HomeMy WebLinkAbout12-5164RITE AID HDQTRS. CORP,
FULLBAR LLC,
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
NO. 12- 511kIVIL TERM
CIVIL ACTION - LAW
Defendant.
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NOTICE TO DEFEND
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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 by 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 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, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES
THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A
REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone: (717) 249-3166
62V
RITE AID HDQTRS. CORP,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
NO.
CIVIL
VS.
FULLBAR LLC, CIVIL ACTION - LAW
Defendant.
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas
que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los
pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE
CUALIFICAN.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone: (717) 249-3166
RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF
30 Hunter Lane
Camp Hill, PA 17011
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
NO. CIVIL
VS.
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FULLBAR LLC, CIVIL ACTION - LAW, = M="
6000 Greenwood Plaza Blvd.
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Ste. 120
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Greenwood Village, CO 80111 ` i
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Defendant. C-
COMPLAINT
Plaintiff Rite Aid HDQTRS. Corp. ("Rite Aid"), by its undersigned attorneys,
files this Complaint alleging as follows:
PARTIES
1. Rite Aid is a Delaware corporation with its principal place of business at
30 Hunter Lane, Camp Hill, Pennsylvania 17011.
2. On information and belief, defendant FullBar LLC ("Fullbar") is a
Colorado limited liability corporation with a principal place of business at 6000 Greenwood
Plaza Boulevard., Suite 120, Greenwood Village, Colorado 80111.
JURISDICTION AND VENUE
3. This court has jurisdiction pursuant to 42 Pa.C.S. §931(a).
4. Venue in this Court is proper because the cause of action arose in
Cumberland County and a transaction or occurrence took place out of which the cause of action
arose in Cumberland County.
5. The parties have also agreed that any lawsuit brought with regard to the
Guaranteed Sales Agreement, executed between the parties must be venued in this Court: "Any
lawsuit brought with regard to this Guaranteed Sales Agreement will be venued in the Court of
Common Pleas, Cumberland County, Pennsylvania." A true and correct copy of the Guaranteed
Sales Agreement ("GSA"), a valid and enforceable written contract, is attached to this Complaint
as Exhibit A.
RELEVANT FACTS
6. Rite Aid is a national drug store chain with its principal office in
Cumberland County, Pennsylvania.
7. At all times relevant to this Complaint, Fullbar was involved in the
manufacture, sale and/or distribution of weight loss bars and other food items.
8. In 2008, Fullbar became a new vendor of Rite Aid and began to sell
Fullbar products in Rite Aid stores. To govern this relationship, Rite Aid and Fullbar entered
into the GSA on June 30, 2008, in which Fullbar "guarantee[d] the sale of [Fullbar's] product to
Rite Aid at both Customer Service Centers (i.e. distribution centers) and retail locations." See
Exhibit A.
9. Under the GSA, Rite Aid had the right to return all unsold product to
Fullbar for a cash refund.
10. Fullbar also entered into a Rite Aid Returns Agreement providing a
method for the return of any damaged, defective, outdated or discontinued product. A true and
correct copy of the Rite Aid Returns Agreement is attached as Exhibit B.
11. Fullbar also entered into various Promotional Funding Agreements and
other promotional agreements with Rite Aid. True and correct copies of such agreements are
attached as Exhibit C.
-2-
12. On or about February 15, 2012, Fullbar informed Rite Aid that it was
repudiating the parties' contractual relationship.
13. Despite guaranteeing the sale of its product and agreeing to accept, and
pay for, the return of unsold products, Fullbar has refused to accept the return of its product or
provide cash payment to Rite Aid for the unsold product for which Rite Aid paid.
14. As of August 8, 2012, Fullbar's account reflects a $205,382.39 negative
balance based on charges that Fullbar agreed to pay to Rite Aid including advertising
allowances, markdowns, unsaleable product and other vendor charges.
15. Additionally, Rite Aid is still holding over $124,000 worth of product that
it seeks to return.
16. As of the date of the filing of this Complaint, Fullbar is in breach of its
agreement with Rite Aid because it refuses to pay Rite Aid the negative account balance and the
cash payment for the unsold product.
17. As of the date of the filing of this Complaint, Fullbar is in breach of its
agreement with Rite Aid because it refuses to accept the return of the unsold product.
COUNT 1
BREACH OF CONTRACT
Rite Aid vs. Fullbar
18. Rite Aid incorporates the averments in paragraphs 1 through 17 above as
if fully set forth herein.
