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EXHIBIT 10.15
CONFIDENTIAL TREATMENT REQUEST
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Confidential Portions Of This Agreement Which Have Been Redacted Are marked
With Brackets ("[***]"). The Omitted Material Has Been Filed Separately With The
Securities And Exchange Commission.
DISTRIBUTION AGREEMENT
between
X. Xxxx Boskamp GmbH & Co.
Xxxxxx Xxxxxxx 00
X-00000 Xxxxxxxxxxxxxx
Xxxxxxx Xxxxxxxx of Germany
represented by Xxx. Xxxxxxxx Xxxxxxx, General Manager
of the Company
-hereinafter referred to as "XXXX"
and
HORIZON Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000/XXX
represented by Xx. Xxxxxxxx Xxxx,
Chairman of the Board
-hereinafter referred to as "HORIZON"
Preamble
XXXX intends to appoint a new distributor for the Territory as defined in ss.3
hereinafter HORIZON is willing to become a distributor for XXXX Now, therefore,
the parties agree upon the following terms and conditions:
ss.1
Object of the Agreement
1.1 XXXX hereby appoints HORIZON as its distributor to promote the PRODUCTS of
XXXX as defined ss.2 in the Territory as defined ss.3. HORIZON shall
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have exclusive rights in the Territory to distribute, market and sell the
PRODUCTS and other products of XXXX with the same active ingredient and the same
route of administration. In case that XXXX wants to market other Nitroglycerin
Products in the Territory XXXX has to offer the Products to HORIZON. HORIZON has
to give his final decision within 90 days to this offer. In case HORIZON is not
interested in the distribution of these products or has not informed XXXX in
writing within 90 days after receipt of the offer about its interest in the
distribution of the products so is XXXX free to transfer the distribution rights
for these products in the Territory to a third party. This is also valid
provided HORIZON has stated its interest in due time but both parties have not
agreed upon the terms (for instance price, minimum sales quantities) within 6
months after receipt of the offers.
1.2 HORIZON agrees to buy the PRODUCTS which are destined for distribution in
the Territory only from XXXX.
1.3 HORIZON shall buy and sell XXXX'x PRODUCTS in its own name and for its own
account and acknowledges that it has no authority to act for or on behalf
of XXXX except as otherwise specifically set forth herein. HORIZON is not
entitled to entrust third persons with any rights or claims deriving from
this Agreement without prior written consent of XXXX. XXXX hereby agrees
that HORIZON may engage under the following preconditions a third party to
distribute, market and sell the PRODUCTS in Puerto Rico and Caribbean
Islands. Provided HORIZON intends to appoint a third party with the
distribution of the PRODUCTS in Puerto Rico or Caribbean Islands so this
party should also be bound by the contents of this Distribution Agreement.
HORIZON shall guarantee this commitment and provide XXXX with a copy of the
corresponding agreement. Upon written approval of this agreement by XXXX
HORIZON is authorized to entrust a third party with the distribution rights
for the territories Puerto Rico and Caribbean Islands. Also in this case
HORIZON is still exclusive responsible according to this Agreement and
especially the breaches of duty by the third party which may give a cause
for the termination of this Agreement should be imputed to HORIZON. As
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independent contractor, HORIZON shall incur all expenses and costs of
-including without limitation - its office overhead, travel costs,
telephone, telefax, sales promotion and advertising costs. XXXX shall not
be responsible for any portion of such expenses except as otherwise set
forth herein.
1.4 XXXX agrees to refer to HORIZON all inquiries from the Territory received
by XXXX with respect to the PRODUCTS.
ss.2
Products
The term "PRODUCTS" refers to all finished products listed on SUPPLEMENT I which
shall include samples ("The PRODUCTS") presently manufactured and sold by XXXX.
