[EXHIBIT 99.4.1]
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of December 4, 1997 (this "Amendment"),
to the International Co-Promotion Agreement, effective as of June 28, 1996
(the "Agreement") by and between Xxxxxx-Xxxxxxx Company, a Delaware
corporation ("Xxxxxx-Xxxxxxx"), and Pfizer Inc., a Delaware corporation
("Pfizer"). Capitalized terms not otherwise defined herein have the
meanings set forth in the Agreement.
WHEREAS, Xxxxxx-Xxxxxxx has assigned certain of its rights and
obligations under the Agreement to Xxxxxx-Xxxxxxx Export Limited, a company
organized and existing under the laws of Ireland ("Export"), in accordance
with the Assignment and Assumption Agreement dated as of November 1, 1996;
and
WHEREAS, Pfizer has assigned certain of its rights and obligations
under the Agreement to Pfizer Overseas Inc., a corporation organized and
existing under the laws of Delaware ("Pfizer Overseas"); and
WHEREAS, upon this Amendment becoming effective, the parties have
agreed that certain provisions of the Agreement be amended or waived in the
manner provided for in this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I - WAIVER
SECTION 1.01. Waiver of Section 2.02(d). Solely in the United
Kingdom, Export hereby waives compliance by Pfizer Overseas with the
provisions of Section 2.02(d) of the Agreement which require Pfizer
Overseas, to the extent it uses the services of a contract sales force, to
employ only "a third party whose primary business is devoted to detailing
third party products," but only if the quality of service provided by the
contract sales force(s) is in all material respects equal to (or better
than) that which would otherwise be provided by Pfizer Overseas, and
provided, further, that (a) Pfizer Overseas shall provide Export with 60
days' prior written notice before retaining any third party contract sales
force(s), and (b) Export consents to the use of such third party contract
sales force(s), which consent shall not be withheld except for a material
business reason.
ARTICLE II - AMENDMENTS
SECTION 2.01. Amendment of Article II. Article II of the Agreement
is hereby amended by inserting the following Section after Section 2.06
thereof:
"2.07 Inventions and Discoveries. All data, inventions and
discoveries generated during the course of any Clinical Plan, whether the
relevant study is sponsored and/or conducted by XXXXXX-XXXXXXX or PFIZER,
shall be the joint property of XXXXXX-XXXXXXX and PFIZER, and each party
shall have the right to use such data, inventions and discoveries free of
charge during and after the Term of this Agreement. The parties agree to
execute any documents or undertake any further actions as may be reasonably
necessary to effectuate the foregoing."
SECTION 2.02. Amendment of Exhibit A. Exhibit A of the Agreement is
hereby amended by (a) deleting the country "Greece" under Category 1, (b)
inserting the country "Portugal" below the country "Netherlands" and above
the territory "Puerto Rico" under Category 1 and (c) deleting the country
"Portugal" under Category 3.
ARTICLE III - MISCELLANEOUS
SECTION 3.01. No Other Amendments; Confirmation. Except as expressly
amended, waived, modified and supplemented hereby, the provisions of the
Agreement are and shall remain in full force and effect.
SECTION 3.02. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of New York other than
those provisions governing conflicts of law.
SECTION 3.03. Headings. The headings used in this Amendment have
been inserted for convenience of reference only and do not define or limit
the provisions hereof.
SECTION 3.04. Third Party Beneficiaries. None of the provisions of
this Amendment shall be for the benefit of or enforceable by any third
party, including, without limitation, any creditor of either party hereto.
No such third party shall obtain any right under any provision of this
Amendment or shall by reason of any such provision make any claim in
respect of any debt, liability or obligation (or otherwise) against either
party hereto.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
officers, have executed this Amendment as of the date first written above.
XXXXXX-XXXXXXX PFIZER OVERSEAS INC.
EXPORT LIMITED
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
------------------------- -----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx Xxxxxx
Title: Managing Director Title: Vice President
