set forth in the following pages, you must take action Within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a Judgment may be entered against you in the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lope money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Lawyer Referral Service Alleghenj County Bar Association 920, City-County Building Pittsburgh, Pennsylvania 15219 Telephone: (412) 261-0518 • IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION Plaintiff, No. 07-1856 V. RITE AID CORPORATION, Defendant. : COMPLAINT IN CIVIL ACTION AND NOW comes the Plaintiff, W M Essential Formulas, Inc., by and through its attorneys, Kenneth R. Behrend and the law firm of Behrend and Ernsberger, P.C., and sets forth the following Complaint in Civil Action. 1. Plaintiff is MXM Essential Formulas, Inc. (hereinafter referred to as M)(M), a Delaware Corporation which does business in Commonwealth of Pennsylvania with a local office at Park Building, Suite 1200, 355 Fifth Avenue, Pittsburgh, Pennsylvania 15222. 2. Defendant is Rite Aid Corporation (hereinafter referred to as Rite Aid), a Pennsylvania corporation which does business throughout Allegheny County, Pennsylvania. COUNT I BREACH OF CONTRACT 3. At all times pertinent hereto, the Defendant, Rite Aid, purchased from Triad ML Marketing, Inc. (hereinafter referred to as Triad), a mineral supplement that is a coral-calcium product, called "Coral Calcium Daily." 4. The coral-calcium product, Coral Calcium Daily, was produced by MXM Essential Formulas and sold to Triad, who in turn sold it to Rite Aid. 5. It is believed and therefore alleged that there is a written contract between Rite Aid and Triad regarding the sale of Coral Calcium Daily. MXM does not have a copy of said contract and is unable to attach a copy hereto. -1- • • 6. It is believed and therefore alleged that consistent with the terms of the written contract between Rite Aid and Triad, the amounts, tunes of delivery and prices charged by Triad to Rite Aid for the Coral Calcium Daily are set forth in Triad's Customer Ledger prepared in the ordinary course of Triad's business. A true and correct copy of Triad's Customer Ledger is attached hereto as Exhibit A. 7. It is believed and therefore alleged that the prices set by Triad were fair and reasonable prices at the time and place of sale to Rite Aid. 8. After the sale and delivery of the Coral Calcium Daily as set forth above, Rite Aid made payments on a timely basis to Triad based upon the Triad account, without objection, so as to constitute an account stated. 9. It is believed and therefore alleged that pursuant to the terms of the agreement between Triad and Rite Aid, situations could arise under which Rite Aid would receive a credit and a corresponding deduction from the amount owed by Rite Aid to Triad for the Coral Calcium Daily. It is believed and therefore alleged that all credits to which Defendant, Rite Aid, is entitled are set forth in Exhibit A. 10. It is believed and therefore alleged that no credits are due to Rite Aid other than those specifically set forth in Exhibit A. 11. As of this date, a balance of Twenty-seven Thousand Five Hundred Forty Dollars ($27,540.00) is due and owing, plus interest for the Coral Calcium Daily purchased by Rite Aid from Triad. See Exhibit A. 12. Additionally, it is believed and therefore alleged that there was a return policy under which Rite Aid could return Coral Calcium Daily product to Triad under certain terms and conditions as agreed upon between Rite Aid and Triad. Since MXM does not have a copy of the written agreement, MXM is unable to provide the exact terms and conditions as well as if any Coral Calcium Daily product was returned to Triad. 13. In 2003, MXM sued Triad in the United States Court for the Eastern District of -2- Pennsylvania at C.A. No. 03-cv-06047, alleging claims for trademark infringement. 14. On October 19, 2004, MXM and Triad reached an amicable settlement. See copy of Order of the Clerk of Court for the United States District Court For the Eastern District of Pennsylvania, attached hereto as Exhibit B. 15. On or about October 27, 2004, MXM notified Rite Aid by a letter signed jointly by Kenneth W. Behrend, Counsel for NUM, Roger J. Harrington, Jr., Counsel for Triad, Steven D. Richey, Vice President of Triad, and Rebecca Brainard, President of MXM, that a settlement of a legal disagreement between MUM and Triad was reached. And, that pursuant to the terms of the settlement all monies due and owing to' Triad from Rite Aid for Coral Calcium Daily were assigned to Plaintiff and demand for payment was made to Defendant. A copy of the October 27, 2004 assignment is attached hereto and marked Exhibit C. 16. Pursuant to the terms of the settlement agreement, Triad assigned all rights and interest in the money owed from Rite Aid to Triad for the sale of the MXM's Coral Calcium Daily product by Triad to Rite Aid. See Exhibit C. 17. Pursuant to the terms of the assignment MXM made demand upon Rite Aid for payment to MXM as set forth in Triad's Ledger attached hereto as Exhibit A. 18. Despite repeated demands by MXM, Defendant, Rite Aid has failed to pay the amount due of Twenty-seven Thousand Five Hundred Forty Dollars ($27,540.00), plus interest. 19. It is believed and therefore alleged that after receiving notice of the assignment on or about October 27, 2004 that Rite Aid may have returned some Coral Calcium Daily product to Triad despite the fact that Rite Aid was notified in writing of the assignment of the ownership rights in the Coral Calcium Daily product to NIXM. 20. MXM also demands an accounting from Rite Aid regarding the status of the account with Triad as of October 27, 2004 and thereafter to ascertain whether any Coral Calcium Daily product was returned to Triad after notice of the assignment was provided to Rite Aid as well as Rite Aid's understanding of the status of the amount owed to Triad as of October 27, 2004 and thereafter. -3- • 0 21. If it is determined that Rite Aid returned any Coral Calcium Daily product to Triad after notice of the assignment to MXM was provided to Triad on October 27, 2004, then MXM demands payment for the amount of the product that was returned to Triad that should have been returned to MXM. WHEREFORE, Plaintiff, MXM, demands judgment against Defendant, Rite Aid, in the amount of Twenty-seven Thousand Five Hundred Forty Dollars ($27,540.00) with interest at the legal rate of 6% from October 27, 2004 to the present and for the amount of any Coral Calcium Daily product that was returned to Triad on or after October 27, 2004, with interest at the legal rate of 6% from October 27, 2004 to the present and costs and any such other relief as the Court deems appropriate. COUNT II UNJUST ENRICHMENT 22. Paragraphs 1 through 21 are incorporated herein as though fully set forth at length. 23. No written or oral contract exists between Rite Aid and MXM. 24. Beginning in March of 2003 and continuing to on or about September 16, 2004, Rite Aid received shipments of Coral Calcium Daily from Triad which Rite Aid sold to the public through Rite Aid stores located in Allegheny County, Pennsylvania and elsewhere. 25. As a result of the sale of Coral Calcium Daily by Rite Aid to its customers, Rite Aid has received monies from the sale of the Coral Calcium Daily purchased from Triad out of which Rite Aid failed to pay Triad. 26. Based upon the assignment of Triad's claim for payment from Rite Aid, set forth above, Rite Aid has failed to pay MXM the money rightly owed to MXM for the Coral Calcium Daily that Rite Aid sold and collected money from its customers. 27. As a result of the sale of the Coral Calcium Daily, Rite Aid has become unjustly enriched at the expense of MXM. 28. Rite Aid's actions constitute an unjust retention of a benefit to the loss of MXM, and -4- • • Rite Aid's retention of money and property are against the fundamental principles of justice and good conscience and are patently unfair. 29. As a direct and proximate result of Rite Aid's unjust retention of the MXM's tangible and intangible property and the proceeds therefrom, MXM has suffered and continues to suffer serious financial injury and inequities that have resulted in substantial damages. 30. It would be unconscionable for Rite Aid to retain the value of the Coral Calcium Daily sold to its customers without making remuneration to MXM. Equity demands that Rite Aid be compelled to disgorge this benefit. WHEREFORE, Plaintiff, MXM, respectfully requests this Honorable Court to issue an ORDER: a) Granting judgment for plaintiff, MXM, and against Defendant, Rite Aid, in the amount of Twenty-seven Thousand Five Hundred Forty Dollars ($27,540.00) with interest at the legal rate of 6% from October 27, 2004 to the present and costs; b) Granting, Plaintiff, MUM its expenses, including reasonable attorney fees incurred in connection with this action; and c) Granting such other relief as the Court deems appropriate. BEHREND AND ERNSBERGER, P.C. /Kenneth R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax -5- • VERIVICATION (Inconsistent Averments) • I, Rebecca Brainard, verify that the statements made in this complaint, other than those identified hereinafter, are true and correct to the best of my knowledge, information, and belief. After reasonable investigation, I have been unable to ascertain which of the inconsistent averments set forth in pa agraphs S, b and 18 of this complaint are true but I have information sufficient to form a belief that one of them is true; I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. I am authorized to make this verification on behalf of W M Essential because of my position as President. Date: 61151/07 7 "OCT. 8.2004 G!?4fbM ELLIOTT (??EENLEA'F NO. 487 P.14 • • Page: l 10!7104 at 09:36.1(.90 Triad ML Marketing Inc Customer Ledges For the P eriod From ran It 2002 to Oct 31, 2004 Filter Criteria includes: 1) IDs from RITE AID to RITE All). RepeR order is by M. Report is Printed in DcWI Format Customer 10 Dare Trans No Typ Debit Amt Credit Amt Balance Customer RIPE AID 3112/03 991670 sJ J 39,960.00 00 6 480 39,960.00 * 46,440.00 * RIPE AID VIM 3/12/03 991671 991672 S SJ . , 16,740.00 63,180.00 * * 4/1103 300900004 Si 175.00 00 300 63,005.00 705.00 62 4/1103 411103 300900005 300900006 SJ SJ . 125.00 , 62,380.00 + 4/3103 30090.93138 SJ 50,295.00 12,285.00 ? 005 00 22 414/03 991751 Si SJ 9,720.00 00 860 4 . , 26,865.00 • 414103 4/4/03 991752 991753 S] . , 3,240.00 30,105.00 " * 419/03 991768 Si 25,920.00 56,025.00 26500 * 59 4/9!03 419103 991769 991770 SJ SJ 3,240,00 10,800.00 , 70,065.00 + 4116103 991790 Si sJ 11,340,00 00 160 2 61,405.00 + 83,565.00 4117/03 4117/03 991800 991801 SJ . , 5,940.00 89,505.00 • 4117/03 9918000M $J • S7 00 8 640 1,620.00 87,885.00 + 96,525.00 4/23103 4124103 991808 991809 SJ , . 4,860.00 101,385.00 4130103 991B10 SJ 12,420.00 113,805.00 * 00 + 121 365 4130/03 511103 991811 30090-90915 SJ SJ 7,560.00 12,500.00 . , 108,865.00 5/1/03 300900008 SJ 75.00 00 25 108,790.00 765.00 " 108 5/1103 5/13/03 300900009 991839 SJ si 33,480.00 . , 142,24540 + 5115103 991840 SJ 4,320.00 800 00 10 146,565.00 157,363.00 5115/03 5/16/03 991841 300900007 SJ si . , 250.00 57 315 00 1 s/27/03 991842 ? 31 2,700.00 00 400 32 159,815.00 192,215.00 + 5130/03 613103 991843 991845 S7 . , 13,500,00 205,715.00 6118/03 991846 ' S1 5,400.00 000 00 128 211,115.00 115.00 * 83 6119/03 6123/03 11300900403 0002876392 SJ Clu 4,114.80 . , 4,114-90 , 83,115.00 6/23/03 0002876392 CRJ 69,120 00 00 * 740 70 6/24103 991847 94 sJ SJ 1,620.00 940,00 5 . , 76,680.00 6124/03 6125/03 991 8 0002877106 CRJ , 302.40 302AO 76,690.00 6/25/03 0002877106 CFJ 20.00 15,1 61,560 00 7/2/09 991850 SJ SJ 5,940.00 00 580 14 67,500.00 0 82,08040 0 7/7103 717103 991851 991852 SJ . , 1,080.00 83,16000 * 7/10/03 0002889736 CRJ 702,00 702.00 100 00 35 83,160.00 060.00 48 7/10/03 7/14/03 0002889736 2893308 clu CFJ 270.00 . , 270.00 , 48,060.00 7114/03 2893308 CRJ 13,500.00 132 89 34,560.00 427.11 " 34 7/111103 7118103 D113242299 D114311790 81 s7 . 46.90 , 34,380,21 • 7/28/03 0002905909 CRJ 103.00 2108.00 21 20 5 34,390.21 160 00 29 7/28/03 8/5/03 0002905909 0002909838 CR 1 CFJ 151.20 . , 151.20 , 29,160.00 8/5103 0002909638 CRJ 7,560.00 500.00 12 21,600.00 9 100.00 815/03 8/15/03 12237 0002922879 si CRJ 31320 , 313.20 , 1 9,100.00 8/15/03 0002922879' CRJ 3,160.00 230 09 709.91 + 5 8/19/03 1/21/03 D123060299 2926946 sJ CRJ $3,000.00 , 53,300.00 , 5,709-91 • 8/22/03 DI 183782"' SJ 9 257 4 321.15 5 321.15 8122/03 9/19/03 D119456790 1)124133790 SJ . 71.41 , 5, 1013103 991664 S7 Si $40.00 720.00 9 5,749.74 " 15,509.74 10/3103 10/17103 991965 2974546 CFJ , 25,000.00 25,000.00 15,509.74 10/17/03 2974546 •CRJ SJ 700.00 2 16,200.00 18,900.00 M 10/17103 10117/03 991880 D1211049299 SJ , 174.55 18,725.45 * EXHIBIT 10117103 012913679 1 SJ 51 0 320 4 55.54 i8,669.91 89.91 22, 10/27/03 11/4103 991900 30090.22821 SJ . , 12,500.00 10,489.91 A 11119103 991909 SJ 5,940.00 16,429.91 v?., .+.L.c./CJ4 ?:•G•-IP'1'I CLL1V1 I l? Lt?tiLLFIr NU. 487 P.15 • • Page: 2 1017/04 at 09:36:17,95 Tried ML Mark9ft9 Inc Customer Ledgers For the Period From Jan 1, 2002 to Oct 31, 2004 Filter Criuria includes: 1) IDs from RITE AM to RITE AID. Repon order is by 1D, Report is printed in Detail Format, Ctneamer ID DRta Trane No Typ Debit Amt Credit Amt Baknee Cutosoer 11/21/03 30090-24285 Si 367.00 198 35 16,062.91 " 864.56 * 15 11121103 11/21/03 D133092299 D134219790 SJ S3 . 55.54 , 15,809.02 * + 1213/03 991911 S1 1,080.00 00 720 9 16,989,02 26,609,02 * 1719103 1219103 991915 991916 Si si , , 7,560.00 34,169.02 12119/09 D136121299 Sl 103.14 63 47 34,065.98 " 34 002.41 12/19103 1116/04 D139245790 D142859299 si Si . 79.34 , 33,923.07 1/16104 D143969790 si 23.30 33,899.27 + 27 37 139 1/19/04 1119104 991931 991932 SI S1 3,240.00 3,240,00 . , 40,379.27 1123/04 30090.29120 Si 516.00 00 12 500 39,863,27 363.27 + 27 213/04 215104 30090.32080 991952 ST si 540.00 , . , 27,903.27 2/6104 991953 k Si 15,660,00 00 080 1 43,563,27 " 44,643.27 " 2/12/04 2117/04 991954 3078160 CRJ . 1 24,049.60 27 24 8 4 , 2117104 3078160 clu , 83 67 3 99 2 3 760.00 33 + 720 23 2120104 2/20/04 1)14847790 0147336299 s7 SJ . .23 33 . , 23,387,30 227104 3089592 CRJ 129.60 129.60 23,391.10 2127/04 3089592 CR1 sJ 00 5 940 6,1 07.10 23,220.00 3/17/04 3/16104 991973 991974 Sy , , 4,320,00 27,540.00 + 3/17104 3t06656 CRJ 324.00 324.00 27,540-00 3117/04 3106656 CRI 16 119 01 11,340 00 99 + 11 220 3119104 3119104 D151651299 D152745790 SJ Si . 15.87 , . 11,205.12 3/24/04 3112150 CRJ 21.60 21-60 11,205.12 3/24/04 3112150 CRI 1 08 0,0 4/5/04 991979 sJ • 3,780.00 103 14 13,905.12 . 98 801 * 13 0 4/104 4/16/04 D155688299 D156757790 S1 51 126.. 94 13,, . 04 675 4/19/04 3137307 CRJ 118.80 118.80 12 5 805 13,675.04 7 869.92 4119104 421104 3137307 991986 CRJ Si 4,320.00 , . , 12,189.92 4122104 3140598 CRJ 86.40 86.40 12,189.92 4/22/04 3140598 CRJ SI 00 700 2 4,089.92 81100.00 10,800.00 + 4126/04 4126104 991989 991990 sl . , 4,320.00 15,170,00 5/4/04 991993 S1 4,860.00 $40 00 19,980.00 520.00 20 514104 5/5/04 991994 991995 Si SI . 2,700.00 , 23,220.00 515/04 7009000010' S7 250.00 507 78 2070.00 22 + 462 22 521/04 5121/04 D160650299 0161744790 Sl Si . 23.80 . „ 22,438.42 5/26/04 3172546 CRJ 4,912.00 4,912.00 22,438.42 5/28104 3172546 CRJ 7,318.42 15,120.00 280 00 17 6/1/04 62104 992043 3176140 SJ CPJ 2,160.00 140.40 140.40 . , 17,280.00 6/2/04 3178140 CRJ CRI 00 108 7,020.0 108.00 10,260.00 1 6110/04 6110104 3184403 3184403 CRT . 00 00 5,4 4,960.00 6111104 3185999 CRI 54.00 54.00 4,860.00 6/11/04 31B5999 CRJ Si 020 7 00 2'700 9180,00 6124/04 6/24/04 992105 992106 si . , 1,080,00 10,260.00 6124/04 992107 SI SJ 6,480.00 00 160 2 16.740.00 18,900.00 719/04 9/9104 994709 990802665 SJ . , 540.00 19,440.00 8/9104 990802664 Si Si 540.00 700 0 2 19.980.00 22,660.00 8126104 9/8/04 9940825 992060 81 . , 540.00 23,220.00 9/15/04 992061 51 2,160.00 1000 2 25,380.00 540,00 27 9/16104 992068 Si , , CASE FILASOpy ?o/0&/d 9 ( E IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA TRIAD ML MARKETING, INC.. CIVIL ACTION VS. MXM ESSENTIAL FORMULAS, INC., NO. 03-6047 et al. ORDER AND NOW, TO WIT: This 19th day of October, 2004, it having been reported that the issues between the parties in the above action has been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court , it is ORDERED that the above action is DISMISSED with prejudice, pursuant to agreement of counsel without costs. MICHAEL E. KUNZ, Clerk of Court sl BY: Marie O'Donnell Deputy Clerk Civ 2 (8/2000) 41(b).frm OA -P 14eS L) i C4 0 7'7 EXHIBR >3 OBEHREND & ERNSBERGEI*.C. ATTORNEYS AT LAW KENNETH W. BEHREND BARBARA BEHREND ERNSBERGER DANIEL W. ERNSBERGER KENNETH R. BEHREND UNION BANK BUILDING, 3RD FLOOR 306 FOURTH AVENUE PITTSBURGH, PA 15222 VOICE (412) 391-2515 FAX (412) 391-2762 DANIEL W. CANNON (1920 -1998) James Comitale Rite Aid Corporate Office 30 Hunter Lane Camp Hill, PA 17011 October 27, 2004 Re: Triad ML Marketing, Inca v. MXM Essentials Formulas, Inc. (E.D.Pa., No. 03-6047), and HBA Marketing. Inc. v Marine Coral Calcium, Inc. (E D.Pa.. No. 03-59951 Dear Mr.Comitale: The above captioned matters concerned legal disagreements over the packaging and sales of coral calcium product which and/or has recently marketed and shelves or in the inventory of your respective stores sold to the general public. You may have received various legal correspondence in regards to either or both of the above captioned cases, including communications relating to copyright ownership. We wish to inform you that the above parties, including specifically Triad ML Marketing, Inc. ("Triad") and MW Essentials Formulas, Inc. ("MXM Essentials"), have resolved their legal disputes before the Honorable Diane M. Welsh, United States Magistrate Judge for the Eastern District of Pennsylvania. Pursuant to the parties' settlement in the above matters, Triad and MXM Essential are jointly authoring this correspondence for both your benefit and theirs. Triad has released any right to use labels bearing any design MXM copyrighted under Copyright No. VA-1-248-187, which concerns Coral Calcium Daily Supplement, and Copyright No. VA-1-248-18(, which concerns Coral Cal Sachets. However, M)(M Essentials makes no claim concerning the ownership and/or exclusive right to use the calcium product names "Coral Calcium Daily" or "The Original Coral Calcium Daily Product." Triad has also agreed to assign its open coral calcium account receivables, which could include your retail account, to MXM Essentials. Triad's assignment of its open coral calcium account receivable to MXM Essentials is effective as of October 13, 2004, which is the date of the aforementioned Settlement. This transfer includes any and all past due balance owed to Triad as of the effective date. Please remit your payment on any outstanding balance to MXM'Essentials at the address provided above the parties' EXHIBIT C 0 0 James Comitale Rite Aid -Page 2- signature lines below. Permission to modify any current terms or conditions related to the sale of the coral calcium products that you currently have in your possession should also be directed to MXM Essentials. If you have an immediate need to order additional coral calcium product, please be advised that MXM Essentials has acquired all remaining inventory stored by Triad at the present time. To acquire additional information on your rights and obligations concerning coral calcium, please contact MXM Essentials, which agreed to accept all inquiries, financial or otherwise. MXM's Address and telephone number are as follows: MXM Essentials Formulas, Inc. 9543 S. 213 Street Kent, WA 98031 (253) 872-2005 Stipulated to: SL-.b2a' Steven . Ritchey Vice President Triad ML Marketing, Inc. Date Yours truly, Kenneth W. Behrend Co r MXM Essential Formulas, Inc. 7irttl k K f --? -4 Roger J. Ha Un,Jr. Counsel for Triad arketing, c. Rebecca Brainhard President MOM Essentials Formulas, Inc. It) -?7- oy Date 17J CERTIFICATE OF SERVICE I, Kenneth R. Behrend, hereby (certify that a true and correct copy of the Complaint in Civil Action in this matter was served upon all the parties by U.S. first-class mail, postage pre-paid and/or hand delivery on this 19th day of June 2007, as follows: Officer or Person in Charge Rite Aid Corporation Rite Aid Corporate Office 30 Hunter Lane Camp Hill, PA 17011 BEHREND AND ERNSBERGER, P.C. BY: enneth R. ehren Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax -7- IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. c•) ?. v n 0- © I wt? O No. GD 07-1856 Code: 011 Issue No. FIRST AMENDED COMPLAINT IN CIVIL ACTION Filed on Behalf of: MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12th 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax JURY TRIAL DEMANDED k' ? i 1 t • IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA • CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC., Plaintiff, No. 07-1856 V. RITE AID CORPORATION, Defendant. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following ages, you must take action within twenty (20) days after this Complaint and Notice are p earance ersonally or by attorney and filing in writing with the served, by entering a written app p f you fail our defenses or objections to the claims set forth against be en ered against youh nlth Court Court y roceed without you and a Judgment may do so to the case may p mone claimed in the Complaint or for any other claim or relief with houut t further notice for any y I or other rights important to you. requested by the Plaintiff. You may lose money or property ER AT ONCE. IF YOU DO YOU SHOULD TAKE THISi PAPER TO YOUR LAWYER TO OR TELEPHONE THE NOT HAVE A LAWYER OR CANNOT AFFORD ONE, OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Allegheny County Bar Association 920 City-County Building Pittsburgh, Pennsylvania 15219 Telephone: (412) 261-0518 0 E COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA IN TH MXM ESSENTIAL FORMULAS, INC. Plaintiff, i CIVIL DIVISION No. 07-1856 V. RITE AID CORPORATION, Defendant. FIRST AMENDED COMPLAINT IN CIVIL ACTION and through its attorneys, AND NOW comes the Plaintiff, MXM Essential Formulas, Inc., by Kenneth R. Behrend and the law firm of Behrend and Emsberger, P.C., and sets forth the following Kenn First Amended Complaint in Civil Action. I. Plaintiff is MXM Essential Formulas, Inc. (hereinafter referred to as MXM), a laware Co oration which does business in Commonwealth of Pennsylvania with a local office De rp in Pittsburgh, Pennsylvania. , Defendant is Rite Aid Corporation (hereinafter referred to as Rite Aid), a 2 Penns lvania. Pennsylvania corporation which does; business throughout Allegheny County, y coral- 3. Plaintiff, MXM Essential Formulas produced a mineral supplement that is a alcium roduct, known as Coral Calcium Daily, that was sold to Triad ML Marketing, Inc. c p (hereinafter referred to as Triad). 4. At all times pertinent hereto, Triad sold the Coral Calcium Daily to Defendant, Rite I I Aid. 5. It is believed and therefore alleged that the prices set by Triad were fair and 2 1 • • reasonable prices at the time and place of sale to Rite Aid. 6. After the sale and delivery of the Coral Calcium Daily as set forth above, Rite Aid made a ments on a timely basis to Triad based upon the Triad account, without objection, so as to PY constitute an account stated. 7. In 2003, MXM sued Triad in the United States Court for the Eastern District of Pennsylvania at C.A. No. 03-cv-06047, alleging claims for trademark infringement. 8. On October 13, 2004, MXM and Triad reached an amicable settlement and an Order of Court dated October 19, 2004 was entered in the United States District Court For the Eastern District of Pennsylvania. See copy of Order of the Clerk of Court for the United States District Court For the Eastern District of Pennsylvania, attached hereto as Exhibit I M Triad 9. pursuant to the terms of the settlement agreement between Triad and MX , ed all rights and interest in the monies owed by Rite Aid to Triad for the sale of the MXM's assign Coral Calcium Daily product by Triad to Rite Aid. 10. Pursuant to the terms of the settlement agreement agreed upon by Triad and MXM, 2004 to MXM. Triad assigned all of its inventory of Coral Calcium Daily existing on October 13, to 11. This assignment included all bottles of Coral Calcium Daily which Triad shipped any retail customers after October 13, 2004. retailer in 12. Triad also assigned any Coral Calcium Daily merchandise returned by any lieu of payment subsequent to October 13, 2004 to MXM. 13. On or about October 27, 20049 MXM and Triad notified Rite Aid by a letter signed on, Jr., Counsel for Triad, jointly by Kenneth W. Behrend, Counsel for MXM, Roger J. Harrington, of MXM, that a Steven D. Ritchey, Vice President of Triad, and Rebecca Brainard, President o to the settlement of a legal disagreement between MXM and Triad was reached. And, that pursuant terms of the settlement effective as of October 13, 2004, all monies due and owing to Triad from Rite Aid for Coral Calcium Daily were assigned to Plaintiff and demand for payment was made to dant. A coy of the October 27, 2004 assignment is attached hereto and marked Exhibit 2. Defen p 3 14. The October 27, 2004 assignment notified Rite Aid that modification of any current terms or conditions related to the sale of ;the coral calcium products which was currently in Rite Aid's possession should be directed to MXM. See Exhibit 2. 15. The October 27, 2004 assignment notified Rite Aid to contact MXM as to any additional information regarding MXM's rights and obligations concerning the Coral Calcium Daily I product. See Exhibit 2. l COUNTI BREACH OF CONTRACT 16. Paragraphs 1 through 15 are incorporated herein as though fully set forth at length. 17. There is a written contract between Rite Aid and Triad regarding the sale of Coral Calcium Daily, Rite Aid Corporation Cjuaranteed Sales Agreement dated November 25, 2002. A copy of the same is attached hereto and' marked Exhibit 3 . 18. Pursuant to the assignment made by Triad to MXM, and provided to Rite Aid on or about October 24, 2004, Rite Aid owed a duty to MXM, as it had to Triad, not to breach its duties under the Sales Agreement. 19. Consistent with the terms of the Sales Agreement between Rite Aid and Triad, the amounts, times of delivery and prices charged by Triad to Rite Aid for the Coral Calcium Daily through September 16, 2004 are set forth in Triad's Customer Ledger prepared in the ordinary course of Triad's business. A true and correct copy of Triad's Customer Ledger is attached hereto as Exhibit 4. 20. Consistent with the terms of the Sales Agreement between Rite Aid and Triad, the gross amounts and times of delivery from Triad to Rite Aid for the Coral Calcium Daily are set forth in Rite Aid's Statement of Account as of 11-20-07. A true and correct copy of the Statement is attached hereto and marked Exhibit ?. 21. Consistent with the tens of the Sales Agreement between Rite Aid and Triad, it is believed, and therefore averred, the f llowing invoices as set forth on Exhibits 4 and 5 remain unpaid 4 • • to MXM pursuant to the terms of the Assignment of Triad's rights to MXM: a. b. C. d. e. f. 9. h. i. J• k. 1. M. n. o. p• 9• r. S. t. U. V. W. X. Y. Invoice Number 991954 dated February 12, 2004 in the amount of $1,080.00; Invoice Number 991973 dated March 12, 2004 in the amount of $5,940.00; Invoice Number 991974 slated March 16, 2004 in the amount of $4,320.00; Invoice Number 991979 elated April 5, 2004 in the amount of $3,780.00; Invoice Number 991986 dated April 21, 2004 in the amount of $4,320.00; Invoice Number 991989 dated April 26, 2004 in the amount of $2,700.00; Invoice Number 991990 dated April 26, 2004 in the amount of $4,320.00; Invoice Number 991993 dated May 4, 2004 in the amount of $4,860.00; Invoice Number 991994 dated May 4, 2004 in the amount of $540.00; Invoice Number 991995 dated May 5, 2004 in the amount of $2,700.00; Invoice Number 992043 dated June 1, 2004 in the amount of $2,160.00; Invoice Number 992105 dated June 24, 2004 in the amount of $7,020.00; Invoice Number 992106 dated June 24, 2004 in the amount of $1,080.00; Invoice Number 992107 dated June 24, 2004 in the amount of $6,480.00; Invoice Number 99470,9 dated July 9, 2004 in the amount of $2,160.00; Invoice Number 990727 dated July 29, 2004 in the amount of $2,700.00; Invoice Number 990726 dated July 29, 2004 in the amount of $2,700.00; Invoice Number 990802664 dated August 9, 2004 in the amount of $540.00; Invoice Number 990802665 dated August 9, 2004 in the amount of $540.00; Invoice Number 990818120 dated August 25, 2004 in the amount of $2,700.00; Invoice Number 99401825 dated August 26, 2004 in the amount of $2,700.00; Invoice Number 992060 dated September 8, 2004 in the amount of $540.00; Invoice Number 992061 dated September 17, 2004 in the amount of $2,160.00; Invoice Number 992677 dated October 19, 2004 in the amount of $540.00; Invoice Number 992978 dated October 19, 2004 in the amount of $5,400.00; 5 • • Z. Invoice Number 992079 dated October 19, 2004 in the amount of $3,780.00; aa. Invoice Number 992080 dated November 1, 2004 in the amount of $2,160.00; bb. Invoice Number 992081 d ted November 1, 2004 in the amount of $5,940.00; CC. Invoice Number 992083 dated November 29, 2004 in the amount of $1,587.60• dd. Invoice Number 992084 dated November 29, 2004 in the amount of $2,700.00; ee. Invoice Number 992091 dated December 13, 2004 in the amount of $1,620.00; ff. Invoice Number 992092 ated December 20, 2004 in the amount of $1,620.00; and gg. Invoice Number 992093 ated December 20, 2004 in the amount of $2,700.00. See Exhibits 4 and 5. 22. The total amount due and owing from Rite Aid to MXM for the above-listed outstanding invoices is Ninety-eight Thousand Two Hundred Eighty Dollars ($98,280.00) plus interest. 23. It is believed, and therefore alleged, that pursuant to the terms of the Sales Agreement between Triad and Rite Aid, the Sales!, Agreement provided for situations that could arise under which Rite Aid would receive a credit and a corresponding deduction from the amount owed by Rite Aid to Triad for the Coral Calcium Daily. 24. In particular, the Sales Agreement provides for a two percent (2%) discount in price to Rite Aid, if payment is made within ten (10) days. See Exhibit 3. 25. It is believed, and therefore alleged, that all credits to which Defendant, Rite Aid, is entitled to under the Sales Agreement are set forth in Exhibit 4. 26. Pursuant to the Sales Agreement, payment for each invoice is to be made by Rite Aid within thirty (30) days of receipt of t e merchandise. See Exhibit 3. 27. Despite notification td Rite Aid of the October 27, 2004 of Assignment of Triad's rights to MXM, Rite Aid breached it? duty to MXM by failing to pay its account payable within 30 of the invoices, as re4uired by the Triad - Rite Aid Sales Agreement. See Exhibits days of the date 2 and 3. Thus, payment remains due and owing to MXM on the above-listed invoices in the amount 6 of Ninety-eight Thousand Two Hundred Eighty Dollars ($98,280.00) plus interest. A. Breach of Returns Agreement, Re: Destruction of Returned Product 28. Pursuant to the October 27, 2004 Assignment of Triad's rights to MXM, Rite Aid owed a duty to MXM, as it had to Triad, ?ot to breach its duties under the Returns Agreement dated July 22, 2003, attached to the Rite Aid Corporation Guaranteed Sales Agreement. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. Rite Aid was to 29. Pursuant to the Rite Aid Returns Agreement dated July 22, 2003, scan and hold for vendor review any Coral Calcium Daily product deemed "unsaleable" merchandise b Rita Aid for twenty-one (21) days after the invoice date prior to disposing of the "unsaleable y merchandise. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. 30. Pursuant to the Returns Agreement, Rite Aid had a duty to notify the vendor, MXM, of returns of Coral Calcium Daily product that Rite Aid categorized as "unsaleable" merchandise in order for MXM to review the "unsaleable" merchandise and make a decision as to the disposition of the product. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. 31. Despite the October 27,' 2004 notification provided to Rite Aid of the Assignment of Triad's rights to MXM, Rite Aid failed to notify MXM regarding the fact that Rite Aid had returns of Coral Calcium Daily product that Rite Aid classified as "unsaleable" merchandise, which Rite Aid destroyed without affording MXM the opportunity to review the "unsaleable" merchandise prior to destruction pursuant to the terms of the Returns Agreement. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. 32. Pursuant to the Return Agreement, MXM had the right to directed Rite Aid to return fired. See Rite Aid Returns Agreement dated the "unsaleable" merchandise to MXM if MXM so des July 22, 2003 attached to Exhibit 3. 33. As a result of Rite Aids failure to perform its duty under the Returns Agreement of MXM lost its opportunity to notifying MXM regarding disposition of "unsaleable" merchandise, review the "unsaleable" merchandise before it was disposed of by Rite Aid. 7 under the Returns Agreement of 34. As a result of Rite Aids failure to perform its duty MXM lost the Opportunity of notifying MXM regarding disposition of "unsaleable" merchandise, retesting the "unsaleable" merchandise to', determine whether the merchandise was still useable and fit for repackaging and sale. 35. As a direct result of Ride Aid's failure to perform its duty under the Returns Agreement of notifying MXM regarding disposition of "unsaleable" merchandise, MXM was unable to retest the "unsaleable" merchandise to determine whether the merchandise was still useable and fit for repackaging and sale preventing M from selling the merchandise that was still useable and fit for sale, thereby causing MXM to su er a financial loss. It is believed, and therefore averred, that between June 18, 2004 and March 23, 2007, 36. Rite Aid disposed of Coral Calcium Daily merchandise that Rite Aid designated as "unsaleable" merchandise worth Twenty-four Thousand Five Hundred Seventy-one Dollars and Sixty-one Cents $24,571.61) without notifying MXM so MXM could review the "unsaleable" merchandise as provided by the Returns Agreement. S$e Rite Aid Returns Agreement dated July 22, 2003 attached ( to Exhibit 3. 