SUPPLEMENT I may be amended in future for additions of products by mutual
consent of XXXX and HORIZON. Upon mutual consent of XXXX and HORIZON, such
products will become "PRODUCTS" for distribution of which this Agreement shall
apply accordingly.
ss.3
Territory
The Territory is the geographical area of the countries listed on SUPPLEMENT II.
ss.4
Duties of HORIZON
4.1 HORIZON shall exert best efforts to take advantage of all possibilities to
sell the PRODUCTS in the Territory and to maintain a continuous, full-time
in-Territory representation.
4.2 HORIZON further agrees
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- to maintain an effective sales organization within the Territory in
order to protect the distribution interests of HORIZON and XXXX;
- to always have quantities of the PRODUCTS in stock sufficient to cover
three months of foreseeable sales in the Territory subject to PRODUCT
being supplied by XXXX in accordance with HORIZON'S orders;
- to report regularly monthly its total stock position, turn-over
figures and sample movements as well as all important news on the
pharmaceutical market in the Territory, especially with regard to
competitive products and the price structure in the Territory and any
changes thereof. Monthly reports shall reach XXXX by the tenth day of
each following month;
- to make the appropriate advertising and publicity in accordance with
ss.9;
- to employ trained personnel in a sufficient number for the sale and
distribution of the PRODUCTS;
- to buy from XXXX minimum quantities of the PRODUCTS as specified in
SUPPLEMENT III to this Agreement;
- to notify XXXX in writing prior to making any substantial operational
changes in personnel, ownership, legal structure, country of operation
and products represented by HORIZON;
- to sell the PRODUCTS only with the trademark of XXXX and/or the
business logo and the original packaging and/or presentation of XXXX,
HORIZON'S trade dress (logo and address) are added;
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- to report to XXXX at the beginning of a calendar's quarter - no later
than the 3rd day of the calendar's quarter the planned sales figures
projected for the PRODUCTS for the next 12 months.
4.3 HORIZON is not entitled to
- produce or sell - neither directly nor indirectly - products which
contain any organic nitrates or any products that are indicated for
relief of angina pectoris, with the exception of the under ss.5.1
mentioned products;
- solicit customers outside the Territory for the PRODUCTS, to establish
and/or maintain branch offices and/or storage depots outside the
Territory.
ss.5
Distribution of Other Products
5.1 At the signature hereof, HORIZON produces or sells the following
competitive products containing following active ingredient.
5.2 The list of competitive products under ss.5.1 can only be extended with the
prior written consent of XXXX which should be applied for before
distribution of these products.
5.3 In the event that a generic of a PRODUCT or a pump or spray product
containing the active ingredient of a PRODUCT is marked in the Territory by
an entity other than HORIZON, the parties shall in good faith agree upon a
reduced royalty rate and reduced minimum purchase requirements for such
PRODUCT.
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[***]-CONFIDENTIAL TREATMENT REQUESTED
ss.6
Purchase of PRODUCTS/Obligations of XXXX
6.1 HORIZON shall be entitled to purchase the PRODUCTS on the basis of XXXX'x
general terms and conditions of sale applicable from time to time. The
terms and conditions of sale of XXXX valid at present are attached hereto
as SUPPLEMENT IV.
6.2 XXXX will, according to its general terms and conditions of sale, exert
best efforts to carry out the orders of HORIZON carefully and punctually.
In case that XXXX is not able to execute an order in time totally or only
partially, it will notify HORIZON immediately; and if, as a result of such
inability, HORIZON does not meet minimum purchase requirement(s), HORIZON
shall not be in breach nor may XXXX terminate this Agreement.
6.3 The purchase price for the respective PRODUCTS is the price listed on
SUPPLEMENT I.
6.4 XXXX and HORIZON may mutually agree in writing to modify the terms and
conditions of sale. XXXX may increase the price of the PRODUCTS to HORIZON
on an annual basis by the costs of raw materials and direct labor with such
increases being limited to [***] per annum. Additional price increases
caused by extraordinary circumstances will be discussed and mutually agreed
upon prior to increase.