19. As noted above, in or about June of 2008, Rite Aid and Fullbar entered
into an agreement as evidenced by the Guaranteed Sales Agreement, the Rite Aid Returns
Agreement, and the promotional agreements and pursuant to which Fullbar agreed to various
vendor charges and guaranteed the sale of its product.
-3-
20. The agreements Rite Aid entered into with Fullbar were valid and
enforceable.
21. Rite Aid has performed all conditions precedent under all agreements with
Fullbar.
22. As of August 8, 2012, Fullbar has a negative account balance of
$205,382.39 and Rite Aid seeks to return over $124,000 of additional product.
23. Despite repeated requests and attempts to resolve this matter, Fullbar
refuses to pay the negative account balance to Rite Aid or to accept and pay for the return of its
product.
24. Fullbar is in breach of its contract with Rite Aid because it has failed to
pay the negative balance on its account and to accept and pay for the product that Rite Aid seeks
to return.
25. Fullbar's conduct is without excuse or justification
26. As of August 9, 2012, Rite Aid has suffered damages in excess of
$329,382.39 due to the breaches of Fullbar.
WHEREFORE, Rite Aid requests judgment in an amount in excess of
$329,382.39, plus interest, costs and all other amounts deemed appropriate by the Court.
COUNT II
UNJUST ENRICHMENT
Rite Aid vs. Fullbar
27. Rite Aid incorporates the averments in paragraphs 1 through 26 above as
if fully set forth herein.
28. In the event Fullbar contends no contractual relationship exists, Rite Aid is
entitled to recover the outstanding amounts to prevent Fullbar from being unjustly enriched.
-4-
29. As is customary in the industry, Fullbar was to pay for certain fees
associated with the sale of its product.
30. Rite Aid has a reasonable expectation to be paid the negative balance
comprising such fees and for the unsold product it is currently holding.
31. In the event the contracts are deemed to be unenforceable, Rite Aid has no
adequate remedy at law.
32. Fullbar reasonably should have expected to pay these fees as such fees are
custom in the industry. Further, Fullbar reasonably should have expected to permit returns of its
product and to pay certain fees related to those returns.
33. It would be inequitable for Fullbar to receive the benefit of the amounts
still owed to Rite Aid.
34. Rite Aid is entitled to collect the outstanding balance, plus interest, from
Fullbar under the doctrine of unjust enrichment.
35. Fullbar's wrongful conduct has caused damage to Rite Aid.
-5-
WHEREFORE, Rite Aid requests judgment in its favor and against Fullbar in an
amount in excess of $329,382.39, plus interest, costs and all other amounts deemed appropriate
by the Court.
Respectfully submitted,
Brian P. Downey (PA 59891)
Kathleen A. Mullen (PA 84604)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
P.O. Box 1181
Harrisburg, PA 17108-1181
717.255.1155
800.420.0618 Fax
downeyb@pepperlaw.com
alcarof@pepperlaw.com
Date: August 17, 2012 Attorneys for Plaintiff
Rite Aid HDQTRS. Corp.
-6-
// ? '* -9 / "
v
17/23/2001 13:56 FAX ®011/017
RITE AID
GUARANTEED SALES AGREEMENT
Rite Aid will consider Vendor's product(s) for distribution and sale under the terms and
conditions sot 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 pmetee the safe of Vendor's product(s) to Rite Aid at both Customer
Service Centers (i.e. distribution centers) 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's 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). After the Review Period, Rite Aid will pay only for those
product(s) that are actually sold, and Rite Aid's payment will be reduced by any and all
cash discounts or other debit amounts (ncluding, but not limited to, advertising,
displays, markdowns and price protection) due to Rite Aid. If at the and of the Review
Period, Rite Aid determines, in its sole discretion, that the Vendor's product(s) is not
selling at as acceptable rate, than Rite Aid will have the right to (a) require Vendor to
review and modify Vendor's marketing plan to ensure fWure 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 customary payment terms, or extend the Review Period as
Rite Aid, in its sole discretion, so desires.
3. If at any time Rite Aid detwmines 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 product(s) to Vendor's facility in return for Vendor's cash
payment to Rite Aid for any 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 finds or certified check, and (b) no later than fifteen (15) days after Rite Aid
has returned the product(s). Vendor acknowledges and agrees that in the event that any of
Vendor's allowances are funded with "free product" flom Vendor, that "free product"
will be treated identically to product purchased from Vendor by Rite Aid. This
includes,but is not limited to, returns of this product to Vendor.
4. 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.