37. The following is a list of invoices for "unsaleable" merchandise for which Rite Aid failed to notify MXM for review prior{ to Rite Aid disposing of the same: a. Number D165093299 (dated June 18, 2004 in the amount of $301.49; b. Number D169332299 dated July 16, 2004 in the amount of $634.72; C. Number D174967790 dated August 20, 2004 in the amount of $222.15; d. Number DI 838632W dated August 20, 2004 in the amount of $87.27; e. Number D179435799 dated September 17, 2004 in the amount of $87.27; f. Number D178362290 dated September 17, 2004 in the amount of $364.96, g. Number D 182620294 dated October 15, 2004 in the amount of $134.88; h. Number D183738796 dated October 15, 2004 in the amount of $63.47; i. Number D18735129? dated November 19, 2004 in the amount of $47.60; S9. • Number D228612299 dated August Number D229713790 dated August j. Number D188483790 dated November 19, 2004 in the amount of $222.15; k. Number D 191919299 dated December 17, 2004 in the amount of $23 8.02; 1. Number D193009790 dated December 17, 2004 in the amount of $253.89; M. Number D196365299 dat d January 14, 2005 in the amount of $166.61; n. Number D197445790 dat?d January 14, 2005 in the amount of $396.70; o. Number D200936299 dated February 18, 2005 in the amount of $1,483.66; p. Number D202031790 da?ed February 18, 2005 in the amount of $119.01; q. Number D205255299 dated March 18, 2005 in the amount of $2,507.14; r. Number D206342790 da?ed March 18, 2005 in the amount of $7.93; S. Number D209441299 dated April 15, 2005 in the amount of $1,388.45; t. Number D210531790 dated April 15, 2005 in the amount of $515.71; U. Number D214082299 dated May 20, 2005 in the amount of $2,459.54; V. Number D215174790 doted May 20, 2005 in the amount of $967.95; W. Number D218889299 dated June 17, 2005 in the amount of $2,681.69; X. Number D219977790 dated June 17, 2005 in the amount of $15.87; Y. Number D223525299 dated July 15, 2005 in the amount of $2,197.72; Z. Number D224610790 dated July 15, 2005 in the amount of $769.60; aa. bb. CC. dd. ee. ff. 99- hh. ii. • 19, 2005 in the amount of $2,316.73; 19, 2005 in the amount of $587.12; Number D233293299 dated September 16, 2005 in the amount of $1,626.47; Number D234396790 dated September 16, 2005 in the amount of $111.08; Number D238007299 dated October 14, 2005 in the amount of $960.01; Number D239105790 Idated October 14, 2005 in the amount of $364.96; Number D243173299 dated November 17, 2005 in the amount of $309.43; Number D244305790 dated November 17, 2005 in the amount of $412.57; Number D248654299 dated December 22, 2005 in the amount of $119.01; 9 • • jj. Number D249773790 dated December 22, 2005 in the amount of $111.08; kk. Number D253582299 dated January 20, 2006 in the amount of $150.75; 11. Number D257954299 dated February 24, 2006 in the amount of $245.95; mm. Number D259086790 dated February 24, 2006 in the amount of $31.74; nn. Number D262370299 dated March 24, 2006 in the amount of $126.94; oo. Number D267020299 dated April 21,2006 in the amount of $95.21; PP. Number D272529299 dated May 26, 2006 in the amount of $142.81; Number D289127790 da?ed August 25, 2006 in the amount of $95.21; q9• ff. Number D294005790 da?ed September 22, 2006 in the amount of $31.74; ss. Number D295153958 dated September 22, 2006 in the amount of $95.21; tt. Number D300154958 dated October 20, 2006 in the amount of $39.67; uu. Number D304543790 dated November 24, 2006 in the amount of $47.60; VV. Number D305697958 d ! d November 24, 2006 in the amount of $23.80; ate ww. Number D310868958 dated December 21, 2006 in the amount of $39.67; xx. Number D318872790 dated February 23, 2007 in the amount of $15.87; yy• Number D319998958 dated February 23, 2007 in the amount of $15.87; and zz. Number D324208958 dated March 23, 2007 in the amount of $15.87. See Exhibit 5. 38. The total amount due and owing to MXM for the destruction of Coral Calcium Daily product that Rite Aid designated as "unsaleable" merchandise listed in the preceding paragraph is Twenty-six Thousand Four Hundred Sixty-seven Dollars and Eighty-two Cents ($26,467.82) plus interest. 39. Since Rite Aid breached its duty under the Returns Agreement and failed to notify MXM for review of the "unsaleable" merchandise prior to before disposing it, the above deductions are unjustified and the amounts deducted by Rite Aid for the same are due and owing to MXM. 10 1 • • B. Breach of Returns Agreement, Re: Destruction of Recalled Product 40. Pursuant to the assignment made by Triad to MXM, Rite Aid owed a duty to MXM, as it had to Triad, not to breach its duties under the Returns Agreement with respect to the "recall" of Coral Calcium Daily Product. A "recall" of product is related to product that Rite Aid no longer is going to sell even though that product is undamaged, not out-of-date and not defective. See Page 2 of Rite Aid Returns Agreement dated august 5, 2003 attached to Exhibit 3. 41. Pursuant to the Rite Aid Returns Agreement, a separate agreement between Rite Aid and the vendor (MXM) must be filled out for all recalls at the time the recall is being activated by Rite Aid and an open "RA##", must be established between the vendor and the Category Manager prior to the initiation of a recall. See Rite Aid Returns Agreement dated August 5, 2003 attached to Exhibit 3. 42. Rite Aid recalled Thirty Thousand Nine Hundred Fifty-three Dollars and Sixteen Cents ($30,953.15) worth of Coral Calcium Daily merchandise between July 15, 2005 and December 22, 2005. 43. Despite the October 27, 2004 notification of the Assignment of Triad's rights to MXM, after October 27, 2004, Rite Aid failed to notify MXM prior to the initiation of recall or to obtain an agreement pertaining to the,recalled product as required by the Returns Agreement and recalled Thirty Thousand Nine Hundred Fifty-three Dollars and Sixteen Cents ($30,953.15) worth of Coral Calcium Daily merchandise between July 15, 2005 and December 22, 2005. See Rite Aid Returns Agreement dated August 5, 2003 attached to Exhibit 3. 44. The following is a list of invoices for recalled merchandise for which MXM did not receive prior notification or for whichla required agreement was not entered into between MXM and Rite Aid prior to Rite Aid disposing of the same: a. Number R226944958', dated July 15, 2005 in the amount of $3,125.28; b. Number R231525790 dated August 19, 2005 in the amount of $7.66; C. Number 8231526958 dated August 19, 2005 in the amount of $896.22; 11 • • d. Number 8235931790 dated September 16, 2005 in the amount of $520.88; e. Number 8235932958 dated September 16, 2005 in the amount of $3,646.16; £ Number 8236593790 dated September 16, 2005 in the amount of $1,528.80; g. Number 8236594958 dated September 16, 2005 in the amount of $15,982.20; h. Number 8240466790 dated October 14, 2005 in the amount of $628.12; i. Number 8240467958 dated October 14, 2005 in the amount of $91.92; j. Number R241032790 dated October 14, 2005 in the amount of $2,223.00; k. Number R241033958 dated October 14, 2005 in the amount of $850.20; 1. Number 8245636790 da?ed November 17, 2005 in the amount of $15.32; In. Number 8245637958 dalted November 17, 2005 in the amount of $283.42; n. Number 8246065790 dated November 17, 2005 in the amount of $928.20; o. Number 8246066958 dated November 17, 2005 in the amount of $202.80; and p. Number R251025958 dated December 22, 2005 in the amount of $22.98. See Exhibit 5. 45. The total amount due and owing to MXM for the recalled merchandise disposed of by Rite Aid in breach of the Returns =Sixteen as set forth in the preceding paragraph is Thirty Thousand Nine Hundred Fifty-three Cents ($30,953.16) plus interest. 46. Since Rite Aid failed tp perform its duties under the Returns Agreement to notify MXM prior to the recall of this merchandise and to enter into an agreement regarding the same before it disposed of said merchandis I, the above deductions are not justified and the amounts are due and owing to MXM. C. Breach of Promotional Funding Agreement for the Fiscal Year 2005 47. On or about November 28, 2003, Triad and Rite Aid entered into a Rite Aid Promotional Funding Agreement for the Fiscal Year 2005. A copy of the same is attached hereto and marked Exhibit 6. 48. Pursuant to the Funding Agreement, Triad would pay to Rite Aid ten percent (10%) 12 • • of Rite Aid's Gross purchases of Triad's product between February 29, 2004 and February 27, 2005 with a minimum funding commitment of Nineteen Thousand Dollars ($19,000.00). See Exhibit 6. 49. The Funding Agreement provided that four installment payments of Four Thousand Seven Hundred Fifty Dollars ($4,750.00 would be made by Triad in order for payment by Triad of the minimum funding commitment of Nineteen Thousand Dollars ($19,000.00) which would be deducted from Triad's account receivables. See Exhibit 6. 50. The dates for these deductions were to be on or about May 1, 2004, August 1, 2004, November 1, 2004 and February 1, 200. See Exhibit 6. 51. Any additional funding necessary from the total amount of gross purchases between February 29, 2004 and February 27, 2065 would be billed and deducted on or about February 27, 2005. See Exhibit 6. 52. In return for the payment of these funds by Triad, Rite Aid would use the funds to develop and co-execute marketing supp?rt for promoting and advancing the sales of Triad's products in Rite Aid stores for the year of 2005. See Exhibit 6. 53. Pursuant to the assignment made by Triad to MXM, Rite Aid owed a duty to MXM, as it had to Triad, not to breach its duties under the Funding Agreement. 54. It is believed, and theref?re averred, that consistent with the Funding Agreement, Rite Aid deducted the amount of Four Thousand Seven Hundred Fifty Dollars ($4,750.00) from Triad accounts receivable on or about May, 2004. See Exhibit 6. 55. Consistent with the Funding Agreement, Rite Aid deducted Four Thousand Seven Hundred Fifty Dollars ($4,750.00) on ',August 3, 2004. A copy of the invoice is attached hereto and marked Exhibit 7. 56. Consistent with the Fudnding Agreement, Rite Aid deducted Four Thousand Seven Hundred Fifty Dollars ($4,750.00) on November 2, 2004. A copy of the invoice is attached hereto and marked Exhibit 8. 57. The November 2,200 deduction was taken after receipt of the notification of Triad's 13 assignment to MXM on October 27, 2004. 58. Although notification of the Assignment of Triad's rights to MXM occurred prior to Rite Aid taking of the November 2, 2004 deduction, Rite Aid failed to contact MXM in order to develop and co-execute marketing support for promoting and advancing the sales of the Coral Calcium Daily merchandise for the year',2005. 59. It is believed and therefore alleged that Rite Aid failed to perform marketing support for promoting and advancing the sales ollf the Coral Calcium Daily merchandise for the year 2005. 60. Furthermore, it is believed, and therefore averred, that Rite Aid began recalling the Coral Calcium Daily merchandise from its retail locations prior to July 15, 2005. 61. Rite Aid breached its dut? to MXM pursuant to the Funding Agreement when it failed to develop and co-execute marketing support for promoting and advancing the sales of the Coral Calcium Daily products in Rite Aid stores with MXM for the year of 2005. 62. The funding deduction taken on or about May 1, 2004, August 3, 2004 and I November 2, 2004 are due and owing to MXM in the amount of Fourteen Thousand Two Hundred Fifty Dollars ($14,250.00) plus interest. 63. As of this date, a total balance of One Hundred Ninety-four Thousand Five Hundred Twenty-two Dollars and Fifty-nine Cents ($194,522.59) plus interest is due and owing to MXM for the Coral Calcium Daily purchased by Rite Aid from Triad as well as the advertising costs deducted on or about May 1, 2004, August 3, 2004 and November 2, 2004. 64. Despite repeated dema ds by MXM, Defendant, Rite Aid has failed to pay any of the amounts due. WHEREFORE, Plaintiff, M?CrM, demands judgment against Defendant, Rite Aid, in the amount of One Hundred Ninety-four Thousand Five Hundred Twenty-two Dollars and Fifty-nine Cents ($194,522.59) with interest at the legal rate of 6% from October 27, 2004 to the present and I costs. 14 • • COUNT II-IN THE ALTERNATIVE TO COUNT I UNJUST ENRICHMENT 65. Paragraphs 1 through 15 are incorporated herein as though fully set forth at length. 66. This Count is plead in the alternative. If the Court finds that no written or oral contract existed between Rite Aid and MXM, then it is asserted based upon the following allegations that Rite Aid was unjustly enriched at the expense of MXM. 67. Beginning in March, 2003 and continuing to on or about December 20, 2004, Rite Aid received shipments of Coral Calcium Daily product from Triad which Rite Aid sold to the public through Rite Aid stores located in Allegheny County, Pennsylvania and elsewhere. 68. Beginning on or about February 12, 2004 through December 20, 2004, Rite Aid received shipments of Coral Calcium Daily from Triad which Rite Aid failed to forward payment for the same. 69. The total amount due and owing for the unpaid shipments as listed in Paragraph 21 above is Ninety-eight Thousand Two I-Iiindred Eighty Dollars ($98,280.00) plus interest. 70. As a result of the sale of Coral Calcium Daily product by Rite Aid to its customers, Rite Aid has received monies from the ale of the Coral Calcium Daily purchased from Triad out of which Rite Aid failed to pay Triad. 71. Based upon the assignment of Triad's claim to MXM for payment from Rite Aid, set forth above, Rite Aid failed to pay to MXM the money rightly owed to MXM for the Coral Calcium Daily product that Rite Aid sold and collected money from its customers. 72. As a result of the sale df the Coral Calcium Daily product for which Rite Aid made no payment identified above, Rite Aid has become unjustly enriched at the expense of MXM. 73. It is believed and therefore alleged that Rite Aid improperly deducted from monies owed to MXM amounts allegedly used for the development and co-execution of marketing support for promoting and advancing the sales of the Coral Calcium Daily products in Rite Aid stores with MXM for the year of 2005. 15 • • 74. It is believed and therefore alleged that Rite Aid failed to develop and co-execute marketing support for promoting and advancing the sales of the Coral Calcium Daily products in Rite Aid stores with MXM for the year of 2005. 75. It is believed, and therefore averred, that Rite Aid used these monies improperly obtained from MXM possibly to developland execute marketing for promoting and advancing sales of products other than Coral Calcium Daily in its stores. 76. As a result of Rite Aid tak?ng deductions from monies owed to MXM for developing and executing marketing of Coral Calcium Daily which it is believed and alleged the marketing never occurred, Rite Aid has become unj 1 1stly enriched through paying for advertising and marketing from which additional sales of products; other than Coral Calcium Daily were generated from this advertisement at the expense of MXM. 77. The funding deductions Taken by Rite Aid on or about May 1, 2004, August 3, 2004 and November 2, 2004 are due and owing to MXM in the amount of Fourteen Thousand Two Hundred Fifty Dollars ($14,250.00) plus interest. 78. Rite Aid's actions constitute an unjust retention of a benefit to the detriment of MXM, and Rite Aid's retention of money and property are against the fundamental principles of justice and good conscience and are patently unfair. 79. As a direct and proximate result of Rite Aid's unjust retention of the MXM's tangible and intangible property and the proceeds therefrom, MXM has suffered and continues to suffer serious financial injury and inequities jhat have resulted in substantial damages. 80. It would be unconscionable for Rite Aid to retain the value of the Coral Calcium Daily product sold to its customers without making remuneration to MXM. Equity demands that Rite Aid be compelled to disgorge this benefit. 81. It would be unconscionable for Rite Aid to retain the value of the marketing of non- Coral Calcium Daily products sold to its customers while using money that was supposed to be used to market Coral Calcium Daily product, without making remuneration to MXM. Equity demands 16 • • that Rite Aid be compelled to disgorge this benefit. WHEREFORE, Plaintiff, MXM, respectfully requests this Honorable Court to issue an ORDER: a) Granting judgment for plaintiff, MXM, and against Defendant, Rite Aid, in the amount of One Hundred Twelve Thousand Five Hundred Thirty Dollars ($112,530.00) with interest at the legal rate of 6% from October 27, 2004 to the present and costs; b) Granting, Plaintiff, MXM its expenses, including reasonable attorney fees incurred in connection with this action; and c) Granting such other relief as the Court deems necessary and appropriate. COUNT III- IN THE ALTERNATIVE TO COUNT I CONVERSION 82. Paragraphs 1 through 15 are incorporated herein as though fully set forth at length. 83. This Count is plead in the alternative. If the Court finds that no written or oral contract existed between Rite Aid and MXM, then it is asserted based upon the following allegations that Rite Aid was unjustly enriched at the expense of MXM. 84. Beginning in March, 2063 and continuing to on or about December 20, 2004, Rite Aid received shipments of Coral Calcium Daily from Triad, assignor to MXM, which Rite Aid sold to the public through Rite Aid stores located in Allegheny County, Pennsylvania and elsewhere. 85. Rite Aid received and accepted the Coral Calcium Daily products and agreed to offer for sale these products in their Rite Aid!, stores and agreed to pay to Triad, assignor to MXM, monies for those products which Rite Aid hadl actually sold. 86. MXM retained ownership of the Coral Calcium Daily products until sold by Right Aid. 87. Beginning on or about June 18, 2004 through March 23, 2007, Rite Aid knowingly disposed of Coral Calcium Daily products as set forth in Paragraph 37 above, which Rite Aid deemed "unsaleable" merchandise without MXM's consent to do so. 17 • • 88. Rite Aid had no right, title, or equitable claim to the ownership of the Coral Calcium Daily products in its possession which it did not sell including, but not limited to, the products which it disposed of as "unsaleable" as set forth in Paragraph 37 above. 89. As a result of the disposal of this merchandise by Rite Aid, MXM has been deprived of the possession, control and enjoyment of its property which had a market value in excess of Twenty-five Thousand Dollars ($25,000I.00). 90. Beginning on or about Ju y 15, 2005 through December 22, 2005, Rite Aid recalled Coral Calcium Daily merchandise as set (forth in Paragraph 44 above, without notifying MXM that it intended to do so. 91. Rite Aid failed to return the recalled merchandise to MXM but instead disposed of the same without giving notification to MXM. 92. Rite Aid had no right, tit?e or equitable claim to the ownership of the Coral Calcium Daily products in its possession which it did not sell including, but not limited to, the products which it disposed of as "recalled" as set forth n Paragraph 44 above. 93. As a result of the disposal of the "recalled" merchandise by Rite Aid, MXM has been deprived of the possession, control and Qnj oyment of its property which had a market value in excess of Twenty-five Thousand Dollars ($254,000.00). 94. It is believed and theref?re alleged that Rite Aid at all times relevant and material to this matter, has acted in bad faith and I,Iwith the intent to exercise unlawful control over the Coral Calcium Daily products. 95. It is believed and theref re alleged that Rite Aid's conduct in this matter has been and continues to be wanton and outrageous. 96. It is believed and there ore alleged that Rite Aid intended to deprive MXM of the Coral Calcium Daily products. WHEREFORE, Plaintiff, M, respectfully requests this Honorable Court enter judgment in its favor and against the Defendant Rite Aid, for: 18 • • VERIFICATION (Inco4sistent Averments) I, Rebecca Brainard, verify that the statements made in this First Amended Complaint, other than those identified hereinafter, are true and correct to the best of my knowledge, information, and belief. After reasonable investigation, have been unable to ascertain which of the inconsistent averments set forth in paragraphs 17 through 21, 23 through 36, 39, 40, 41, 43 through 56, 61, 66, and 83 of this complaint are true but I have information sufficient to form a belief that one of them is true. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification tO authorities. I am authorized to make this veri ication on behalf of MXM Essential Formulas, Inc. because of my position as President. o y."> Date. lZeerainard 20 • • (a) Compensatory damages, punitive damages, attorneys' fees, and costs; and (b) Such other relief as the court deems necessary and proper. BEHREND AND ERNSBERGER, P.C. Kenneth R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 19 • • J- 0 0 m n m v m o 0 m zi fp !n CASE FILE COPY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA TRIAD ML MARKETING, INC.. CIVIL ACTION Vs. MXM ESSENTIAL FORMULAS, INC., NO. 03-6047 et al. ORDER AND NOW, TO WI : This 19'' day of October, 2004, it having been reported that the issue between the parties in the above action has been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court, it is j ORDERED that. the above action. is DISMISSED with prejudice, pursuant to agreement of counsel without costs. MICHAEL E. KUNZ, Clerk of Court BY: - l Marie O'Donnell Deputy Clerk Civ 2 (8/2000) 41(b).frm EXHIBIT • • 1 0 M§EHREND & ERNSBERGER, ?C. ATTORNEYS AT LAW KENNETH W. BEHREND BARBARA BEHREND ERNSBERGER DANIEL W. ERNSBERGER KENNETH R. BEHREND UNION BANK BUILDING, 3RD FLOOR 3p6 FOURTH AVENUE P1g7MBURGH, PA 15222 VOICE (412) 391-2515 FAX (412) 391-2762 October 27, 2004 DANIEL W. CANNON (1920 -1998) James Comitale Rite Aid Corporate office 30 Hunter Lane Camp Hill, PA 17011 Re: Triad ML Marketing, Inc. V. ?1ViXM Essentials Formulas, Inc. (E.D.Pa., No. 03-6047), and HBA Mark ti_ g Inc. v Marine Coral Calcium. Inc. _.D.-Pa-,N o_ 03-59951 Dear Mr.Comitale: The above captioned matters concerned legal disagreements currently has o site oa the and sales of coral calcium product' which your company shelves or in the inventory of your respective stores and/or h legal cola spondee a nn sold to the general public. You may have received various d regards to either or both of the above captione c ou, tha the bove p rtle i ncluding to copyright ownership. We wish to inform yo ?? specifically Triad ML Marketing, Inc. (Triad ) and MXM Essentials Formulas, Inc.the C°hW Essentials"), have resolved their legal sD sstriict of PennsylHonorable Pursuant Welsh, United States Magistrate Judge for the Eastern Triad to the parties' settlement in the above matters, it and theidrS? Essential are jointly authoring this correspondence for both your benefit Triad has released any right to use labels bearing any design MW copyrighted under Copyright No. VA-1-248=187, which concerns Coral Calcium Daily Supplement, and Copyright No. VA-1-248-186, which concerns Coral Cal Sachets. However, MXM Essentials makes no claim concerning the ownership and/or exclusive right to use the calcium product names "Coral Calcium Daily" or "The Original Coral Calcium Daily Product." Triad has also agreed to assign its open coral calcium account receivables, which could include your retail account, to MW Essentials. Triads assignment of its open coral calcium account receivables to MXM Essentials is effective as of October 13, 2004, which is the date of the aforementioned Settlement. This transfer includes any and all past due balance owed to Triad asof the effective date. Please remit your payment any outstanding balance to MW Essentials at the address provided above the parties' EXHIBIT 2 • James Comitale Rite Aid -Page 2- • signature lines below. Permission to modify any current terms or conditions related to the sale of the coral calcium products that you currently have in your possession should also be directed to MXM Essentials.] If you have an immediate need to order additional coral calcium product, please be advised that MXM Essentials h acquired all remaining inventory stored by Triad at the present time. To acquire additional information on your rights and obligations concerning coral calcium, please c ntact MXM Essentials, which agreed to accept all inquiries, financial or otherwise. mxm,s Address and telephone number are as follows: MXM Essentials Formulas, c. 9543 S. 213 Street Kent, WA 98031 (253) 872-2005 I Stipulated to: Steven . Ritchey Vice President Triad ML Marketing, Inc. Yours truly, ' Kenneth W. Behrend Co or MXM Essential Formulas, Inc. Roger J. Ha 4n, Jr. Counsel for Triad arketing, c. Rebecca Brainhard President MUM Essentials Formulas, Inc. Lo -;Z7- oY Date • • 3 0 • Q CONFlDENTIAI RITE AID CORPORATION GUARANTE91) SALES AGREEMENT- Rite Aid will consider Vendor's product(sP for distribution and sale under the terms and conditions set forth in this Agreement. In consideration of Rite Aid's agreement to review-a new entry into its mix, as well as in consideration of the mutual premises contained herein, the parties agree as follows: 1. Vendor will guarantee the sale of Vendor's product(s) to Rite Aid at both Customer Service Centers (i.e. distribution clenters) and retail locations. 2. During the first one hundred twenty (120 days, or such other period as Rite Aid may determine in its sole discretion (it being understood by Vendor that Rite Aid may terminate this Agreement in its sole discretion at any time, for any reason whatsoever) following the date if the Vendor' first delivery. of product(s) to Rite Aid (the "Review Period', Vendor's account will be on a review status to permit Rite Aid to assess the performance of the product(s). During the Review Period, Rite Aid will pay only for those product(s) that are actually old, and Rite Aid's payment will be reduced by any and all cash discounts or other debit amounts (including, but not limited to, advertising, displays, markdowns and price protection) due to Rite Aid. If at the end of the Review • Period, Rite Aid determines, in it1s sole discretion, that the -Vendor's product(s) is not selling at an acceptable rate, then Rite. Aid will have the right to (a) require Vendor to review and modify Vendor's m keting plan to ensure future success and (b) extend the due date of the original invoice submitted by Vendor. Rite Aid also has the right to require a cash payment, as described in paragraph (3) below. The foregoing rights are not exclusive. At the end of the Review Period, Rite Aid may terminate this Agreement, place the Vendor on Rite Aid's ustomary payment terns; or extend the Review Period as Rite Aid, in its sole discretion, s desires. i 3. If at any time Rite Aid determines in its sole discretion that Vendor's product(s) performance continues to be unacceptable, Rite Aid will have the right to return at Vendor's expense all unsold pr duct(s) to Vendor's facility in return for Vendor's cash payment to Rite Aid for an products for which Rite Aid has paid, but have not been sold. Vendor's payment to Rite Aid shall be made (a) by wire transfer of immediately available funds or certified check, and (b) no later than fifteen (15) days after Rite Aid has returned the product(s). 4. Upon settlement of Vendor's account, all outstanding invoices will be paid promptly, less any and all cash discounts or o er debit amounts due to Rite Aid. 5. The terms and conditions of this Agreement are in addition to, and in no way limit, t Rite Aid's rights and remedies under Rite Aid's Vendor Profile, standard terns and m conditions or purchase orders. In the event of inconsistency between the terms and M COITIAL conditions of the Agreement and any of the foregoing documents, this Agreement will • govern. 6. The parties agree that Pennsylvania law governs this Agreement not withstanding its conflict of laws provisions. Any lawsuit brought with regard to this Guaranteed Sales Agreement will be venued in the Court of Common Pleas, Cumberland County, Pennsylvania. 7. The parties specifically agree that 13 Pa. C.S.A. §2326 & 2327(b) are inapplicable and that Vendor will accept returned goods in their "as-is" condition. 8. All returns are at risk of vendor. Rite Aid is enthusiastic about the opportunity to distribute product(s) into the marketplace. Rite Aid wishes you every success in your endeavor to provide a product that is unique. Please allow Rite Aid to assist your in your distribution needs by arranging for a duly authorized officer to sign and date this Agreement on.behalf of your company, and return the executed letter to Rite Aid's Merchandising Department. Vendor. '?R-tA? ML (It6, llnc- By: ??•= • Authorized Signature Date: Title: P4 IOJ . Authorized ignS ature Date: // 0? 1-/ D A • Revised March 4, 2002 v ple,&e note: A Name: RITE AID RETURNS AGREEMA • Returns A reement must be filled out for each vendor number. 7'r NFL pA+r Contact Name: Vendor Number: Invoice Address: Sv. ? E-Mail Address: 0 CONFIDENTIAL Phone # G (?? y75- v3t? e74fo?(o Fax # S- shipping Address: Category Manager: Associate Cateqory Manager. TERMS OF AGREEMENT: A. Unsaleable Merchandise vendors will be charged the following proc ssing fees foridamag Task Pots e , outdated, and discontinued ust 1. All goods. These fees are based on the findings fl om the Joint N Study (JIR): DPC (Direct Product Cost) $0.085 • Post Damage $0.111 Ops through Scan: $- $0.287 Based on the 2. All vendors must determine a method of disposition for heir unsaleable wilt check products.e method his/her company has CODElDESCRIPTIONS listed below, the vendor representative (X) authorized Rite Aid to use. The additional charge, shown in O at the end of the description, will be added to the charges above. CODE DESCRIPTION (JIR CqS - COPT Scan and disposition is left p to the discretion of Rite Aid ($0.020)` DONA _ Scan and donate ($0.030) DEST_ Scan and destroy ($0.040)' ROPT _ Scan, Hold, Vendor ReviewICenter'Option ($0.127) RDON Scan, Hold; Vendor Review; Donate ($0.137) ROES Scan, Hold, Vendor Reviewi, Destroy ($0.147)' RTAK Scan, Hold, Vendor Review , Take ($0.174) RSHP _ Scan, Hold, Vendor Revievi , Ship ($0.186) ew. At that the ma invoice time Note: All Vendor Review merchandise dill be held for nufacturer he product wiMibe d posed of at not reviewed, or if no decision has been provided by the discretion of Rite Aid SHBK Scan and ship back to vendo ($0.180)' Open RA# (REaR_ with this option) RA# •Non-toxiclnon-hazardous material only the Aid keturns Agreement • 'age 2 . Q CONFIDENTIAL 1. Handling of hazardous materials will require each vendor to supply to Rite Aid Corporation, Material afety Data Sheets (MSDS) before any such produ is returned. Fees for handling hazardous terials-will-be-specific to each vendor and will beTrn addition to the above disposition fees,-Failure provide MSDS may result in additional charges a6d possible fines. All products will be.bilied at Rite Aid's list cost + JIR billing factors (DPC, Post Damage Handling, Rec Charges, Disposition Charges) Unless.otherwise agreed to in writing by Rite Aid Corporation. Vendor billing is not to exceed 130% of Rite Aid's list cost. Recall Merchandise = -Please note: The dispositions on page 1 DO NOT apply to recalls. A separate agreement MUST be filled out for all recalls at the time the recall is being activated. This allows a vendor to have a separate disposition on recalls than they have on damaged and outdated returns. An Open RA# must be established between the vendor and the Category Manager prior to the initiation of a recall All vendors will be charged the following fees for product designated as RECALL merchandise: Ops through Scan $0.101 Disposition Charge $0.180 $0.281 3. Pallets shipped with returned goods will be billed to the vendor at the cost of $6.50 per pallet. Itemized pallet charqes will also appear on a future invoice. 4. All shipments are prepaid by Rite Aid and will be added and detailed on a future invoice. i changes to policies must be in writing to Rite Aid Corporation. Approved policy changes will take ?ffect within 30 days following their approval. 6. All vendors will agree to forward a copy of their current national policy regarding reclamation to be reviewed by Rite Aid Corporation. This will be sent to: .Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 Attention: Gerry Bush The signatures below by the appropriate Category Manager of Rite Aid Corporation and the vendor representative of said company denote their understanding and acceptance of the above agreement. Signature (Vendor Representative) Date Signature (Authorized by Rite Aid Corporation) Date Tc,., ,yr\G Rite Aid Corporation Comp4iny Rev 05121/01 Dec.,9. 2002 11:090 No-6366 P. 2/4 AID RETURNS AGREEME RITE Q CONFIDENTIAL e note: A Separate Returns Agreement mu t be filled out for each vendor number. Company Name: _ 1TriQ-dt Contact Name: Vendor Number: E-Mali( Address: `?'ra?6 xatre(t-lx ? _ Cam...-. J ??1 Phone # CP f0- Gi7S f?J C'W c?10 Fax# _ /,,jn-`i-7S'-V&S! invoice Address: Category Manager: Shipping Address: Associate Cateqory Manager. TERMS OF AGREEMENT: A. Unsaleable Merchandise 1. All vendors will be charged the following proce ing fees for damaged, defective, outdated, and discontinued goods. These fees are based on the findings fr m the Joint Industry Task Force Study (JIR): DPC (Direct Product Cost) $0.085 • Post Damage $0.111 Ops through Scan: $0.101 $0.297 2. All vendors must determine a method of disposition for their unsaleable products. Based on the CODEIDESCRIPTIONS listed below, the vend r representative will check (x) the method his/her company has authorized Rite Aid to use. The additional char e, shown in () at the end of the description, will be added to the charges above. CODE DESCRIPTION (JIR COST) COPT Scan and disposition is left up to the discretion of Rite Aid ($0.020)' DONA Scan and donate ($0.030) DEST Scan and destroy ($0.040)' ROPT Scan, Hold, Vendor Review/Center Option ($0.127) RDON Scan, Hold, Vendor Review. Donate ($0.137) ROES Scan, Hold, Vendor Review, Destroy 1$0.147)' RTAK Scan, Hold, Vendor Review, Take ($0.174) RSHP Scan, Hold, Vendor Review. Ship ($0.186) Note: All Vendor Review merchandise will be held for 21 days after Invoice date for review. At that fims If not reviewed, or N no decision has been provided by the manufacturer the product will be disposed of at the discretion of Rite Aid. SHBK Scan and ship back to vendor ($0:180)' • Open RAN (REQUIRED with this option) RA# *Non-tcxlclnon-hazardous material only Rav 01/18/02 . . Y . ..,,...0 e c 9.. 2 0 0 2 11 : 0 9 AM ..,.., o . 6 116 6"P . 3/4' Rite Aid Returns Agreement • Page 2 Q CONFIDENTIAL ndling of hazardous materials will require each vendor to supply to Rite Aid Corporation, Material ?fety Data Sheets (MSDS) before any such product is returned. Fees for handling hazardous --materials-wil4 be speck to each vendor and will be in addition to the above disposition fees.- Failure-to provide. MSDS may result in additional charges and possible fines. 4. All products will be billed at Rite Aid's list cost + J}R billing factors (DPC, Post Damage Handling, Rec Charges, Disposition Charges) unless,otherWise agreed to in writing by Rite Aid Corporation. Vendor billing is not.to exceed 130% of Rite A'd's list cost. B. Recall Merchandise -"Please note: The dispo$itions on page 1 DO NOT apply to recalls. A separate agreement MUST be filled out for all recalls at the time the recall Is being activated, This allows a vendor to have a separate dispol s ition on recalls than they have on damaged and outdated returns. 1. An Open RA# must be established between the vendor and the Category Manager prior to the Initiation of a recall 2. Ali vendors will be charged the following fees for product designated as RECALL merchandise: Ops through Scan $0.101 Disposition Charge $0.180 $0.281 3. Pallets shipped with returned goods will be billed to the vendor at the cost of $6.50 per pallet- itemized pallet charges will also appear on a future invoice. 4 1 shipments are prepaid by Rite Aid and will be added and detailed on a future invoice, changes to policies must be in writing to kite Aid Corporation. Approved policy changes will take effect within 30 days following their approval. 