6.5 Payment of the deliveries has to be made in net within 30 days after
receipt of goods in Deutsche Marks. XXXX will invoice all of its deliveries
of PRODUCTS as of 01.01.2002 in Euro currency. Payments of the deliveries
have to be made as of 01.01.2002 in net within 30 days after receipt of
goods in Euro currency. The conversion of Deutsche Marks into Euro shall be
made on the basis of the official exchange rate. The parties agree that the
currency conversion of Deutsche Marks into Euro will not have any effect on
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the validity of the Distribution Agreement and not to entitle any party to
renegotiate the prices for the PRODUCTS listed in SUPPLEMENT I. Payment of
Royalties are done quarterly through wire 45 days after end of each
quarter.
6.6 HORIZON fixes its sales price for the PRODUCTS within the Territory at its
own discretion. XXXX, however, will give a not binding recommendation on
the sales price for the PRODUCTS which will be discussed with HORIZON.
HORIZON and XXXX will take into account that the competitiveness of the
PRODUCTS has to be maintained as far as possible. HORIZON undertakes to
notify XXXX of all changes in prices and in the event of a change to
provide XXXX with corresponding price lists.
6.7 Any claim of HORIZON concerning XXXX'x deliveries of PRODUCTS shall be
considered by XXXX only in the event that such claim reaches XXXX by
registered mail or telefax with confirmed letter within 30 days calculated
from the date of delivery arrival at the first port of the Territory.
6.8 The PRODUCTS, when shipped to HORIZON, shall confirm to the specifications
for said PRODUCTS, be free from defects in materials and comply with all
applicable laws of and within the Territory including the current Good
Manufacturing Practices of the United States Food and Drug Administration.
6.9 If XXXX does not have enough raw materials to meet the order requirements
of HORIZON and the requirements for other product(s) containing the same
raw material, XXXX shall apportion such raw material based on the previous
12 months sales of such products.
6.10 HORIZON may order PRODUCTS to be shipped 120 days from such order. XXXX
shall have no obligation to ship PRODUCTS before the 120 days.
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ss.7
Registration/German Food and Drug Law
7.1 For the life of this Agreement, XXXX grants to HORIZON the right to utilize
XXXX'x product registrations in the Territory in accordance with ss.2. XXXX
undertakes to maintain the existing product registrations in the Territory.
HORIZON agrees to assist XXXX in maintaining registrations and registering
new products, which are added to this Agreement pursuant to ss.2, in every
respect. HORIZON shall in particular give XXXX advice concerning the
preparation of the set of necessary registration documents as provided for
in the laws valid in the Territory at the relevant time, and XXXX shall
provide the respective documents in English as far as available against
receipt and free of charge.
7.2 All respective necessary formalities and steps required by the competent
health authorities of the Territory shall be effected by HORIZON in the
name and after prior written authorization by XXXX.
7.3 If the law of the Territory necessitates the registrations to be in
HORIZON's name or as far as the registrations for the individual products
in the Territory have been arranged to be in HORIZON's name, then HORIZON
hereby agrees irrevocably and unconditionally to surrender such
registrations and the rights connected therewith to XXXX immediately and
unconditionally when the cancellation of this Agreement becomes effective
or the Agreement terminates.
7.4 All registration fees of a successfully registered product shall be
refunded by XXXX to HORIZON against presentation of the approval documents
and other evidence.
7.5 HORIZON shall arrange for any necessary translation to/from the language of
the Territory. XXXX shall reimburse to HORIZON such expenses against
evidence.
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HORIZON affirms that it is not entitled to any claims against XXXX for
compensation or indemnity in case of a fruitless registration attempt other
than those for fees for said fruitless registration attempt charged by the
competent national health authority of the Territory and hereby renounces
to any possible claim against XXXX which accepts the renunciation.
7.6 HORIZON is not allowed to use any registration documentation outside the
Territory.