Ravind 10127/2007
12%29/2001 19:56 FAX
0012/017
5. 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 order. In the event of inconsistency between the terms and conditions of the
Agreement and any of the foregoing docurnents, this Agreement will govern.
6. The parties agree that Pennsylvania law governs this Agreement not withstanding its
conflicts of law 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 dt 2327(b) am inapplicable and
that Vendor will accept returned goods in their "as-is" condition.
S. All returns are at risk of vendor.
9. Vendor can not assign any product covered by this Agreement to any third party without
the express written consent of a Vice President of Category Management.
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 you in your distribution needs by arranging for a duly authorized officer to sign
and date this Agreement on behalf of your company, and rerun the executed letter to Rite Aid's
Merchandising Department.
Vendor. _1'ULLBAR, LL
By: ED SOEHN Title: Business Manager_
Authorized Signature
Date:
Revised 10/27lZ007
12/29/2001 19'56 FAX
RITE AID RETURNS AGREEMENT
Please note: A Seoara Returns L%gresnnent mist be filled out for each vendor number.
Company Name: FULLBAR. LLC
Contact Name: ED SOEHNEL
Vendor Number
Invoice Address:
7315 E. ORCHARD RD. STE. #100
GREENWOOD VILLAOL CO 80111
Phone a (303) 221-2228 M
Fax #1303) 221-9M
E-Mail Address: edQUIber.com
Shipping Address:
SAME AS INVOICE ADDRESS
Category Manager. R ; C. C\C?Sxie-1
Associate Category Manager
TERMS OF AGREEMENT:
A. Unsaleable Merchandise
IZO13/017
1. All vendors will be charged the folWng processing fees for damaged, defective, outdated, and discontinued
goods. These tees are based on the findings from the Joint Industry Task Force
Study (JIR):
DPC (Direct Product Cost) $0.088
Post Damage $0.111
Ops through Scan: 1 1
$0.297
2. All vendors must determine a method of disposition for their unsaleable products. Based on the
COOEIDESCRIPT'IONS listed below, the vendor representative wilt check (X) the method his/her company has
authorized Rite Aid to use. The additional charge, shown in () at the end of the description, will be added to the
charges above.
Col DESCBNMN OR C043'R
co" X Scan and disposition is left up to the discretion of Rita Aid ($0.020)
DONA Scan and donate ($11030)
SH8K Scan and ship back to vendor (50.180)
QpEN RA I REQUiRSD WrW THIS OPTION RAt
NOTE: Any product remaining in the reclamation centers for 45 days from the date of
Invoice, without a Return Authorization Number, will be disposed of at the disaretlon of Rite
Aid Corporation. Rite Aid Corporation will not entertain ANY requests for payback of
product that falls Into this category.
3. All products will be billed at Rite Aid's current list cost + JIR billing factors (DPC, Post Damage
Handling, RCC Charges, Disposition Charges) unless otherwise agreed to in writing by Rite Aid
Corporation. Vendor billing Is not to exceed 130% of R[te Aid's list coat. Freight will be shipped on
Rite Aida preferred carriers. All freight costs will be charged back to the vendor.
Rev 10!23107
12/29/2001 19'56 FAX
4. All changes to policies must be in writing to Rite Aid Corporation. Approved policy changes will take
effect within 30 days following their approval.
S. AN vendors will agree b forward a copy of their current national policy regarding reclamation to be
reviewed by Rite Aid Corporation. This will be sent to:
Rib Aid Corporation
30 Hunter Lane
Camp Mill, PA 17011
Attention: Manager, Front End Rotuma
6. All damaged and outdated Invoices are available through the Rite Aid Paperless Invoice System using
the Carolyn Supply Chain Services Webalte at . Vendors should
contact the Manager, Front End Returns, at 717-214-9d3Z to request setup of their Company's authorized
user. (See Page 3)
13. Recall Merchandiso
Please note: The dispositions on page 1 QO NQT apply to recalls. A separate agreement MUST be
flkd out for all resills at the tone the rocail Is being aefvated. This Move a vendor to have a
separate disposition on recalls than they have an damapad and outdated retums.