6. All vendors.will agree to forward a copy of their national policy regarding reclamation to be reviewed by Rite Aid Corporation. This will be sit to: Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 Attention: Gerry Bush The signatures below by the appropriate Category Manager of Rite Aid Corporation and the vendor representative of said company denote their understanding and acceptance of the above agreement. Signature (Vendor resentative) Date Company • Signature (Authorized by Rite Aid Corporation) Date Rite Aid Corporation -- nf•Mf.4M1A • RITE AID RETURNS AGREEMENT Please note: A Separate Returns Agreement must be filled out for each vendor number. ompany Name: TRIAD ML MARKETING, Inc a CONFIDENTIAL Contact Name: Steven Ritchey Vendor Number: Invoice Address: TRIAD ML MARKETING, Inc P.O. Box 590 Southeastern. PA 19399 Shipping Address: TRIAD ML MARKETING, Inc 295 S. Gulph Road King of Prussia, PA 19406 Category Manager: Tony Stapelton Associate Cateqory Manager: TERMS OF AGREEMENT: A. Unsaleable Merchandise 1. All vendors will be charged the following processing fees for damaged, defective, outdated, and discontinued goods. These fees are based on the findings from the Joint Industry Task Force Study (JIR): DPC (Direct Product Cost) $0.085 Post Damage $0.111 Ops through Scan: 0.101 $0.297 2. All vendors must determine a method of disposition for their unsaleable products. Based on the CODE/DESCRIPTIONS listed below, the vendor representative will check (X) the method his/her company has authorized Rite Aid to use. The additional chajrge, shown in O at the end of the description, will be added to the charges above. CODE DESCRIPTION WIR COST) COPT Scan and disposition is left up', to the discretion of Rite Aid ($0.020)* DONA Scan and donate ($0.030) DEST Scan and destroy ($0.040)* ROPT Scan, Hold, Vendor Review/C nter Option ($0.127) RDON :K Scan, Hold, Vendor Review, ovate ($0.137) ROES Scan, Hold, Vendor Review, estroy ($0.147)* RTAK Scan, Hold, Vendor Review, ke ($0.174) RSHP Scan, Hold, Vendor Review, hip ($0.186) Note: All Vendor Review merchandise will be held for 21 days after invoice date for review. At that time if not reviewed, or if no decision has been provided by the manufacturer the product will be disposed of at the discretion of Rite Aid. SHBK _ Scan and ship back to vendor ($0.180)* Open RA# (REQUIRED with this option) RA# USALE-RA03_ *Non-toxic/non-hazardous material only Phone #: 610-975-0305 x213 after 8/29/03 610-382-5100_ F4 * 610-975-0315 after 8/29/03 610-382-5115 E- ail Address: Rpm 01/18/n2 Rite Aid Returns Agreement . • Q CONFIDENTIAL Page 2 3. Handling of hazardous materials will require each vendor to supply to Rite Aid Corporation, Material Safety Data Sheets (MSDS) before any such product is returned. Fees for handling hazardous materials will be specific to each vendor and will be in addition to the above disposition fees. Failure to provide MSDS may result in additional charges and.possible fines. 4. All products will be billed at Rite Aid's list cost + JIR billing factors (DPC, Post Damage Handling, Rec Charges, Disposition Charges) unless otherwise agreed to in writing by Rite Aid Corporation. Vendor billing is not to exceed 130% of Rite Aid's list cost. B. Recall Merchandise -**Please note: The dispositions on page 1 DO NOT apply to recalls. A separate agreement MUST be filled out for all recalls at the time the recall is being activated. This allows a vendor to have a separate disposition on recalls than they have on damaged and outdated returns. 1. An Open RA# must be established between the vendor and the Category Manager prior to the initiation of a recall. 2. All vendors will be charged the following fees for product designated as RECALL merchandise: Ops through Scan $0.101 Disposition Charge 0.180 $0.281 3. Pallets shipped with returned goods will be bid to the vendor at the cost of $6.50 per pallet. Itemized pallet charqes will also appear on a invoice. 4. All shipments are prepaid by Rite Aid and will a added and detailed on a future invoice. All changes to policies must be in writing to Rite Aid Corporation. Approved policy changes will take effect within 30 days following their approval. 6. All vendors will agree to forward a copy of the r current national policy regarding reclamation to be reviewed by Rite Aid Corporation. This will be sent to: Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 Attention: Gerry Bush The signatures below by the appropriate Category Manager of Rite Aid Corporation and the vendor representative of said company denote their undstanding and acceptance of the above agreement. Signature (Vendor 0 .--- r'' 4-th, , Co pany • 3 Signature (Authorized by Rite Aid Corporation) Date Rite Aid Corporation Ppv 05/21/01 a z XI zz z z I III • z 10 law i W a l a, W > e O O i J 4; u I z 13 co O oc aWc ?gg E _ w 0 = O I I xI ? J z O W W W W ? m W N 1e. Or z tt Ao r6 ?° 0 J `J z z ale ak a CL z CL W N O CONFIDENYIAL ?F- 2 CID C H Z u If lu EM3 Corporation* S. 0 V c • c 0 V 0 c m New .O. Box ndor No: , state, ZIP rporate Address: .? 1 Q ,_ j ? -}? 3 ? Remittance IM coordr / Mgr. lomer service . Payment Tei • Vendor Information al 's, Address: Phone M Fax #: K , ! ?a3c1? - C I-' - nil ^w. .., 1. I le,ln (Note: 800 or 888 Telephone M Is required.) New Store Allowance) Payment Terms: Seasonal Payment Terms: (U apPMcabte) Do you sell to other retailers or wholesalers at a lower cosh than at offered to Rite Aid? ss payments must be seM to our corporate bck box at Rite Aid Corporation ~ Attn: . . P.O. Box 3165 Cy Harrisburg, PA 17105 E 21' eaa+ts receivable f a ae Yes L_J M Do you use a facto yes ? If Yea. Factor's management? ? No Name: 1 Address: - Do you sell / nwadacfine private label products? Yes ? No 17a ? Y--' ~ exclusive brand products will be tested for compliance withl Rite Aid's standards before it Is added to a product mix. Vendors wile pay far this A testing at a predetermined rate eel by fine Aid prior to testktg. ! Vendor wiA not change formula of method of manufacture after testlng, witfotR C b. i Ca prior written approval from RIM Aid. Q Me Aid, at its sole dlscr9dm may continue to test exclusive bel items as deemed necessary to ensure continued compliance with Rite Aid's ? requirements. Vendors are required to pay for this testing, more than once every 18 months (or more it complaints are received EDI Capable: Yes ? No li? Planned ? Date Manned Purchase Order Yes ? No ? Ptartrted ? Dale Planned Invoke Yes p No p Planned ? Dale Planned Z% N Yes ? No ? Plan-ad O Date Planned i Price Change Yes ? No ? Planned ? Dale Flamed t e I( rn Maintenance Yes ? No ? Planned ? Date Planned V Yes ? Payment Remittance No ? Flamed ? Dale Planned a Product Movement Yes ? No ? Plarww ? Date Planned Forecast Data Yes ? No ? Planned ? Date Planned EDI questions should be directed to tl1e EDI 1 EC Department at ( 17) T31-3015 or E-MaN at edi are 3150 evelabk. riteald,com• EDI 1 EC Corporation '., 1I-A-#1 A M 4MAIM Q CONFIDENTIAL ;3? ? vvs rue sae,e? • NetDomestic Vendor Information (Cenued) CONFIDENTI . S hipping Address: (Provide a separate form for any additional locations.) Address: Vendor Freight Allowance (applied against gross purchases) • A t moun City. State. Zip Cokct Prepaid O - ---- - Individual Store P.O. Buhr Phone: Method of Payment Off Invoice preferred; Contact it olhar, attach note specfying reason. Address: Vendor Freight Allowance (applied against gross purchases) C Artwunt p City. State. Zip Colkd Prepaid .m, Individual Store P.O. Bulk 13 ,a ?Mne; MNhod of Payment Off Invoice preferred; CD tact if other, apach note specifying reason Con C a Address: Vendor Freight Allowance (applied against gross purchases) CL Amount fL City, State, Zip Collect Prepaid Individual Store P.O. Bulk Pte: Method of Payment OR Invoice preferred: if other, attach note specifying reason. contact E 9 C CL a t N C Ye el m CL O IL Coded Merchandise hale Order UOM: Level: ping UOM: Levet Check here to signify yo Yes ? Yes Yes ? Yes, Note. Charges may be assessed for rp{ ave reviewed the web Site Supplier Compliance/Shipping Instructions: r- or No ? Minimum Order hh r or No n Minkraxm Order or No ? Mlnirnu m Order: or No ? Minimum Order. 1,0 1PC merchandise (See Rho Aid Supplier CoffWance Manual and Rife Aid Web Sife). -Corporation New Dl Vendor Information ntinued) a 1104torme ef.woodland W Larwask s 6 e 0 I n w1' ?-+ TmOW" I ref - - 2 1w" im ? S Ownib a 4 • 1 - C ? d a CL t m c a ? z d a m 4 o • , a w 2 t 3 CL s 7 s 0 L P&A .1 Powd u l.= u L J P'v QR1 e. sa Ar CM s s s : x x x Pock"Al ' Corporation New Domestid Vendor Information (Co ey 1 13 2 13 3 4 13 S 13 6 e s ,o ii n 14 13 C >s a a m , 21 a 22 x x x' Q CONFIDENTIAL u J ` 27 24 C a CL CL a L y a ? s M • r 1; IL 31 V • 34 .01 is O • N W Z V IL or request for additional Rich doss (rgossCriteail ' ?lt?7ilfo?nat, Tarpaessa Card Ilesdorrs Nsratr?s Seeds toter nea•nwar Pli,ae'ppoierer•r q*w Nola. e.la. *131 .012111111M Dedt bola fld foralaei ua" ban Ilion on Purchase Order Processing/Shipping Terms should be addressed to: Sean Witmer (switmer@dteald.com), or Chris Vogl* (cvogleQdteaid.com) 1 RITE'AID p^Nm shined be mode on a -Fnia1N C ~ or TreigM AMewed' twY, but iequesY'Repsir pidna be provided. 2 Vendor Y nspwwMe for any addMWnal cosh sasodabd wMh s";; * p ad on an espe0sti bads. W required for assudn0 Or'a h, ardvd b meetan sdwresa be dete. 7 RITE ANDY verow se4 lorei Ito dsfinitlw replrsrnwas /or ahlpMrN or Vendor's product. 4 Shl o m Ixylfon addresses and Caraeat names, WWOhare nunWers and ewnal addresses owum be provWad to FITS AID Traeb Depeirnen prior to suwmw. 5 SMpmerrs made an a YrepaW- basis shaft have carder name are freight charges Merited as a separate Ines item an to varr0er Inveioe. 6 RTE AID requests use of s PLATE AID Prefrnd carrier an shipnwm made an a YrepsW basis. Corporation Q CONFIDENTIAL NewMomesti Mendor_I.niorm.ation (Continued) N Riisrtld-Darnspsdd-0uldited Product Disposition Ag ant -- -- - _- - - - - ._ ..r E You must complete the RNe Aid Dam" ed d Outdated Prod Oispositon Agreement (refer to enclosed copy). tL Guaranteed Sales Agreement -Now Vendors it Seasonal Merchandise Only C You must complete the Guananteed Sales A regiment (refer enclosed cop y1 m Merchandise Recalf Ofsposidon Agreement m AN recalls must be completed utilizing a copy of the Mercha Ise Recall Disposition Agreement. s' Vendor /ndemniffosdon Aynentent Q You must complete the Vendor Indemnification Agreement ter to enclosed co Advertising Terms: (Each allowance component must be expressed as a separalte item not in conjunction with any otter component.) Each component is mutally exclusive of ON otter programs. A. Co-op Funding (see enclosed) a. The following Funding amounts are over and above the Annual Revolution 11 Funding coma tment noted above. Off Shelf Displays Yes NO $ % (based on gross purchases) • Single Check Rebate Fulfillments Yes No $ % New Rams (flat amount or (nee sal value) Yes Ho i % - Health Resource Rite Advice Yes No S % Annual Trade Stow Partidpalfon Yes No i % Updated on 1/16/02 - Care Expos Yes (not listed above) Yes elht Yes Yes Yes No S % No S % No No _ No pnAecftm Vendor provides protection of on hand and IMnm4lt inventory. Yes 11 CONFIDENTIAL No Retail Markdowns (TPR. Coupons provided by vendor) Yes No (Udite Non-Revli Contract) Is there an annual volume incentive ! contract rebate offered? Yes No Yhat is the annual lime frame of the agreement? From Ta C C E O C me Robsto ANowanaa: I Purchase Range Rebate % To % To % To % To % the volume rebate bads to dollar 1? yes ryrment (chockideduWon) Mond* ease attach a separate sheet N more dun one annual volume k ote: Payment of the Annual Revolution 11 Funding Commitmed om our scheduled payment to you on the applicable kwok:e dot Annual Volume Target AND Fixed Volume Rebate f $ f S S S f f No m' Annually exists. and above Funding and annual value incentive rebates wiN be deducted • is agreement is not valid until signed by a Vice President of CA ,legofy Management of Rile Aid. This agreement and the attachments N refer ' are the entire Agreement between Rile Aid and Vendor for referenced term and supercede all prior oral and written agreements. This reemert may be amended or modified orgy M writing Rite Aid and Vendor. The undersigned acknowledges and agrees that the undersigned has mfuNy reviewed the terms of this Agreement and the terns an d conditions of Rite Aid's Purchase order and agrees to abide by them. By • fining this Agreement. the undersigned representative of V 7 represents and warrants Thai he/she has the power and aut ority to legaly bid endor. or Signature: Menlo: to tha encfoaedcopy d Rita Aid Accounting Policies . mils Use Only - Supplemental Information Attached: Accepted By: Category Manager: VP d COL Mgmniz SVP d CaL MgmnL: Procedures. which are made part of this Profile. Yes ? No ? Data: Dale: Date: Oslo: 0 r• UPC Coded Merchandise • Please visit Rite Aid SUPPLIER CENTRAL W (www.RITEAID.corr f toePlete O fifty Purchase Order UOM: Check here to sW* you have reviewed Me Web Ste Supph Supping I SKU Levet Yes C or No C wr immn Order; .. Case: Yes or No ? Mirwnum Order: Shipping UOM: - r SKU Levet Yes C or No G M4irsrm Case Yes or No C W,W n Nate: C f)wW maybe assessed for r w4,PC mwdwWm (See Rte Aid Suppler Conplance Marsral and Rte Aid Nkb Ste). Sftw a wpm I wwe 1 wwts m* Wuerraster n & Him 5 6 Per SKU Per Case s is s $ is Is - Pald ado= u u HuwdOlx MMWWS u u CHEP ParAft ? spww aaw mowwft ? Carrier Sort 6 sewepw required ? v w m**w ? D W Load MOW C Ndw i app. (slate hours) ? C Driver COL" required C ? Dock bdca (at Wadm a) ? C I .M lh- fflk- b , 40" Lmft houa FR TQ • • Q COPT `AUAL I RITE AID pow W*waas be made an a'Fmigtd CofiKf or'FnVt Allow Kf basis, but mquesls'Prepaid' pickV be pay". -2 Vendor is rfeaapnriliibie for any iddlA" coals auodaled with a14ppYg on an expedked basis, s mq Ared for aspAng product arTW to meet an advertkemeM dA. -8i ,RITE Albs vendor &mk Cmrokm Manuel seta tenth ate de WhO eme*s for *Pmt of-Vendor's product 4 Shipnwd loa0w addressee and oontad naves, telephone manbsm and e. roal addresses should be provided to RITE AID Taft Departnend prig to dw up. 5 Ship raft made on a'Prepaid' basis should have carrier name and Befit MagaiMrdted as s sepaM sne kem onthe vendor km ia. 6 RITE AID requests use o (s RTE AID Preferred Carrier an W* menu made on a'Pr®paid' basin. 0 y N 0 ad z O m N D O 4 v ? 9 V o? u V ?r r? v a V ' y w r o? .S .•„ `O -o R D' W E E z ' a = a U z ?r y U t aL C U V C fA > D l i W I?- W z r z O I? O a O c v ? c z V V D: O > > M u o j > ef) , O o ? ?N n a~ ~ I O: = U0 N _ • L u rfi , U a Is • c v w Y s ? ? 7 u j u M a n cJ c ? ? ? M O j * tL n J . a b D p C ? ! s ? ° o ; co CL c o' = o v v ,s N o O ? = c o tV en ' C e Jg $ . to o r L u ? a I v V Ot E o s s L • 7 O L N O O jp E B y Q CONFIDENTIAL CL CL o c A W > N C 0 0 u o v C c u ? o S L `o N a ? E C N 3 m E m o Z T L 3 c o ? ? N 0 L 00 0 3 A a r.- gE Y c t C w C yy O ; N T o H ? x L V ? p C 0 p . a 10 0 8 ?, v u ui ? c o a o o ? $ U ` a ? Y o I r..o CD ? v ? N ? 3 eb 0 n m o r c m ? U < v 7 %n ? Q d ? Qy ? U L s ? r C Y0$ s o ? s N C C eS o ? o ? o O y -0 p N ? ? m .0.. y ? C T A p? Y 2 O 0-2 ? i it :a 0 E Q u (a 7 c 0 C ?7 0` N O C ? a o o ? a 10 ? ? N ? ? Y ? + Q ?N w ? Ol y o o > U m d 0 7 C a H .Q • DEFENSE AND INDEMNITY AGREEMENT (0 CONFIDENTIAL AGREEMENT made this day of Ib,-rnbtr , year ;)-Oc by AL (hereinafter "Seller") and Rite Aid Corporation, and its subsidiaries (here'- er "Rite Aid" or "Buyer'j. WHEREAS, Rite Aid has purchased, and/or may purchase for resale primarily to consumers, goods, products (including pharmaceutical and O.T.C.) or other items or articles from Seller, and WHEREAS, Seller has agreed to defend, indemnify and hold harmless Rite Aid of and from any and all claims aninvestigations arising out if its sales of goods, products or other items or articles pur?hased from Seller; NOW, therefore, the parties and intending to be legally bound, as agree, for good and valuable consideration, 1. lletense ana lnucLumimas harmless Rite Aid Corporation, its -- - any. and all losses, expenses, damn `-? may at any. time from the date hi actions (including recalls and en Commission and/or other federal, brought against them, or any of and/or use of each of the goods, pi 2. Insurance. Without hereunder, Seller further agrees to p; Comprehensive Public Liability Ins with limits of liability of not less th; with an insurance company satisfa name Rite Aid as a named insured. shall be delivered to the Buyer with thereof shall be delivered at least 30 Seller shall defend, indemnify and hold ;holders, officers and agents and subsidiaries from costs and attorneys fees that they, or any of them, incur by reason of any investigations, claims or :ment .actions) by the Consumer Product Safety : or local governmental entity as well as lawsuits i, arising out of the sale, purchase, consumption ts. or other items or articles sold by Seller. limiting any of Seller's obligations or liabilities ocure and maintain at Seller's sole cost and expense irance, including products and contractual liability, n $5.0 million combined single limit per occurrence :tory to the Buyer. Said policy of insurance shall Such policy or duly executed certificate of insurance n 15 days from date of this Agreement and renewals days prior to the expirations of the policy term. 3. Legal Actions. Rite Aid will give the Seller reasonable notice of any investigations, suits or actions instituted against Rite Aid by reason of the purchase or sale of goods from Seller. Rite Aid will cooperate with the Seller in connection with the defense. or settlement of such action. Seller shall have the right to defend or settle such suits or actions with the consent of Rite Aid such consent not to be unreasonably withheld. • M CONFIDENTI 4. Choice of Counsel. Rite Aid, in its sole discretion, shall select counsel to • defend and indemnify it in all investigations, claims and/or lawsuits. 5. Benefits. This Agreement shall be binding upon and shall inure to the benefits of the parties, their legal representatives, successors and assigns. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. Rl 9t MC. Mq(L?.lj?? I c By: Revised March 4, 2002 RITE AID CORPORATION By: n 12/18/02 09:39 'ING MEDIA INC 4 7179755915 •. , .. NO.043 1202 "T" CERTI CATE CF LIABILITY 11URAAMCE 1am p+,oKe TNI ER 11 IFK:ATE IS ISSUED AS A MATTER OF INFORMATION gin 627-386-0 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Kevane Inaurance 64 Old Eagle School Road StraBord, PA 19087 irw?uo King Media, Inc. an Triad ML Marketfg, Ina 958 East SWede*FWW8d suite 325 Wayne PA 1901 7 • KI Media 1WRYWItAMEWUMLI ERTIFY THAT THi POLICIE3eOF WRWAN= ? I? WY PFRTAMI. TNE OF SUCH POUCIES. LWATa of /INSURANCE POLICY aIIJTY wcaawuAtu?ln BOP0020Q24 W" G] O A e?r• • oowrnAeTas rpoT IRO•IOIRB We>1?? AgeeeyID, np I_ rraxn+eo wrw r IE urskm A WW CXL0004384 Twwuwe•ltuPOrr I WOIeIERi bOVEMfA7IDM AND BOLO" NfEWILM COMPANY A 00"6981 Mutual Insurance Company . COMPANY B C0MPAINY CC. 1EN ?a n 319/02 319103 Pt•sow?t a AOV WAMT i W" ONCE FiSDI MA0iVM/w?l r?OalNerwMaN l?Y/NIiO•IMrVYA1R s • i , • OOOLLYWMfIN INWWi i Own pjrj nrpwasa f i Aura oWV-EAACCO T • *yy"TlW AUTOOMP EACNAC+GDl1f? AOCREMTE • • WNOOCVAeR6 • 8115!02 8115103 . •TATUIM UM"S i MCMACQONR i ComisfWIGT?IWT • 2WAINAM Olnoret is i The certificate holder is named as eddiillorW Insured vft regard$ to general 11eb11ily and excess lability' ?•iur_Cl 1 t N Rile Aid Cor 0110" 30 Hunter Lane Camp Hill. PA 17011 ee /11Y ....-.,.-.?„Tee•ni 890E L99 0T9 3ONbtMNI 3NUn3)I:W0tU dLE:20 2002-LT-030 atEIAW HAVE MEN ISSUED TO TW OdURED HMO Aa011E FOR THE POLICY PERIOD GNOMON OF ANY CONTRACT OR OTHM OCCU RNr IMTH 111fMCT TO WHM TM A T NEPPt?ED DE WED HEM" 13 AMAGT TO ALL TT1E TERMS IWPAIDCLAW DATE P PoUCv E PM UmPre - Gomm 9 &a AAeetw rsaorFlOPAQG t 4t7 nnn an y '-'OCT. 8.2004 6:24PM ELLIOTT GREENLEAF NO.487 P.14 1017/04 at 09,36:17.90 . . Page: l Triad iV10 ~ 1Viarketing Inc customer Ledgers -For the Period Frpttt Jan 1, 2002 to Oct 31, 2004 Filter Criteria includes: 1) lDs from RrlT AID to RrrE AID. Report order's by ID. Report is printed in Detail Fodnat. Customer 1D Dee Trans No TyP Debit Ame Credit Amt Balance customer mer AID RITE 3!12103 991670 sJ S1 39,960.00 6 480 00 39,960.00 * 46,440.00 * p? ,q lD 3112103 3/12/03 991671 991672 , - 16,740.00 63,180.00 * * 4/1/03 300900004 SJ 175.00 00 300 63,005,00 705.00 * 62 4/1103 4/1/03 300900005 300900006 S1 S] . 125.00 , 42,580.00 4303 30090-93138 S7 50,295.00 285.00 005 00 22 414103 991751 Si s1 9,720.00 00 860 4 . , 26,865.00 4/4/03 414103 991752 991753 si . , 3,240.00 ' 90,105.00 • 419103 991768 SJ 25,920.00 56,025.00 265 00 59 4/9103 4/9103 991769 991770 ss 23 3,240.00 10,800.00 , , 70,065.00 4/16103 991790 SJ s1 11,340,00 160 00 2 81,405.00 83,565.00 4117/03 4117/03 991800 991801 1 Si . , 5,940.00 ' 89,505.00 4117/03 99180 $J 7 I 00 8 640 1,620.00 97,885.00 96,525.00 4123103 4/24/03 991808 991809 S S1 , . 4,860.00 101,385.00 4/30103 991810 SJ 12,420.00 113,805,00 00 121 365 4130103 511/03 9918 11 36090-90915 5J SJ 7,560.00 12,500.00 . , 108,865.00 5/1/03 300900008 SJ 75.00 00 25 108,790.00 765,00 108 5/1/03 5113/03 300900009 991839 SJ S) 33,480.00 . , 142,245,00 5/15103 991840 81 SJ 4,320,00 600 00 10 146,565.00 157,365.00' 5115!09 5/16/03 991841 300900007 SJ . , 250.00 157,115,00 5127/03 991842 S1 SJ 2,700,00 00 400 32 159,815.00 1 92,215.00 5/30103 6/3103 991843 991845 SJ , , 13,500,00 205,15.00 * 6118/03 991846 SJ 5,400.00 000 00 128 211,1115.00 83 115.00 6119103 6123103 I33009OD403 0002876392 81 CR1 4,114.80 . , 4114-80 , 83115-00 , 6/23!03 0002876392 CRJ ,995 DO 13 120.00 69 00 * 740 7 6124103 991847 S1 SJ 1,620.00 940,00 5 . 6, ,680.00 76 6124/03 6125/03 991848 0002677106 CRJ , 302.40 302.40 76,680,00 645/(y3 0002877106 CRJ 15,120.00 61,560,00 00 0 67 500 712/03 7/7/03 991850 991851 Si SJ 5,940.00 14,580,00 . , 82,080.00 * 717109 7/10/03 991862 000x$89736 51 Clu 1'0702 OQ 702, 00 83,160-00 7(10103 0002889736 CRJ CR? 270 00 35,100.00 270.00 48,060.00 48,060.00 7114103 7114/03 2693308 2893308 CRJ . 00 13, . 500 ,560 34 .00 " 7118103 D113242299 51 32 132 1 . 69 46 90 11 427 34, 380.21 34 7!18103 7126/03 0114311790 0002905909 S7 CRJ 106,00 . xa , 7128/03 0002905909 CRT CR1 20 151 5 151.20 29,160 00 29,160.00 815/03 815!09 0002909838 0002909638 CRJ . 7,560.00 21,600,00 815103 12237 Si 12400.00 91100.00 , * 6/15/03 0002922879 CRJ 313.20 313.20 160 00 3 9,100.00 5 S/15!03 8/19103 0002922879 D123060299 CRJ S1 . , 230.09 , 3,770909.91 .91 8/21/09 2926946 cm 53,000.00 53,000-00 325 29 5,709.91 5 384.62 8/22103 8/22/03 r)118378299 0119456790 SJ S1 . , ,321.15 5 9/19/03 13124133790 sJ 00 $40 71AI 71.41 5 ,749.74 5,789.74 1013103 1013103 991864 991965 SJ SJ . 9,720.00 15;509.74 10/17103 2974546 CRJ CR1 25,000.00 690 26 25,000.00 15,509,74 16,200.00 EXHIBIT 10/17/03 2974546 10117103 991880 Si , 2,700.00 .00 0 10/17103 D120049299 SJ 174.55 55 54 45 18,725. 669.91 * 18 4 E 10117/03 D129136790 10/27/03 991900 1 SI 31 4,320.00 . , 22,89.91 - 1114103 - 30090.22822 Si 12,500.00 16,4489.91 * 16 91 429 11119/0 3 991909 Sl 5,940.00 , . • OCT. 8.2004 6:24PM ELLIOTT GREENLEAF NO. 487 P.15 ' • 10/7104 at 09:36:17.95 Triad ML M.ksdug Inc • Page: 2 Customer Ledgers for the Period From Jan 1, 200210 Oct 31, 2004 Filter Criteria includes: l) IDs from RITE Ally to RITE AID. Report order is by 1D, PAport is printed in Dabil Format, Customer ID Data Tram No Typ Debit Amt Credit Amt Balance Customer 11121/03 30090.24285 SJ 367.00 198 35 16,062.91 " 864.56 " 15 11121/03 11/21103 D133092299 D134219790 SJ ST . 55.54 , 15,809.02 * " 12/3/03 991911 SJ J 1,080.00 00 720 9 16,889.02 26,609,02 12/9103 1219103 991915 991916 $ SJ . , 7,560.00 34,169.02 12119/03 D130121299 S1 103.14 47 63 34,065.88 002.41 34 12/19103 1/16/04 D139245790 P142859299 SJ SJ . 79.34 , 33,923.07 ' 1116/04 D143969790 SJ 23.80 33,899.27 27 * 139 37 1119/04 1/19/04 991931 991932 ! SJ SJ 3,240.00 3,240.00 . , 40,379.27 " 1/23/04 30090.29120 Si 516.00 00 12400 39,663.27 27,36327 ? 213/04 2/5104 30090.32080 991952 ST S1 540.00 1 27,90327 " 2/6104 991953 S1 Si 15,660,00 00 080 1 43,563.27 44,643.27 '? 2112/04 2/17/04 991954 3078160 CRJ . , 24,049.60 24,049.60 44,643.27 2117/04 3078160 CR1 20,883.27 67 39 23,760.00 720.33 * 23 2/20/04 2120104 1714847790 D147336299 Si S1 . 333.23 , 23,387.10 * 2127104 3069592 CRJ 129.60 129.60 107 10 6 23,387.10 280.00 17 2127/04 3112/04 3089592 991973 CRJ SJ 5,940,00 , . , 23,220.00 " 3116/04 991974 S1 CR1 4,320,00 324.00 324,00 27440.00 * 27,540.00 3/17/04 3117104 3106656 3106656 CRJ 16,200.00 11,340.00 3/19/04 D151651199 SJ 119.01 15 87 11,220.99 105.12 11 3/19/04 3/24104 D152745790 3112150 Si CRJ 21.60 . 21.60 , 11,205.12 3/24/04 3112150 CRT 51 780.00 3 1,080,00 10,125.12 13,905.12 4/5/04 4116104 991979 D155688299 34' , 103.14 13,801.98 • 4/16/04 D156757790 S1 CR1 118 80 126.94 118.80 13,675,04 13,675.04 4/19/04 4119104 3137307 3137307 CR1 . 5,805.12 7,869.92 4/21104 991986 S1 CRJ 4,320.00 86.40 86.40 12,189.92 " 12,199.92 4122/04 4/27104 3140596 3140598 CRJ 4,089.92 4126104 991989 Si 1 2,700.00 00 320 4 800.00 10, 15,120,00 10 4126104 5/4104 991990 991993 S S1 . , 4,860.00 19,980.00 * 514/04 991994 S7 540.00 20,520.00 * 00 " 23 220 5/5/04 515104 991995 3009000010 5.1 S1 2,700.00 250.00 . , 22,970.00 * 5/21/04 D160650299 Si 507.78 23 80 22,462-22 22 438.42 5/21/04 5128104 D161144790 3172546 j SJ CRT 4,912.00 . 4,912.00 , 22,438.42 5/28104 3172546 CRJ 7,318,42 15,120.00 280 00 17 611/04 612104 992043 3178140 SJ CRJ 2,160.00 140.40 140.40 . , 17,280.00 612/04 3178140 CRJ 00 108 7,020.00 00 108 10,250.00 10,260.00 6/10104 6/10/04 3184403 3184403 CRJ CRT . . 5,400.00 4,860.00 6/1//04 3185999 CRJ 54.00 54.00 700 00 2 4,660,00 2 160,00 6/11104 6/24/04 3185999 992105 CRJ S1 7,020.00 . , , 9,180,00 6124104 992106 97 S7 1,080,00 480.00 6 10,260.00 16,7410,00 6/24104 7/9/04 992107 994709 51 , 2,160:00 18,900.00 819104 990802665 266 SJ Si 540.00 540.00 19,440.00 19,980.00 8/9104 8126104 99080 4 9940825 Si 21700.00 22,680.00 98104 992060 1 81 ST 540.00 160.00 2 23,220.00 25,380.00 9/15104 9116104 99206 992068 Si , 2,160.00 27,540.00 LJ • • N 0 O co u1u1 v v v v v a v v o v v v v v v c v e v e e o e v0 v v v a v v v a 'M m oo 00 $o oo °S S$ oo$SS°oSo°oS°OS°o S S °o00SS .+ ?V 0 00 0 00 0 N`MV NN_f?V NN NNN(`1 ?V -V ?V N £1 NNN NNN Q O ONN N dj p13NN M 10N NN r OD O'11n O, OD Q ?M a099NN M?OVNK0?V1 f0 (? 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M p1 O M V a O O O O M t?1 O OD N 9 M N N ti 0 ...... ...... ... v O N to fa &R, to wwrnw?nrnHwwu?w»wdswwu9to &S Gs wwGo www`nwww%awenwu0»dsW.0%&9 -? 0 p 990 _ p_ O C SS VpOS rppOpSS?pOOS8S 1pO??NCpp708OSS ppO O NOf Sp8 OOS as C 00< p O 00 p &G a O8Oa0zz,8 SOS O ch w1wOO1?SNN N I? 1, LO to N 10 cA?D O'.O V NfD (°D R aNObi V N Nfem. tN0 (?O V 47 ? ? a N `N v v 9 r ?- v N v v `? fV fV N N -c q- CV V v 0 M `1n N V v V N - .- ? C ? 0 O w to to w w to to w w w w w w w w w w -A w w w w w w w w w w w w w 6+ w w w to w w w w w to w w w w to U Q w m v v a v v v v v v v a a v w v v a v v v v a o v a a y v v v o v O° a o o °-° 0 0 0 0 O o00 0 p0 pa o 00°0° °OOO° o °o op8° °o °0 8 N N NN$ N N N NNN NSNN NN`N0 CJ i+ Q ?jNOS?°?VV ?Q`1°?VS O NN? pp ON pN 0?V ?0O OO?VV G C (? Ow?3? V sFN ?1?000010f N t+1 ? A'r K3 faN ?175wwN r w 01010f 01 r. r 101 Of 01M d = N M r N N N N C ?'N N w .- `-• .- N ?V ?V G 0 fV i000f? w t010 C0 A I?cO maD l?l? cOwwOfw 0? cow wO?w OOw? 000 r. C? N^ ^ Nf? N O 01 0 N M 0 po 01 N M 0 0 S` m O O Ol N N 10 01 A O.0 _ co p0M 0A l0?p 0 Opp?1pp?1 V1r O 0001 OO 0S pr 20 o-, 0 p00C MO N_ NAT N000 O OI?N NN NOMOA N cNp ?1 OS NA NO.r r r Ri 990A Nm 9001 pM O N Qc A pOA M A r OO OtO N.?p O O co 0c 00 00O 0. pOG pf O NM 01 Np1 a Off 01 0Df c0 Of 0°1 S §980-1- °M p O?j W S Ol t0 01 1 j OOf ONi Of Of V M 01 0! Of O 01 Of T Of T 001OOf V 91 o010/0101 01 ov M 0101 O OCp 00010NM Q1 00101019A 008, 0M M CO) 'M.0 M0M 0 M 99 M 9000 M010 M Q20 O OD Oo on 00 0E a) 01 N a) m N a1 41 a1 {p1 NN ( 2 p Em 2, Fm 2 N OI 0 C L U L L L to U L L Uy aD UUyd U (5) U yd ?U yv L) U a mB ; w a1aS w alas m aB `?C?' yBa a/aa m c_W v u am(?(pp?p?'$ ?m?mm?pa a.?p-uJdmtOic?c?mi{m?pQuu?w L N > G N > > > Q O TL d'N N > 0 > > G > C N aT' > > > 6 > N N > 0 C > > > N N > > C N O> C > F c c E c c c c g1 E E c c c c c E c E c c c c c E c c c c c E c c c c c c r= c c c c E c _p1 O ... .N -14 0 7 .. _ O 0 7-- O 7- y p - 7 7 _- O 7 7.- Q N y U jn C U U yj y U U !n (n U fn fq r U fn fn L) 4) ?5 '" 7 v v v v 7 7 `p 7 7 7 7 p 7 7 D 7 7 p '0 -0 d a L N d N Q v > >> > > > > > > EXHIBIT 5 RA 001 • • N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N O O O O O O 0 0 O O 0 0 0 0 0 O O O O O O O o8SSoSoo8oS8oSoo SS88oSoSoooooS SoSBSosooBoSoSSSS N NNNN ?V `NNNN ?SN1N NN ?1 N N N N"`=?V ?V ?V ?V ?V 1£INN N=`N N ?V"N N?V N d? f?`Of ?Nal?jf 1?[ N ?O NN N N60? NNMM?O?! n.r? Zia NC. i;l t?c1. CZ4CZ4 NCl? c?c c'A 6'n? v N?U m t01? r? mw a-)O>o 6 86a X000 p p 00 O O O 00 OtO ?V M*NN? 1? W NOaDN MN 60N r W (D ODD X00 N Sf01l O tO S"SS SSOOSO'SO SOSOO S 0 00.- W P, v W N cDlOf,tON 71" N?DO v M.-apN W OON 0> ppCD?p h OOpOUN r()p N S OM W i? t?t2 O r W N f- W 1Ar (Dw t 7 WO wwNv V' S- O O o l S I: N S S S S S N O O ?O ?O ?" oC W fD N M W ?'- N N ?7 N N 10 Ems N c<DD .-M t02 X17 NrON N ? fDNNN fD M N _ . M N s< ?-'f0? f? Mc0 .-tOOtO r(1 M W N W ?•?••N '-N - N NNvN N•? ?-`M- N vN v M CO w 69 w w lA 60 69 w ww w w w 60W w V1? www 60 *A /A IA &9 w 40 fin 69 Mww Mw wwww 69 w w w60 69 r. S r r i r r r r r r r i i r r r r r r i r r r r r r r r r r i r r r i r r r r i r r g w w W f9 w w w w w w w w w M w w W M 69 w" w w w w w 69 w w w 41 w 41 w di w w w w w w w 69 w w w w w w w w O?Opp OppppOpp 000 ppO O 0000808p ?iT M? N ? W N OaD N M i; DOn moo 0 Na ?p - p ON Of01?00000000000 SOS OOOO S' 001D 0.- C) f? m (O r-. W N? r.. N 100 V O r W 0. . f0 t0 p-O C p O N ELI p O p pp O ? N? O C7 Di h Y N CC ? W LL7 I? Oi 117 i? fD tD h ?" f0 O ?p fG (V 7 O f+l O IS W O N tnMOSMP M rMSOMN SO NN Oa0 ?O a0 t047 •-oD W t0 Na0 T N N CN SiD ?O N ID? f0 O u") N M W d' t0 N M OD f0 N 't0 1V v W N' QO IS v h '- N m N N N tD N N N N `N r -:-N V N N N v N N .-. v M ^"i ... N v w IA w w w w w w w w V1 w 60 w 69 w w w w w w w w w w w w w w w w w w w w w w M w w u w w d1 W w w w w to h w gNN 0 N' < MMMO a O V M M N NN N N N NN NNN N NNNNNN NN N N Np N 'N.. NO .NHS g ow OO 0 80 888888. S OOO O OOOOO OOOO OOO O O OO OOOOO OOO f2V5 N aN N C O G O O C O O O O O O O O O O O O O O O C O O O O O O O O (? a O W N ` '- _N N•' a. C O N N N ,N+_, CO C?_0 0_D O 1 1? 1? u? In O? m O_f tD fa t?_ a 0 W W OI O) m OI ? O O O a O f7 V 7 In u) t0 c0 A r N a0 aD al) O V c,am r-v TV tiN _vc W COIN to N W pp M N N N ?- N O Q O 0 0 O W W W O W O W O W WW OW mN OW WW a0N OW W O WW OW NNW O 2 cp W O WWOW 2 ?p ?p O1 O pqqpqq O p ,`ayQ{j p pppppp O pppppp O O O p O W M W M- W W W W W 07 N ON W O O O S 0 0 0 0 O O O N I? N r h N h N h N N 1? W 1? N W r N? W N 9" N r W ON O OO O O O O??RRjjO O O OO M NN N1 W NO V MNW NtDM NM4W N I NM O (0 N O O O O O O O O O O M M N s{ M 7 r w r-,2 D N V N N W W M M W O O M M t D WM W W W W W W W W W G 8 WpN M NV ?pW [O NtD WI' tONN M NW W N N ?OOO_? O c0hM W O O 0 0 0 0 0 0S8O O O OpfV Nf0O W N V W e0M Ot0 W w r-V Mw NfD t0 W60 O M l) c o M M M M M M M OM 7 M Cl) OM M M ON N N N N N N N N N N N N N N N N Cl) Cl) N 2 2 CV N N a a a 00 000000000000?00??00??oo??aa? 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T T T T T T T T TT T T T T T ?????taaaaCL aaaIT nm.CL CL CL aaaIL i m m u u U m m m m m m m m m m m m m m m m m OC c c e m c c c c c c c c c c c c c c c c c a,a.,aCL IL o aa.a aa•aa m a•G as a•G G a•a E E E E E_ E E E E E E£ E E E E E E E E E E 0 0 0 0 o a o O'S o o o o o o o 0 o o o 0 o o E??c?0U0066005U6000( o `o `o `o `0 0 o v v v o 0 0 0 0 0 0 0 0 `0 0 0 o 0 0 0 `0 0 0 c c c c c C C C C C C C c. cc C c c cc c m m m m m O m m m m m m m m m m m m m 0 m m m >>>>>r > >>>> > 555>5555555: A O u T A m c 0 U O? a >O Cl) RA 006 • 0 R © CONFIDENTIAL i HOV.24•2003 17:35 714 *Y15 wtaznau w?. ra....,. ..... • • • •-• • •. •: Contract # 15942 Rite Aid Promotional Funding Agreement Fiscal Year 2005 Company Name: TRIAD ML MARKETING INC Category Manager:STAPLETON. TONY Billing Address: C/O SUSAN GRAMAN - Vendor*:30090 656 E. SWEDESFORD RD. STE330 WAYNE PA 19067 Contact: g Phone: 610.975-0305 Fex#:6109750315 Email: lk".' ?""-it SRt+ct?? G k???e??1. co w. TRIAD ML MARKETING INC (Supplier) hereby agrees to participate in Rite Aid's Fiscal Yea2005 supplier promotional program in the amount Indicated herein. The amount to be paid by the Supplier will 'b;;? 016V Rite Aid's GiossiWrehoscrof-Sopprieesprodilcts•betin+benFbbrobty28,-2004 .:,and •- February 27, 2005 (but not less than the Minimum Promotional Funding Commitment set forth below). The Funding will be used to develop and co-execute marketing support deemed appropriate by Supplier's Rite Aid Category Manager for promoting and advancing the sales of Supplier's products in Rite Aid stores. The Promotional Funding Is in addition to and- not in substitution for or diminution of any negotiated pricing, payment terms, volume incentives, rebates. other contract ptr -base incentives, funding for retail markdowns, off-shelf displays, Single Check Rebate fur.. ment, new items. new store allowances, Health Resource Rite Advice participation. Trade Show participation. Rite Aid Health and Beauty Expos, Rite Aid Foundation. Charity Golf Classic. or other programs now existing or that may be developed from time to time. The Supplier's Minimum Promotional Funding Commitment is firm and non-cancelable. Proof of performance will not be provided. Invoicing (for deduction from amounts owing by Rite Aid to SuppYrer) of the Minimum Promotional Funding Commitment will occur in 4 equal instalments on or about 511/04 . 8/1104 , 1111/44 and 211105 The Promotional Funding is based onGross purchases between February 29, 21304 and February 27. 2005 . It actual Gross purchases exceed the Forecasted Gross Purchases set forth below, the additional funding will be bitted and deducted in the final Invoicing on or about 2127105 $ ? MINIMUM PROMOTIONAL FUNDING CO?MiTMENT: FORECASTED GROSfiPrU1RCH&SES: ?,? ;..IQ •flf? 11 1 .1 Au wimd Sigml&'.',?-.. --?--- Rhs AM Catenary Pdrft 49"W 3+f h D . R, RNe Am vim ow. Oslo! EXHIBIT ... 6 0 I? I 73 n R MITE AID CORPORATION 30 HUNTER LANE CAMP HILL, PA 17011 Q CONFIDENTIAL, MAILING ADDRESS: Pia BOX 3165 HARRISBURG, PA 17105 ATTENTION: CHRIS ROSER, INVENTORY ACCTG., TELEPHONE (717) 761-•2633 EXT 4241 E-MAIL VENDORB ILLING@RITEAID. COM INVOICE DATE: 8/03/2004 INVOICE NUMBER: 30090-0046915 TRIAD ML MARKETING INC C/O SUSAN GRAMAN 656 E. SWEDESFORD R.D. STE3 0 WAYNE PA 19067 PLEASE REFER TO INVOICE NUMBER IN ALL CORRESPONDENCE ## BASED ON PREVIOUG PAYMENT HISTORY, THE INVOICE AMOUNT ## WILL BE DEDUCTED WITHIN 1- 30 DAYS IF NOT PAID IN FULL CHARGE; AMOUNT INVOICED ADVERTISING (NP) 4, 750. 00 CUB TOTALS 4,750.00 BALANCE DUE: PAY THIS A 0UNT ?> >- ------ 4,760.00 CONTRACT NBR: 0015942 XR NOTES--••----- ---__-- PAGE NOR: 0000000 1 EXHIBIT • a F L.IA 0 rn C) m o w m o S ? m m m s • RITE AID CORPORATION* Q CONFIDENTIAL 30 HUNTER LANE CAMP HILL, PA 17011 f MAILING ADDRESS: PO BOX 3165 HARRISBURG, PA 17105 ATTENTION: CHRIS ROSER,._INVENTORY ACCTG. TELEPHONE : (717) 761-8633 EXT 4241 E-MAIL' : VENDORBILLINOtRITEAID.COM INVOICE DATE: 11/02/2004 INVOICE NUMBER: 30090-0057876 TRIAD ML MARKETING INC C/O SUSAN GRAMAN 656 E. SWEDFSFORD RD. STE330 WAYNE PA 19067 PLEASE REFER TO INVOICE NUMBER IN ALL CORRESPONDENCE BASED ON PREVIOUS PAYMENT HISTORY, THE INVOICE AMOUNT +r WILL BE DEDUCTED WITHIN 1- 30 DAYS IF NOT PAID IN FULL I CHARGES ADVERTISING --w-..-ww wig SUB TOTALS BALANCE DUE: AMOUNT INVOICED (NP) 4,750 .00 _-------------------M------------------------ 4, 750. 