7.7 HORIZON further undertakes to comply with German Drug Law which requires
also from a distributor abroad that HORIZON reports to XXXX any case of
actual or suspected side reactions or interactions which become known in
connection with XXXX'x delivered PRODUCTS.
ss.8
Scientific Use of PRODUCTS
8.1 In case that the PRODUCTS of XXXX are used for scientific studies in the
Territory which are or might be intended for publication, it shall be the
duty of HORIZON to get in touch and keep close contact with the respective
scientists and to effect coordination with XXXX particularly in stages of
protocol planning and of formulating results prior to actual publication.
This duty refers to all such studies regardless of whether PRODUCTS may be
involved alone or together with other drugs or placebos or regardless of
whether the initiative may have come to the knowledge of HORIZON through
the manufacturer and/or a third party.
8.2 HORIZON undertakes not to start, initiate or allow such studies without the
prior written authorization of XXXX, which shall not be unreasonably
withheld and XXXX'x response to HORIZON'S request for the same shall be
given in a timely manner. Any such studies which are or may be already in
process, unauthorized or not, shall be reported to XXXX immediately when
coming known to HORIZON and shall be followed up as specified above.
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ss.9
Advertisement/Publicity
9.1 XXXX agrees to provide to HORIZON prospectuses for the PRODUCTS,
respectively drafts hereof, and reports of scientific tests as far as
available in respect of the PRODUCTS at no charge to HORIZON.
9.2 HORIZON undertakes to make continuous publicity for the PRODUCTS, in
particular by visiting medical specialists, by advertising in medical
journals and using pamphlets. For visiting medical specialists, HORIZON
shall keep available at all times a sufficient number of qualified
full-time representatives. A print proof of all advertising material shall
be sent to XXXX immediately after completion.
9.3 Any and all expenses of any advertising and/or publicity shall be borne by
HORIZON.
ss.10
Presentations and Trademarks
10.1 HORIZON shall distribute the PRODUCTS only in the original product outfit
and packaging prescribed by XXXX. Modifications of the original product
outfit and packaging are only allowed for serious reasons and with the
prior written consent of XXXX. The PRODUCTS, labels, packaging,
presentations and product inserts shall have also HORIZON's trademark and
logo, which items shall be approved by XXXX which approval shall not be
unreasonably withheld.
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10.2 This Agreement does not confer upon HORIZON and HORIZON will not claim any
proprietary interest or other rights in any trademark, trade name, slogan,
logo, copyright, design, inventory, product outfit or discovery owned or
controlled by XXXX. XXXX acknowledges that all promotional materials,
training materials, studies in connection with the PRODUCTS developed or
undertaken for or by HORIZON are sole property of HORIZON. HORIZON
acknowledges that all trademarks, trade names and product outfits in
connection with the PRODUCTS are sole property of XXXX.
10.3 As soon as HORIZON gets knowledge that a presentation or trademark of XXXX
used for the PRODUCTS is imitated or illegally used by a third person in
the Territory or in case of infringement of any industrial or intellectual
property right of XXXX in the Territory, HORIZON will inform XXXX
immediately. In such event XXXX will either take the necessary steps to
prevent such misuse or authorize HORIZON to do the same. HORIZON agrees to
cooperate with XXXX and to take all necessary steps to protect the
industrial or intellectual property rights of XXXX at XXXX'x expense upon a
respective written request by XXXX.
ss.11
Secrecy
11.1 All data, literature, information and know how in any form, not in the
public domain, that is transferred by XXXX to HORIZON within the scope of
this Agreement will be considered as confidential data. HORIZON undertakes
to keep secret all data, literature, information and know how regarding the
PRODUCTS, especially concerning their formulations and the know how of the
manufacturing techniques. HORIZON is not allowed to make use of any such
data, literature, information and know how itself nor to render them
available nor to reveal or transfer such data, literature, information and
know how to third parties even after the expiration of this Agreement.
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11.2 HORIZON has to return all data, literature, information and know how in its
possession which was made available to it within the framework of this
Agreement to XXXX within 30 days after the termination of this Agreement.