1. All recall invoices are available thrcwgh the Rite Aid Paperless Invoice System using the Cwolkm
Supply Chain Services Werbsite at www.c*mQnasucoivchal MjM,com. Vendors should contact the
j Manager, Front End Rotuma, at 717-214-S&V to request setup of their Company's authorized user. (See
Page The signatures below by the appropriate Category Manager of Rite Aid Corporation and the vendor
representallm of sold company denote their understanding and acceptance of the above agreement
eA -30-08°<''? 0
Signature (Vendor Representative) Date Signatures (AuthorizW by Rite Aid Corporation) Date
'Fu. J j 6-9 Rite Aid Corporation
Company
Q014/017
Rev 10123107
3/7-
c
Oct I5 2009 9:28AM HP LASERJET FAX P.3
Page 4s of 153
Company Name: RULLSAR, LLC
i3i?Nr1g Address: ED SCENNEL Category Mgr. R!C CLARKE
7313E ORCHARD RD, STE 100 Vendor #: 43324
Fiscal Year 2011
Contact:
Contract # 0292765
Rite Aid Promotional Funding Agreement
GREEWWOOD YM..LAGE
Co 80'!11
Phone:
Email: Fax#: P. 1 C a,6
FIJUZAR, LLC (Suppl1w) hsarby agrats to participate In RfttAids RMW Year 2011 a plMr vanvtional
program In the amount Wteatad hersirr. The ar xRn to be paid by the Suppler wNt bs d Rfto Ald s Groft
p els of &*Owls produab between Fbbruary 2d, 2010 and FW*uwy 28.2011 (but rat less then the
Maim in Promotional Fundfkq Cwnlln nt set forth below). The Funding wM be used to drmbp and ou-
execuft Marna ft support dsamed appropri t by Suppler4s Rho Aid Category Manager for o mnoling and
aftwaft tha soles of &"left poducts In Rite Aid s/orse. The Promodorlel Funding is in addition to and not
in subeftom fcr at diminution of any nrgodated prbk% parwt Urms, valume Now throe, rebates. other
contract p achase irxer0ft turming ibr r@W nwrNd"ns. ofkhaN dispias, Single Check Rebate lWHImemt,
new items, now atk" edawencr^ ' kWlh Resource Rds Advice porpdpstian, Trade Show parkipatkv, Rft Aid
Health and Beauty Expoe, Ribs Aid Foundation Charity GW Clessle. or o*w prognsms now existing or that may
be dovabpad km time to time.
The SuppWs MWrmm Promotional Fun ft Commitment is fine and non-cancalsble, Prod of pedprmarxce, wN
not be provided. Invalcing (finr dedttc.llon !from a mounls awing by Rks Aid to Suppler) of the MMmur t
Pmmotlo W Funding Corkxnitmeml wrN ooaur in twsive equal InMWM*ft an or about the Brat day of each
calendar month beginning 31112010.
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The Promotional Funding 1s t>e,ed on Areas purchases between Febtuary 28, 2010 and February 28. 2011. N
actual will be b anpwolveas d deducted exoda?he FFAid o?? d PurcImm •e nth below, the addManal ttinding„ d any.
w by +quartsr in which exceeded Gross
purchaes oomxnW.
MINSWN t ROWIMONAL FVNQNNG COI MAMEN T: S4p coo
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Contract # 0347395
Rite Aid Promotional Funding Agreement
Fiscal Year 2012
Minimum Funding
Company Name: FULLBAR, LLC
Category Mgr.
Billing Address: ATTN: KRISTINA GRITZ / Assoc. Category RIC CLARKE
Mgr.:
6000 GREENWOOD PLAZA #120 Vendor #: 43324
GREENWOOD VILLAGE CO 80111
Contact: Phone: - -
Email: Fax#: - -
Description: 2012 10 0
FULLBAR, LLC (Supplier) hereby agrees to participate in Rite ' s Fiscal Year 2012 supplier promotional program in the amount
indicated herein. The amount to be paid by Supplier will be . o of Rite Aid's Gross purchases of Supplier's products between
February 27, 2011 and March 3, 2012 (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 purchase
incentives, funding for retail markdowns, off-shelf displays, Single Check Rebate fulfillment, new items, new store allowances,
Trade Show participation, Rite Aid Foundation Charity Golf Classic, Wellness Plus Funding, or other programs now existing or that
may be developed from time to time.
Thr tier's Minimum Promotional Funding Commitment is firm and non-cancelable for any reason whatsoever upon execution
oft ' eement. Proof of performance will not be provided. Invoicing (which will be accomplished through Rite Aid deductions
fro amounts owing by Rite Aid to Supplier according to Rite Aid's books and records) of the Minimum Promotional Funding
Commitment will occur in twelve equal installments on or about the first day of each calendar month beginning 311/2011.