00 PAY THIS AMOUNT :?---------- > 4,750.00 CONTRACT NBR: 0015942 XREF NBR: 0000000 NOTES---- --- PAGE 1 EXHIBIT 8 rr r CERTIFICATE OF SERVICE I Kenneth R. Behrend, hereby certify that a true and correct copy of the First Amended Complaint in Civil Action in this matter was served upon all the parties by U.S. first-class mail, postage pre-paid and/or hand delivery oft this 10"' day of June, 2008, as follows: John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS, LLP Suite 2700 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. BYAenne R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 21 IN THE COURT OF COMMON MXM ESSENTIAL FORMULAS, INC., Plaintiff, OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION CASE NO.: GD-07-001856 V. RITE AID CORPORATION, Defendant. Filed on Behalf of Defendant, Rite Aid Corporation Counsel of record for this party: John K. Gisleson, Esquire PA Id. #62511 Z {_ ' -- cn C, -? O C) c .? Schnader Harrison Segal & Lewis LLP Firm #061 Fifth Avenue Place, Suite 2700 120 5th Avenue Pittsburgh, PA 15222 JURY TRIAL DEMANDED PRELIMINARY OBJECTION RAISING QUESTIONS OF VENUE RECEIVED JUL 2 4 2008 i C3D-07-001855.Po 5 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. CIVIL DIVISION CASE NO.: GD-07-001856 TO: Plaintiff, MXM Essential Formulas, Inc. c/o Kenneth R. Behrend, Esquire, Attorney for Plaintiff NOTICE You are hereby notifi?d to file a written response to the enclosed preliminary objections within twenty (20) days fr m service hereof or a judgment may be entered against you. n n Jo K. Gisleson, Esquire p 01d. No. 62511 nader Harrison Segal & Lewis LLP 2700, Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 577-5200 Facsimile: (412) 765-3858 • IN THE COURT OF COMMON PLEAS OF MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. • ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION CASE NO.: GD-07-001856 Defendant, Rite Aid Hdgtrs. Corp. ("Rite Aid"), incorrectly named as Rite Aid Corporation in the Complaint, by and through its undersigned counsel, hereby preliminarily objects to Plaintiff's Amended Complaint, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1), and in support thereof, avers the following: Essential Formulas, Inc. ("MXM"), filed a Complaint on Plaintiff, MXi1?i or about June 19, 2007. MXM agreed to an indefinite extension of time to respond to the Complaint while the parties sought an informal resolution. 2. MXM then filed an Amended Complaint on or about June 10, 2008, alleging three Counts against Rite id: (1) breach of contract, or in the alternative (2) unjust Guaranteed enrichment, and (3) conversion. M)(M's damages are alleged to have arisen from a Sales Agreement and two compani n agreements ("Agreements") pertaining to the sale of a calcium product (Coral Calcium D ily). The Agreements were entered into between Rite Aid and Triad ML Marketing, Inc. ("Triad"). A true and correct copy of the Amended Complaint is 2 11 attached hereto as Exhibit "A." The Guaranteed Sales Agreement was marked as Exhibit 3 to the Amended Complaint. The Guaranteed Sales Agreement provides that "Vendor will guarantee the sale of Vendor's product(s) to Rite, Aid at both Customer Service Centers (i.e. distribution centers) and retail locations." (Exhibit A, Guaranteed Sales Agreement at ¶ 1) 4. The Guaranteed Sales Agreement further provides that "[i]f at any time Rite Aid determines in its sole discretion that Vendor's product(s) performance continues to be unacceptable, Rite Aid will have the tight to return at Vendor's expense all unsold product(s) to Vendor's facility in return Vendor's cash payment to Rite Aid for any products which Rite Aid has paid, but have not been sold." (Exhibit A, Guaranteed Sales Agreement at ¶ 3) "All returns are at risk of Vendor." (Exhibit A, Guaranteed Sales Agreement at $ 8) 5. The Guaranteed Sales Agreement then provides that "[u]pon settlement of Vendor's account, all outstanding invoices will be paid promptly, less any and all cash discounts or other debit amounts due to Rite Aid." (Exhibit A, Guaranteed Sales Agreement at $ 4) (. The Guaranty' led Sales Agreement provides that the "terms and conditions of this Agreement are in addition to and in no way limit, Rite Aid's rights and remedies under Rite Aid's Vendor Profile, standard terms and conditions or purchase orders." (Exhibit A, Guaranteed Sales Agreement at 15) 7. The Guaranteed Sales Agreement contains a forum selection clause which states, in pertinent part, "[a]ny lawsuit brought with regard to this Guaranteed Sales Agreement 3 0 • will be venued in the Court of Common Pleas, Cumberland County, Pennsylvania. (Exhibit A, Guaranteed Sales Agreement at ¶ 6) 8. Cumberland C unty is where Rite Aid's headquarters are located, which is the reason for selection of that forum.' 9. Triad purportedy assigned its rights under the Agreements to MXM in connection with the resolution of a lawsuit between Triad and MXM. 10. Count I of the Amended Complaint is a claim for breach of contract based primarily on the Guaranteed Sales Complaint seeks payment for associated with debit amounts that entered into between Triad and Rite Aid. The supplied to Rite Aid, as well recovery of monies to Aid applied to the account. 11. MXM filed it? lawsuit in Allegheny County rather than Cumberland County. 1. THE AMENDED COMPLAINT PER VENUE PURSUANT TO THE AGREED- FAILED TO FILE IN TH PR UPON FORUM SELECTION CLAUSE 12. The Pennsylvania Supreme Court has discussed forum selection clauses, stating that, "...while private parties may not by contract prevent a court from asserting its jurisdic ion or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigatio shall be conducted in another forum and where such agreem nt is not unreasonable at the time of litigation." 4 Credit Am., Inc. v. Intercept Corp., No. 3923, 2001 Pa. Ct. Com. Pl. LEMS 37, at *3 (Pa. Ct. Com. Pl. Philadelphia Oct. 2, 2001) (quoting Cent. Contracting v. C. E. Youngdahl & Co., 418 Pa. 122, 133-34, 209 A.2d 810, 816 (1965)), aff d without opinion, 809 A.2d 968 (Pa. Super. Ct. 1 I 2002). 13. The Agreemen? in question, and upon which MXM is suing for breach, was entered into freely between two commercial entities. 'I 14. Assuming MX is the assignee of Triad, it stands in Triad's shoes and is subject to all of the terms of the Guaranteed Sales Agreement, including the forum selection clause. 15. Furthermore, ere is absolutely no reason why a party like MXM (a Delaware corporation doing busines? in the Commonwealth of Pennsylvania) should find it burdensome or unfair to litigate thei claims in Cumberland County, Pennsylvania. 16. Hence, MXM, is bound by the forum selection clause in the Guaranteed Sales Agreement, and this Court sh uld decline to proceed with the cause of action. 5 • • WHEREFORE, Defendant, Rite Aid Corporation, respectfully requests that this Honorable Court grant its preliminary objection to venue, for the reasons above and in the attached memorandum in support, and I?dismiss the Amended Complaint in its entirety without prejudice. Respectfully submitted, n J. K. Gisleson, Esquire Pa. I . No. 62511 E M. Ayoub, Esquire Pa. d. No. 204891 Schnader Harrison Segal & Lewis LLP Suite 2700, Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 577-5200 Facsimile: (412) 765-3858 6 L' 'bl?? AA s I' IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC., No. GD 07-1856 Plaintiff, Code: 011 V. Issue No. RITE AID CORPORATION, FIRST AMENDED COMPLAINT IN CIVIL ACTION Defendant. cr) , .: r_ J a ?b O r,'Zy1 I i.. T o I w JURY TRIAL DEMANDED Filed on Behalf of: MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12`h 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax • • IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION Plaintiff, No. 07-1856 V. RITE AID CORPORATION, Defendant. You have been sued in C, following pages, you must take ac served, by entering a written app( Court your defenses or objections I to do so the case may proceed witt without further notice for any m( requested by the Plaintiff. You in NOTICE TO DEFEND irt. If you wish to defend against the claims set forth in the )n within twenty (20) days after this Complaint and Notice are rance personally or by attorney and filing in writing with the the claims set forth against you. You are warned that if you fail ut you and a Judgment may be entered against you in the Court ey claimed in the Complaint or for any other claim or relief r lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO T OR TELEPHONE THE OFFICE SET FORTH BELOW TO ND OUT WHERE YOU C N GET LEGAL HELP. Lawyer Referral Service All heny County Bar Association 920 City-County Building Pi tsburgh, Pennsylvania 15219 }Telephone: (412) 261-0518 IN THE COURT OF COMMONI PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION Plaintiff, No. 07-1856 v_ RITE AID CORPORATION, l? : Defendant. AND NOW comes the Plaintiff, MXM Essential Formulas, Inc., by and through its attorneys, Kenneth R. Behrend and the law firm of Behrend and Ernsberger, P.C., and sets forth the following First Amended Complaint in Civil Action. 1. Plaintiff is MXM Essential Formulas, Inc. (hereinafter referred to as MXM), a Delaware Corporation which doe business in Commonwealth of Pennsylvania with a local office in Pittsburgh, Pennsylvania. 2. Defendant is Rite Aid Corporation (hereinafter referred to as Rite Aid), a Pennsylvania corporation which (foes business throughout Allegheny County, Pennsylvania. 3. Plaintiff, MXM Essential Formulas produced a mineral supplement that is a coral- calcium product, known as Cor i Calcium Daily, that was sold to Triad ML Marketing, Inc. (hereinafter referred to as Triad). 4. At all times perti nt hereto, Triad sold the Coral Calcium Daily to Defendant, Rite Aid. 5. it is believed ani therefore alleged that the prices set by Triad were fair and I 2 reasonable prices at the time and place of sale to Rite Aid. 6. After the sale and del?very of the Coral Calcium Daily as set forth above, Rite Aid made payments on a timely basis to ? riad based upon the Triad account, without objection, so as to i constitute an account stated. 7. In 2003, MXM sued) Triad in the United States Court for the Eastern District of Pennsylvania at C.A. No. 03-cv-06047, alleging claims for trademark infringement. 8. On October 13, 2004' MXM and Triad reached an amicable settlement and an Order of Court dated October 19, 2004 s entered in the United States District Court For the Eastern District of Pennsylvania. See cop of Order of the Clerk of Court for the United States District Court For the Eastern District of Pennsylvania, attached hereto as Exhibit 1. 9. Pursuant to the terms of the settlement agreement between Triad and MXM, Triad assigned all rights and interest in t monies owed by Rite Aid to Triad for the sale of the MXM's Coral Calcium Daily product by Triad to Rite Aid. 10. Pursuant to the terms of the settlement agreement agreed upon by Triad and MXM, Triad assigned all of its inventory of Coral Calcium Daily existing on October 13, 2004 to MXM. 11. This assignment included all bottles of Coral Calcium Daily which Triad shipped to any retail customers after October 13, 2004. 12. Triad also assigned any Coral Calcium Daily merchandise returned by any retailer in lieu of payment subsequent to October 13, 2004 to MXM. 13. On or about October 27, 2004, MXM and Triad notified Rite Aid by a letter signed jointly by Kenneth W. Behrend, ounsel for MXM, Roger J. Harrington, Jr., Counsel for Triad, Steven D. Ritchey, Vice President of Triad, and Rebecca Brainard, President of MXM, that a settlement of a legal disagreement between MXM and Triad was reached. And, that pursuant to the terms of the settlement effective ?s of October 13, 2004, all monies due and owing to Triad from Rite Aid for Coral Calcium Daily were assigned to Plaintiff and demand for payment was made to Defendant. A copy of the Octob?r 27, 2004 assignment is attached hereto and marked Exhibit 2. 3 14. The October 27, 2004 assignment notified Rite Aid that modification of any current terms or conditions related to the sale of the coral calcium products which was currently in Rite Aid's possession should be directed ko MXM. See Exhibit 2. 15. The October 27, 2004 assignment notified Rite Aid to contact MXM as to any additional information regarding M 's rights and obligations concerning the Coral Calcium Dai ly product. See Exhibit 2. 16. Paragraphs I 17. There is a written Calcium Daily, Rite Aid and marked Exhibit 3 15 are incorporated herein as though fully set forth at length. tract between Rite Aid and Triad regarding the sale of Coral i Guaranteed Sales Agreement dated November 25, 2002. A copy of the same is attached 18. Pursuant to the about October 24, 2004, Rite Aid under the Sales Agreement. 19. Consistent with amounts, times of delivery and p through September 16, 2004 are s, of Triad's business. A true and Exhibit 4. 20. Consistent with gross amounts and times of in Rite Aid's Statement of attached hereto and marked 21. Consistent with COUNTI OF CONTRACT Zt made by Triad to MXM, and provided to Rite Aid on or a duty to MXM, as it had to Triad, not to breach its duties as of the Sales Agreement between Rite Aid and Triad, the charged by Triad to Rite Aid for the Coral Calcium Daily h in Triad's Customer Ledger prepared in the ordinary course copy of Triad's Customer Ledger is attached hereto as terms of the Sales Agreement between Rite Aid and Triad, the from Triad to Rite Aid for the Coral Calcium Daily are set forth it as of 11-20-07. A true and correct copy of the Statement is ihit 5. terms of the Sales Agreement between Rite Aid and Triad, it is following invoices as set forth on Exhibits 4 and 5 remain unpaid believed, and therefore averred, f' 4 to MXM pursuant to the terms of the Assignment of Triad's rights to MXM: a. Invoice Number 991954 dated February 12, 2004 in the amount of $1,080.00; b. Invoice Number 991973 dated March 12, 2004 in the amount of $5,940.00; C. Invoice Number 99 974 dated March 16, 2004 in the amount of $4,320.00; d. Invoice Number 99 979 dated April 5, 2004 in the amount of $3,780.00; e. Invoice Number 99 986 dated April 21, 2004 in the amount of $4,320.00; f. Invoice Number 99 989 dated April 26, 2004 in the amount of $2,700.00; g. Invoice Number 99 990 dated April 26, 2004 in the amount of $4,320.00; h. Invoice Number 99 993 dated May 4, 2004 in the amount of $4,860.00; i. Invoice Number 9911994 dated May 4, 2004 in the amount of $540.00; j. Invoice Number 991995 dated May 5, 2004 in the amount of $2,700.00; k. Invoice Number 9 2043 dated June 1, 2004 in the amount of $2,160.00; L Invoice Number 9912105 dated June 24, 2004 in the amount of $7,020.00; in. Invoice Number 992106 dated June 24, 2004 in the amount of $1,080.00; n. Invoice Number 9(02107 dated June 24, 2004 in the amount of $6,480.00; o. Invoice Number 9 4709 dated July 9, 2004 in the amount of $2,160.00; p. Invoice Number 9 0727 dated July 29, 2004 in the amount of $2,700.00; q. Invoice Number 9 0726 dated July 29, 2004 in the amount of $2,700.00; r. Invoice Number 990802664 dated August 9, 2004 in the amount of $540.00; S. Invoice Number 990802665 dated August 9, 2004 in the amount of $540.00; t. Invoice Number 990818120 dated August 25, 2004 in the amount of $2,700.00; U. Invoice Number 940825 dated August 26, 2004 in the amount of $2,700.00; V. Invoice Number 92060 dated September 8, 2004 in the amount of $540.00; W. Invoice Number 92061 dated September 17, 2004 in the amount of $2,160.00; X. Invoice Number 92077 dated October 19, 2004 in the amount of $540.00; Y- Invoice Number 92978 dated October 19, 2004 in the amount of $5,400.00; 5 • • Z. Invoice Number 992879 dated October 19, 2004 in the amount of $3,780.00; aa. Invoice Number 992080 dated November 1, 2004 in the amount of $2,160.00; bb. Invoice Number 992081 dated November 1, 2004 in the amount of $5,940.00; cc. Invoice Number 99283 dated November 29, 2004 in the amount of $1,587.60; dd. Invoice Number 99284 dated November 29, 2004 in the amount of $2,700.00; ee. Invoice Number 992091 dated December 13, 2004 in the amount of $1,620.00; ff. Invoice Number 992092 dated December 20, 2004 in the amount of $1,620.00; and i gg. Invoice Number 992093 dated December 20, 2004 in the amount of $2,700.00. See Exhibits 4 and 5. 22. The total amount due and owing from Rite Aid to MXM for the above-listed outstanding invoices is Ninety-eig?t Thousand Two Hundred Eighty Dollars ($98,280.00) plus interest. 23. It is believed, and th?refore alleged, that pursuant to the terms of the Sales Agreement between Triad and Rite Aid, the ales Agreement provided for situations that could arise under which Rite Aid would receive a cr4t and a corresponding deduction from the amount owed by Rite Aid to Triad for the Coral Calciu Daily. 24. In particular, the Sa es Agreement provides for a two percent (2%) discount in price to Rite Aid, if payment is made wi hin ten (10) days. See Exhibit 3. I 25. It is believed, and therefore alleged, that all credits to which Defendant, Rite Aid, is entitled to under the Sales Agree ent are set forth in Exhibit 4. 26. Pursuant to the Sal s Agreement, payment for each invoice is to be made by Rite Aid within thirty (30) days of receipt of the merchandise. See Exhibit 3. 27. Despite notification to Rite Aid of the October 27, 2004 of Assignment of Triad's rights to MXM, Rite Aid breached its duty to MXM by failing to pay its account payable within 30 days of the date of the invoices, a required by the Triad - Rite Aid Sales Agreement. See Exhibits 2 and 3. Thus, payment remains d e and owing to MXM on the above-listed invoices in the amount 6 of Ninety-eight Thousand Two Hun red Eighty Dollars ($98,280.00) plus interest. A. Breach of Returns greement, Re: Destruction of Returned Product 28. Pursuant to the Oct ber 27, 2004 Assignment of Triad's rights to MXM, Rite Aid owed a duty to MXM, as it had to T? ad, not to breach its duties under the Returns Agreement dated July 22, 2003, attached to the Riteill! Aid Corporation Guaranteed Sales Agreement. See Rite Aid Returns Agreement dated July 22, $003 attached to Exhibit 3. 29. Pursuant to the Rite Aid Returns Agreement dated July 22, 2003, Rite Aid was to scan and hold forvendor review any Coral Calcium Daily product deemed "unsaleable" merchandise by Rita Aid for twenty-one (21) d ys after the invoice date prior to disposing of the "unsaleable" merchandise. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. 30. Pursuant to the Returns Agreement, Rite Aid had a duty to notify the vendor, MXM, of returns of Coral Calcium Daily product that Rite Aid categorized as "unsaleable" merchandise in order for MXM to review the "unsaleable" merchandise and make a decision as to the disposition of the product. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. 31. Despite the October 27, 2004 notification provided to Rite Aid of the Assignment of Triad's rights to MXM, Rite Aid failed to notify MXM regarding the fact that Rite Aid had returns of Coral Calcium Daily product that Rite Aid classified as "unsaleable" merchandise, which Rite Aid destroyed without affording MX the opportunity to review the "unsaleable" merchandise prior to destruction pursuant to the terms of the Returns Agreement. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. 32. Pursuant to the Returns Agreement, MXM had the right to directed Rite Aid to return the "unsaleable" merchandise to XM if MXM so desired. See Rite Aid Returns Agreement dated July 22, 2003 attached to Exhibit 3. 33. As a result of Rite Aid's failure to perform its duty under the Returns Agreement of notifying MXM regarding disposition of "unsaleable" merchandise, MXM lost its opportunity to review the "unsaleable" merchandise before it was disposed of by Rite Aid. 7 • 34. As a result of Rite Ai 's failure to perform its duty under the Returns Agreement of notifying MXM regarding dispositio of "unsaleable" merchandise, MXM lost the opportunity of retesting the "unsaleable" merchand se to determine whether the merchandise was still useable and fit for repackaging and sale. 35. As a direct result Agreement of notifying MXM to retest the "unsaleable" mere fit for repackaging and sale prevent fit for sale, thereby causing MXM 36. It is believed, and tl Rite Aid disposed of Coral merchandise worth Twenty-four ($24,571.61) without notifying provided by the Returns Agreem to Exhibit 3. 37. The following is a failed to notify MXM for review a. Number D 16509 Rite Aid's failure to perform its duty under the Returns ig disposition of "unsaleable" merchandise, MXM was unable : to determine whether the merchandise was still useable and MXM from selling the merchandise that was still useable and suffer a financial loss. ;fore averred, that between June 18, 2004 and March 23, 2007, Daily merchandise that Rite Aid designated as "unsaleable" usand Five Hundred Seventy-one Dollars and Sixty-one Cents M so MXM could review the "unsaleable" merchandise as See Rite Aid Returns Agreement dated July 22, 2003 attached of invoices for "unsaleable" merchandise for which Rite Aid r to Rite Aid disposing of the same: dated June 18, 2004 in the amount of $301.49; b. Number D169332299 dated July 16, 2004 in the amount of $634.72; C. Number D174967 90 dated August 20, 2004 in the amount of $222.15; d. Number D183863 99 dated August 20, 2004 in the amount of $87.27; e. Number D179435 90 dated September 17, 2004 in the amount of $87.27; €. Number D178362 99 dated September 17, 2004 in the amount of $364.96; g. Number D18262 99 dated October 15, 2004 in the amount of $134.88; h. Number D18373 790 dated October 15, 2004 in the amount of $63.47; i. Number D18735 299 dated November 19, 2004 in the amount of $47.60; 8 • j. Number D18848379( dated November 19, 2004 in the amount of $222.15; k. Number D191919* dated December 17, 2004 in the amount of $238.02; 1. Number D193009791 dated December 17, 2004 in the amount of $253.89; M. Number D19636529 dated January 14, 2005 in the amount of $166.61; n. Number D19744579 dated January 14, 2005 in the amount of $396.70; o. Number 1)20093629 dated February 18, 2005 in the amount of $1,483.66; p. Number D2020317 dated February 18, 2005 in the amount of $119.01; q. Number D205255299 dated March 18, 2005 in the amount of $2,507.14; r. Number D206342790 dated March 18, 2005 in the amount of $7.93; S. Number D209441299 dated April 15, 2005 in the amount of $1,388.45; t. Number D210531790 dated April 15, 2005 in the amount of $515.71; U. Number D214082299 dated May 20, 2005 in the amount of $2,459.54; V. Number D215174700 dated May 20, 2005 in the amount of $967.95; W. Number D21888909 dated June 17, 2005 in the amount of $2,681.69; X. Number D2199777 0 dated June 17, 2005 in the amount of $15.87; Y- Number D223525299 dated July 15, 2005 in the amount of $2,197.72; Z. Number D2246107190 dated July 15, 2005 in the amount of $769.60; aa. Number D228612299 dated August 19, 2005 in the amount of $2,316.73; bb. Number D229713-)90 dated August 19, 2005 in the amount of $587.12; CC. Number D233293 199 dated September 16, 2005 in the amount of $1,626.47; dd. Number D234396790 dated September 16, 2005 in the amount of $111.08; ee. Number D238007299 dated October 14, 2005 in the amount of $960.01; ff. Number D239105790 dated October 14, 2005 in the amount of $364.96; gg. Number D243173299 dated November 17, 2005 in the amount of $309.43; hh. Number D244305790 dated November 17, 2005 in the amount of $412.57; ii. Number D248654 99 dated December 22, 2005 in the amount of $119.01; 9 jj. Number D249773791 kk. Number D25358229 11. Number D25795429 mm. Number D25908679 nn. Number D26237025 oo. Number D267020 pp. Number D2725292! qq. Number D2891277 rr. Number D2940057 ss. Number D2951539 tt. Number D3001549 uu. Number D304543 vv. Number D305697? ww. Number D3108W xx. Number D318872' yy. Number D319998 zz. Number D324208 See Exhibit 5. 38. The total amount c product that Rite Aid designated Twenty-six Thousand Four Hun, interest. 39. Since Rite Aid b: MXM-for review of the "unsalea are unjustified and the amounts dated December 22, 2005 in the amount of $111.08; dated January 20, 2006 in the amount of $150.75; dated February 24, 2006 in the amount of $245.95; dated February 24, 2006 in the amount of $31.74; dated March 24, 2006 in the amount of $126.94; ? dated April 21,2006 in the amount of $95.21; > dated May 26, 2006 in the amount of $142.81; dated August 25, 2006 in the amount of $95.21; dated September 22, 2006 in the amount of $31.74; 8 dated September 22, 2006 in the amount of $95.21; 8 dated October 20, 2006 in the amount of $39:67; 0 dated November 24, 2006 in the amount of $47.60; 8 dated November 24, 2006 in the amount of $23.80; i8 dated December 21, 2006 in the amount of $39.67; )0 dated February 23, 2007 in the amount of $15.87; 58 dated February 23, 2007 in the amount of $15.87; and 58 dated March 23, 2007 in the amount of $15.87. and owing to MXM for the destruction of Coral Calcium Daily "unsaleable" merchandise listed in the preceding paragraph is i Sixty-seven Dollars and Eighty-two Cents ($26,467.82) plus ached its duty under the Returns Agreement and failed to notify le" merchandise prior to before disposing it, the above deductions educted by Rite Aid for the same are due and owing to MXM. 10 • • B. Breach of Returns ? greement, Re: Destruction of Recalled Product 40. Pursuant to the assignment made by Triad to MXM, Rite Aid owed a duty to MXM, as it had to Triad, not to breach its duties under the Returns Agreement with respect to the "recall" of Coral Calcium Daily Product. A `recall" of product is related to product that Rite Aid no longer is going to sell even though that product is undamaged, not out-of-date and not defective. See Page 2 of Rite Aid Returns Agreement doLted August 5, 2003 attached to Exhibit 3. 41. Pursuant to the Rite Aid Returns Agreement, a separate agreement between Rite Aid and the vendor (MXM) must be fill d out for all recalls at the time the recall is being activated by Rite Aid and an open "RAW', mustbe established between the vendor and the Category Manager prior to the initiation of a recall. She Rite Aid Returns Agreement dated August 5, 2003 attached to Exhibit 3. 42. Rite Aid recalled Thirty Thousand Nine Hundred Fifty-three Dollars and Sixteen Cents ($30,953.15) worth of Coral 0alcium Daily merchandise between July 15, 2005 and December 22, 2005. 43. Despite the Octob4 27, 2004 notification of the Assignment of Triad's rights to MXM, after October 27, 2004, Rite Aid failed to notify MXM prior to the initiation of recall or to obtain an agreement pertaining to the recalled product as required by the Returns Agreement and recalled Thirty Thousand Nine Hundred Fifty-three Dollars and Sixteen Cents ($30,953.15) worth of Coral Calcium Daily merchandise between July 15, 2005 and December 22, 2005. See Rite Aid Returns Agreement dated August , 2003 attached to Exhibit 3. 44. The following is a ist of invoices for recalled merchandise for which MXM did not receive prior notification or for which a required agreement was not entered into between MXM and Rite Aid prior to Rite Aid disposing of the same: a. Number R226944 58 dated July 15, 2005 in the amount of $3,125.28; b. Number R231525 90 dated August 19, 2005 in the amount of $7.66; C. Number R231 158 dated August 19, 2005 in the amount of $896.22; 11 d. Number R23593179 dated September 16, 2005 in the amount of $520.88; e. Number R23593295 dated September 16, 2005 in the amount of $3,646.16; f. Number R23659379 dated September 16, 2005 in the amount of $1,528.80; g. Number R23659495? dated September 16, 2005 in the amount of $15,982.20; h. Number R24046670 dated October 14, 2005 in the amount of $628.12; i. Number R24046795? dated October 14, 2005 in the amount of $91.92; j. Number 8241032790 dated October 14, 2005 in the amount of $2,223.00; k. Number 11241033958 dated October 14, 2005 in the amount of $850.20; 1. Number 8245636790 dated November 17, 2005 in the amount of $15.32; M. Number R2456379?8 dated November 17, 2005 in the amount of $283.42; n. Number R246065* dated November 17, 2005 in the amount of $928.20; o. Number 8246066948 dated November 17, 2005 in the amount of $202.80; and p. Number R251025958 dated December 22, 2005 in the amount of $22.98. See Exhibit 5. 45. The total amount d e and owing to MXM for the recalled merchandise disposed of by Rite Aid in breach of the Retu s Agreement as set forth in the preceding paragraph is Thirty Thousand Nine Hundred Fifty-thr a Dollars and Sixteen Cents ($30,953.16) plus interest. 46. Since Rite Aid fail d to perform its duties under the Returns Agreement to notify MXM prior to the recall of this erchandise and to enter into an agreement regarding the same before it disposed of said merchandise, the above deductions are not justified and the amounts are due and owing to MXM. C. Breach of Promotional Funding Agreement for the Fiscal Year 2005 47. On or about November 28, 2003, Triad and Rite Aid entered into a Rite Aid Promotional Funding Agreement or the Fiscal Year 2005. A copy of the same is attached hereto and marked Exhibit 6. 48. Pursuant to the Fu ding Agreement, Triad would pay to Rite Aid ten percent (10%) 12 • • of Rite Aid's Gross purchases of Tri d's product between February 29, 2004 and February 27, 2005 with a minimum funding commitm t of Nineteen Thousand Dollars ($19,000.00). See Exhibit 6. 49. The Funding Agreement provided that four installment payments of Four Thousand Seven Hundred Fifty Dollars ($4,750.00) would be made by Triad in order for payment by Triad of the minimum funding commitment of Nineteen Thousand Dollars ($19,000.00) which would be deducted from Triad's account recekvables. See Exhibit 6. 50. The dates for these deductions were to be on or about May 1, 2004, August 1, 2004, November 1, 2004 and February 1, 2005. See Exhibit 6. 51. Any additional fund Ing necessary from the total amount of gross purchases between February 29, 2004 and February 271, 2005 would be billed and deducted on or about February 27, 2005. See Exhibit 6. I 52. In return for the payment of these funds by Triad, Rite Aid would use the funds to develop and co-execute marketing support for promoting and advancing the sales of Triad's products in Rite Aid stores for the year of 205. See Exhibit 6. 53. Pursuant to the assignment made by Triad to MXM, Rite Aid owed a duty to MXM, as it had to Triad, not to breach its duties under the Funding Agreement. 54. It is believed, and th refore averred, that consistent with the Funding Agreement, Rite Aid deducted the amount of Four ?housand Seven Hundred Fifty Dollars ($4,750.00) from Triad accounts receivable on or about May 1, 2004. See Exhibit 6. 55. Consistent with the Funding Agreement, Rite Aid deducted Four Thousand Seven Hundred Fifty Dollars ($4,750.00) on August 3, 2004. A copy of the invoice is attached hereto and marked Exhibit 7. 56. Consistent with the Funding Agreement, Rite Aid deducted Four Thousand Seven Hundred Fifty Dollars ($4,750.00 on November 2, 2004. A copy of the invoice is attached hereto and marked Exhibit 8. 57. The November 2,2b04 deduction was taken after receipt ofthe notification of Triad's 13 assignment to MXM on October 27, 2004. 58. Although notificatio i of the Assignment of Triad's rights to MXM occurred prior to Rite Aid taking of the November 2 2004 deduction, Rite Aid failed to contact MXM in order to develop and co-execute marketing support for promoting and advancing the sales of the Coral Calcium Daily merchandise for the ear 2005. 59. It is believed and therefore alleged that Rite Aid failed to perform marketing support for promoting and advancing the sales of the Coral Calcium Daily merchandise for the year 2005. 60. Furthermore, it is be?lieved, and therefore averred, that Rite Aid began recalling the Coral Calcium Daily merchandise om its retail locations prior to July 15, 2005. 61. Rite Aid breached it duty to MXM pursuant to the Funding Agreement when it failed to develop and co-execute marketi g support for promoting and advancing the sales of the Coral Calcium Daily products in Rite Ai stores with MXM for the year of 2005. 62. The funding dedu tions taken on or about May 1, 2004, August 3, 2004 and November 2, 2004 are due and owing to MXM in the amount of Fourteen Thousand Two Hundred Fifty Dollars ($14,250.00) plus interest. 63. As of this date, a to 1 balance of One Hundred N inety-four Thousand Five Hundred Twenty-two Dollars and Fifty-nine Cents ($194,522.59) plus interest is due and owing to MXM for the Coral Calcium Daily purchase by Rite Aid from Triad as well as the advertising costs deducted on or about May], 2004, August , 2004 and November 2, 2004. 64. Despite repeated d mands by MXM, Defendant, Rite Aid has failed to pay any of the amounts due. WHEREFORE, Plaintiff, MXM, demands judgment against Defendant, Rite Aid, in the amount of One Hundred Ninety- our Thousand Five Hundred Twenty-two Dollars and Fifty-nine Cents ($194,522.59) with interes at the legal rate of 6% from October 27, 2004 to the present and costs. 14 • COUNT II IN IiTHE ALTERNATIVE TO COUNT I U?, JUST ENRICHMENT 65. Paragraphs 1 through115 are incorporated herein as though fully set forth at length. 66. This Count is plead in the alternative. If the Court finds that no written or oral contract existed between Rite Aid and MXM, then it is asserted based upon the following allegations that Rite Aid was unjustly enriched at the expense of MXM. 67. Beginning in March, 12003 and continuing to on or about December 20, 2004, Rite Aid received shipments of Coral CalcEium Daily product from Triad which Rite Aid sold to the public through Rite Aid stores located in Allegheny County, Pennsylvania and elsewhere. 68. Beginning on or abc}ut February 12, 2004 through December 20, 2004, Rite Aid received shipments of Coral Calcium Daily from Triad which Rite Aid failed to forward payment for the same. 69. The total amount duo and owing for the unpaid shipments as listed in Paragraph 21 above is Ninety-eight Thousand T o Hundred Eighty Dollars ($98,280.00) plus interest. 70. As a result of the sa of Coral Calcium Daily product by Rite Aid to its customers, Rite Aid has received monies from the sale of the Coral Calcium Daily purchased from Triad out of which Rite Aid failed to pay Tri 71. Based upon the forth above, Rite Aid failed to pay Daily product that Rite Aid sold 72. As a result of the no payment identified above, Rite 73. It is believed and owed to MXM amounts allegedly for promoting and advancing the MXM for the year of 2005. of Triad's claim to MXM for payment from Rite Aid, set MXM the money rightly owed to MXM for the Coral Calcium collected money from its customers. of the Coral Calcium Daily product for which Rite Aid made has become unjustly enriched at the expense of MXM. alleged that Rite Aid improperly deducted from monies for the development and co-execution of marketing support of the Coral Calcium Daily products in Rite Aid stores with 15 74. It is believed and the?efore alleged that Rite Aid failed to develop and co-execute i marketing support for promoting an4 advancing the sales of the Coral Calcium Daily products to Rite Aid stores with MXM for the y?ar of 2005. 75. It is believed, and therefore averred, that Rite Aid used these monies improperly obtained from MXM possibly to develop and execute marketing for promoting and advancing sales of products other than Coral Calcium Daily in its stores. 