In case that HORIZON receives such documents from third parties especially
from the registration authorities - after the 30-day period, it has to
return them to XXXX or a person appointed by XXXX immediately after receipt
of such document.
ss.12
Term of the Agreement/Termination
12.1 This Agreement becomes effective on February 1, 20000 and has a term of
five (5) years. It will be renewed for an additional five-year period after
mutual agreement on new minimum sales which reflect the market situation.
12.2 A termination has to be effected by one contractual party to the other by
means of a registered letter/return receipt.
12.3 This Agreement may be terminated for cause. A cause shall be given if:
a) a petition in bankruptcy or for institution of composition proceedings
with respect to one of the contractual parties is filed or if a
contractual party is liquidated of if a trustee is appointed, provided
that in an involuntary bankruptcy proceeding, such right of
termination shall only become effective if the proceeding is not
dismissed within 90 days of the filing;
b) HORIZON does not fulfill the minimum sales quantity requirement of a
twelve-month-period as set forth in ss.4.2 unless HORIZON pays the
difference between the minimum unit sales and the actual unit sales
(difference in units multiplied by invoice price as defined in
Supplement l/1), but only in the case that the actual sales are not
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less than minimum sales minus 30%. However, if HORIZON does not make
the minimum sales during the next twelve-month period XXXX can
terminate the agreement;
c) a party has not cured a breach of this Agreement within a period of at
least 90 days after receiving notice in writing by the other party to
cure such breach;
d) HORIZON comes under direct or indirect influence or control of a
competitor of the PRODUCTS of XXXX or such competitor gains the right
to receive information on the distribution of the PRODUCTS as a result
of a contract or an agreement with HORIZON. Provided XXXX has given
its written approval HORIZON is allowed to take over small competitors
and to control them in foreign countries in which XXXX does not
distribute its PRODUCTS. XXXX shall give its decision within 30 days
after the receipt of the information.
e) any other change (direct or indirect) of HORIZON'S shareholders or
management occurs, unless XXXX has given its consent in writing. The
consent may not be withheld if the interests of XXXX are not affected.
f) the PRODUCTS are not approved for distribution, marketing and sale in
the Territory by the United States Food and Drug Administration by the
date that is 3 (three) months after the effective date of this
Agreement. However approval for the 75 dose PRODUCT may be after 3
months after the effective date of this Agreement.
If a cause is given, XXXX may terminate this Agreement either with
immediate effect or with any period up to 3 months.
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ss.13
Force Majeure
The parties hereto shall not be liable for any damage if the performance of all
or parts of this Agreement is hindered or prevented by causes beyond the
performing party's control and without its fault or negligence, including but
not limited to acts of God or of public enemy, nuclear incidents, acts, laws,
orders or regulations of any government or department or agency thereof acting
in either its sovereign or contractual capacity, fires, floods, epidemics,
quarantine restrictions, strikes, work stoppages, slowdowns or other job
actions, freight embargoes, shortages of fuel or other items, delays in
transportation, boycotts, unusually severe weather and riots, insurrections,
revolutions, wars or other civil or military disturbances.
ss.14
Written Requirements
14.1 This Agreement sets forth in writing all agreements and understandings
between XXXX and HORIZON except for the Confidentiality Agreement between
the parties. Verbal agreements do not exist. All previous agreements or
arrangements (if any) between the parties, written or oral, relating to the
subject matter hereof are hereby cancelled and superseded, except for the
Confidentiality Agreement between the parties.
14.2 Modifications and changes of this Agreement, including this clause, require
a written form.
14.3 As for the rest XXXX'x general terms and conditions of trade for export
(SUPPLEMENT IV) are applicable insofar as other terms have not been
specific stipulated by the two parties in this Agreement.