The Promotional Funding is based on Rite Aid's fiscal year (February 27, 2011 - March 3, 2012). If actual Gross purchases exceed
the Forcasted Gross Purchases set forth below, the additional funding, if any, will be billed and deducted by Rite Aid at the end of
each Rite Aid fiscal period in which exceeded Gross purchases occurred.
a 0/ 000
MINIMUM PROMOTIONAL FUNDING COMMITMENT: D
FORECASTED(
Authorized Signature:
Printed Name:
Date: /l0dbltle:
I,aod 000
$0
$0
Rite Aid Category Manager. C11k
Rite Aid Vice President:
Date:
ttp://portal.riteaid.comNINIPLAN/PAGESNIPR0003.aspx?contract=0347395&email=none&print=true 11/4/2010
Page 39 of 130
Contract # 0347396
Rite Aid Loyalty Card Promotion and
Funding Agreement
Fiscal Year 2012
Based on Actual Purchases
Company Name:
Billing Address:
Contact:
Email:
Description:
FULLBAR, LLC
Category Mgr.
ATTN: KRISTINA GRITZ / Assoc. RIC CLARKE
Category Mgr.:
6000 GREENWOOD PLAZA #120 Vendor #. 43324
GREENWOOD VILLAGE CO 80111
Fy11 Loyalty Card Agreement
Phone: - -
Fax#: . .
FULLBAR, LLC (Supplier) hearty agrees to participate in Rite Aid's Fiscal Year 2012 Loyalty Cana Promotion
Funding pro9ram in the amount indicated herein by executing this Loyalty Card promotion and Funding
Agreement ( Agreement"). The amount to be paid by Supplier will equal 1.50% of Rite Aid's Gross purchases of
Supplier's products during the Rite Aid fiscal year beginning on or about February 27, 2011 and ending on March
3, 2012. The; promotion funding will be used to support an additional level of discount. The discount amount will
be determined by Rite Aid's Category Manager working with the Supplier. Only discounts actually redeemed by
end customers will decrement the promotion funding established by this Agreement. This promotion funding is in
addition to, and not in substitution for or diminution of, any other negotiated promotional funding, pricing,
payment terms, volume incentives, rebates, other purchase incentives, funding for retail markdowns, off-shelf
displays, single check rebate fulfillment, new items, new store allowances, Health Resource Rite Advice
participation, Rite Aid Foundation Charity Goff Classic, or any other programs or, agreements now existing
between Rite Aid and Supplier or that may be developed from time to time in the future.
The Supplier's Funding Commitment is firm and non-cancelable for any reason whatsoever upon Supplier's
execution of this Agreement. Invoicing (which will be accomplished through Rite Aid deductions from any
amounts owing by Rite Aid to Supplier according to Rite Aid's books and records) of the funding commitment will
occur in twelve installments on or about 3/27/2011, 4/24/2011, 5/29/2011, 8/28/2011, 7/24/2011, 8/28/2011,
9/25/2011, 10/23/2011, 11/2712011, 1/1/2012, 1/29/2012, and 314/2012. The Invoicing and deductions will be
based on Rite Aid's gross purchases of the Supplier's products during the prior month.
The Funding is based on Rite Aid's fiscal year 2012 (February 27, 2011 - March 3, 2012) Gross purchases and
will be deducted in 12 monthly increments on or about the first of each month starting in March, 2011.
FORECASTED FUNDING COMMITMENT:
FORECASTED 7WAL111- ES:
Authorized Signature: Rite Aid Category Manager:
Printed Name: _ i^ Rite Aid vice President:
Date: //. __ . Ue: 00 S2Vd&f Date:
t.++„•??.•?.-+?1 r:+Pa+A,-nm/VfMPf .AN/PAGES/VIRP0019.asnx 101417010
18? o?