76. As a result of Rite Ai, taking deductions from monies owed to MXM for developing and executing marketing of Coral ?alcium Daily which it is believed and alleged the marketing never occurred, Rite Aid has becom? unjustly enriched through paying for advertising and marketing i from which additional sales of products other than Coral Calcium Daily were generated from this advertisement at the expense of M? M. I 77. The funding deductions taken by Rite Aid on or about May 1, 2004, August 3, 2004 and November 2, 2004 are due and owing to MXM in the amount of Fourteen Thousand Two Hundred Fifty Dollars ($14,250.00) plus interest. 78. Rite Aid's actions constitute an unjust retention of a benefit to the detriment of MXM, and Rite Aid's retention of money ?nd property are against the fundamental principles of justice and good conscience and are patently unfair. 79. As a direct and pro imate result of Rite Aid's unjust retention of the MXM's tangible and intangible property and the roceeds therefrom, MXM has suffered and continues to suffer serious financial injury and inequities that have resulted in substantial damages. 80. It would be unconscionable for Rite Aid to retain the value of the Coral Calcium Daily product sold to its customers without making remuneration to MXM. Equity demands that Rite Aid be compelled to disgor a this benefit. 81. It would be unconscionable for Rite Aid to retain the value of the marketing of non- Coral Calcium Daily products sod to its customers while using money that was supposed to be used to market Coral Calcium Daily without making remuneration to MXM. Equity demands 16 • • that Rite Aid be compelled to disgorge this benefit. WHEREFORE, Plaintiff, MXM, respectfully requests this Honorable Court to issue an ORDER: a) Granting judgment for plaintiff, MXM, and against Defendant, Rite Aid, in the amount of One Hundred Twelve Thousand Five Hundred Thirty Dollars ($112,530.00) with interest at the legal rate of 6% from October 27, 2004 to the present and costs; b) Granting, Plaintiff, MXM its expenses, including reasonable attorney fees incurred in connection with this action; and c) Granting such other relief as the Court deems necessary and appropriate. COUNT III- IN THE ALTERNATIVE TO COUNT I CONVERSION 82. Paragraphs 1 through 15 are incorporated herein as though fully set forth at length. 83. This Count is plead in the alternative. If the Court finds that no written or oral contract existed between Rite Aid and MXM, then it is asserted based upon the following allegations that Rite Aid was unjustly enriched at the expense of MXM. 84. Beginning in March, 2003 and continuing to on or about December 20, 2004, Rite Aid received shipments of Coral Calcium Daily from Triad, assignor to MXM, which Rite Aid sold to the public through Rite Aid stoles located in Allegheny County, Pennsylvania and elsewhere. 85. Rite Aid received and accepted the Coral Calcium Daily products and agreed to offer for sale these products in their Rite Aid stores and agreed to pay to Triad, assignor to MXM, monies for those products which Rite Aid, had actually sold. 86. MXM retained ownership of the Coral Calcium Daily products until sold by Right Aid. 87. Beginning on or about June 18, 2004 through March 23, 2007, Rite Aid knowingly disposed of Coral Calcium Daily products as set forth in Paragraph 37 above, which Rite Aid deemed "unsaleable" merchandise without MXM's consent to do so. 17 • 88. Rite Aid had no right# title or equitable claim to the ownership of the Coral Calcium Daily products in its possession which it did not sell including, but not limited to, the products which it disposed of as "unsaleable" as 89. As a result of the of the possession, control and < Twenty-five Thousand Dollars 90. Beginning on oral) Coral Calcium Daily merchandise it intended to do so. 91 Rite Aid failed to the recalled merchandise to MXM but instead disposed of the same without giving notification to MXM. 92. Rite Aid had no rigl'it, title or equitable claim to the ownership of the Coral Calcium Daily products in its possession which it did not sell including, but not limited to, the products which it disposed of as "recalled" as set Forth in Paragraph 44 above. 93. As a result of the di?posal of the "recalled" merchandise by Rite Aid, MXM has been deprived of the possession, control, and enjoyment of its property which had a market value in excess of Twenty-five Thousand Dollars ($25,000.00). 94. It is believed and therefore alleged that Rite Aid at all times relevant and material to this matter, has acted in bad faith and with the intent to exercise unlawful control over the Coral Calcium Daily products. 95. It is believed and continues to be wanton and 96. It is believed and Coral Calcium Daily products. WHEREFORE, in its favor and against the alleged that Rite Aid intended to deprive MXM of the into, MXM, respectfully requests this Honorable Court enter judgment in Paragraph 37 above. of this merchandise by Rite Aid, MXM has been deprived it of its property which had a market value in excess of .00). July 15, 2005 through December 22, 2005, Rite Aid recalled set forth in Paragraph 44 above, without notifying MXM that alleged that Rite Aid's conduct in this matter has been and Rite Aid, for: 18 VERIFICATION • Inconsistent Averments) I, Rebecca Brainard, verify tat the statements made in this First Amended Complaint, other than those identified hereinafter, are true and correct to the best of my knowledge, information, and belief. After reasonable investigation, I have been unable to ascertain which of the inconsistent averments set forth in paragraphs 1 through 21, 23 through 36, 39, 40, 41, 43 through 56, 61, 66, and 83 of this complaint are true but I have information sufficient to form a belief that one of them is true. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsificat on to authorities. I am authorized to make this verification on behalf of MXM Essential Formulas, Inc. because of my position as President. 0 Date. 20 • (a) Compensatory dama es, punitive damages, attorneys' fees, and costs; and (b) Such other relief as t e court deems necessary and proper. BEHREND AND ERNSBERGER, P.C. /Kenneel th R. Be end for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 19 r at y y • CASE FILE COPY IN THE UNTIED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARKETING, INC. CIVIL ACTION TRIAD ML VS. MXM ESSENTIAL FORMULA, INC., NO. 03-6047 et al. ORDER AND NOW, TO IT: This f 9th day of October, 2004; it having been reported that the issues between the parties in the above action has been settled and upon Order of the Court purs . ant to the provisions of Rule 4.1.1(b) of the Local Rules of Civil Procedure of this Court, it s ORDERED that the above action. is DISMISSED with prejudice, pursuant to agreement of counsel without co ts. i MICHAEL E. KUNZ, Clerk of Court BY: Jteput?iey O'Donnell Clerk II. Qv 2 (812000) 41(b).frm (?iG?S tf u ' 417, Cg PrQS (Jt C4 US a4aJ o'?.-'.` EXHIBIT 1 ?z m i a? m 0 i g m n 0 3 Y p? O O O 2 VI C 'S m O z r m z i • E • BEHREND & ERNSBERGER, P.C. ATTORNEYS AT LAW KENNETH W. BEHREND BARBARA BEHREND ERNSBERGER DANIEL W. ERNSBERGER KENNETH R. BEHREND UNION BANK BUILDING, 3RD FLOOR 306 FOURTH AVENUE PITTSBURGH, PA 15222 VOICE (411) 391-2515 FAX (412) 391-2762 DANIEL W. CANNON (1920-1998) James Comitale. Rite Aid Corporate Office October 27, 2004 30 Hunter Lane Camp Hill, PA 17011 Re: Triad ML Marketing, ne_ v. MXM Essentials Formulas, Inc. (E-D.Pa., No. 03-6047)9 and . RBA Marketin Inc. . Marine Coral Cal ium Inc. (E D Pa . No 03-59951: Dear Mr.Comitale: The above captioned afters concerned legal disagreements over the packaging and sales of coral calcium product which your company currently has onsite on.the shelves or -in the inventory of your respective stores and/or has recently marketed and sold to the general public. You may have received various legal correspondence in regards to either or both of the above captioned- cases, including communications relating to copyright ownership. We' wish to inform you that. the above parties; including specifically Triad ML Marketing, Inc. ("Triad") and MXM Essentials Formulas, .Inc. ("MXM Essentials"), have res Ived their legal disputes before the Honorable Diane M. Welsh, United States Magistrate Judge for the Eastern District of Pennsylvania. Pursuant to the parties' settlement in the above matters, Triad and MXM Essential are jointly authoring this correspondence or both your benefit and theirs. . Triad has released an right to use labels bearing any design MXM copyrighted under Copyright No. VA-1-248-187, which concerns Coral Calcium Daily Supplement; and Copyright No. VA-1-248-186, which concerns Coral Cal Sachets. However, NfW Essentials makes no claim concerning the ownership and/or exclusive right to use the - calcium product names "Cor 1 Calcium Daily" or "The Original Coral Calcium Daily Product." Triad has also agreed to assign its open coral calcium account receivables, which could include your retail' acc unt, to NV34 Essentials. Triad's assignment of its open coral calcium account receiva les to NDW Essentials is effective as of October 13, 2004, which is the. date--of the aforementioned Settlement. This transfer includes any and all past due balance owed to Tri d as of the effective date. Please remit your payment on any outstanding balance to M Essentials at the address provided above the parties' EXHIBIT James Comitale Rite Aid -Page 2- signature lines below: Permi the sale of the coral calcium also be directed to MXM Esse if you have an immed be advised that MXM Essenti the present time. To acquit concerning coral calcium, pt inquiries, financial or otherwi MXM's Address and t MXM Essentials Forn 9543 S. 213 Street Kent, WA 98031- (253) 872-2005 Stipulated to: Steven Ritchey Vice President. _ Triad ML Marketing, inc. Date r /l /N .on to modify any current terms or conditions related to )ducts that you currently have in your possession should ials. e need to order additional coral calcium product, please has acquired all remaining inventory stored by Triad at additional information on your rights and obligations e contact MXM Essentials, which agreed to accept all ione number are as follows: Inc. Yours truly, Kenneth W. Behrend Co or MXM Essential Formula; Inc. 1Q Roger J. a n, Jr. Counsel for Triad arketing, c. Rebecca Brainhard . " President M )(M Essentials Formulas, Inc. 10 Date • i D o m m m 0 O 0 C O Z U. C 7 m n C Z m z • • © COHROENTIAL RI?E MID, CORPORATION GUARAOTEED SALES AGREEMENT-' Rite Aid will consider Vendor's pro ct(s) for distribution and sale under the terms and conditions set forth in this Agreem ..In consideration of Rite Aid's agreement to review -anew entry into its mix, as well as in consideration of the mutual premises contained herein, the parties agree as follows: 2. • r 3. 4. • 5. Vendor will guarantee the sale of Vendor's product(s) to Rite A. at both Customer Service Centers (i.e. distribu 'on-centers) and retail locations. During the first. one hundred twenty (120 days, or such other period as Rite Aid may determine in its-sole discretion (it being understood by Vendor that Rite Aid may terminate this Agreement in is sole discretion at any time, for any reason whatsoever) following the date if the Vendor's first deliver y. of product(s) to Rite Aid (the "Review Period'), Vendor's account ill be on a review status to permit Rite Aid to assess the performance of the product( s). During the'Review Period, Rite Aid will pay only for those product(s) that area ally sold, and Rite Aid's payment will be reduced by any and all cash discounts or o r debit amounts (including, but not limited to, advertising, displays, markdowns and price protection) due to Rite Aid. If at the end of the Review Period, Rite Aid determines in its sole discretion, that the Vendor's product(s) is not selling at an acceptable rate then Rite.Aid will have the right to (a) require Vendor to review and modify Vendor' marketing plan to ensure future success and (b) extend the due date of the original inv ice submitted by Vendor. Rite Aid also has the right to require a cash payment, as described in paragraph (3) below. The foregoing rights are not exclusive. At the end of the Review Period, Rite Aid may terminate this Agreement, place the Vendor on Rite d's customary payment terms, or extend the Review Period as Rite Aid, in its sole discretion, so desires. If at any time Rite Aid det ines in its sole discretion that Vendor's product(s) performance continues to unacceptable, Rite Aid will have the-right to return at Vendor's expense all unsold product(s) to Vendor's ..facility in return for. Vendor's cash payment to Rite Aid r any products for which Rite Aid has paid, but have not been sold. Vendor's payment t Rite Aid shall be made (a) by wire transfer of immediately available funds or certified check, and (b) no later than fifteen-(15) days after Rite Aid has returned the products . Upon settlement of Vendor's account, all outstanding invoices will be paid promptly, less any and all cash discounts or other debit amounts due to Rite Aid. The terms and conditions f this Agreement are in addition to, and in no way limit, t Rite.Aid'vrights and rem dies under Rite Aid's Vendor Profile, standard terms and m conditions or purchase or ers. In the event of inconsistency between the terms. and conditions of the Agreement s • govern. 6. The parties agree that Pennsy conflict of laws provisions. a Agreement will be venued in Pennsylvania. Q CogRUENSIAL any of the foregoing-documents, this Agreement will da law governs this.Agreement not withstanding its lawsuit brought with regard to this Guaranteed Sales Court of Common Pleas, Cumberland County, 7. The parties specifically agree that 13 Pa. C.S.A. §2326 & 2327(b) are inapplicable and that Vendor will accept returned goods in their "as-is" condition. 8. All retums are at risk of vendor.. Rite Aid is enthusiastic about the op ortunity to distribute product(s) into the marketplace. Rite Aid wishes you every success in yo endeavor to provide a product that is unique. - Please allow 'Rite Aid to assist your in your distri ution needs by arranging for a duly authorized officer to sign and date this Agreement on.be alf of yow company, and tetumlbe executed letter to Rite Aid's Merchandising Department. . Vendor ''?RtA? H? i`1AP;k?Yrtld " ?tn? By: Title: eaI j Authorized Signature Authorized Signature • Date: Date: 0 oZ • Revised March 4, 2002 . RITE AID (RETURNS AGREEMENT [?,] CONFIDENTIAL A Separate Returns Agreemermust .be filled out for each vendor number. CoRanyName: "Tl"ir,,Ok- ML 1'4_4.2'fl?i ,lr?r -- { Phone # U rc 975- v3£t 24 a10 Contact Name: / //; - 5'7 T oaf Fax # Vendor Number: E-Mail Address: STrdl?... p ?irti 1- Shipping invoice Address, , Address: • J.?Q 3sit o - Category Manager: ye? Associate Cateqory Manager. TERMS OF AGREEMENT: i A. .. Unsaleable Merchandise 1. All vendors will be charged the lollowing processing fees for damaged, defective,-outdated, and discontinued- goods. These fees are based on the find?ngs from the Joint Industry Task Force Study (JIR): DPC (Direct Produ Cost)- $0.085 • Post Damage $0.111 Ops through Scan: $0.101 $0.297 2. All vendors must determine a method o disposition for their unsaleable products. Based on the . CODEIDESCRIPTIONS listed below, t e vendor representative will check (X) the method his/her company has authorized Rite Aid to use. The additio at charge, shown in () at the end of the description, will be added to the charges above. CODE DESCRIPTION JiR C S COPT Scan and disposition is eft up to the discretion of Rite Aid ($0.020)' DONA Scan and donate ($0.0 0) DEST _ Sewand destroy ($0.010)* ROPT Scan, Hold,.Vendor Re iew/Center Option ($0.127) RDON Scan, Hold; Vendor Re iew. Donate ($0.137) ROES Scan. Hold, Vendor Re law, Destroy ($0.147)' RTAK Scan, Hold, Vendor Review, Take ($0.174) RSHP Scan; Hold, Vendor Review, Ship ($0.186) .Note: All Vendor Review merchandise will be held for 21 days after.invoice date for review. At that time -if not reviewed, or if no decision has een provided by the manufacturer the product will be disposed of at the discretion of Rite Aid. SHBK Scan and ship back to vendor ($0.180)' Open RA# (REQUIRED Pith this option) RA# •Non-toxiclnon-hazardous material on'), E ? • E E Rite Aid Returns Agreement Page 2 © CONFIDENTIAL 3. Handling of hazardous materials'will require ach vendor to supply to Rite Aid Corporation, Material afety Data Sheets (MSOS)ibefore any such product is returned. Fees for handling hazardous terials?l-willto each vendor and will be in addition to the above.disposition-fees.-Failure . provide MSDS may result in additional cha ges*and possible fines. 4. All products will be.billed at Rite Aid's list cos + AR billing factors (DPC, Post Damage Handling, Rec Charges, Disposition Charges) unless.o erwise agreed to in writing by Rite Aid Corporation. Vendor billing is not-to exceed .130% of RI a Aid's list cost. B.. Recall Merchandise -"Please-note: The dispositions on page 1 DO NOT. apply to recalls. A separate agreement MUST be filled *out for all recalls at the time the recall is being activated. This allows a vendor to have a separate disposition on recalls than they have on damaged and outdated returns. 1. An Open RA# must be established between he vendor and the Category Manager prior to the Initiation of arecall. 2. All vendors will be charged the following fee for product designated as RECALL merchandise: Ops through Scan $0.101 Disposition Charge $0.180 $0.281 3. Pallets shipped with returned goods will be 0led to the vendor at the cost of $6:50 per-pallet. Itemized pallet. charges will also appear on future invoice. 4. All shipments are prepaid by Rite Aid and w II be added and detailed on a future invoice. , I changes to policies must be in writing to ile Aid Corporation. Approved policy changes will lake Nffect within 30 days following their approva . 6. All vendors will agree to forward a copy of their current national policy regarding reclamation to be reviewed by Rite Aid Corporation. This will a sent to: .Rite Aid Corporation 30 Hunter Lane. Camp Hill, PA 17011 Attention: Gerry But The signatures below by the appropriate Categ ry Manager of Rite Aid Corporation and the vendor representative df said company denote their un erstanding and acceptance of the above agreement. Signature (Vendor Representative) Dat Signature (Authorized by Rite Aid Corporation) Date "?(i AL ke lf:23 ?C Rite Aid Corporation 't • F Dec r9 2602 11:HAM C7 RITE AID RETURNS AGREEMENT Ofte note: A Separate Returns /A Company Name; TTtc,A f'` Contact Name: Vendor Number: Invoice Address: Category Manager: Thu . must be filled out for each No-6266 P. 2/4 CONFIDENTIAL Phone # :6(D- 9757--& 64 ato Fax # /.,.a- 573=03t E-Mail Address: iacGn.,. itgvrA?kii 2_te.... Shipping Address: Associate Cateqory Manager. - - TERMS OF AGREEMENT., A. Unsaleable Merchandise 1. All vendors will be charged the following processing fees for damaged, defective, outdated, and discontinued goods. These tees are based on the find/ gs from the Joint Industry Task Force Study (JIR): $0.085 DPC (Direct Product ?ost)- Post Damage. $0.111 Ops through Scan: SOA01 $0.297 2. All vendors must determine a method of d CODEIDESCRIPTIONS listed below, the authorized Rite Aid to use. The additional. charges above. CODE DES COPT. Scar DONA Scan and donate ($0.030 DEST )it_ Scan and destroy ($0.04( ROPT Scan, Hold, Vendor Revie RDON Scan, Hold, Vendor Revie ROES Scan, Hold, Vendor Revie RTAK Scan, Hold, Vendor Revie RSHP Scan, Hold, Vendor Revie Note: All Vendor Review merchandise not rirviewed, orKno decision has bei the discretion of Rite Aid- on for their unsaleable products. Based on the representative will check (X) the method his/her company has shown in () at the end of the description, will be added to the up to the discretion of Rite Aid ($0.020)`. /Center Option ($0.127) , Donate ($0.137) , Destroy ISO. 147)' Take ($0.174) Ship ($0.186) ill be held for 21 days after Invoice date for review. At that lime If . provided by the manufacturer the product will be disposed of at SHBK Scan and ship back to vendo ?4$s%ptt'on) Open W (REQUIRED with RA# i 'Non•texIdnon-hazardous material only Rev 01/18/02 ?..` " 0 e c 9. 2002"'11 : 0 9 A M°, ?" ."" I /.?TS:T k'-Y S f: ll..lLlM:1`- JLM :lS\'LY4p'?W K RJ{ 1??i U tiNi+W\? Y.IYIIrY No-6366'P. 3/ 4' Rite Aid Returns Agreement Page 2 Q CONFIDENTIAL ?ndling of hazardous materials will require each vendor to supply -to Rite Aid Corporation, Material ety Data Sheets (MSDS) before any such product is returned. Fees for handling hazardous ----maierial"ilt bespecific tQ each vendor an will be in addition to the above disposition fees-Failure to provide. MSDS may result in additional charges and possible fines. 4. All products will be billed at Rite Aid's list c st + JIR billing factors (DPC, Post Damage Handling, Rec Charges, Disposition.Charges) unless..therwise agreed to in writing by Rite Aid Corporation. Vendor billing is not to exceed 130% of lie Aid's list cost. H. Recall Merchandise _"Please note: The separate agreement,MUST be filled out I This allows a vendor to have a separate and outdated retums. positions on page.1 00 NOT apply to recalls. A all recalls at the time the recall Is being activated ;position on recalls than they have on damaged 1. An Open RAN musi'be established Initiation of a recall. the vendor and the Category Manager prior to the - 2. All vendors will be charged the following fe s for product designated as RECALL merchandise: Ops through Scan $0.101 Disposition Charge $0.180 $0.281 3. Pallets shipped with returned goods will be Bled to the vendor at the cost of $6.50 per pallet. itemized pallet charges will also appear on future invoice. 4 ll shipments are prepaid- by Rite Aid and %ill be added and detailed on a future invoice. changes to policies must be in writing to Rite Aid Corporation. Approved policy changes will take effect within 30 days following their approve I. F. All vendors.wili agree to forward a copy of reviewed by Rite Aid Corporation. This will Rite Aid Corporation 30 Hunter Lane Carroo Hill, PA 17011 Attentlcn: Garry Bus r current national policy regarding reclamation to be sent to: .The signatures below by the appropriate Cal representative of said'company denote their • Manager of Rite Aid Corporation and the vendor standing and acceptance of the above agreement. Signature (Authorized by RKe Aid Corporation) Date Rite Aid Corporation .1_.. na M. M.4 RITE AIU RETURNS AGREEMENT Please note: A Separate Returns Astreemgnt must be filled out for each vendor number. loompany Name: TRIAD ML MARKETING, Inc 0 CONFIDENTIAL Contact Name: Steven Ritchey Phone 610-975-0305 x213 after 8129103 610-382-5100_ Vendor Number: Invoice Address: TRIAD ML MARKETING,. Inc P.O. Box 590 Southeastern PA 19399 Category Manager: Tony Stapelb Associate Category Manager: TERMS OF AGREEMENT: A. Unsaleable Merchandise Fax * 610-975-0315 after 8129103 610-382-5115 E-Mail Address: Shipping Address: TRIAD ML MARKETING, Inc 295 S. Gulph Road Ki3ig of Prussia, PA 19406 1. All vendors will be charged the following rocessing fees for damaged, defective, outdated, and discontinued goods. These fees are based on the.find ngs from-the Joint Industry Task Force. Study (JIR): 1 DPC (Direct Product Cost) $0.085 Post Damage $0.111 Ops through Scan: 0.101 $0.297 2. All vendors must determine a method of disposition for their unsaleable products. Based on the CODE/DESCRIPTIONS listed below, the! vendor representative will check (X) the method his/her company has authorized Rite Aid to, use. The addition I charge, shown in () at the end of the description, will be added to the charges above. CODE DESCRIPTION (0R CO COPT Scan and disposition is I ft up to the discretion of Rite Aid ($0.020)' DONA Scan and donate ($0.030) DEST Scan and destroy ($0:04) ROPT Scan, Hold, Vendor Revi w/Center Option ($0.127) RDON Scan; Hold, Vendor'Revi W, Donate ($0.137) ROES Scan, Hold, Vendor Revi W, Destroy ($0.147)' RTAK Scan, Hold, Vendor Revi W, Take ($0.174) RSHP Scan, Hold, Vendor Revi W. Ship ($0.186) Note: All Vendor Review merchandis will be held for 21 days.after Invoke date for review. At that time if not reviewed, or if no decision -has bt n provided by the manufacturer the product will be disposed of at the discretion of Rite AId. SHBK _ Scan and ship back to ven?r ($0.180)' Open RA# (REQUIRED wi this option) RA# USALE-RA03_ i "Non-toxiclnon-hazardous material only Rav 01 /1 R/02 Rite Aid Returns Agreement Page 2 3. Handling of hazardous materials will requ Safety Data Sheets (MSDS) before any s materials will be specific to each vendor to provide MSOS may result in additional 4. All products will be billed at Rite Aid's list Rec Charges, Disposition Charges) unlei Vendor billing is not to exceed 130° c B. Recall Merchandise -"Please note: separate agreement MUST be filled This altoWS a vendor•.to have a sep; and outdated returns. 1. An open RA# must be established initiation of a recall. . 2. All vendors will be charged the following ops through Scan Disposition Charge 3. Pallets shipped with returned goods will Itemized pallet charqes will also appear 4. All shipments are prepaid by Rite Aid ai AU' changes to policies must be in writin effect within 30 days following their app ,/ 11 u Q CONFIDENTIAL each vendor to supply to Rite Aid Corporation, Material h product is returned. Fees for handling hazardous 1 will be in addition to the above disposition fees. Failure urges and.possible fines. Est + JIR billing factors.(DPC, Post Damage Handling, otherwise agreed to in writing by Rite Aid Corporation. Rite Aid's list cost. dispositions on page 120 NOT apply to recalls. A for all recalls at the time the recall is being activated. r disposition on recalls than they have on damaged the vendor and the Category Manager prior to the for product designated as RECALL merchandise: $0.101 X0.180 ... $0.281 billed'to the vendor at the cost of $6:50 per pallet. a future invoice. will be added and detailed on a future invoice. to Rite Aid Corporation. Approved policy changes will take 6. All vendors will agree to forward a copy of their current. national policy regarding reclamation to be . reviewed by Rite. Aid Corporation. This will be sent to: Rite Aid Corporation 30 Hunter Lane Camp Hill; PA*170 1 Attention: Gerry B sh The signaiures below by the appropriate Category Manager of Rite Aid Corporation and the vendor representative of said company denote their understanding-and acceptance of the above agreement. `Signature (Vendor Reprpsen i e) Pate Signature (Authorized by Rite Aid Corporation) Date 0 4-ILA?2:L Rite Aid Corporation rC/Yy • RPv 05/21/01 i ?I Z z z x c ? eN d c? . o C °- S ta to w ? ow m ti p ? v • u CONRDEN i i-al f8 ' p = 2 N x O ?_ O fX d W Z Z a! a l O Z Z W O a 1 I V 4 2 y O O W W pi 01. W a o a o ? v a J 00 9' ? N w u? Us U- `Z ?A J ?N v ? L m N tY x V p I O o ? or s • 4 A 3 o Z 'y Z Z < C6 0 oa. ? V . m N Z O m E H a < U O f r A • Corporation t! Vendor No. Corporate Address: C CRY. Soto. Z10- 0 Federal Employer U x 0. Address: Phone N: Fax S: ._eJ 1 r:__CY7ctl4&1"- r_ : ,?YIC:r 1. Mgr. dw W w- r X -„ C CredR k4gr. 10 Aorount Rep. Ed Coordr I Mgt. Customer Service to (Note: 800 or 888 Telephone a Is required.) Payment Terms: New Store Allowance . Payment Tema: easonalPaymertTerm (If applicable) Oo you sell to other retailers or wholesalers at a lower co t than that offered to Rile Aid? Ye; ? rrP at t l h b oration Ril Aid Cor ot ox e payments must be sent to our corpora p e Am C P_O. Box 3165 m E Harrisburg. PA 17105 M C Do you use a factor for accounts receivable ' ' management? s Yes ? If Yes. Factor No Name: Address: CONFIDENTIAL. Domestic Vendor Information Bill" Addmsr (osG ? 5.,.?.1aStaYTJ? ??, $'3? P.O. BOX City, State, ZIP Remittance Information than G Do you sett / manufaeh+re private label products? Yea ED No t 7C1 ' ? to . f- • ~ exclusive brand products will be tested for comp8an a with Rile Aid's standards before K Is added to a product mix- Vendors will pay for this estinp at if predetermined rate set by RKe Aid prior to t stIM.. Vendor will not change fom%Aa or ffWdwd of mai ufadum after testing. WOW ?Wlor -Wen approval from Me Aid. ti Q Me Ald, at Its sole dlsaellon, may continue to test ex Ive label Items as deemed necessary to enure continued compliance with FM* Aids rements, Vendors arc required to pay far this lesti , no more than once every 18 rlgnttns (or more If complaints ari received). EDI Capable: - Yes ? No jg! - Planned ? Date Planned Purchase Order Yes ? No Q Planned ? Date Planned Invoice Yes ? No ? Planned ? Date Planned N Yes ? . No ? Plarrad ? Date Planned _ Price Change Yes ? No ? Planned [] Date Planned lien Maintenance Yes ? . No ? Planned ? Date Planned V Payinem Remittance Yes ? No ? Ptarwed ? Date Planned W Product Movement Yes ? No • ? Planned ? Date Plained Forecast Data Yes ? No ? Planned ? Date Planned ,A11601 questions M=M be directed to the £d / EC Depanm at (7171751-3815 ar E-Mal N edl"esid. om. EDI 1 EC are atw avaia0W 10-10-MIr IX-1 - Corporation I? • . New Domes is Vendor Information (Continued) O CONFlDENTILL. Shipping Address. (Provide a separate kxm for any add onal locations.) ddress Vendor Freight Allowance (applied against gross prrehasea) • Amoutt Ctty, State. Tip Coped Props G --- - - "?" IndivWwl Store P.O. Bulk A Phone: Method of Payment Off Invoice preferred; E Cordact H ottw. attach rah speeWOng reason. C Address: Vendor Freight Allowance (apps against gas purchases) Anvxint City. Slate. Zip Collect Prepaid Individual Store P.O. Bdk Ph Mediod of Payment Off Invoice preferred; O1 one: Contact N ottk f, attach fate Specrtykhg reason. C 4 Address: Venda Freight Allowance (applied agaftl gross purchases) L Anoint d Pre"Id p C to fly. State. Zip e o Individual Store P.O. Bulk Method of Payment Off Invoke preferred: Phone: if otter, attach rate sped" reason. Contact UPC Coded Merchandise Purchase Order UOM: Check here to sign (- you have reviewed the Web Site Supplier CompliancerShipOng Instructions: C1 SKU Level: Yes or No (1 Minl=m Order. _ n d Y No n Minimum Order : `. . L N es case: or • C , Shipping UOM: Ile N SKU Level: Yes - or No ? Mlnlmum Order: 1. 1. No, ? Mltdmum Order d Case: Yes. . or O Note: Charges may be assessed for ron-UPC merchandise (Sae Rlte Aid Supplier Compffanee Manual and Rite Aid Web $No). -Corporation .New Dom i i s ?e 1 N 1 t t 1 Vendor information (Continued) 3S•Twoioesa SOPOea lithitarnt OP et-Woodland v F- c ' . a : CL H e a , a CL d e O O , w u If 1 s e i • • q:RfTE l?. EF.-E ENEE- .EST' C}5...••ENDEIR ,--0'? G :„';ER. F) r.. n 13 1 rre.? u a. tx'f v. efa t f x Corporation New Don 1 J . 3 S 6 7 . 0 • 1 10 it 17 17 N >S iS 17 20 31 a 32 l•J 1 t+ 1+ f l 1 t t s t e s, x x x x x x Q CONFIDENTIAL Vendor Information (Continued) w 13 MUM 113 ?--R- 1 13 E3 E3 0 +. 1 1.1 I 1..: U L u u • u r r g 2! 21 a a a y a I a a m „ v O a 0. a m a ME a L O ' m E l ! l r• • Isogrb npiM r?rd to ?t -P ' REM FQ A.. . Questions or request for additionall Information on Purchase Order. Processing/Shipping Terms should be addressed to. Rich Boss (rgossfarilea .core). Sean Witmer (swNmerQAteald.eom). or Chris•Vogh (etrogle@ilteekkoom) ta MM Ago PWWI s r.W4 Cuaece beakbA r.auew 'p.eyaid' F be aerlde4 2 . Venda 4 reep*%'y i f aeaalared alto product on an e¦pedae bash, a reprlrod W aWAV w" la fried M so eftemeM ogle. RITE AM vendor c Nb foM Me degbtYl.m"wnena'far sgg mW d Venabfa Melons. SHM. gbeadon addressed n - - tefeooone raan0en and e•mat addreaaes would be ww4 ded to FM AID TMft OeparoecM pia to starwo. S Shipmenn mede on a •Pre0or bash nave to ter name area "IN Chw9ai aemked n e w vwM Lie Rem an the .atdbr Y nkc. . t MIT AID requests use of a RfM AID Prof reed Carder m snipnenn made on s TmP& • bawls. - ® Corporation ! Q CONFIDENTIAL . New_Rom_ atic_ etudor-Intorrnation (Continued) iftAld-Oamag"AtOuMafedProduct Ofsposidon yreemeM --• •- - -- - - - ?.....---• .. _ You mat complete the RIteoAld Oama ed d Outdated ud Ols sillon A anent (refer to enclosed = 4 LL Guaranteed Safes Agreement- New Vendors A Seas at Aterchandise'Onfy C You must the GuWanfeed Sales Agreement (r Jar to endoled ) m Alerchandise Recall Ofspdafdon Agreement reeags resat be compleled uIllizing a co of the Me ndise Recatl Disposition reemea `Cf Vendor MdemnHteedar Agreement Q You must COMPIRIS the Vendor Indemnification Agreeme nt refer to enclosed copyy Advertising Terms: (Each allowance componend must be expressed as a s eparate item not In eon)unetlon with any o#w component.) Each component Is m W 0 exduslve, of art other Programs. A. Coop Funding (see enclosed) a. Tie following Funding amounts are over and above t Off Shelf IXsplays Yes ^ •No te Annual Revolutlon 0 Funding commitment noted above. S % (based on gross purchases) • Single Cherie Rebate Fulfillments Yes No i % New Items Ilai amount or tree set value) Yes _ No S % Health Resource Rile Advice Yes No $ % Annual Trade Show Partldpadon Yes No $ % ' _ Updated on ill 6M2 Care Expos Yes - No_ S 'A Otl+er (not Baud above) Yes _ No- S % Please tht • p Yes .^ nib ' . O CONFIDENTIAL Vendor Signature: Accepted By. Oate: m Print Name: Category Manage: Date: Z TNO: VP of cat, MgMAU Date: C Date: SVP of Gt. Mg-rd.. Date: W Refer Io the enclosed copy of Roe Aid Accounting Policl s and Procedures; which are made part of this Profile. CcounUng Use Only - Supplemenlat Information Attach Yes ? No ? 0 V Yes No S C Yes No S Price protectlorc Venda provides protection of on hand a Intransll Inventory. Yes•Plo . Retail Markdowns (TPR Coupons provided by vendor) Yes No (Utilize Non Revq Contract) Is there an annual volume incerpbe l Contract rebate olt ? Yea NO is the amtrsl time Uame of the agreement? Fmm TO: Volume Rebate Allowance: A"W Purchase Ran>)e Rebate % Annual Volume Target AND Fixed Volume Rebate From To % S S Frem To % $ $ From To % S S From To % S S Is the volume rebate bark to dMaar t? Yes No Psyment (checkideduckn) Monthly Ouarteriy Annually Please attach a sePante sheet If more than one annual vo urne Incentive exists. Note: Payment of the Annual Revolution U Funding Commitment over and above Funding and annual value Incentive rebates will be deducted III. our scheduled psymerht to you on the applicable kwol a date. c mnl0eatten Agreement: This agreement is not valid until signed by a Vice Presid of Category Management of Rite Aid. This agreement and the attachments it refers are the entire Agreement between Rite Aid and Vendor for the telerenced term and supercede all pilot oral and written agreements. This C agreement may be amended or modified only In writing Rite Aid and Vendor. The undersigned acknowledges and agrees that die undersigned has ?00 carefully reviewed dot "M of this Agreement and on terms and conditions of Rite Aid's Purchase order and agrees to abide by them By signing this Agreement. the undersigned. representative co I Vendor represents and warrants that heishe has the power and authority to legally bind • Vendor. G. UPC Coded Merchandise Pleas visit Rite Aid SUPPLIER CENTRAL Website (www.RrTEAlD.ccftffl ipmPleti `e1 Purchase Order UOM: Ched h? to slg* ),a„ have reviewed to Web Ste S Wft C-0a -JShi*Q hlAX - (- SKU lent Yes or NO G Nfiiinnl Qder: Cau: yes Of N. G Afn6mrn adw. Shipping UOM: v 0 ,. SKU tenet Yes or !b G mwmm Case: Yes or N. G WAI n 4 Nara Chagas mar be assessed i r WrRMM-=O&Vdise (See Aid supplier co00=8 UMWlara Rde Aid web sit). ??' Fmm 36POea 6DRane BDVYhprrvae tlp & Nw I U U U U U W U U 2 O ? ? I IT 1-:1 4 ? ? ? a ? ? z ? ? ? 