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ss.15
Notices
All notices will be deemed to have been given when posted by certified or
registered mail, return receipt, courier express or when receipt of a facsimile
or telex has been acknowledged to the following address:
If to XXXX: X. Xxxx-Xxxxxxx GmbH & Co.
Xxxxxx Xxxxxxx 00
X-00000 Xxxxxxxxxxxxxx
Xxxxxxx Xxxxxxxx of Germany
Facsimile: ++49 (4826) 59-161
If to Horizon: HORIZON Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
XXX
Facsimile: (000) 000-0000
If notice is personally delivered, the individual accepting such notice, if
requested, will sign a duplicate of the notice to evidence receipt thereof.
ss.16
Partial Invalidity
Should any of the provisions of this Agreement be or become invalid, this shall
not prejudice the validity of the remaining provisions of this Agreement. The
same shall apply if it turns out that this Agreement contains any gap in its
regulations. Any such invalid provision shall be replaced or a gap in the
regulation shall be filled by a provision which legally and economically comes
closest to the desired purpose and intent of the invalid provision or fills the
gap in a way in which the parties would have filled it if they had been aware of
the gap. The parties to this Agreement undertake to agree on a relevant
amendment or adaptation of this Agreement.
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ss.17
Applicable Law/Jurisdiction
17.1 This Agreement is construed in accordance with and shall exclusively be
governed by the laws of the Federal Republic of Germany.
17.2 All disputes arising out of or relating to this Agreement shall be
submitted to the exclusive jurisdiction of the courts of Hamburg, Federal
Republic of Germany.
Date/Place Date/Place
Hohenlockstedt, July 22, 0000 Xxxxxxx, Xxxxxxx - July 22, 1999
---------------------------------- ----------------------------------------
X. Xxxx-Xxxxxxx GmbH& Co. HORIZON Pharmaceutical Corp.
---------------------------------- ----------------------------------------
N. Klapszus X. Xxxxxxxxxx, Xxxxxxxx X. Xxxx
Vice President - Director - Chariman of the Board
Legal Affairs Marketing
and Business International
Management
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[***]-CONFIDENTIAL TREATMENT REQUESTED
July 22, 1999
GB/Mu
SUPPLEMENT I/1
to the
DISTRIBUTION AGREEMENT dated 22/07/1999
---------------------------------------
between
X. Xxxx-Xxxxxxx GmbH & Co.
Xxxxxx Xxxxxxx 00
X-00000 Xxxxxxxxxxxxxx
Xxxxxxx Xxxxxxxx of Germany
represented by Xxx. Xxxxxxxx Xxxxxxx,
General Manager of the Company
and
HORIZON Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000/XXX
represented by Xx. Xxxxxxxx Xxxx,
Chairman of the Board
Definition of the PRODUCT/s and its PRICE/s
Invoice Price Terms of Delivery
------------- -----------------
a) NITROLINGUAL Pumpspray, 200 doses DM [***] C I F MIAMI, Florida
b) NITROLINGUAL Pumpspray, 75 doses DM [***] C I F MIAMI, Florida
Launch after approval
Units exceeding quantities ex factory as specified below
up to 30% a) 200's DM [***] C I F MIAMI, Florida
b) 75's DM [***] C I F MIAMI, Florida
Units exceeding quantities ex factory as specified below
by more than 30% a) 200's DM [***] C I F MIAMI, Florida
b) 75's DM [***] C I F MIAMI, Florida
plus [***] royalties on net sales (amount net of returns, rebates and
chargebacks) realized by HORIZON by selling the PRODUCTS in the Territory.
HORIZON shall render quarterly to XXXX a report of the monthly sales. This
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[***]-CONFIDENTIAL TREATMENT REQUESTED
report shall contain the whole quantity of sales units, the gross turnover, the
discounts, the net turnover and the royalties resulting hereof. The sales to
Puerto Rico and the Caribbean Islands shall be separately specified in the
reports.