`? a?i WO
Page 1 of 1
Wellness Pius Agreement Contract * 0375070
Fiscal Year 2012 Supplier Participation Page 1 of 1
Cat"Oryf-
Vendor *: 43324 Vendor Name. FULLBAK LLC MorJAseoo. RIC CLARKE
Categ" Mgrs
BiMng Addreg ATTW KR!! nNA GRtR Contract Surt W CIRCULAR PLUS UP
6W GREENWOOD PLAZA MG Loyalty Card Promotion and Funding 034739Q
Agreement
GREEWROOO VILLAGE
CO 80'111
Contact Steve 111116d" Phone: - - Faxih - -
Emait steveAwdly"WhIlbar com
Offer Start Date: "2212011 Offirfnd Date: 0413012011 Coupon EIf Date: 01/ZUMI Coupon Exp Date: 01911120111
Coupon UPC:. 4sf MiTSW Coupon,. $2 +up rw rd when you purchase 10 FuN Bar Amount Pros I<
Oew Sing". SLOO Amt 2,000
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Vendor #: 43324 Vendor Name. FULLt? K LLC
Billing Address: ATTN: KRI8ITINA GRITZ
6000 GREENWOOD PLAZA #120
GREENWOOD VILLAGE CO
80111
Contact: Mark Harris Phone: -- Fax* --
Email: markharritmQ Mbar com
Event Type: TPR.TEMPORARY PRICE REDUCTION Contract Jan 12 Rlte Buy
Oesc:
Item #19 Item Description Sias Cost InvestmenUFtimi ft Special 0(mcdordA1lf doml Renurlts
0347572 R1LtFlrSHAKECHC4RV11Z 1 $4.80 $1.00
0350627 FLLLBARCCP8AR1.59Z a $1.18 $0.25
0350628 FLLLBAR PB CMI}113AR 1.59Z 6 $1.18 $0.25
FULLBAR, LLC (Supplier) hereby agrees to participate In the Rita Aid events and amdated cols Indicated herein, Including but not limited to rein chods Issued by
Rile Aid during the letm of the Agreement that are laterredeemad by the alemer. The amount tab* paid by Supplier lain addition to and not In substitution for or diminution of
'Allhk any Minimum
Promotional Funding beard upon achW decal year 2012 (February 27, 20114Aamh 3, 2012)Oroaapumhasaa Payment and deduction of the Incremental Invalntent tMll occurwlthin
30 days of the
commencement of the event Indl lad herein. Incremental Investment funding I9 4m; and non-cancelable. Proof of p dittmanoa vAll not be provided.
Authorized Category Mw Atoe, Category
Slynature: fx/ Printed Printed Name: Name:
Date: Date:
Title: ?f
RiteAid klcremental ktvestment
Agreement
Fiscal Year 2012 Supplier Participadon
Contract # 0421600
Page i of 1
Category Mgr. RIC CLARKE
Event Oates: 1/412012. 1/31/3014
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COUPON UPC REQUEST FORM
?A
Supplier # 43324 Fullbar
Event/Ad Date: 1.1.12
Coupon Expiration Date: 2.11.12
Event Description: Video Values
Product Offer Description: $.50 of Fullbar items
(i.e. $2.00 OFF Any Advil)
347572
`''Coupon Value: $.5
(i.e. dollar amount of offer
like cosmetics. 15
Redemption Amount paid by Manufacturer ; -5
nc t `4 429747
(a copy of supplier contract signed by supplier and category management MUST be attached to
this form. Forms without contracts attached will be returned without UPC.)
Comments:
UPC # Provided by Cindy Wert:
"'?Al>? cQupnn roust b1it?ult EUNDEl bgsuppiter At R'AIrM0 1i` tr`outon,>EIP?
., .
requests. wit8 kss t8an I`undtnS tirllt- b6 returned ., Tliise.wiItrequtr Bvrart SfiirtiifE' signature o
speciai;approvaE before arrii U?'e wili 6e assigned
Ift,
Page I of I
Contract # 0411336
d,F 1
Supplier Name
Billing Address:
Contact:
Email:
Phone: - -
Fax#: - -
FULLBAR, LLC (Supplier) hereby agrees to participate in Rite Aid's Fiscal Year 2013 supplier promotional
program in the amount indicated herein. The amount to be paid by Supplier will be 10.00% of Rite Aid's Gross
purchases of Supplier's products between March 4, 2012 and March 2, 2013 (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
purchase incentives, funding for retail markdowns, off-shelf displays, Single Check Rebate fulfillment, new items,
new store allowances, Trade Show participation, Rite Aid Foundation Charity Golf Classic, Wellness Pius
Funding, 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 for any reason
whatsoever upon execution of this agreement. Proof of performance will not be provided. Invoicing (which will be
accomplished through Rite Aid deductions from any amounts owing by Rite Aid to Supplier according to Rite
Aid's books and records) of the Minimum Promotional Funding Commitment will occur in twelve equal
installments on or about the first day of each calendar month beginning 3/112012.
The Promotional Funding is based on Rite Aid's fiscal year (March 4, 2012 - March 2, 2013). If actual Gross
purchases exceed the Forcasted Gross Purchases set forth below, the additional funding, if any, will be billed
and deducted by Rite Aid at the end of each Rite Aid fiscal period in which exceeded Gross purchases occurred.