3 1 G 4 ? - 1-:1 13 FedEs 13 ? ? ? ? C O ? 2 LIPS ? 1-3 ? ? ? ? 3 ? ? ? ? ? ? 4 ? ? ? ? ? ? 6 Q El'' I ? ? AmbM • Per Mi -7 i7 7 -0 1 0. ' G Per Case ? s s ,.. s . s : s s s • t•?A A nuen1 X rt X X X X X ]? X ? ? ? G G G Ci O ? ? 3 . ' ?. r G ? D ? e G ? ? ? ,o C ? G ? 13 ? ? ? 14 ? ?. ? ? ? r? 1s ? ? ? ? ? ? 15 17 Cl ? D G l6 19 . Cl ? D ? O ?. . _ zo ? ? ? 22 G 13 0 23 ? O ? ? ? - 241 25 1 26-1 1 .0 26 Cl ? ? 21 G _ ? G O D 3D C ? O 31 r mF3 . 32 • ? ? ? ?. ? C ? ? ? 33 ... „ ? ? ? ? ? ? ? ? D ? ? ? 3s fi Patel G ? tld paw tTita = ? lals Dep palbls ? uiemen0 F caller son a sepregale levdred O aa ?ea?? o&.w wad , ? P? Ise l+ = G ? o M,4 1 ? . G . r . lead Tlme b SIYp) ?.9 horns FR TQ 6 X ; o m Q COf?e° ±; NTIAL 1 WTE AID pies shl nwft be made an a'Fre%m Callow at *Fm 4 : - 2" Verdes Is responsAb for any iddllWol Costs aasodated weh qdp 3 RITE AlUs vendor - AINIVA'Sebl" Model r. °. 4 mom d looalbe addrtxsa ind COmbQ haIMS,1lIEp11011Q nun 3 Shlpmeats made ona'Prepai r bash should have carne name a 6 RITE AIO requests use of a RITE AID Prelered Carrier an Olprm t It Ak wed bash, be requests'Prepald' pig be provided. Iradtad Cm an as, IIIed basis, 7 regrdr d for assn" product arftM to W" an advwown enrdate requiremaas for slipmerrl oLVerdors product. ? ? .. . __ and DOM addresses should be povddad la RITE NO Traffic OepaNneet prior b siart44 height dvarges itemized as a separate rime item en ft vedor bymce. n nude on a Tm?pald' basis. 0 y U F O z O m y a 0 V U ? L ? y V 11! u g W E v o G N Z 2 z _ ' s :J S ? y CC e pc U. U U > O W I z z Q ? O a o ? ? c C O > > r N O E ? Q CONRDENTIAl M .,. o rW ? o • > m ? °v E 3 u m c c c r.,° • O L y '? v W ? N 0 V AE zr ? E m o e C O O ? c `o_ ro i o 0 n a N y c m ? o z C ? O N • O 13 N Rn 8 o N N Y ,o ? o m 3 $ o m e5 i C > :C o T d O « ? t O ? 0. 10 7 c m ? U c i. a a Q Y 1? A o c ? T c _Y a v 3 U S E ' E 3 N `.. 3 4 O $ $ ? ? 3 v a a o ? O u o u w o a D •? O O N Y G a So E E c 0 ad . a. 0 O O a N Q C .0 V O O O O 0 19 o o > U • • D DEFENSE A7 INDEMM AGREEMENT CONFIDENTIAL AGREElvI'ENT made this day of 0b &_Wjbcr- year 00 by MC (hereinafter "Seller") and Rite Aid Corporation, and its subsidiaries ereina er "Rite Aid" or "Buyeej. WHEREAS, Rite Aid has purchased, and/or may purchase for. resale primarily to consumers, goods, products (inc uding pharmaceutical and O.T.C.) or other items or articles from Seller; and" WHEREAS, Seller has ag eed to defend, indemnify and hold harmless Rite Aid . of and ,from any and all claims and investigations arising out if its sales of goods, products or other items or articles purchased. from Seller; NOW, therefore, the parti s 'hereto agree, for good and valuable consideration, and intending to be legally bound, as follows: 1. Defense and Indemnification. Seller shall defend, indemnify and hold harmless Rite Aid Corporation, its shareholders, officers and. agents and subsidiaries from any, and all losses, expenses, damages, costs and attorneys fees that they; or any of them, may at any, time from the date hereof incur by reason of any investigations, claims or actions (including recalls and enforcement .actions) by the Consumer Product Safety Commission and/or other federal, state or local governmental entity as well as lawsuits brought against: them, or any of them, arising out of the sale, purchase, consumption and/or use'of each of the goods, products, or other items or articles sold by Seller. 2. Insurance. Witho t limiting any of Seller's obligations or liabilities . hereunder, Seller further. agrees to procure and maintain at Seller's sole cost and expense Comprehensive Public Liability I risurance, including products and contractual- liability, with limits of liability of not less an $5.0 million combined single limit per occurrence with :an insurance company satis actory to the. Buyer: Said policy of "insurance shall name Rite Aid as a named insured Such policy or duly executed certificate of insurance shall be delivered to the Buyer within 15 days from date of this Agreement and renewals thereof shall be delivered at least 0 days prior to the expirations of the policy term. 3. Legal Actions. Rite Aid will give the Seller reasonable notice of any.. investigations, suits or actions irL, tituted -against Mite Aid by reason of the purchase or sale of goods from- Seller. Rite Aid will cooperate with the Seller in connection with the defense-or" settlement of such acti n. Seller shall have the right to defend or settle such suits or actions with the cone of Rite Aid such consent not to be unreasonably withheld. r" \ U M . ©CoNF?oFNrE. .._ 4. Cboice of Counsel. Rite Aid, in its sole discretion, shall select counsel to defend and-indemnify it in all investigations, claims and/or lawsuits. 5. ..Benefits. This Agreement shall be binding.upon and shall inure to the benefits of the parties, their egal representatives, -successors and assigns.. This Agreement shall be governed by he laws of the Commonwealth of Pennsylvania. i TpMt_ MAIZ.K-CST RITE AID CORPORATION By: Revised March 4, 2002 By: t i ? • 1218/02 09:39 'ING MEDIA INC 4 7179755915 - `: NO- 043 t702 0 • • CERTIF(CAT OF LIABILITY INSURANCE' . ooucvt?? Kevaas Inswence 84 Cid E d o l R S h 7H1 ER TWi TE IS ISSUED AS A MINTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED 9Y THE POLICIES eEIOW. oo oa s e c PA 10097 Stratford , GICUPANY A Donegal Mutual Insurance Company King Med4k Me. an Tiled ?ML. Marketfnp, Inc, COAIPAIIY 9 858 East Sweddor oa SUfte 325 Wayne PA 19067 oCoaa?r+r ! l?ENIIAL --?- - Agency IV: King Madls ?Anr e,oAe' COVERAGEd - TIIAT.6 TO CEn11F1rTlIgI tw POUCES OP elO1t MO, NOTWfn+STANOn10 NY REWREMpNT CFRT01"7E MRY BE MUEO OR MAY PEATAM, T1I? AND OF SUCH PO a USTW 8RM HAVE KeN ISSM TO TII -MURED NAAMO AVOW FOR THE POLICY PERIOD W comartm or ANY ODNTAACT Olt ORMCR OOWMwf wr"# ReMcT TO WNtCM T#" APFOROEO BY THE POUGl9 DEW MEDMM" q SUMOT MALL THE TM O a e MhY10 VE 89E FIEWMIVI'PACCUM A TYAL OF NSURANCk P0616Y NYMIEA ?? P Y IRA UwfM EMERAL UAaArrY oE,O,A?AWAfT.+tE t 113 am LM mumm" LOtwuwn MoovattwownurAOC t A D- w" Q oxuA 60POO20624 319102 319103 rtfww?AwrovnAr,? .. r [fsroor,a?CTOwsranr t?MaoeiN,ftf,cE f f+wtear?acvur«.1?. t SO.SO Av>o i ?rfrfoae+?sua,rr, t ?uroa eo0rrf,Nprlrrr?w0 t AY,O! Nnaf .. lCO6YClN1tIlir,s?fCrt1 t - ?forTnnarw.os t ARVALU LM AVroaw?•faAmobr f . A" A1,IrJ,Iro"N"aeK.t fApAGGpUfr t N76MOatE ? Lt?ellfTl mum= fACN t1RWI1RE t j?Q?r A fAewro? CXL0004384 6115/02 11115103 AMACO06 , t,ar, twu,w,Pe,uwnr • tr?turaRrwnt +rowmrscof?tATioa AAA e,a„ ?cwefxr c Eur?orerst.wurrv a?aa+ • a,t?ecacM s s mot The ca0cate holder Is named as eddii5onal irm d with regsrds to general liiablity and excess Aabilty. CE IGA WOMEN CANCELUr N-- Rde Aid Conwradon 30 Huniar Lane Camp Hid. PA 17011 0000 MIT OF IPA AMUM aet0roQ1;Z ss asuaKOaoo rot °??ea'a oAw ? 6Cl?iAg11AB1O MAL 3UCH NOIN: 9 LL wpaaa o0L1aA1t0a OR UANIM of AWMDL W nal_woelrrsoA AfNE WTKOOM ^- ?..ec •n, 0SOE L89 019 3DNl bMNI 3NU/13)1;WOdj &E:20 2802-LT-330 r? a I}•f? • 0 "r. -'OCT. 8.2004 6.24PM ELLIOTT GREENLEAF • NO. 487 P.14 10/7104 at 09:36:17.90 Triad lYII,1VIsrke>ing Inc - customer Ledgers For the Period Ffom Ian 1, 2002 to Oct 31, 2004 FUter Crituia includes: 1) Ohs fmm RITE AID to RITE Al . Report order is by ID. Report is printed in Dersil Fon ut. Customer ID Date Trans No Typ Debit Amt Crodlt Amt 9alonco Customer L RUB AID 3%12103 991670 "" 51 39,960.00 39,960.00 " RITE AID 3/12(03 991671 Si .6,480.0D 46,440.00 3/!2103 991672 SJ 16,740.00 63,180.00 • 411103 300900004. Si 175.00 .63,003.00 4/1103 300900005 8l 300.00 62,705.00 4/1/03 300900006 Si 125.00 62480.00 * . 4/30 30090.93138 81 50,295.00 12,285.00 t 414/03 991751 81 9,710.00 22,005.00 • 414/03 991752 SJ • . 4,860.00 26,865.00 • 414103 991753 Si 3,240.00 30,103.00 " 4/9/03 991768 Si 25,920.00 56,025.00 + 4/9108 991769 SJ 3,240.00 59,265,00 • 419103 991770 .8J 10,800.00 10.065.00 • 4116/03 991790 SJ 11,3400 81,405.00 4111/03 991800 Si 2,160.00 83,565.00 + 4/17103 991801 Si 5,940.00 89,505.00 + 4117/03 9918000M Sl 11620.06 87,88S.00 4/23/03 991808 SJ 8,640.00 96,525.00 • 4/24/03 991809 8J 4,660.00 101,383.00 + 4/30/03 991810 S3 12.420.00 113,805.00 + 4/30/03 991811 SJ 7,560.00' 121.365.00 + 5/1/03 36090-90915 SJ 12,500.00 108,86S.OD 511/03 300900006 S3 75.60 108,790.00 0 511/03 300900009 Si 25.00 108,765.60 + 5/13/03 991839 Si 33,486.00 142,245,00 • 5115103 991840 S1 4.320.00 146,565.00 t 5/15/03 991841 Si 10.800.00 157,365.00' • 5/16/03 300900007 SJ - 250.00 157,115.00 9 5127/03 991842 Si 2,700.00 159.815.00 * 51303 991643 Sl 32,400.00 192,215.00 * 65/03 991845 SJ 13,500,00 205,715.00 • 6118103 991946 Sl 5,400.00- 211,115.00 • 61)9103 13300900403 8J 128,000.00 83,115.00 • 6123/03 0002876392 CRJ 4,114.80 4,114.80 83,115.00 6123103 0001876392 CRT 13,995,00 69320.00 6124/03 991841 Si 1,620.00 70,740.00 • 624/03 991848 SJ 5,940.00 76,680.00 6125/03 0002877106 CRl 302.40 302.40 76.680.00 625/03 0002877106 clu 15,120.00 61,560.00 712103 991BS6 Si 5,940.00 67,500.00 7/7103 991851 Si 14,580.00 82480.00 • 70103 991852 Si 1,080.00 83,160.00 7/10/03 OD02889736 C1U 702.00 702.00 83,160.00 711N03 0002889736 CRJ- 35,100.00 48,060.60 ' 7/14103 2893308 CRJ 270.00 270.00 48,060.00 7/103 2893308 CRJ 13,500.00 34,560.00 7118103 D113242299 53 132.89 34.427.11 • 7118103 D1143 t 1790 Sl 46.90 34,380.21 + . 71203 00029DS909 CRJ 108,00 108.00 34,380.21 7/281D3 0002905909 CRJ 5,220.21 29,160.00 S/S/03 0002909838 Clu 151.20 15120 29,160.00 8/5103 0002909838 CRJ 7,560.00 21,600.00 815103 12237 Si 12.500.00 • 9,100.00 . + 8/1S103 0002922879 CRJ 31320 313.20 9,100.00 . 8/150 0002922879 CRJ 3,160.00 5,940.00 8119/03 D123060299 Sl 230.09 5,70991 8121103 2924946 CRJ 53,000.00 53,000.00 .5,709.91 8122103 DIll378299 81 325.29 5,384.62 + 8/27103 V119456790 SJ 63A7 5,32LIS • 9/19/03 D124133790 SJ 71.41 5,249.74 1013/03 991864 Sl S40.00 5,789.74 - 1013103 991865 SI 9,720.00 I S99.14 10117103 2974546 C1t1 25,000.00 25,000.00 15,509,74 10/17/03 EX 2974546 Clu 690.26 16,200.00 HI[BR 10/17103 991880 8l 2,700.00 16,900.00 + .10/17/03 DI 28049299 SJ 174.55 18,725.45 + 10117103 D129136790 S) 55.54 18,669.91 4 10/27/03 99190D SJ 4,320.00 22,989.91 1114103 30090,22922 Si 12,500.00 10,489.91 + 11119/03 991908 Si 5,940.00 16,429.91 • Pop./ , • • OCT. 8.2004 6:24PM ELLIOTT tREENLEAF • NO.467 P.15 1017/04 at 09:36:11.95 Triad NII. Marketing Inc Customer Ledgers For a Period From Jan 1, 2002 to Oct 31, 2004 Enter Criteria includd:1) IDs ft m RJTE AID to RITE AP. Report order is by M. Report is printed In Detail Format Cutcotner M Ditto Trans No 7 Typ Debit Amt Credit Amt Balance (:a9tOrnCr 11/21/03 30090.24285 11121103 0133092299 11/21103 D134219790 12(3/03 991911 12/9103 991915 1219/03 991916 . 12/19/03 1)138121299 12/19!03 D139245M I/104 1)142859299 1116/04 D143969790 1119/04 991931 • 1119104 991932 - 1123104 30090.29120 213104 30090.32080 2/5104 991952 216/04 991953 2/12/04 991954 2/17104 3078160 2117/04 3078160 2120/04 014847790 7/20/04 D141336299 2,07/04 3089592 2127/04 3089592 3112!04 991973 3/16/04 991974 3117/04 3106656 3/17/04 •3106656 - 3119/04 D 151651299 3/19104 D15274579D 3/24/04 , 3112150 3124104 3112150 4/5104 991979 4/16(04 DISS698299 4/16/04 D154757790 4119104 3137307. 4119104 3137307 4/21/04 . 991986 422/04 3140598 4/27104 3140598 4/26/04 991989 4126104 991990 5/4104 991993 S14104 991994 $/3/04 991995 51$44 3009000010 5/21/04 D160650299 541/04" 0161744790 5128/04 '3172S46 5128104 3172446 6!1/04 992043 6/2/04 3178140 6/7/04 3178140 6/10104 3184403 6/10/04 3184403 6/11104 3185999 611V04 3185999 6/24104 992105 6124104 992106 6/UM 992107 7/9104 994709 0104 990802665 819(04 990802664 8126104 9940825 918/04 992060 9/13!04 992061 9/16/04 992068 PR&C 2 Sl . - Si SJ . -: SJ $J Si Sj SJ . s! Si SJ Sl Si Sl Si Sl Sl CFJ CRI Si Sl CRJ CF] SJ S1 CRJ CRJ Si Sj CRJ CFI Sl S4, - Sl CFJ CFI Sl CFJ CRl SJ SI . Sl. Sj SI Si Sl. Sj CRJ CRJ SJ CFJ CRJ CRl CRI CRJ CRJ Sj si Sl 31 Sj Sl Si 31 31 Si 367.00 16,062.91 • 198.35 15,864.36 • 5554 15,809.02 11060.00 16,889.02 ' 9,720.00 26,609.02 • 7,560.00 34,169.02 • 103.14 34,065.88 • 63.4 7 34,002.41 . 79.34 33,923.07 • 73.80 33,89927 + 3,240.00 37,139.27 + 3,240.00 - 40,379.27 516.00. 39,663.27 K 12,$00.00 27,36317 • 540.00 27;90317 • 15,660,00 43463.27 ." 1,080.00 44,64327 24,049.60 24,049.60 44,643.27 20,883.27 23,760.00 39.67 23.720.33 333.23 - 23,387.10 • 129.60 129.60 23,387.10 6,107.10 17,280.00 . 5,940,00 23;271):00 • 4 320.00 27,$40.00 , 324.00 324.00 27,540.00 . 16,200.00 11,340.00 119.01 11,220.99 • I S.87 11,205.12 21.60 21:60 11,205.12 1,080,00 10,125.12 3,780.00 3],905.12 103.14 13,801.96 126.94. 13,675.04 • 118.80 118.80 13,675.04 51905.12 7,869.92 4,320.00 12,189.92 • 86.40 86.40 _.12,189.92 4,089-92 8110040 2.700.00 10,800.00 • 4,320.00 15,120,00 4,860.00 19,980.00 • 540.00 20,520.00 2,700.00 23,220.00 • 250.00 22,970.00 • 507.78 22,46122 23.80 22,438.42 4,912.00 4,912.00 4438.42 7,316.42 13,120.00 2,160.00 17,280.00 140.40 140.40 17,280.00 7,020.00 10,260.00 108.00 106.00 10,260.00 5,400.00 060.00. 54.00 54.00 4,860.00 21700.00 .2.160,00. 7,020.00 9,180.00 1,080.00 10;260.00 6,480.00 _ 16.740.00 2,160:00. 18,900.00 540.00 -19,440.00 540.00 -19.980.00 21700.00 22,680.00 540.00 23,210.00 2,160.00 25,380.00 2,160.00 27,540.00 I i i I I 1 i • m C C r m O S i. fi m r i N O F4 n 0 z N C m? 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O f 0 ,ego :aa3. w a c c Y SEE w. iUuE s >V '>o • N M RA 006 • a 0 0 • CONFIDENTIAL ' NOV.21'_2003 17039 71'1 Ylo DYAD wtiLnav ?a t?.va: •- "' j Contract # 15941, Rite Aid Promotional Finding Agreement Fiscal Year 2005 Company Name: TRIAD MIL MARKETO Biding Address: CIO SUSAN GRAMA? 656 E. SWEDESFOR[ WAYNE . Contact: S Email: ?1 TRIAD ML MARKETING iNC (Supt supper promotional program In the'ami t e =%`of Rite Aid's GioWlp" ir6has, February 27, 2005 (but not less than it below). The Funding will be used to de4 by Supplier's Rite Aid Category Managi products in Rite Aid stoles. The Promot diminution of any negotiated pricing, pa pi- •tiase Incentives, funding for retail n fur-merit, new items, new store ellowel participation. Rite Aid Health and Boaul programs now existing or that may be t The Supplier's Minimum Promotional I performance will not be provided. Inve Supplier) of the Minimum Promotional or about. 511104 . 811104 .. lift The Promotional Funding is based on February 27. 20.05 - It actual Gross below.-the additional funding wilt be bl MINIMUM PROMOTIONAL FUNDING FORECASTED GROSIPURCH1?SEf PAnMd Nerve X11 ?! h RAJ Oct • ?? TMIe !u ?RSi INC Category Manager:STAPLETON, TONY Vendor#:30090 tD.STE330 PA 19067 Phcne:610.975.0305 1`90:6109750315 er) hereby agrees to participate In Rite Aid's Fiscal YeaR005 mt indicated herein. The amount to be paid by the Supplier will rof-Sapptier'sproddcts•betweenFbbr0W29:2004 '.rand.- Minimum Promotional Funding Commitment set forth lop and co-execute marketing support deemed appropriate for promoting and advancing the sales of Supplier's not Funding Is in addition to and-not in substitution for or nent terms, volume incentives, rebates. other contract rkdowns,'oft-eheti displays, Single Check Rebate vs; Health Resource Rite Advice participation, Trade Show Expo, Rite Aid Foundation. Charity Gott Classic. or other velooed from time to time. Zing Commitment is firm and non-cancelable. Proof of I (for deduction from amounts owing by Rite Aid to ding Commitment wiil.occur in 4 equal instalments on and 211105 is purchases between February 29.2004 and chases exceed the Forecasted Gross Purchases set forth and deducted in the final Invoicing on or about 227106'. ;NT: S •Cd s,14o.tnD . f7 Rhs Aid CaOCOerY IAsm'09?' Rine Aid Vim oreaWe Onto' . I 0 x U N n a H 1 l • RITE AID CORPORATION 30 HUNTER LANE CAMP' HILL, PA 17011 • Q CONf`IDENTIAI, MAILING ADDRE : PO BOX 3165 HARRISBURG, PA' 17105 ATTENTION: CHRIS ROSER, INVENTORY ACCTG.. TELEPHONE (717) 761-2633 EEXT 4241 E-MAIL VENDORBILLING@RITEAID.CQM INVOICE DATE: .6%03/2004 INVOICE NUMBER: 30090-0046915 TRIAD_ML MARKETING INC C/O SUSAN GRAMAN 656 E. SWEDESFORD RD. ST 330 WAYNE PA 9067 PLEASE REFER TO INVO CE NUMBER IN ALL CORRESPONDENCE ??# BASED ON PREVIOUS.PAY ENT HISTORY, THE INVOICE AMOUNT #?? ## WILL E3E DEDUCTED WITHIN 1- 30 DAYS IF NOT PAID IN FULL # CHARGES ANUUNT INVOICED ADVERTISING (NP) 4,750 00 SUB TOTALS 4,750.00 BALANCE DUE PAY THIS MOUNT --------> 4,750.00 CONTRACT NBR 0015442 REF NBR: 0000000 NOTES---.-- ------ PAGE 1 x? • 9 RITE AID CORPORATION T CONFIDENTIAL 30 HUNTER LANE (CAMP HILL, PA 17011 i MAILING ADDRESS: PO BOX 3165 HARRISBURG. PA 17105 ATTENTION: CHRIS ROSER,...INVENTORY ACCTG. TELEPHONE (717)..761=2633 EXT 4241 E-MAIL VENDORBILLIN02RITEAID.COM INVOICE DATE: 111022004 INVOICE NUMBER: 30090-0057676 TRIAD ML MARKETING INC C/O SUSAN GRAMAN 656,1:. SWEDES PORD'RD. STE330 WAYNE PA 19067 p1F###M####aaa#a####,?IF#?FiF#N###iF#.###a######'#i/##MiF1F###iF?1######il# PLEASE REFER-TOIINVOICE NUMBER IN ALL CORRESPONDENCE #a BASED ON PREVIO 0 PAYMENT HISTORY. THE INVOICE AMOUNT ## •-' WILL BE DEDUCTS WITHIN 1- 30 DAYS IF NOT PAID IN FULL # CHARGES AMOUNT INVOICED -ADVERTISING 1NP) 4.750.00 ------ - -------- -------- SUB TOTALS - 4.750.00 BALANCE DUE: PAY THIS AMOUNT >> ----------> 4.750.00. I CONTRACT NBR: 0015542 XREF NBR: 0000000 NOTES---------- CERTIFICATE OF SERVICE I, Kenneth R. Behrend, hereby certify that a true and correct copy of the First Amended Complaint in Civil Action in this matter was served upon all the parties by U.S. first-class mail, postage pre-paid and/or hand delivery on this 10`h day of June, 2008, as follows: John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS, LLP Suite 2700 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. i BY: JA A. ,,Kenneth R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 21 0 ALL-STATE LEGAL' 800-222-0510 43 f- ) 6-? IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC, CIVIL DIVISION Plaintiff, CASE NO.: GD-07-001856 V. RITE AID CORPORATION, Defendant. DEFENDANT'S RANDUM IN SUPPORT OF Defendant, Rite Aid Corporation in the First Amended Corp. ("Rite Aid") (incorrectly named Rite Aid ), by and through its undersigned counsel, hereby files this memorandum in support of i?s Preliminary Objection Raising Question of Venue, and states as follows: Plaintiff, MXM June 19, 2007. MXM thereafter alleging three Counts against Rite enrichment, and (3) conversion. I Sales Agreement and companion ag1 of a calcium product (Coral Calciurr. Aid and Triad ML Marketing, Inc. ( Agreements to MXM. INTRODUCTION [al Formulas, Inc. ("MXM"), filed a Complaint on or about an Amended Complaint on or about June 10, 20089 [: (1) breach of contract, or in the alternative, (2) unjust Ws damages are alleged to have arisen from a Guaranteed (collectively, "the Agreements") regarding the sale Daily). The Agreements were entered into between Rite "). Triad purportedly assigned its rights under the PHDATA 31122282 Count I of the Amended Complaint is a claim for breach of contract based, in large part, on a Guaranteed Sales Agreement entered into between Triad and Rite Aid. (Exhibit A, Guaranteed Sales Agreement). The Agreement contains a forum selection clause which states, in pertinent part, "[a]ny lawsuit brought with regard to this Guaranteed Sales Agreement will be venued in the Court of Pleas, Cumberland County, Pennsylvania. (Exhibit A, Guaranteed Sales Agreement at ¶ 6). MXM purportedly is assignee of Triad as a result of litigation between those two parties. (Exhibit A at ¶ 7). The amicable settlement of trademark interest in monies owed by Rite Aid at T¶ 8-9). I. THE AMENDED COMPLA FAILED TO FILE IN THE 1 UPON FORUM SELECTIO The Pennsylvania enforceable: Complaint alleges that the parties reached an claims, in which Triad assigned rights and sale of MXM's Coral Calcium Daily product. (Exhibit A ARGUMENT SHOULD BE DISMISSED BECAUSE MXM PER VENUE PURSUANT TO THE AGREED- CLAUSE Court has held that forum selection clauses are "...while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed wit the cause when the parties have freely agreed that litigations all be conducted in another forum and where such agreement is not unreasonable at the time of litigation." 0 0 Credit Am., Inc. v. Intercept Corp., No. 3923, 2001 Pa. Ct. Com. Pl. LEXIS 37, at *3 (Pa. Ct. Com. Pl. Philadelphia Oct. 2, 2001) (quoting Cent. Contracting v. C. E. Youngdahl & Co., 418 Pa. 122, 133-34, 209 A.2d 810, 816 (1$65)), aff'd without opinion, 809 A.2d 968 (Pa. Super. Ct. 2002). As to the first prong of the inquiry - whether the parties freely agreed that litigation shall be conducted in Cumberland County, Pennsylvania - there are no allegations that the Agreement was not entered into fr4ely by Triad and Rite Aid. As to the second prong of the inquiry - whether the choice of forum is unreasonable at the time of litigation - "the party seeking to obviate the agreement has the burden of proving its unreasonab corporate headquarters, which clearly unreasonable only if it will "seriously Central Contracting v. C. E. Yo therefore, demonstrate that it is that "mere inconvenience or Rite Aid does not have the burden to reason why a sophisticated party like Commonwealth of Pennsylvania) Cumberland County, Pennsylvania, a with Triad in Philadelphia, and it " Here, Cumberland County is the location of Rite Aid's it a reasonable forum. In any case, an agreement is plaintiff s ability to pursue its cause of action." & Co., 209 A.2d 810, 816 (Pa. 1965). MXM must, to litigate in Cumberland County, keeping in mind expense is not the test of unreasonableness..." Id. While unreasonableness, it asserts that there is absolutely no (a Delaware corporation doing business in the find it burdensome or unfair to litigate their claims in 190 miles from Pittsburgh. MXM litigated its lawsuit l Rite Aid in Pittsburgh. Litigating at a location between the two cities is plainly reasonable. A A 0 0 The allegations in MXM's Complaint confirm that it is seeking to enforce the Guaranteed Sales Agreement, which contains the forum selection clause. First, MXM alleges that Rite Aid owes a duty to MXM not to breach the Guaranteed Sales Agreement. (Exhibit A, ¶ 18). Thus, MXM cannot logically arglue that it is somehow not bound by the Agreement. Second, and related to the first argument, MXM is proceeding on a breach of contract claim against Rite Aid - thus necessarily implying that a contract between the entities does indeed exist, with MXM now the real party in interest. As a result, MXM cannot avoid the forum selection clause while, at the same timed seeking to enforce other duties and obligations under the Agreement. Third, MXM is challenging debits to its account taken by Rite Aid for returns and promotional expenses that are related t and contemplated by the Guaranteed Sales Agreement. Because the Guaranteed Sales Agreement is at the heart of this dispute, MXM must litigate in Cumberland County. 0 0 CONCLUSION For the foregoing reasons, and for the reasons stated in the Preliminary Objection, Plaintiff's Amended Complaint should l e dismissed without prejudice. su Jfin K. Gisleson, Esquire T.a Ido. 62511 ily M. Ayoub, Esquire Id. No. 204891 Schnader Harrison Segal & Lewis LLP Suite 2700, Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 577-5200 Facsimile: (412) 765-3858 i 6 rder • a IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, CIVIL DIVISION CASE NO.: GD-07-001856 V. RITE AID CORPORATION, Defendant. ORDER AND NOW, this day of , 2008, it is hereby ORDERED, ADJUDGED and DECREED, that Defendant Rite Aid Corporation's Preliminary Objection Raising Question of Venue is GRANTED. By contract, the venue for any dispute is Cumberland County. Accordingly, Plaintiffs Amended Complaint is dismissed in its entirety without prejudice. BY THE COURT: PHDATA 31122282 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Preliminary Objections Raising Questions of Venue, was served via U.S. Mail, First Class, postage pre-paid, this 24tH day of July, 2008, upon the following: Kenneth R. Behrend, Esquire Behrend and Emsberger, P.C. Park Building, 12th 355 Fifth Avenue Pittsburgh, PA 15222 Attorneys for Plaintiff PHDATA 31122282 j IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC•,I NO.: GD 07-1856 Plaintiff, V. PRAECIPE FOR APPEARANCE RITE AID CORPORATION, Defendants. JURY TRIAL DEMANDED ISSUE NO.: Filed on Behalf of Rite Aid Corporation, Defendant Counsel of record for this Party: John K. Gisleso% Esquire PA Id. #62511 Emily M. Ayoub, Esquire PA Id. #204891 Schnader Harrison Segal & Lewis LLP Firm #061 Fifth Avenue Place, Suite 2700 120 5th Avenue Pittsburgh, PA 15222 ELECTRONICALLY FILED IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, CIVIL DIVISION No. GD 07-1856 Code: 011 V. RITE AID CORPORATION, Defendant. N ?'n -•rY- r. c. JURY TRIAL DEMANDED Issue No. PLAINTIFF'S REPLY TO DEFENDANTS PRELIMINARY OBJECTIONS Filed on Behalf of: MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building Now ?400-? IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA M)W ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. CIVIL DIVISION No. 07-1856 AND NOW, comes the Plaintiff, MXM Essential Formulas, by and through their attorneys, Kenneth R. Behrend and the law firm of Behrend and Ernsberger, P.C., and file the following Reply to Defendant's Preliminary Objection Raising Questions of Venue and avers in support thereof as follows: 1. Admitted. I 2. Admitted. 3. Admitted.: 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. l 8. Admitted in part and ied in part. It is admitted that Rite Aid's headquarter's are located in Cumberland County. Plaintiff is without sufficient information to determine the reasons -1- as to why the choice of forum clause in the Guaranteed Sales Agreement specifies Cumberland County since plaintiffwas not a party to the negotiation of the contract between Triad and Defendant Rite Aid. response, In 2003, MXM sued Triad in the United States 9. Admitted Byway of eging claims for Court for the Eastern District of Pennsylvania at C.A. No. 03-cv-06047, all trademark infringement. On October 19, 2004, MXM and Triad reached an amicable settlement. Pursuant to the terms of the settlement agreement, Triad assigned all rights and interest in the money ad for the sale of the MXM's Coral Calcium Daily product by Triad to owed from Rite Aid to Tri Rite Aid. See Amended Complaint, ¶¶ 742- 10. Admitted. 11. Admitted. By way of further response, Plaintiff was under no duty to file this case in Cumberland County since Allegheny County is a proper venue for this action. 12. Admitted in part and denied in part. It is admitted that the Pennsylvania Supreme Court has held as set forth by Defendant. It is denied that the Supreme Court's holding requires to Cumberlond County. To the contrary, the transfer of this case would transfer of the instant case be unreasonable and therefore, under the precedent cited by Defendant Rite Aid, the assignment clause is unenforceable as to the instant lawsuit. Denied. To the contrary, Plaintiff never agreed either with Defendant Rite Aid or 13. pursuant to its settlement with Triad hat Cumberland County would be the only Proper venue in which MXM could bring a lawsuit against Defendant Rite Aid for failure to make payment and act in accordance with the Guaranteed Sales Agreement. Indeed, the assignment made by Triad to NUM of the Triad's account with Ritte Aid was made for the purpose of paying the debt owed by -2- 0 0 Triad to m) M, and not for the purpose of ?Xm doing business with Rite Aid. 14. Admitted in part and denied) in part. It is admitted that Plaintiff is the assignee of the debt owed by Rite Aid to Triad. It is denied that Plaintiff's choice of venue is restricted as set forth in the Guaranteed Sales Agreement. To the contrary, the assignment made by Triad to MXM of account with Rite Aid was made for the purpose of paying the debt owed by Triad to MM Triad, s and not for the purpose of MXM doing business with Rite Aid. As such, the Assignment clause should be inapplicable to the instant facts. Additionally, an assignment clause can be found unenforceable by a court of competent jurisdiction should there be justifiable reasons to notEnferce the clause, as causing undue prejud?ce to the plaintiff. Plaintiff believes that undue prejudice s will occur if this case is transferred to Cumberland County Court of Common Pleas where Rite Aid is undisputably one of the largest employers in Cumberland county which is a smaller population county than Allegheny County. See Exhibit 1. the enforcement of the choice of forum clause would lead 15. Denied. To the contrary to undue prejudice to MXM, as it is undisputable that Rite Aid is one of the largest employers in i% of the total workforce of the county. See Exhibit 1. Cumberland County employing nearly Cumberland County's workforce is approximately 120,000. See Exhibit 2. It is undisputable that, as one of the largest employers in potential to unfairly influence bias, even if not actively condoned b; a fair resolution of its claims against venue a venue clause in an agreeme' • Younadahl & Co., 418 Pa. 122,209, County, Rite Aid's status in the County has the fact finders in this litigation. The existence of this potential Rite Aid, clearly could prejudice MXM's ability to receive Aid. Where undue prejudice may occur in a particular may be voided by the court. See Cent Contracting v. C.E. 810 (1965)(venue agreement will not be enforced where -3- the agreement is unreasonable at the time of litigation). 16. Denied. This is a conclusion of law. To the contrary, where undue prejudice may occur because of choice of venue, venue i that location is improper. Id. WHEREFORE, Plaintiff respectfu ly request that this Court deny Defendant's Preliminary Objection Raising Questions of Venue an permit this case to proceed before the Court of Common J Pleas of Allegheny County- Respectfully submitted, `Kenneth R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax -4- r? ?J C 0 0 • 0 *41apulg £661 O £Sb£-9Sb-008-1 SaraISAS Sall AWI'y Sallgamg 7Zj • IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC., CASE NO.: GD-07-001856 Plaintiff V. RITE AID CORPORATION, Defendant. BRIEF IN SUPPOR OF PLAINTIFF'S REPLY TO NDAINT'S PLAINTIFFS PRELIMINARY OBJECT ON RAISING QUESTIONS OF VENUE ARGUMENT I, THE CHOICE OF FORUM AGREEMENT IS UNREA` The choice of forum clause set Rite-Aid is unenforceable in the surrounding the present litigation and A review of the facts Triad to MXM clearly demonstrate enforcement of the choice of forum SET FORTH IN THE GUARANTEED CEABLE SALES AND THERF in the Guaranteed Sales Agreement between Triad and action since it is unreasonable given the circumstances never agreed to by MXM- the assignment of the Guaranteed Sales Agreement from given the manner in which the assignment took place, se against MXM would place an unreasonable burden on MXM. In the instant case, the assigrW ent of the Guaranteed Sales Agreement occurred as a result of an order of Court dated October 9, 2004 by the United States District Court for the Eastern 'ct of Pennsylvania. See First ended Complaint, 18. As a result of the litigation, Triad Distn d to satis its debt to MXM by signing to MXM, Triad's accounts receivable, one of which agree fy -1- was the account with Rite Aid.' Pursuant to the terms of the court approved settlement agreement, Triad assigned to MXM all rights and interest in monies owed by Rite Aid to Triad related to the sale of MXM's Coral Calcium Daily product. 5ee First Amended Complaint, ¶9. It was never believed and could not have antici ted that Rite Aid would dispute the amount of payment due that had been represented been pa b Triad to N" during the settlement negotiations overseen by and approved by the federal court. y As such, MXM was never informed of the existence of a choice of forum clause in the agreement n Triad and Rite Aid and certainly never voluntarily agreed to have any dispute between itself betwee and Rite Aid litigated in Cumberland County. Additionally, the enforcement ofthe choice of forum clause will lead to undue prejudice to t is undis utable that Rite Aid is one of the largest employers in Cumberland County MXM, since i r to n nearly 1% of the total work once of the county. See Exhibit 1. Cumberland County's emp yi g --' workforce is approximately 120,000. employers in. Cumberland County, Ri influence potential fact finders in this actively condoned by Rite Aid, clearly Exhibit 2. It is undisputable that, as one of the larg Aid's status in the County has the potential to unfairly ;Qatinn. The existence of this potential bias, even if not prejudice MXM's ability to receive a fair resolution of its claims against Rite Aid. as a supplier of product does not have any actual presence in On the other hand, MXM, Cumberland County. As set forth above, the of the instant action to Cumberland County will seriously 'MXM supplied vitamin sul Triad, who in turn sold the product CVS. ements - specifically a natural coral calcium product - to Rite Aid and other drug store chains, e.g. Walgreens, and -2- • • impair MXM's ability to pursue the instant case, as such, under ?,eituzu ?__ your dahl & Co. 209 A.2d 810 (Pa. 1965)(venue agreement will not be enforced "Where the of litigation), this case should not be transferred to agreement is unreasonable at the time Cumberland County, and certainly should not be dismissed. in Allegheny County. It is Finally, Rite Aid will not be prejudiced should this case proceed undisputable that Rite Aid regularly conducts business in Allegheny County. Indeed, according to the State of Pennsylvania Department of Labor and Industry Rite Aid has twenty-five (25) stores ce:and located in Allegheny County. See Exhibit 3. However, with the significantly l population in Allegheny County the possibility of undue prejudice oocuring in Allegheny County is i I remote. For the foregoing reasons, enforc ?ment of the choice of forum clause agreed to between Triad and Rite Aid against MXM will seve?ely prejudice MXM in the instant case and is therefore Objection Raising Questions of Venue should be unreasonable. As such, Defendant's Preliminary denied and this case should be County. II. SHOULD THIS C( COUNTY IS NOT CUMBERLAND 0 REMEDY. It is well settled that "If a of proper venue within the state the appropriate court of that county S to proceed before the Court of Common Pleas of Allegheny properly lies in another county." ee DETERMINE THAT VENUE?E ACTI? tOPRIATE, TRANSFER OF Y, AND NOT DISMISSAL IS THE APPROPRIATE objection to venue is sustained and there is a county will not be dismissed but must be transferred to the improper venue is not a ground for dismissal if venue adard Pennsylvania Practice § 11:24; Pa. R. C. P.1006(e). -3- It is undisputed that even if venue is improper in Allegheny County, it is clearly proper in remedy, if Defendant's Preliminary Objections are sustained, Cumberland County, as such the proper er of the case to Cumberland C?unty. Dismissal of the instant case would only be is transf a ro 'ate if no venue in Pennsylvania ?ould properly hear this matter. BY Defendant's own PP Pn position, this is not the case here. Respectfully submitted, r4 / cenneth R. Be d Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P-C- Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax -4- • 1 • 0 m ? ?. n, <, r ?, mi ?. v ®7 c .j '? o T 2 b T U center for worxtorce 1niormanon at Hnarysis - rmpioyer z)ervaees - r"mpioyers Lpeta>is csnr:s VON Herr10 Of PA Ih e* Sws Wbwom INTORM 'ti come Infonnadoe RrrE AID CORP Contact: TODD C MCCARTY Title: HUMAN RESOURCES EXECUTIVE Telephone: (117) 761-2633 Web Site: R_TFaI_ .ID•COM Q Address Information Physical Addra m Mailing Address PO BOX 3165 HUNTER 30 L?' CAMP HILL, PA 17011-2410 HARRISBURG, PA 17105-3165 A Other Informetion Business Description: PHARMACIES Employee Size Range: 5004M SIC Code(s): 591 - Drug S proprietBrY stores_ n mfg 28 - Phannaoaudcal Pr managers 653 18 - Rea, estate agents & - Other wholesale durable goods NAICS Code(s): 4461110 - Pharmades and Drug Stores 3251412 - Pharmaceutical Preparation Manufacturing 531210 - Offices of Real Estate Agents & Bmkem, 423990 - AN Other Dumbie Goods M9mMfd Whsle Location Type: Headquarters/home Office Sector Entity: P"te Employers Lest Update: 012008 yw W m aon is proms by UdbUSArd, omens NE. BOOg55.5211. Copyright o 2008 Edl*m 2. En,gp AM RON RN Wvm& ro provide updfd Ndom ewn an wnpfoyor P"" dWAJ"- - I -W or I Jr I Choose anoihe r I f!Na1IL n 1 f hanae?1 [ Home I WEA;M I S I LQ9M rage httn://www.Paworkstats.State.pa.uslane4yzer/empinfoc,ont.asp?prvGovSt=ALL&uniqueid=... 