Minimum Quantifies ex factory in packts/200's - 75's:
-----------------------------------------------------
1st year: [***] units
2nd year: [***] units
3rd year: [***] units
4th year: [***] units
5th year: [***] units
For and on behalf of For and on behalf of
X. XXXX-XXXXXXX GmbH& Co. HORIZON Pharmaceutical Corp.
--------------------------------- ----------------------------------
N. Klapszus X. Xxxxxxxxxx, Xxxxxxxx X. Xxxx
Vice President - Director - Chairman of the Board
Legal Affairs and Marketing International
Business Management
Hohenlockstedt, July 22, 0000 Xxxxxxx, Xxxxxxx - July 22, 1999
GB/Mu
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July 22, 1999
GB/Mu
SUPPLEMENT II/1
to the
DISTRIBUTION AGREEMENT dated 22/07/1999
---------------------------------------
between
X. Xxxx-Xxxxxxx GmbH & Co.
Xxxxxx Xxxxxxx 00
X-00000 Xxxxxxxxxxxxxx
Xxxxxxx Xxxxxxxx of Germany
represented by Xxx. Xxxxxxxx Xxxxxxx, General Manager
of the Company
and
HORIZON Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000/XXX
represented by Xx. Xxxxxxxx Xxxx,
Chairman of the Board
Definition of HORIZON'S Territory:
----------------------------------
The Territory is the geographical area of
U S A
Puerto Rico,
Caribbean islands
and
For and on behalf of For and on behalf of
X. XXXX-XXXXXXX GmbH& Co. HORIZON Pharmaceutical Corp.
--------------------------------- ----------------------------------
N. Klapszus X. Xxxxxxxxxx, Xxxxxxxx X. Xxxx
Vice President - Director - Chairman of the Board
Legal Affairs and Marketing International
Business Management
Hohenlockstedt, July 22, 0000 Xxxxxxx, Xxxxxxx - July 22, 1999
GB/Mu
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[***]-CONFIDENTIAL TREATMENT REQUESTED
SUPPLEMENT III/1
to the
DISTRIBUTION AGREEMENT dated 22/07/1999
---------------------------------------
between
X. Xxxx-Xxxxxxx GmbH & Co.
Xxxxxx Xxxxxxx 00
X-00000 Xxxxxxxxxxxxxx
Xxxxxxx Xxxxxxxx of Germany
represented by Xxx. Xxxxxxxx Xxxxxxx, General Manager
of the Company
and
HORIZON Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000/XXX
represented by Xx. Xxxxxxxx Xxxx,
Chairman of the Board
Definition of the PRODUCT and their minimum sales in the Territory, during a 5
year's period after launch
Minimum Sales in packs
in the Territory:
-----------------
PRODUCT/S
NITROLINGUAL Pumpspray, 200 doses/75 doses
1st year: [***] units
2nd year: [***] units
3rd year: [***] units
4th year: [***] units
5th year: [***] units
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For and on behalf of For and on behalf of
X. XXXX-XXXXXXX GmbH& Co. HORIZON Pharmaceutical Corp.
--------------------------------- ----------------------------------
N. Klapszus X. Xxxxxxxxxx, Xxxxxxxx X. Xxxx
Vice President - Director - Chairman of the Board
Legal Affairs and Marketing International
Business Management
Hohenlockstedt, July 22, 0000 Xxxxxxx, Xxxxxxx - July 22, 1999
GB/Mu
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SUPPLEMENT IV
General Terms and Conditions of Trade (Foreign)
X. Xxxx-Xxxxxxx GmbH & Co. (Seller)
1. Validity
All our agreements and offers are subject to the following Conditions,
which are accepted as soon as an order is placed, a delivery accepted, or a
payment made, and shall also apply to any future orders placed with us.
Deviations from our General Terms and Conditions of Trade and price lists,
in particular any conditions used by Buyer, shall only apply if confirmed
by us in writing. They shall not bind us even if they have not been
explicitly rejected.