MINIMUM PROMOTIONAL FUNDING COMMITMENT:
FORECASTED GROSS PURC ASES•
Supplier Authorized Signature:
Printed Name:
Date: Title:
Rite Aid Promotional Funding Agreement
Fiscal Year 2013
Minimum Funding
FULLBAR,LLC
Category Mgr.
ATTN: KRISTINA GRITZ / Assoc. RIC CLARKE
Category Mgr.:
6000 GREENWOOD PLAZA #120 Vendor #: 43324
GREENWOOD VILLAGE CO 80111
h4y p()IQ
(00JOQO
Rite Aid Category Manager:
Rite Aid Vice President:
Rite Aid Date:
u
Supplier Name
Billing Address:
Contact:
Email:
Description:
Contract # 0411337
Rite Aid Loyalty Card Promotion and
Funding Agreement
Fiscal Year 2013
Based on Actual Purchases
FULLBAR,LLC
Category Mgr.
ATTN: KRISTINA GRITZ / Assoc. RIC CLARKE
Category Mgr.:
6000 GREENWOOD PLAZA #120 Vendor #: 43324
GREENWOOD VILLAGE CO 80111
Loyalty Card Agreement
Phone: - -
Fax#: - -
FULLBAR, LLC (Supplier) hearby agrees to participate in Rite Aid's Fiscal Year 2013 Loyalty Card Promotion
Funding program in the percentage of gross sales amount indicated herein by executing this Loyalty Card
Promotion and Funding Agreement ("Agreement"). The funding amount ("Funding") to be paid by Supplier will
equal 1.50% of Rite Aid's gross purchases of Supplier's products during the Rite Aid Fiscal Year 2013 (beginning
on or about March 4, 2012 and ending on March 2, 2013). This Funding will be used to support an additional
level of discount Involving Suppliers product(s). The discount amount will be determined by Rite Aid's Category
Manager working with the Supplier. Only discounts actually redeemed by Rite Aid retail customers will
decrement thle Funding established by this Agreement. This Funding is in addition to, and not in substitution for
or diminution', of, any other negotiated promotional funding, pricing, payment terms, volume incentives, rebates,
other purchase incentives, funding for retail markdowns, off-shelf displays, single check rebate fulfillment, new
items, new store allowances, Health Resource Rite Advice participation, Rite Aid Foundation Charity Golf
Classic, or any other programs or agreements now existing between Rite Aid and Supplier or that may be
developed from time to time in the future.
The Funding is based upon Rite Aid's Fiscal Year 2013 (March 4, 2012 and March 2, 2013) gross purchases.
Supplier's funding commitment is firm and non-cancelable for any reason whatsoever upon Supplier's execution
of this Agreement. Invoicing (which will be accomplished through Rite Aid deductions from any amounts owing
by Rite Aid to Supplier according to Rite Aid's books and records) of the funding commitment will occur in twelve
installments on or about 4/1/2012, 4/29/2012, 6/312012, 7/1/2012, 7/29/2012, 9/2/2012, 9/30/2012, 10/28/2012,
12/2/2012, 12/30/2012, 1/27/2013, and 3/3/2013. The invoicing and deductions for these twelve installment
payments will be based upon Rite Aid's gross purchases of the Supplier's products during the prior month.
Supplier and Rite Aid agree that any Funding that is unused as of the end of Rite Aid's Fiscal Year will be rolled
over to the next Fiscal Year. However, all roll over Funding must be used by the end of the first quarter of the
following Fiscal Year. If the roll over Funding is not used by the end of the first quarter of the following Fiscal
Year, Rite Aid reserves the right to retain the rolled over funding. Supplier also understands and agrees that in
the event that its Funding balance becomes negative, for any reason whatsoever, Rite Aid reserves the right to
deduct said balance against Supplier's vendor account with Rite Aid.
FORECASTED FUNDING COMMITMENT: 91 (bd
FORECASTED GROSS PURCHASES:
Supplier Authorized Signature: Rite Aid Category Manager.
Printed Name: Rite Aid Vice President:
http://portal.riteaid.con/V WIPLAN/PAGES/VIRP0019.aspx
10/4/2011
VERIFICATION
I, Ric Clarke, hereby state that I am authorized to make this verification on behalf
of Rite Aid HDQTRS. Corp. I verify that the foregoing document 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.
RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
NO. 12-5164 CIVIL TERM
VS.
FULLBAR LLC, CIVIL ACTION - LAW
1.
f
Defendant.
oil
AFFIDAVIT OF SERVICE zo
--r c -
I am a competent adult and an attorney duly admitted to the Bauer of the r
Supreme Court of the Commonwealth of Pennsylvania, having Attorney Identification Number
84604.