8/13/2008 - - - Q For help clk* the question mark next I each section' Center for Workforce lnformation & Analysis - -Employers • cstrrza: "A HOfi1E of PA INoflt Stets ORbA01tCE IALVSZ1?IATl4. I location (N available) j5dSiyA_[@nWjChgManob r l r ar notion 1 . 8001555.5211. Copyright C 2008 Edww 2. Employer trdoMWM b Pfovidsd M WOUSAO M Rigbb ewvad• To pxovide updated kdomoWn an oV10yx Phew ' f18 Page I of IHome t rw lSoo Imo] above 1mm awnp..79 To sort on any column, click a column tr8e.. .... .. City StateP . Company Name Partial Address PA N 21ST ST CAMP HILL RITE AID SPRING RD CARLISLE PA RIM-AI CARLISLE PA RITE A,Q YORK RD PA N ENOLA RD # K ENOLA RITE A{D MARKET ST LEMOYNE PA RITE I CUMBERLAND PKWY MECHANICSBURG PA RIT-AID SIMPSON FERRY RD' MECHANICSBURG PA RITE AID WERTZVILLE RD MECHANICSBURG PA RITE AID CARLISLE PIKE MECHANICSBURG PA RITtr AID OLD YORK RD NEW CUMBERLAND PA RITE AI HUNTER LN CAMP HILL PA RITE AID RP PA RIT?AIQ RFA_i'n CAP HUNTER LN CAMP HILL ?MBD all s eso?overs Records per pag e. 25 SeMaMd ernp1Mw ko ymrd. 'Rae MW Sobcbd WMWYee range: I-ALL Sebcod empbyer sobs vebvo: 1-AU enW.- ALL Ilwww.paworkstats.state.pa.usla'*yzer/empseldata.asp?session=EMPFIRMS&cat=E... 8/13/2008 DEMOGRAPHIC AND ECONOMIC INFORMATION zh4..Arbi Fmnlovers - Nine Years Ago and Current COUNTY OF CUMNEBLAND, PENNSYLVANIA Employer U.S. Government - Naval Inventory Control point and Carlisle Barracks Pennsylvania Blue Shield Giant Foods Holy Spirit Hospital Commonwealth of Pennsylvania Wal-Mart Cumberland County Government Cumberland Valley School District fry Communications Electronic Data Systems Corp. JFC Temps Inc. Roadway Electronic Data Systems Corp. Rite Aid Total 6,864 5,408 1,990 1,800 1,607 2,67 1,20 • December 31, 2007 2007 1998 Percentage Percentage of Total of Total County County Rank Eprpbyment (3) Em eet Rank Employment (3) ,1) 1 70/6 6,838(l) 2 5 3,472 5 2 3,130 6 2 2,175 (2) 8 2 1,953(2) 1,313 1,221 1 142 7 2 1,100 4 2 1,100 3 3 - 10 - 4 2 _ 9 1 - 28% 23,444 1 2 3 4 5 6 7 8 9 10 6°h 3 3 2 2 1 1 1 1 1 21% Notes: (1) Includes SPCC, DDRE and other Agencies at that location. Hi Education (2) Excluding Pennsylvania State University, SEPTA, Department of Pennsylvania Department of (3) percentages based on Cumberland County labor force total furnished by the Labor and Industry Source: An initial listing of the top employers was furnished by the Pennsylvania Department of Labor and Industry. Cumberland County profiled Employers were contacted or other sources were used to gather totals of employees which were employed within Cumberland County. 161 PA STATE AGENCIES ONLINE SERVICES , LW e-covc?utNr sERYICts Govwn~t iR AA lOISW February 2007 9OR IMMEDIATE RELEASE:, :eb. 21, 2007 GOVERNOR RENDELL SAYS RITE AID WILL EXPAND HEADQUARTERS IN PA, ADD 350 3O EdcERD A?/?nIDN WMA MIUM ILAMS ."?rstINCED tN NtErARATiON Of BROOKS/ HARRISBURG - Governor investment from the comm( coMotate yobs-over the nex Pennsylvania. The company's expansion Eckerd pharmacy chains, The Governor called the co willing to invest and grow i across the country. "From its start as a neignr one of the nation's pharml Pennsylvania's companies "This is a reputation we're the state's business climal taxes by more than $1 bill communities and people.' attracted new employers Governor Rendell added are being leveraged to I investment package tot, million project. The project calls for e) locations in East Penn! and its Finance Group The company will also Brooks/Eckerd acquisi Department of Commur Yablonsky participated i company's job fair in Ca http://www.state.p&us/pWwer/cwp/view :dward G. Rendell announced today that a strategic iwealth will help the Rite Aid Corporation create 350 three years by expanding its operations in south central ns coincide with its planned acquisition of the Brooks and on the East Coast. king Rite Aid the largest pharmacy chain pany's growth an example of how a homegrown business the commonwealth can compete successfully in markets mood pharmacy in Scranton in 1962, Rite Aid has grown to be leaders," said Go Governor any enndae?e *This expansion shows how n grow and compete jiiding on each and every day through our work to advance Over the last four years, we've successfully cut business n, while making vital new Investments in our companies, n°U y and around the state's io are injecting billions of ese investments have dollars of fresh capital Into today's announcement illustrates how the state's resources t new private investmt. The was leveragedeto secure thet$11Aid an $1.45 million, ized functions ding Rite Aid's data seo A9 ? townships n Culmbeiiand County; o, Hampden and Low York County. rations in Newberry Township, ke new investments in associate training programs as part of its V and Economic Development (DCED) Secretary Dennis a news conference announcing the plans today during the ip Hill, Cumberland County. 1&(r--46021 R 8/8/2008 • R includes a grant of up to he funding offer pro vided to Rite Aid Corporation by D Grant Program, up to $250,000 in Customized lob unity , 000 through the Opport 500 raining funds, and up to $700,000 in lob Creation Tax Credits. izens lob Ban e company is also eligible to apply for a $6 million loan `e h t ha he itt creating or k grogram, which offers low-interest-rate loans to oP commit expanding jobs in Pennsylvania. Aid, 'For more than four years, Govemor Rendell has worked to ree fact that Rite petits the business environment for our companies," said Yablonsky. ?Th third-largest drugstore chain, is expanding Its operations In Pennsylvania and creating new family sustaining jobs here is proof that this aggressive approach is working." The expansion project, which will also retain 1,400 existing Rite Ald headquarters Governor's directly to Governor Rende and serve as employees, was coordinated ssionals by the who Governor repo economic development profe ting or a single point-of-contact for busing internationallbusinesses and expanding in professional site Pennsylvania. The team works with domestic a opportunities. consultants on projects possessing significant investment and job creation support of Governor Rendell, Secretary Yablonsky and the °We greatly?appreciate the commonwealth to help Rite Aid grow to approximately 5,000 stores, strengthen our Aid president lCEOargest.drugstore are position as the third largest national drugstore chin chain on the East Coast, said Mary Sammons, l as the Investing in the future of our company and the ant Hued evidence o?their colmmitment to economic future of state. These grants providing local jobs and improving our communities." Pennsylvania business, p Statewide since 3anuary 2803, the Governor's Action Team has successfully completed 788 projects resulting In mmitments for the creation commonwealth jhbs offered more retention of more than 20,800 existing ro sition ?, which will leverage more than $9 billion than $1.4 billion in assistance for these p je in additional investment. ann Rite Aid Corporation is on of the nation's leading 27 drugstore rd ha District of ual revenues of $17.3 billion and more han 3,300 stores in corporate the Columbia including 350 stores in Pe nsylvaniatillable tthrough the 'company's weblsite at background and press releases, is For information on the Governor's Action Team and other DCED programs, visit www.NewPA.com or call ?-866-GONEWPA (1-866-466-3972). Please visit Pennsylvania's Web site at www.PA.gov. copyright C) 2008 corn-n-eakth of Pennsylvania Lt ?L_0* Adffunist own 11 8/8/2008 http:llwww.state•paus/pWwer/cwpM,w.asp' A=1181"0218 • lJ • 0 m rn v, v G O ? O r?, U) T r,) Cumberland County Profile Population County Pennsylvania Total population 1 223,089 12,557,353 Male 109,232 6,092,543 Female 113,857 6,464,810 Population by Race 2 9% 85 94.0% . White 2.9% 11.1% eepot Black 2.3% 14.1% Other Hispanic origin (ail races) 1.8% 4.1% Population by Age 3 Ages 0-14 37,053 2,343,207 Ages 15-19 16,280 885,537 Ages 20-34 44.474 2,334.384 Ages 35-49 49,619 2,605,997 Ages 50,64 42,039 2,289,188 Ages 65 and Older 33,624 1,899.040 Bureau of the Census - 2OD5 Estimate S U . . Bureau of the Census - 2005 Estimate 2 U S . . 3 U. S. Bureau of the Census - 2x)05 Estimate wi? Overview Land Area in Square Miles 550.2 Persons per square Mile 2 405.5 Percent Urban 3 74.9% Peroent Rural 3 25.1% U. S. Bureau of the Census -19W 2 U. S. Bureau of the Census - 2005 Estimate 3 The Cervter for Rural Pennsylvania - 2000 County July Zoos Income Per Capita Personal Income Total Personal Income (in thousands) 2 Median Household Income (1999 doNars) 3 Median Family Income (1999 doNars), i Bureau of Economic Ans"s - 2005 2 Bureau of Economic Ana's - 2005 3 ila BuM',"t- Cs=w - 2890 U. S. Bureau of the Census - 2000 Major Employers' Pennsylvania Blue Shield Giant Food Stores LLC Hoy Spirit Hospital Exel Inc Cumberland County Fry Communications Inc Wal-Mart Associates Inc Cumberland Valley School District Rite Aid Hdqtrs Corp Dickinson College i 1st Quarter 2007 - Final $38,393 $8,118,000 $46,707 $56,406 industry Sector • Labor Force ' Civilian Labor Force Employed Unemployed Unemployment Rate preliminary June 2008 - County Pennsylvania 124,800 6,394,000 119,600 6,062,000 5,200 332,000 4.1% 5.2% iesonally Adjusted Pennsylvania $34,937 $433,400,000 $40,108 $49,184 Finance and Insurance Management of Companies and Enterprises Haa6h Care and Social Assistance Transportation and Warehousing Public. Administration Manufacturing Retell Trade Educational Services Management of companies and Enterprises Educational Services 4 11 1% 11, W R i ? ? C?I FOROTION Q Pennsylvania Department of Labor and Industry 220 Labor and Industry Building 7th and Forster Streets Harrisburg, PA 17121-0001 877-4WF-DATA www.clLxtote.Pa.us PA Keyword: Labor Market Information page I ornprion and Analysis ?nlcss uhcrwisc noted 1- Z 5owrc. Center for WorAforce /nf Cumberland ounty Profile July 2008 Employment and Wages by Industry Sector' Wage Employer Units Employment County Wake PA NAICS Industry Sector 51739 124,871 $39,002 $39,653 Fishing end Hurntirg 3.6 324 $17,776 $24, Total , Afi Industries 2 11 Agriculture, Forestry, 6 71 $42,470 $53.434 21 Mgrnirg 7 93 $46,123 $86,922 22 Utilities 483 4,801 $41,430 $45,092 216 10,077 $41,392 $47,293 23 Constuction 31-33 Manufacturing 296 4,327 $48,056 $55.748 42 Whoesae Trade 860 15,674 $22,456 $23'096 44.45 Retail Trade 167 11,995 $44.627 $36,067 48-49 Transportation and Wamhousing 94 2,617 $56,61110 $52,979 51 Information 432 9,424 551,635, 52 Finance and Insurance 197 1,854 $35,91,1 $39,237 53 Real Estate and Rental and Leasing 981 $55,219 $85,284 54 professlonal and Technical Services 604 6, 2,989 $55.26.1 65,285 55 Management of Companies and Enterprises 35 $81,418 299 6,879 $21,934 56 AdmiNSuppoR, Waste MgmURemedistion S?vs 54 2 695 $33,417 $40,790 61 Educational Services 605 14,030 $38,554 596,979 62 ijesi h 3pcial Assistance 62 1,086 $12,300 $23,352 71 Arts, Entertainment, and Recreation 512,467 513,431 72 Accommodation and Food Services 442 635 84,,973 73 $26,042 $24,142 81 Other Services, except Public Administration NIA WA N/A $54,260 99 Unclassified 58 5,160 $W,440 $56,730 Federal Government 32 3,285 $51,986 $45,012 State Government 119 7,341 $35,182 $38,343 Local Government n 2005 Annual Average 2 County total indudes private, Federal, State and Local Govemment Avenge Annual Wages by Major OccuPational Group' County Wad r37 SOC Code Major Occupational Glroup $37,001 $OD-DO 00 Total. AN Occupations $84.552 11-0000 Management Occupations $58.635. 130000 Business and Financial Operations Occupations 15-0000 Computer and mathernat ? Occupawrw 56$644,,646050 17-0000 Architecture arnd Enginibeft p potions $50,105 19-0000 Life, Physical, and Social Science Occupations $37,311 $35,434 2{.8011{1 Gamy and Social Services Octxnpations 54 23-0000 Legal Occupations $65 $65,,296 383 $75 $75.,1151 25.0000 Education, Training' Library Occupations $37,655 $47,976 27-0000 Arts, Design, Entertal ment, Sports, and Media Occupations 29.0000 Healthcare Practitim we and Technical Occupations $60,036 $58,611 $24,183 $24,076 314MM healthcare Support ccupslions $24,183 $24,502 0 agations $36,802 33.0000 Protecive Service $17 354)000 Food preparation a Serving Related occupations 37-0000 Building and Ground Clearing and Maintenance Occupations $21,791 $22,833 $22,173 $21,469 39-0000 personal Care and Occupations $22,627 $33,599 41-0000 Saes and Related $32 43 0000 Office and Adm • Support Occupations ,$23,254 $33557 $29,17l ,530 45.0000 Farming, Fishing, and Forestry Occupations $38,923 $2424,869 47-0000 Construction and Extraction Ocxupabons $ 39,557 $38,181 49-0000 Installation, Maintenance, and Repair Occupations $ 31,752 $31.628 51-0000 Production Goons $29,777 $29,013 53-0000 Transportation and Material Moving Occupations MIA WA 55.0000 Military Specific Occupations May 2006 Oocupetional Employment Statistics survey Page 2 Source. Cesar for Workforce Info ww on and Awbws finless oche-- noted • 0 c? of w ro 0 0 ? o ? m ? a m m Center for Workforce Information & Analysis - - >?mpioyers r F. cx"zx ro: ? ? ATIQ: Norm of PA . ?'QRI? QRCE LtiLT"s ARH AFALY?It Page 1 of 2 'MOM 35 employes selected in Allegheny County. Click a company's name in the list beloar to see details about that company, including a map of its location (if available) To sort on any column, dick. a column title _ _ . Company Name Partial Address RITE AI LIBRARY RD RITE AID LIBRARY RD RITE Ai SAINT CLAIR AVE RITE AI BROADWAY ST RITE AID THORN-RUN CTR RITE AID MARKET ST RITE AID EWALT RD RITE AID 9TH ST RITE AID W ALLEGHENY RD RITE AID CHARTIERS AVE RIT AI LYSLE BLVD RITE AQ LINCOLN WAY RIT _ AID GOLDEN MILE HWY RITE AID WILLIAM MARKS WAY RITE AID FREEPORT RD RITE AID JANE ST RITE AI BUTLER ST RITE AID MORNINGSIDE AVE # 1814 RITE AID MOUNT ROYAL BLVD RITE AID 6TH AVE REE AID NOBLESTOWN RD RITE AIQ 5TH AVE RR? AID MURRAY AVE RITEAD PENNSYLVANIA AVE RITE AID BANKSVILLE RD City _ State Map BETHEL PARK PA CASTLE SHANNON PA CLAIRTON PA CORAOPOLIS PA CORAOPOLIS PA ELIZABETH PA GIBSONIA PA GLASSPORT PA IMPERIAL PA MC KEES ROCKS PA MCKEESPORT PA MCKEESPORT PA MONROEVILLE PA MUNHALL PA NATRONA HEIGHTS PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA PITTSBURGH PA ?MeD all selected emDlc? Enter page number. Records per page: 25 Viewing page 1 of 2 L X/ L Z k i 2 httP://www.paworkstats.state.pa.us/analyzer/empseldata-asp?session=EMPFIRMS&cat=E... 8/13/2008 rage 1 of Z Center for Workforce Information & Analysis - - hmplovers 1 Seww wnpbw ke : Wft Bid' Ssleded wnpbyse size ?WW: ,,ALL Sabded employer wsxm volume: 1-ALL SObded OMA" ? eINY: ALL [t size range I Choose go 1 , o r I EmpbW NAommbon is provided by k*USAO, OMMM, , sm55-5211. cowigit O 2009 EdNion 2. AN RWft To provide updmW Mkmmslion on wnployw please • n z -brw t http://Www.paworkmts.state.pa.uslanalyzerlempseldata.asp?session=EhRFIRMS&cat=E... 8/13/2008 • • CERTIFICATE OF SERVICE 1, Kenneth R. Behrend, hereby certify that a true and correct copy of Plaintiff s Reply to Defendant's Preliminary Objections Raising Question of Venue was served upon all the parties by U.S. first-class mail, postage pre-paid and/or hand delivery on this 13th day of August, 2008, as follows: John K. Gisleson, Esquire SCHNADER, HARRISON, SEGAL & LEWIS Fifth Avenue Place Suite 2700 120 Fifth Avenue Pittsburgh, PA 15222-3001 enneth R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax -5- t i IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY PENNSYLVANIA ' MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION I Plaintiff V. RITE AID CORPORATION, Defendant No. GD 07-001856 Code: - ORDER OF COURT ?~o <_ JUDGE GENE STRASSBURGER Copy sent to: John K. Gisleson, Esq. Schnader Harrison Segal & Lewis Fifth Avenue Place, Ste. 2700 120 5th Avenue Pittsburgh, PA 15222 Kenneth R. Behrend, Esq. Behrend & Ernsberger Ste. 1200 Park Bldg. 355 Fifth Avenue Pittsburgh, PA 15222 s GD.o? -t3u`"" .041 "4 • IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FO Plaintiff V. RITE AID CORPORATIO Defendant 1) Discovery sh 11 be completed by November 10, 2008. 2) Defendant's brief shall be filed, with a copy served on the Court and opposing counsel, by or before November 24, 2008. 3) Plaintiff's bri f shall be filed, with a copy served on the Court and opposing counsel, by or before December 8, 2008. 4) Briefs shall n t exceed five (5) pages. • ULAS, INC., ) ) No. GD 07-001856 ORDER OF COURT AND NOW, this 11 day of September, 2008, it is hereby ORDERED that: J. f ? • IN THE COURT OF COMMO N PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULA , INC., No. GD 07-001856 Plaintiff, Code: 011 V. Issue No. RITE AID CORPORATION, NOTICE OF SERVICE OF PLAINTIFF'S FIRST SET OF Defendant. DISCOVERY CONCERNING VENUE Filed on Behalf of: MXM Essential Formulas, Inc., '- o Plaintiff r: ca v>? CL Y Counsel of Record For This cy-, CS -} - 3 Parry: 'Q i17 ' Li. Kenneth R. Behrend - CL 4 PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12`n Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax JURY TRIAL DEMANDED (in-O' •001816. n*SFR?-.9 f r ,r • IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL Plaintiff, V. RITE AID CORPORATION, Defendant. PLAINTIFF'S INC., ) CIVIL DIVISION No. GD 07- 001856 vOTICE OF SERVICE OF SET OF DISCOVERY CONCERNING VENUE The undersigned counsel hereby certifies that Plaintiff's First Set of Discovery Concerning Venue has been sent to all parties and counsel of record listed below this 22"a day of September, 2008, by first class mail, postage repaid. John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS, LLP Suite 2700 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. BAenneth R. Beend ounsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 1 CERTIFICATE OF SERVICE I, Kenneth R. Behrend, hereby certify that a true and correct copy of the Notice of Service of Plaintiff's First Set of Discovery Concerning Venue in this matter was served upon all the parties by U. S. first-class mail, postage p#e-paid and/or hand delivery on this 22°d day of September, 2008, as follows: John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS, LLP Suite 2700 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. BY: enneth R. a end Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 2 ' 'fir ? ICI IN THE COURT OF COMMON 1 PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULA; Plaintiff, V. RITE AID CORPORATION, Defendant. c? d f2 W Ct- M ; Id.1 Cf c C: s, INC., No. GD 07-001856 Code: 011 Issue No. NOTICE OF SERVICE OF PLAINTIFF'S ANSWERS TO DEFENDANT'S FIRST SET OF DISCOVERY CONCERNING VENUE Filed on Behalf of: MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12' Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax JURY TRIAL DEMANDED ME Immolimmol Sim I' GD-07-001 E56 NSERV. 10 4i IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, PLAINTIFF'S The undersigned counsel of Discovery Concerning Venue 1 24' day of October, 2008, by firs John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS, LLP Suite 2700 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 CIVIL DIVISION No. GD 07- 001856 [OTICE OF SERVICE OF SET OF DISCOVERY CONCERNING VENUE iereby certifies that Plaintiff's Answers to Defendant's First Set as been sent to all parties and counsel of record listed below this class mail, postage prepaid. BEHREND AND ERNSBERGER, P.C. BY: Kenneth R. Be end Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 1 -low CERTIFICATE OF SERVICE I, Kenneth R. Behrend, hereby certify that a true and correct copy of the Notice of Service of Plaintiff's Answers to Defendant's First Set of Discovery Concerning Venue in this matter was served upon all the parties by U.S. first-class mail, postage pre-paid and/or hand delivery on this 240' day of October, 2008, as follows: John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS, LLP Suite 2700 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. BY: Kenneth R. ehren Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, I CIVIL DIVISION I NO.: 08-7162 V. RITE AID CORPORATION, Defendants. You are hereby notified to file a written response to the enclosed New Matter within 20 days from service hereof or a judgment may be entered against you. Gisleson, squire I ISSUE NO.: ANSWER AND NEW MATTER TO FIRST AMENDED COMPLAINT Filed on Behalf of Rite Aid Corporation, Defendant Counsel of record for this party: John K. Gisleson, Esquire PA Id. #62511 Schnader Harrison Segal & Lewis LLP Firm #061 Fifth Avenue Place, Suite 2700 120 5th Avenue Pittsburgh, PA 15222 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., CIVIL DIVISION Plaintiff, NO.: 08-7162 V. RITE AID CORPORATION, Defendant. ANSWER AND NEW MATTER TO FIRST AMENDED COMPLAINT Defendant, Rite Aid Hdqtrs. Corp. ("Rite Aid"), incorrectly sued as Rite Aid Corporation, by and through its attorneys Schnader Harrison Segal & Lewis LLP, hereby answers the First Amended Complaint and asserts New Matter as follows. 1. The allegation in Paragraph 1 of Plaintiff's Amended Complaint is admitted in part and denied in part. Rite Aid admits that MXM Essential Formulas, Inc. identifies itself as the Plaintiff. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief concerning the remaining allegations in this paragraph. Accordingly, those allegations are denied. 2. The allegation in Paragraph 2 of Plaintiff's Amended Complaint is denied. Rite Aid Hdqtrs. Corp. (like Rite Aid Corporation) is a Delaware corporation. The allegations in Paragraph 3 of Plaintiff's Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph. Accordingly, those allegations are denied. 2 4. The allegations in Paragraph 4 of Plaintiff's Amended Complaint are denied as stated. Triad ML Marketing, Inc ("Triad") did not sell Coral Calcium Daily to Rite Aid. Triad supplied Coral Calcium Daily subject to the terms and conditions of the Guaranteed Sales Agreement and other contracts between Triad and Rite Aid, with any payments and credits determined by the terms of those agreements. 5. The allegations in Paragraph 5 of Plaintiff's Amended Complaint are denied. Triad did not sell the Coral Calcium Daily to Rite Aid. Rather, it supplied Coral Calcium Daily pursuant to the terms of the Guaranteed Sales Agreement and other contracts between Triad and Rite Aid. Those documents established the terms of the relationship and the amounts payable, if any, to Triad. 6. The allegations in Paragraph 6 of Plaintiff's Amended Complaint are admitted in part and denied in part. Rite Aid admits that, from time to time, it made timely payments to Triad. Rite Aid denies that Triad sold the Coral Calcium Daily to Rite Aid. The terms of the relationship between Triad and Rite Aid are set forth in the Guaranteed Sales Agreement and other contracts between Triad and Rite Aid. Rite Aid denies as a conclusion of law to which no response is required that the course of dealing between Rite Aid and Triad "constitute[ed] an account stated." 7. The allegations in Paragraph 7 of Plaintiff's Amended Complaint are admitted in part and denied in part. Rite Aid admits on information and belief that MXM sued Triad in 2003 in the United States District Court for the Eastern District of Pennsylvania. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the allegations in the lawsuit. 3 8. The allegations in Paragraph 8 of Plaintiff's Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to whether MXM and Triad reached an "amicable settlement" of their lawsuit. Plaintiff did not attach a copy of the settlement agreement to the complaint. 9. The allegations in Paragraph 9 of Plaintiff's Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph. As a result, those allegations are denied. Plaintiff did not attach a copy of the settlement agreement to the complaint. 10. The allegations in Paragraph 10 of Plaintiff's Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph. As a result, those allegations are denied. 11. The allegations in Paragraph 11 of Plaintiffs Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph. As a result, those allegations are denied. 12. The allegations in Paragraph 12 of Plaintiff s Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph. As a result, those allegations are denied. 13. The allegations in Paragraph 13 of Plaintiff s Amended Complaint are admitted in part and denied in part. Rite Aid admits that it received a copy of the October 27, 2004 letter that is attached as Exhibit 2 to the Complaint. That letter is a document in writing and speaks for itself. Rite Aid denies Plaintiffs characterization of that document. 4 14. The allegations in Paragraph 14 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied to which no response is required. To the extent a response may be required, the allegations in this paragraph are denied. The October 27, 2004 letter is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 15. The allegations in Paragraph 15 of Plaintiff's Amended Complaint are denied. The October 27, 2004 letter is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. COUNTI BREACH OF CONTRACT 16. Rite Aid incorporates by reference each of the preceding paragraphs as if set forth at length herein. 17. The allegations in Paragraph 17 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid admits that it entered a Guaranteed Sales Agreement with Triad ML Marketing, Inc. and that there are other agreements pertaining to the relationship between Rite Aid and Triad. 18. The allegations in Paragraph 18 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusion of law which are deemed denied to which no response is required. To the extent a response may be required, the Guaranteed Sales Agreement and other contracts are documents in writing that speak for themselves. 19. The allegations in Paragraph 19 of Plaintiff's Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph. As a result, the allegations are denied. 20. The allegations in Paragraph 20 of Plaintiff's Amended Complaint are admitted in part and denied in part. Rite Aid admits that Exhibit 5 is a document entitled Statement of Account as of 11/20/07 for Triad ML Marketing, Inc. No. 30090 as of 11-20-07. That exhibit is a document in writing that speaks for itself, and Rite Aid denies Plaintiff s characterization of that document. 21. The allegations in Paragraph 21 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid denies the allegations in this paragraph. The invoices in this paragraph do not remain unpaid because Rite Aid has complied with the terms of the Guaranteed Sales Agreement and other contracts. MXM seeks monies to which it is not entitled. 22. The allegations in Paragraph 22 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite denies that it owes $98,280 to MXM or Triad and states that it has complied with the terms of the agreements that Rite Aid entered with Triad. 23. The allegations in Paragraph 23 of Plaintiff's Amended Complaint are denied. The Guaranteed Sales Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiffs characterization of that document. 6 24. The allegations in Paragraph 24 of Plaintiff's Amended Compliant are denied. The Guaranteed Sales Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 25. The allegations in Paragraph 25 of Plaintiff's Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to whether the document attached as Exhibit 4, which was not created by Rite Aid, contains all credits to which Rite Aid is entitled. Accordingly, the allegations in this paragraph are denied. It appears that it doest not include all credits to which Rite Aid is entitled. 26. The allegations in Paragraph 26 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. Further, the Guaranteed Sales Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 27. The allegations in Paragraph 27 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid denies that it breached the Guaranteed Sales Agreement and states to the contrary that it has at all times complied with the Guaranteed Sales Agreement and the other agreements entered between Triad and Rite Aid. Rite Aid further denies that it breached any "duty to MXM" and states to the contrary that it at all times acted properly and reasonably with respect to MXM. 7 A. Returns Agreement -- Unsaleable Product 28. The allegations in Paragraph 28 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. 29. The allegations in Paragraph 29 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, the Rite Aid Returns Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff s characterization of that document. 30. The allegations in Paragraph 30 of Plaintiff s Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. Further, the Returns Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiffs characterization of that document. To the extent a response may be required, Plaintiff failed to identify all applicable terms of that Agreement, which states that "All Vendor Review merchandise will be held for 21 days after invoice date for review. At that time, if not reviewed, or if no decision has been provided by the manufacturer of the product the product will be disposed of at the discretion of Rite Aid." Rite Aid provided proper notice through, at a minimum, its invoices. 31. The allegations in Paragraph 31 of Plaintiffs Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Returns Agreement dated July 22, 2003. Further, the Returns Agreement is a document in 8 writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. Moreover, Plaintiff is mischaracterizing the October 27, 2004 letter, which is a document in writing that speaks for itself. Rite Aid provided proper notice through, at a minimum, its invoices. 32. The allegations in Paragraph 31 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, the Returns Agreement is a document in writing and speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. Plaintiff also has failed to identify all applicable terms of the Returns Agreement, and Plaintiff is mischaracterizing the October 27, 2004 letter, which is a document in writing that speaks for itself. 33. The allegations in Paragraph 33 of Plaintiffs Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid denies that it failed to perform any duties and states to the contrary that it applied with the Returns Agreement. Plaintiff is mischaracterizing the October 27, 2004 letter, which is a document in writing that speaks for itself. Rite Aid provided proper notice through, at a minimum, its invoices. 34. The allegations in Paragraph 34 of Plaintiffs Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. Further, to the extent the allegations in this paragraph do not constitute conclusions of laws, Rite Aid, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, the 9 allegations are denied. Rite Aid provided proper notice through, at a minimum, its invoices to Triad. 35. The allegations in Paragraph 35 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. Further, to the extent the allegations in this paragraph do not constitute conclusions of laws, Rite Aid, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, the allegations are denied. Rite Aid complied with the Guaranteed Sales Agreement and the Returns Agreement. 36. The allegations in Paragraph 36 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. As a further answer, after reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to how MXM calculated the amounts in this paragraph, and the allegations therefore are denied. To the extent a response may be required, Rite Aid at all times complied with the Returns Agreement, including to the extent any merchandize was disposed. 37. The allegations in Paragraph 37 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law for which no response is required. To the extent a response may be required, Rite Aid states that it at all times acted properly, provided appropriate notice under the Guaranteed Sales Agreement and the Returns Agreement, and complied with all applicable agreements. Rite Aid provided proper notice with respect to all unsaleable merchandise. 10 38. The allegations in Paragraph 38 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Returns Agreement and the other agreements between Rite Aid and Triad. Rite Aid does not owe any money to MXM for unsaleable merchandise. 39. The allegations in Paragraph 39 of Plaintiff s Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Returns Agreement and was entitled to all deductions. B. Returns Agreement -- Recalled Product 40. The allegations in Paragraph 40 of Plaintiffs Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. As a further response, the Returns Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff s characterization of that document. 41. The allegations in Paragraph 41 of Plaintiff s Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. As a further response, the Returns Agreement is a document in writing and speaks for itself, and Rite Aid denies Plaintiffs characterization of that document. 42. The allegations in Paragraph 42 of Plaintiff s Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a 11 belief as to the truth of the allegations in this paragraph. Accordingly, the allegations are denied. Rite Aid does not know how Plaintiff calculated this number. 43. The allegations in Paragraph 43 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid at all times complied with the Returns Agreement. Further, MXM is mischaracterizing the October 27, 2004 letter, which is a document in writing that speaks for itself. Rite Aid provided proper notice through, at a minimum, its invoices to Triad. 44. The allegations in Paragraph 44 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Returns Agreement and provided any required notice. 45. The allegations in Paragraph 54 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Returns Agreement. 46. The allegations in Paragraph 46 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Returns Agreement, and all deductions are justified. Rite Aid provided proper notice through, at a minimum, its invoices. 12 C. Promotional Funding Agreement 47. The allegations in Paragraph 47 of Plaintiff's Amended Complaint are admitted. 