2. Orders
Any orders placed shall be binding on Buyer, but shall bind us only when
they are accepted by us in writing, or when goods are handed over, or when
the goods and the invoice are dispatched.
3. Delivery Times
Any delivery date quoted shall be approximate and non-binding. We shall be
entitled to make part deliveries and submit partial invoices. Execution of
orders on schedule is subject to our ability to deliver. Any circumstances
which impair the delivery or distribution of our products as set down in
the contract or which appear to jeopardize payment shall exempt us from our
supply commitment and shall entitle us to cancel the agreed order, to the
exclusion of further liability, wherever delivery has not yet been made.
4. Prices
The prices charged shall be those applicable on the day of delivery.
5. Payment and Default
Any obligations to pay shall be deemed to have been met only when we can
finally dispose of the proceeds of our claim. The amount shall be due as
agreed on, see ss. 6,5. Any delay in payment - in particular where credit
has been granted - shall be subject to default interest at a rate max. 4%
above the then current discount rate of the German Bundesbank, not
excluding further claims. Any delay in payment shall entitle us to withdraw
from any manufacturing or supply commitments not yet performed. In the
event that Buyer is in default with payment of an invoice amount, all other
invoices still outstanding shall be due and payable with immediate effect.
Cheques are only accepted "due payment provided".
6. Defences.
Buyer shall have no right of set-off or right of retention in respect of
any counterclaims which have not been recognized by us or by the courts.
7. Passing of Risk.
The risk of accidental loss, deterioration or similar obstacles to
performance shall pass to Buyer upon the goods leaving the factory. Where
shipment of any merchandise ready for dispatch is delayed for reasons for
which we are not answerable, the risk shall pass upon receipt of an advice
of dispatch.
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8. Warranty.
Complaints of whatever kind regarding deliveries and invoices shall only be
considered if forwarded to us at once in writing - in the case of obvious
defects, no later than 7 days after receipt, in the case of non-obvious
defects, as soon as they are detected. In the case of justified complaints
we shall, within a reasonable term, deliver merchandise free of defects to
replace any goods subject to complaint, or shall reimburse the value of the
goods. Buyer may assert no further claims. Any returns made without our
prior written consent shall be neither reimbursed nor sent back or stored;
we shall have the right to refuse acceptance.
9. Compensation
Compensation based on impossibility of performance, default, positive
breach of an obligation, culpa in contrahendo or tort shall be excluded
unless such claims are based on intent or gross negligence on our part. In
this case, Buyer shall have a right to cancel the agreed order, to the
exclusion of all other claims.
10. Retention of Title, Assignment of Claims
We shall retain title to the merchandise, incl. a rebate in kind, pending
payment in full of all, incl. future claims of our company against Buyer
from the business relationship. Buyer may dispose of the merchandise in the
normal course of business, but shall neither pledge nor assign the goods as
security. Any attachments made at the instance of third parties against
Buyer from the resale of the goods are assigned to us herewith by way of
security. In the event that the goods are sold by Buyer together with other
merchandise not belonging to us, the assignment of the claim to the
purchase price shall be limited to the amount of the proceeds for our goods
from the resale. We undertake to release any security that exceeds the
value of the claims to be secured by more than 25%. Subject to revocation,
Buyer is empowered to collect the claims from the resale. Upon demand,
Buyer shall inform us of the debtors behind the assigned claims and shall
notify them of the assignment.
11. Place of Performance
Place of performance for all contractual obligations, incl. warranty, shall
be the seat of our company.
12. Jurisdiction, Applicable Law
Any disputes arising from the business relationship shall be subject to the
law of the Federal Republic of Germany, to the exclusion of the unitary
laws on the international sale of goods and on the formation of sales
contracts for the international sale of goods. Place of jurisdiction shall
be Hamburg.
13. Final Provisions
Should any provision be invalid, this shall not affect the validity of the
remaining provisions. The invalid provision shall be reinterpreted to make
a valid provision in such a way as to achieve the economic intent of the
invalid provision.
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