2. On August 21, 2012, I caused the Complaint to be served upon the
defendant by the mailing of a true and correct copy to the defendant by United States certified
mail, return receipt requested, postage prepaid, addressed as follows: Fullbar LLC, 6000
Greenwood Plaza Blvd., Suite 120, Greenwood Village, CO 80111 ("Service Addresses").
3. I received the return receipt indicating that the document was delivered to
and accepted at the Service Addresses on behalf of the defendant on August 23, 2012, thereby
completing service pursuant to Pa. R.C.P. 403. The return receipt card is attached hereto as
Exhibit "A."
Brian P. Downey (PA 59891)
Kathleen A. Mullen (PA 84604)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
P.O. Box 1181
Harrisburg, PA 17108-1181
717.255.1155
800.420.0618 Fax
downeyb@pepperlaw.com
alcarof@pepperlaw.com
Date: September 4, 2012 Attorneys for Plaintiff
Rite Aid HDQTRS. Corp.
SWORN TO AND SUBSCRIBED
BEFORE ME THIS 4TH DAY
OF SEPTEMBER, 2012.
'-?, e%i h A L P tjq
"NOTARY RIJBLIC q
MY COMMISSION EXPIRES:
MMONWEAL'tFl OF PENNSYLV U
Notarial Seal
Kimberly Kelly Perez, Notary Public
City of Harrisburg, Dauphin County
Commission Aug. 21, 2015
Vffw WAKA ASgoaATw" of WrARMS
-2-
¦ CWWbb vans 1, 2, and & A bo oompiate
MIM 4 if RINNIted DeWvay b des6ed.
¦ POt you terns and addreae on the reveres
so 90 we can return the cad t0 you.
¦ A WW this card t0 the bade of the mel"m,
or are the front if space permits.
1. ArfJds Addressed to:
-qrl
Fullbar LLC
6000 Greenwood Plaza BNOM
Sulte 120
Greenwood Village, CO 80111
A
X o Agent
E3 Adda n
B. ReCelved bN (Primed Warne) r p. NO A Defray
D. b d*vwy adriee 1 dMfenat *=-Ttem 1?
H YES, enter deuuery address bebw.
a servbe type
A Cammd Mau o B pm mau
o Ro*b ed ;t Rerun fieOW for mwd>a me
0 hmmd man O C.O.D.
4. Resakded D~ (D*m Fee) 0 Yes
`2' ArWW Numb` 7010 1060 0000 3368 6986
(Tla?r 1ror?? aarvk?e Arbei/
PS Form 3811, Febru" 2004 Don aft RMunn R a IpR 1025WP-M- -1640
CERTIFICATE OF SERVICE
I hereby certify that on September N 2012, 1 served a copy of the foregoing
Affidavit of Service on defendant by United States mail, first class postage prepaid, addressed as
follows:
Fullbar LLC
6000 Greenwood Plaza Blvd.
Suite 120
Greenwood Village, CO 80111
Kathleen A. Mullen (PA 84604)
Brian P. Downey(PA 59891) l 11Q,jo>1�;
Kathleen A. Mullen(PA 84604) �'°+jt tij •t��
PEPPER HAMILTON LLP ;,. n ' 'M i
100 Market Street, Suite 200 ti, aS 'C
Harrisburg,bB PEN
17108-1181 N YLVANJ N1‘1'
717.255.1155
717.238.0575 (fax)
Attorneys for Plaintiff Rite Aid Hdqtrs. Corp.
RITE AID HDQTRS. CORP., : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiff,
•
vs.
: CIVIL ACTION NO. 2012-5164—Civil
FULLBAR LLC,
•
•
Defendant.
•
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark all claims in the above-captioned matter settled and discontinued
pursuant to Pa. R.C.P. 229.
Respectfully submitted,
Briar P. De ey (PA 59891
• -en A. ullen.,(.P 4 :•604)
PEPPE' ' •MILTON LLP
100 Market Street, Suite 200
P.O. Box 1181
Harrisburg, PA 17108-1181
Attorneys for Plaintiff
w
CERTIFICATE OF SERVICE
I hereby certify that on January 21, 2014, I served a copy of the foregoing
document by United States mail, first-class postage prepaid, addressed as follows:
Fullbar LLC
6000 Greenwood Plaza Blvd.
Suite 120
Greenwood Village, CO 80111
Brian P. Dow ,
-2-