48. The allegations in Paragraph 48 of Plaintiff's Amended Complaint are denied. The Promotional Funding Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 49. The allegations in Paragraph 49 of Plaintiff's Amended Complaint are denied. The Promotional Funding Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 50. The allegations in Paragraph 50 of Plaintiff's Amended Complaint are denied. The Promotional Funding Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 51. The allegations in Paragraph 51 of Plaintiff's Amended Complaint are denied. The Promotional Funding Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 52. The allegations in Paragraph 52 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied in to which no response is required. To the extent a response may be required, the Promotional Funding Agreement is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of that document. 13 53. The allegations in Paragraph 53 of Plaintiff's Amended Complaint are denied. The allegations in Paragraph 53 of Plaintiff's Amended Complaint constitute conclusions of law which are deemed denied and to which no response is required. 54. The allegations in Paragraph 54 of Plaintiff's Amended Complaint are denied. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the basis for the allegations in this paragraph. Accordingly, the allegations are denied. 55. The allegations in Paragraph 55 of Plaintiff's Amended Complaint are admitted in part and denied in part. Rite Aid admits that Exhibit 7 includes an invoice dated August 3, 2004 in the amount of $4,750. The invoice is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of the invoice. 56. The allegations in Paragraph 56 of Plaintiff's Amended Complaint are admitted in part and denied in part. Rite Aid admits that Exhibit 8 includes an invoice dated November 2, 2004 in the amount of $4,750. The invoice is a document in writing that speaks for itself, and Rite Aid denies Plaintiff's characterization of the invoice. 57. The allegations in Paragraph 57 of Plaintiff's Amended Complaint are denied as stated. The November 2, 2004 invoice is dated after the October 27, 2004 letter. Rite Aid denies that any legal obligation arose with respect to that invoice as a result of the October 27, 2004 letter. 58. The allegations in Paragraph 58 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law which are deemed denied and to 14 which no response is required. To the extent a response may be required, Rite Aid complied with the terms of the Promotional Funding Agreement and acted properly and reasonably with respect to MXM. Rite Aid denies that any legal obligation arose with respect to that invoice as a result of the October 27, 2004 letter. 59. The allegations in Paragraph 59 of Plaintiff's Amended Complaint are denied. Rite Aid complied with the Promotional Funding Agreement, including with respect to any marketing support. 60. The allegations in Paragraph 60 of Plaintiffs' Amended Complaint are admitted in part and denied in part. Rite Aid admits that certain merchandise was recalled beginning on June 13, 2005 and ending on July 4, 2005 and again on August 7, 2005 and ending on August 29, 2005. 61. The allegations in Paragraph 61 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the terms of the Promotional Funding Agreement. 62. The allegations in Paragraph 62 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Promotional Funding Agreement, including providing marketing support for promoting and advancing sales of Coral Calcium Daily products. 15 63. The allegations in Paragraph 63 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Guaranteed Sales Agreement, Returns Agreement, and Promotional Funding Agreement. MXM is seeking to receive monies to which it has no right. 64. The allegations in Paragraph 64 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid complied with the Guaranteed Sales Agreement, Returns Agreement, and Promotional Funding Agreement. MXM is seeking to receive monies to which it has no right. WHEREFORE, Defendant Rite Aid Corporation asks the Court to enter judgment in its favor and against Plaintiff and to award Rite Aid its costs and such other relief as is just and proper. COUNT II-IN THE ALTERNATIVE TO COUNT I UNJUST ENRICHMENT 65. Rite Aid incorporates by reference each of the preceding paragraphs as if set forth at length herein. 66. The allegations in Paragraph 66 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent a response is required, Plaintiff is not entitled to the requested relief. 16 67. The allegations in Paragraph 67 of Plaintiff s Amended Complaint are admitted in part and denied in part. Rite Aid admits that it received shipments of Coral Calcium Daily product from time to time (but not continuously) and that certain of that product was sold to the public. As a further answer, Rite Aid complied with the terms of all applicable agreements between Rite Aid and Triad. 68. The allegations in Paragraph 69 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid states that it complied with the terms of applicable agreements. 69. The allegations in Paragraph 69 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid avers that MXM is seeking money to which it has no entitlement. 70. The allegations in Paragraph 70 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid has not been unjustly enriched. 71. The allegations in Paragraph 71 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid has not been unjustly enriched. 17 72. The allegations in Paragraph72 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied to which no response is required. To the extent a response is required, Rite Aid does not owe any money to Plaintiff because it applied to the terms of all applicable agreements. 73. The allegations in Paragraph 73 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of all applicable agreements. 74. The allegations in Paragraph 74 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of the Promotional Funding Agreement and otherwise acted appropriately with respect to the promotion and sale of Coral Calcium Daily products. 75. The allegations in Paragraph 75 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of the Promotional Funding Agreement and otherwise acted appropriately with respect to the promotion and sale of Coral Calcium Daily products. 76. The allegations in Paragraph 76 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of all applicable agreements and was not unjustly enriched. 18 77. The allegations in Paragraph 77 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of all applicable agreements and was not unjustly enriched. 78. The allegations in Paragraph 78 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of all applicable agreements and was not unjustly enriched. 79. The allegations in Paragraph 79 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of all applicable agreements and was not unjustly enriched. 80. The allegations in Paragraph 80 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of all applicable agreements and was not unjustly enriched. 81. The allegations in Paragraph 81 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid complied with the terms of all applicable agreements and was not unjustly enriched. 19 WHEREFORE, Defendant Rite Aid Corporation asks the Court to enter judgment in its favor and against Plaintiff and to award Rite Aid its costs and such other relief as is proper. COUNT III-IN THE ALTERNATIVE TO COUNT I CONVERSION 82. Rite Aid incorporates by reference its allegations in each of the proceeding paragraphs as if set forth at length herein. 83. The allegations in Paragraph 83 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Plaintiff is not entitled to the relief it seeks. 84. The allegations in Paragraph 84 of Plaintiff's Amended Complaint are admitted in part and denied in part. Rite Aid admits that from time to time it received shipments of Coral Calcium Daily from Triad. Rite Aid sold certain of that merchandise, but not all of that merchandise. As a further answer, Rite Aid complied with the terms of all applicable agreements. 85. The allegations in Paragraph 85 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid received Coral Calcium Daily from time to time, and Rite Aid agreed to compensate Triad consistent with the terms of the agreements entered by Rite and Triad. MXM is mischaracterizing the October 27, 2004 letter and otherwise seeking monies to which it has no entitlement. 20 86. The allegations in Paragraph 86 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent an answer may be required, the agreements between Rite Aid and Triad addressed the parties' respective rights and obligations. Further, after reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the relative rights between MXM and Triad. 87. The allegations in Paragraph 87 of Plaintiff's Amended Complaint are admitted in part and denied in part. From time to time between June 2004 and March 2007, Rite Aid disposed of Coral Calcium Daily consistent with the terms of the agreements between Triad and Rite Aid. Rite Aid at all times complied with the terms of the agreements between Rite Aid and Triad. Rite Aid did not "knowingly" dispose of products in violation of any alleged rights of MXM. 88. The allegations in Paragraph 88 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid acted properly and reasonably with respect to any Coral Calcium Daily products in its possession and complied with the terms of all applicable agreements. 89. The allegations in Paragraph 89 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid acted properly and reasonably with respect to the Coral Calcium Daily products. MXM is seeking monies to which it has no entitlement. 21 90. The allegations in Paragraph 90 of Plaintiff's Amended Complaint is admitted in part and denied in part. Rite Aid admits that between July 15, 2005 and December 2005, Rite Aid from time to time recalled certain Coral Calcium Daily products. Rite Aid denies as a conclusion of law to which no response is required that it had an obligation to notify MXM inasmuch as Rite Aid did not seek to modify any terms and conditions of the agreements with Triad. 91. The allegations in Paragraph 91 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid at all times acted properly, reasonably, and in compliance with the terms of the agreements between Rite aid and Triad. Rite Aid denies as a conclusion of law to which no response is required that it had an obligation to notify MXM inasmuch as Rite Aid did not seek to modify any terms and conditions of the agreements with Triad. 92. The allegations in Paragraph 92 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, the parties' respective rights and obligations are described in the agreements, which are in writing and speak for themselves. Rite Aid at all times acted properly, reasonably, and in compliance with the terms of the agreements between Rite aid and Triad. 93. The allegations in Paragraph 93 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid at all times acted 22 properly, reasonably, and in compliance with the terms of the agreements between Rite aid and Triad. MXM is seeking monies to which it has no entitlement. 94. The allegations in Paragraph 94 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid at all times acted properly, reasonably, and in compliance with the terms of the agreements between Rite aid and Triad. 95. The allegations in Paragraph 94 of Plaintiff s Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response is required, Rite Aid at all times acted properly, reasonably, and in compliance with the terms of the agreements between Rite Aid and Triad. 96. The allegations in Paragraph 96 of Plaintiff's Amended Complaint are denied. The allegations in this paragraph constitute conclusions of law, which are deemed denied and to which no response is required. To the extent a response may be required, Rite Aid at all times acted properly, reasonably, and in compliance with the terms of the agreements between Rite Aid and Triad. Rite Aid did not seek to deprive MXM of the Coral Calcium products. WHEREFORE, Defendant Rite Aid Corporation asks the Court to enter judgment in its favor and against Plaintiff and to award Rite Aid its costs and such other relief as is proper. 23 NEW MATTER 1. Rite Aid incorporates by reference each of the preceding allegations as if set forth at length herein. 2. The Rite Aid Returns Agreement states that "All Vendor Review merchandise will be held for 21 days after invoice date for review. At that time if not reviewed, or if no decision has been provided by the manufacturer the product will be disposed of at the discretion of Rite Aid." 3. Rite Aid's invoices for Retumed/Unsaleable Items stated that "[i]f product disposition is vendor pickup or hold for review, you have 21 days from invoice date to contact returns coordinator (717-972-3937) to arrange shipping or product review. Invoice is your formal notification. Failure to respond in 21 days, product will be disposed at Rite Aid's discretion." 4. Plaintiff is estopped from asserting any of the claims here based on its failure and/or that of Triad to contact Rite Aid with respect to the merchandise at issue in the Complaint after Rite Aid sent the invoices. Rite Aid was justified with respect to the actions it took based on Plaintiff's and/or Triad's failure to contact Rite Aid with respect to the merchandise which is the subject of the Complaint after Rite Aid sent the invoices. 6. Rite Aid has paid monies owed for some or all of the merchandise that is the subject of the Complaint. 24 7. Rite Aid is entitled to offsets against any monies that may be owed (which is denied) based on credits and adjustments under the terms of the Guaranteed Sales Agreement, the Returns Agreement, and/or the Promotional Funding Agreement. 8. Plaintiff's claims may be barred by applicable statutes of limitations. 9. Triad ML Marketing, Inc. is solely liable to MXM or liable over to MXM or jointly and several liable based on the allegations in the First Amended Complaint inasmuch as Triad indemnified Rite Aid pursuant to a November 25, 2002 Defense and Indemnity Agreement pursuant to which Triad indemnified Rite Aid "from any and all losses, expenses, damages, costs and attorneys' fees that they, or any of them, may at any time from the date hereof incur by reason of any ... lawsuits brought against them, or any of them, arising out of the sale, purchase, consumption and/or use of each of the goods, products, or other items or articles sold by Seller." (A true and correct copy of the Defense and Indemnity Agreement is included in Exhibit 3 to the First Amended Complaint.) 10. On information and belief, Triad failed to provide MXM with invoices and other documents that Rite Aid provided to Triad concerning unsaleable goods, marketing, and recalls. Triad, and not Rite Aid, should have provided those documents to MXM and/or communicated with Rite Aid concerning the disposition of the merchandise at issue in the First Amended Complaint. 11. Triad, and not Rite Aid, had an obligation to advise MXM and/or communicate with Rite Aid concerning the procedures for the sale, inspection, return, and/or destruction of products. 25 12. Any alleged losses experienced by MXM (which are denied) were caused by Triad's failure to advise MXM and/or Rite Aid concerning the procedures for the sale, inspection, return, and/or destruction of products. 13. MXM itself, either solely or in conjunction with Triad, is at fault for any losses MXM experienced (the existence of which is denied) based on MXM's and/or Triad's failure to contact Rite Aid concerning the Coral Calcium products at issue in the First Amended Complaint. WHEREFORE, Defendant Rite Aid Corporation asks the Court to enter judgment in its favor and against Plaintiff and to award Rite Aid its costs and such other relief as is proper. Respectfully submitted Jo K. Gisleson, Esquire P Id. No. 62511 Srmader Harrison Segal & Lewis LLP Suite 2700, Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 577-5200 Facsimile: (412) 765-3858 26 VERIFICATION Ron Chima signs this Verification on behalf of Rite Aid Hdqtrs. Corp., and does hereby verify that the foregoing Answer and New Matter was prepared with the assistance and advice of counsel, and in reliance upon counsel's advice, that the document, subject to inadvertent or undiscovered errors, is based upon and therefore limited by the records and information still in existence, presently recollected and thus far discovered in preparation of this document, and that subject to the limitations set forth herein, the statements contained in this document are true and correct to the best of his knowledge, information and belief. The language of the foregoing document is that of counsel. It is understood that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: May 2009 R CHIMA Associate Counsel for Rite Aid CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer and New Matter to First Amended Complaint, was served via U.S. Mail, First Class, postage pre-paid, this day of May, 2009, upon the following: Kenneth R. Behrend, Esquire Behrend and Ernsberger, P.C. Park Building, 12th 355 Fifth Avenue Pittsburgh, PA 15222 Attorneys for Plaintiff f Ifs: O TES: i` YJIt"::..,"\'j"AY 2,13 ,• , I .5 ?J fir, i J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MXM ESSENTIAL FORMULAS, INC., No. 08-7162 Plaintiff, V. Issue No. RITE AID CORPORATION, Defendant. REPLY TO NEW MATTER Filed on Behalf of: MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12t' Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., Plaintiff, CIVIL DIVISION No. 08-7162 V. RITE AID CORPORATION, Defendant. REPLY TO NEW MATTER Plaintiff, MXM Essential Formulas, Inc., by and through its attorneys, Kenneth R. Behrend and the law firm of Behrend and Ernsberger, P. C., and sets forth the following Reply to New Matter, and in support thereof avers as follows: Paragraph 1 of Defendant's New Matter is an incorporation paragraph to which no response is necessary. 2. Paragraph 2 of Defendant's New Matter is admitted. However, Defendant failed to notify Plaintiff that any returns existed prior to the 21 days elapsing. Therefore, Plaintiff was prevented from reviewing the merchandise in a timely manner because of Rite Aid's failure to inform Plaintiff that there were returns. Furthermore, Rite Aid failed to notify MXM of the returns until after this action was commenced by MXM. 3. Paragraph 3 of Defendant's New Matter is admitted. However, Defendant failed to notify Plaintiff that any returns existed prior to the 21 days elapsing. Therefore, Plaintiff was prevented from reviewing the merchandise in a timely manner because of Rite Aid's failure to inform Plaintiff that there were returns. Furthermore, Rite Aid failed to notify MXM of the returns i until after this action was commenced by MXM. 4. Paragraph 4 of Defendant's New Matter is denied. Plaintiff is not estopped from asserting any of the claims here based on its failure and/or that of Triad to contact Rite Aid with respect to the merchandise at issue in the Complaint. It is denied that Rite Aid sent any invoices to Plaintiff who was the owner of the merchandise at all relevant times herein. Although Rite Aid was notified on or about October 27, 2004 that Plaintiff was the owner of said product and that Rite Aid was to notify Plaintiff concerning modification of any current terms or conditions related to the sale of the coral calcium products which was currently in Rite Aid's possession, Rite Aid failed to do so. Instead, Defendant Rite Aid destroyed Plaintiffs product without notifying Plaintiff and without Plaintiff's consent. (See Paragraphs 12, 13, and 14 of Plaintiffs First Amended Complaint and Exhibit 2 attached thereto.) By way of further answer, it is specifically denied that notice, if any, provided by Rite Aid to Triad is proper notice to MXM. It is denied that Triad had any authority to act on behalf of MXM. To the contrary, MXM took full possession and control of the products as owner thereof and informed Rite Aid of this fact. 5. Paragraph 5 of Defendant's New Matter is denied. Rite Aid was not justified with respect to the actions it took based on Plaintiffs and/or Triad's failure to contact Rite Aid with respect to the merchandise which is subject of the Complaint. It is denied that Rite Aid sent any invoices to Plaintiff, who was the owner of the merchandise, prior to Rite Aid destroying the merchandise. To the contrary, although Rite Aid was notified on or about October 27, 2004 that Plaintiff was now the owner of said product and that Rite Aid was to notify Plaintiff concerning modification of any current terms or conditions related to the sale of the coral calcium products which was currently in Rite Aid's possession, Defendant Rite Aid failed to do so. Instead, 2 Defendant Rite Aid destroyed Plaintiff s product without notifying Plaintiff and without Plaintiff's consent. (See Paragraphs 12, 13, and 14 of Plaintiffs First Amended Complaint and Exhibit 2 attached thereto.) By way of further answer, it is specifically denied that notice, if any, provided by Rite Aid to Triad is proper notice to MXM. It is denied that Triad had any authority to act on behalf of MXM. To the contrary, MXM took full possession and control of the products as owner thereof and informed Rite Aid of this fact. 6. Paragraph 6 of Defendant's New Matter is denied. After reasonable investigation the Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment set forth in Paragraph 6 of the New Matter and strict proof of the same is demanded at the time of the trial in this matter. 7. Paragraph 7 of Defendant's New Matter is denied. Defendant is not entitled to any offsets against monies due and owing to Plaintiff. To the contrary, Rite Aid breached its duties pursuant to the Guaranteed Sales Agreement, the Returns Agreement and the Promotional Funding Agreement. Defendant Rite Aid failed to timely pay for merchandise, failed to perform marketing support for promoting and advancing the sales of the Coral Calcium Daily merchandise for the year 2005, and failed to notify Plaintiff of the returned and recalled merchandise prior to destroying the same. 8. Paragraph 8 of Defendant's New Matter is denied. Plaintiff's claims are not barred by applicable statutes of limitations. The breach of contract claims set forth in Plaintiff's First Amended Complaint began on March 13, 2004 when payment became due on the oldest outstanding invoice which was dated February 12, 2004. The statute of limitations for breach of contract is four years. Likewise, the unjust enrichment claims set forth in Plaintiff's First Amended Complaint 3 began on March 13, 2004 when payment became due on the oldest outstanding invoice which was dated February 12, 2004. The statute of limitations for unjust enrichment is four years. The Writ of Summons was filed on January 25, 2007 tolling the statute of limitations for these claims. Therefore, Plaintiffs breach of contract and unjust enrichment claims were timely filed. The conversion claims set forth in Plaintiff s First Amended Complaint began on August 10, 2007 when Plaintiff first became aware that the conversion of its merchandise had taken place because Plaintiff received written documents revealing the conversion for the first time. Prior to that date, Plaintiff was unaware of the conversion of its merchandise due to Defendant's fraudulent concealment. The statute of limitations for conversion is two years. The First Amended Complaint which added Plaintiff s conversion claims was filed on June 10, 2008 well within the two years of discovery of these claims. Therefore, Plaintiff's conversion action was timely filed. 9. Paragraph 9 of Defendant's New Matter is denied. The Defense and Indemnity Agreement does not include breach of contract claims against Rite Aid for failure to pay for merchandise received by it and/or for the destruction of merchandise without proper consent of MXM. 10. Paragraph 10 of Defendant's New Matter is denied. To the contrary, Rite Aid was notified on or about October 27, 2004 that Plaintiff became the the owner of the merchandise which was in the possession of Rite Aid as well as the owner of all outstanding balances due to Triad by Rite Aid as of October 13, 2004. (See Exhibit 2 to Plaintiff s First Amended Complaint.) Despite this notification, Defendant Rite Aid destroyed merchandise owned by MXM, the majority of which was after October 27, 2004, without prior notification to MXM. Furthermore, Triad provided MXM with a ledger of its account with Rite Aid at the time of the settlement reached between MXM and 4 Triad. The ledger provided by Triad did not include any invoices from Rite Aid to Triad concerning the merchandise destroyed by Rite Aid between June 18, 2004 and October 15, 2004. Plaintiff, therefore, demands strict proof at the time of trial of this matter that Rite Aid provided invoices D165093299, D169332299, D174967790, D183863299, D179435790, D178362299, D182620299, and D 183738790 to Triad prior to destroying the merchandise listed in these invoices. Since neither Triad and/or MXM was contacted by Rite Aid prior to the destruction of the merchandise, Rite Aid breached it contract with Triad/MXM and is, therefore, indebted to MXM for the destroyed merchandise. By way of further answer, Rite Aid had the obligation to inform MXM upon notification of Rite Aid of the assignment to MXM. 11. Paragraph 11 of Defendant's New Matter is denied. To the contrary, it was Rite Aid's obligation, and not Triad's, to advise and/or communicate with MXM concerning the procedures for the sale, inspection, return and/or destruction of products. Defendant Rite Aid was notified on or about October 27, 2004 that MXM had become the owner of all outstanding balances and merchandise as of October 13, 2004. Rite Aid was also notified that it was to contact MXM and not Triad concerning any modification of any current terms or conditions related to the sale of the coral calcium products which was currently in Rite Aid's possession and that Rite Aid was to contact MXM as to any additional information regarding MXM's rights and obligations concerning the Coral Calcium Daily product. (See Paragraphs 12, 13, and 14 of Plaintiff's First Amended Complaint.) 12. Paragraph 12 of Defendant's New Matter is denied. To the contrary, all losses experienced by MXM were the direct result of Rite Aid's failure to contact MXM prior to destroying Plaintiff s merchandise as well as Rite Aid's failure to pay outstanding invoices after demand for payment of the same had been made. As stated in Paragraph 11 above, it was Rite Aid's obligation, 5 and not Triad's, to advise and/or communicate with MXM concerning the procedures for the sale, inspection, return and/or destruction of products. Defendant Rite Aid was notified on or about October 27, 2004 that MXM had become the owner of all outstanding balances and merchandise as of October 13, 2004. Rite Aid was also notified that it was to contact MXM and not Triad concerning any modification of any current terms or conditions related to the sale of the coral calcium products which was currently in Rite Aid's possession and that Rite Aid was to contact MXM as to any additional information regarding MXM's rights and obligations concerning the Coral Calcium Daily product. (See Paragraphs 12, 13, and 14 of Plaintiff's First Amended Complaint.) 13. Paragraph 13 of Defendant's New Matter is a conclusion of law to which no response is necessary. However, should a response be deemed necessary, Paragraph 13 is denied. To the contrary all losses sustained by MXM in this matter were the direct result of Rite Aid's actions and/or inactions. WHEREFORE, Plaintiff MXM Essential Formulas, Inc. requests this Honorable Court enter judgment in its favor and against Defendant. BEHREND AND ERNSBERGER, P.C. Kenneth R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 6 VERIFICATION I, Rebecca Brainard, hereby verify that the statements in the foregoing Reply to New Matter are true and correct to the best of my information, knowledge and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false statements, I may be subject to criminal penalties. I am authorized to make this verification on behalf of MXM Essential Formulas, Inc. because of my position as President. Date: -"Rebekca"gf6inard 7 CERTIFICATE OF SERVICE I, Kenneth R. Behrend, hereby certify that a true and correct copy of the Reply to New Matter in this matter was served upon all the parties by U.S. first-class mail, postage pre-paid and/or hand delivery on this 3`d day of June, 2009, as follows: John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS, LLP Suite 2700 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. B?'enneneth R. ehre ounsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax FILED-OFFICE CF THE PPOTf NARY 2009 JUN -- 5 PM 1: 3 3 CUM w-,`,- ? ?; JNTY PENINISYLVAIN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION o z, MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. .y ? rn Docket No. 08-7162 Code: 011 C C4 `T C>ftl N --i Issue No. N) NOTICE OF SERVICE OF PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT, RITE AID CORPORATION Filed on Behalf of: MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12th Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. PENNSYLVANIA CIVIL DIVISION Docket No. 08-7162 NOTICE OF SERVICE OF PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DIRECTED TO DEFENDANT, RITE AID CORPORATION The undersigned counsel hereby certifies that Plaintiff's First Set of Requests for Production of Documents Directed to Defendant, Rite Aid Corporation has been sent to all parties and counsel of record listed below this 4t' day of February, 2010, by first class mail, postage prepaid. John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS LLP Fifth Avenue Place, Suite 2700 120 Fifth Avenue Pittsburgh, PA 15222-3001 G Kenneth R. Behrend Counsel for Plaintiff PA I.D. No. 37961 BEHREND AND ERNSBERGER, P.C. Park Building, 12' Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 CERTIFICATE OF SERVICE I, Kenneth R. Behrend, hereby certify that a true and correct copy of the Notice of Service of Plaintiff's First Set of Requests For Production of Documents Directed to Defendant, Rite Aid Corporation in this matter was served upon all the parties by U.S. first-class mail, postage pre- paid and/or hand delivery on this 4' day of February, 2010 as follows: John K. Gisleson, Esquire SCHNADER HARRISON SEGAL & LEWIS LLP Fifth Avenue Place, Suite 2700 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. BY: ? , 3 5 ? / /Z/Z'/'? /Kenneth R. ehr d Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 2 A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA n _P*4 CIVIL DIVISION ° MXM ESSENTIAL FORMULAS, INC., Plaintiff, V. RITE AID CORPORATION, Defendant. n7 m t- --? Docket No. 08-7162 = - fi _ Code: 011 tv Issue No. NOTICE OF SERVICE OF PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST SET OF DISCOVERY DIRECTED TO PLAINTIFF Filed on Behalf of: MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12`h Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MXM ESSENTIAL FORMULAS, INC., ) CIVIL DIVISION Plaintiff, ) Docket No. 08-7162 V. ) RITE AID CORPORATION, ) Defendant. ) NOTICE OF SERVICE OF PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST SET OF DISCOVERY DIRECTED TO PLAINTIFF The undersigned counsel hereby certifies that Plaintiff's Responses to Defendant's First Set of Discovery Directed to Plaintiff has been sent to all parties and counsel of record listed below this 14th day of April, 2010, by first class mail, postage prepaid. John K. Gisleson, Esquire Emily M. Ayoub, Esquire SCHNADER HARRISON SEGAL & LEWIS LLP Fifth Avenue Place, Suite 2700 120 Fifth Avenue Pittsburgh, PA 15222-3001 f enneth R. B end Counsel for Plaintiff PA I.D. No. 37961 BEHREND AND ERNSBERGER, P.C. Park Building, 12th Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 CERTIFICATE OF SERVICE I, Kenneth R. Behrend, hereby certify that a true and correct copy of the Notice of Service of Plaintiff's Responses to Defendant's First Set of Discovery Directed to Plaintiff in this matter was served upon all the parties by U.S. first-class mail, postage pre-paid and/or hand delivery on this 14`h day of April, 2010 as follows: John K. Gisleson, Esquire Emily M. Ayoub, Esquire SCHNADER HARRISON SEGAL & LEWIS LLP Fifth Avenue Place, Suite 2700 120 Fifth Avenue Pittsburgh, PA 15222-3001 BEHREND AND ERNSBERGER, P.C. BY: Kenneth R. Be end Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 2 MXM ESS 1 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA =C-) r = ?{ -c, 3 - _ ay M CIVIL DIVISION z ?r- -<D ;yj E ? C3 s? NTIAL FORMULAS, INC., Docket No. 08-7162 =Q zF3 y ;- rn e Plaintiff, Code: 011 z V. RITE AID ORPORATION, Defendant. Issue No. NOTICE OF SERVICE OF PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT, RITE AID CORPORATION Filed on Behalf of. MXM Essential Formulas, Inc., Plaintiff Counsel of Record For This Party: Kenneth R. Behrend PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Park Building, 12`" Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax t" MXM ES PENNSYLVANIA RITE AID THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, TIAL FORMULAS, INC., Plaintiff, V. RPORATION, Defendant. CIVIL DIVISION Docket No. 08-7162 NOTI E OF SERVICE OF PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTE TO DEFENDANT, RITE AID CORPORATION The undersigned counsel hereby certifies that Plaintiff's First Set of Requests for Production of Documents Directed to Defendant, Rite Aid Corporation has been sent to all parties and counsel of record listed below this 21St day of June, 2011 by first class mail, postage prepaid. John K. Gi, SCHNADF SEGAL & ] Fifth Avent 120 Fifth A Pittsburgh, son, Esquire HARRISON ;WIS LLP Place, Suite 2700 'A 15222-3001 Kenneth 4R. Behrend Counsel for Plaintiff PA I.D. No. 37961 BEHREND AND ERNSBERGER, P.C. Park Building, 12th Floor 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 1 r CERTIFICATE OF SERVICE I, enneth R. Behrend, hereby certify that a true and correct copy of the Notice of Service of Plaintiff s First Set of Interrogatories Directed to Defendant, Rite Aid Corporation in this matter was served upon all the parties by U. S. first-class mail, postage pre-paid and/or hand delivery on this 29`h day of John K. Gi SCHNADI SEGAL & Fifth Aven 120 Fifth A Pittsburgh, , 2011 as follows: son, Esquire HARRISON '1WIS LLP Place, Suite 2700 PA 15222-3001 BEHREND AND ERNSBERGER, P.C. BY: Kenneth R. Behrend Counsel for Plaintiff PA ID No. 37961 BEHREND AND ERNSBERGER, P.C. Firm No. 018 Suite 1200 Park Building 355 Fifth Avenue Pittsburgh, PA 15222 (412) 391-2515 (412) 391-2762 Fax 2 MXM ESSENTIAL FORMULAS, INC. vs Case No. 08-7162 RITE AID CORPORATION W Statement of Intention to Proceed CD To the Court: CD a� tt MXM Essential Formulas, Inc. intends to proceed with the above captioned r e ter.C' -4 - Kenneth R. Behrend Print Name Sign Na;;P Date: 9/04/13 Attorney for laintiff Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I.Rule ofcivil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice,preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle,551 Pa.360,710 A.2d 1104 (1998) in which the court held that"prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b)has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable. 11 Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties. If the parties do not wish to pursue the case,they will take no action and"the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d)for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period,subdivision(d)(3)requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2.