EXHIBIT 10.3
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[CERTAIN INFORMATION HAS BEEN OMITTED HEREIN PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 24b-2. THE REDACTED MATERIAL HAS
BEEN SEPARATELY FILED WITH THE COMMISSION.]
DISTRIBUTION AND SUPPLY AGREEMENT
This Agreement is dated as of January 1, 1994 between:
The Upjohn Company
a company duly incorporated in Delaware, U.S.A., having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, 00000, X.X.X. (hereinafter
"Upjohn"), and
Sicor, S.p.A.
a company duly incorporated in Italy having its registered address at Sicor -
Societa Italiana Corticosteroidi, S.p.A. Xxx Xxxxxxxxxx 00 00000 Xxx (Xxxxxx)
Xxxxx (hereinafter "Sicor").
Alco Chemicals, Ltd.
a company duly incorporated in Switzerland having its registered address at Alco
Chemicals, Ltd., Xxx Xxx Xxxxxxxxx, 0, XX 0000, Xxxxxx, Xxxxxxxxxxx (hereinafter
"Alco")
WHEREAS Upjohn is a manufacturer of pharmaceutical chemical intermediates,
including certain steroid intermediates (more particularly described in Schedule
A, hereinafter the "Products"); and
WHEREAS Sicor is a manufacturer that converts steroid intermediates into
finished bulk steroids for sale to pharmaceutical manufacturers in world
markets; and
WHEREAS Alco is a distributor of Sicor products in certain market areas; and
WHEREAS Sicor desires to purchase the Products from Upjohn for manufacture into
finished bulk steroids (finished bulk steroids manufactured from the Products
supplied by Upjohn being hereinafter the "Finished Products"), and otherwise to
purchase from Upjohn all of its requirements of the Products, for marketing,
distribution, and sale of the Finished Products in
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certain territories of the world (more particularly defined in Schedule B,
hereinafter the "Territory").
NOW THEREFORE, in consideration of the premises and the mutual covenants set
forth in this Agreement, Upjohn and Sicor hereby agree as follows:
I. Distribution
1. Grant of Distribution Rights
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1.1 Upjohn hereby grants to Sicor and its designees exclusive rights to
distribute the Finished Products in the Territory upon the terms set forth in
this Agreement. Sicor assumes and accepts such appointment, and agrees that at
all times it will devote its best efforts to the marketing, distribution, and
sale of the Finished Products in the Territory.
1.2 Upjohn intends to market, distribute, and sell the Finished Products (as
manufactured by Upjohn from the Products) in Canada, Korea, China, India,
Taiwan, and the United States to its current customers. Sicor also may market,
distribute, and sell the Finished Products to its customers in these six
countries. Upjohn intends to sell the Product [CONFIDENTIAL TREATMENT
REQUESTED] to its customer in India.
2. Sicor's Obligations as Distributor
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2.1 Not make any representations concerning the Finished Products, or
extend any warranties concerning the use, safety, or effectiveness of
the Finished Products, except as such representations or warranties
may be consistent with the Products' labeling and data sheets.
2.2 Report to Upjohn all complaints or claims with respect to the Products
immediately and cooperate with Upjohn in the processing of such
complaints or claims.
II. Supply
3. Supply
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3.1 Upjohn shall supply on a timely basis to Sicor all of Sicor's
requirements for the Products which shall be manufactured in
accordance with the specifications set forth in Schedule C. Sicor
shall purchase from Upjohn all of its requirements of the Products.
3.2 Unless otherwise agreed to in writing by Upjohn, Sicor will not export
Products to any third party manufacturer.
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III. Commercial Terms
4. Price and Terms of Payment
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4.1 The prices for the Products shall be as specified by Upjohn in U.S.
dollars and notified to Sicor from time to time. Upjohn shall have
the right to change its prices for the Products upon one hundred
eighty (180) days notice to Sicor.
4.2 Upjohn shall sell the Products to Sicor CIF duty paid destination
unless otherwise agreed by the Parties.
4.3 In the event that Sicor encounters price competition in the Territory
from reputable manufacturers of finished bulk steroids of like
quality, quantity, availability, and other terms equivalent to that of
the Finished Goods, then Upjohn shall review its prices for the
Products and offer Sicor revised prices that enable Sicor to better
compete with such other manufacturers.
4.4 Upjohn shall send Sicor an invoice on the date that the Products
purchased are shipped. Sicor shall pay the invoice within one
hundred twenty (120) days of the date of the invoice. Other terms of
payment shall be established by Upjohn from time to time and
communicated to Sicor.
5. Forecasts and Orders
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5.1 Upon execution of this Agreement, Sicor shall provide to Upjohn a
forecast of its requirements for the Products by quarter, for the
succeeding twelve months. Thereafter, throughout the term of this
Agreement, on the first day of each calendar quarter, Sicor shall
furnish to Upjohn a revised forecast of its requirements for the
Products, by quarter, for the succeeding twelve (12) month period.
6. Warranties
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6.1 Upjohn warrants to Sicor that, in the event any of the Products, at
the time of receipt by Sicor, do not meet the specifications set forth
in Schedule C, Upjohn shall either replace the non-conforming Products
or give Sicor a credit against future purchases for the purchase price
of such non-conforming goods, at Sicor's option.
6.2 EXCEPT AS PROVIDED IN THIS CLAUSE, UPJOHN MAKES NO REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT THE PRODUCTS,
THEIR
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MERCHANTABILITY, OR THEIR FITNESS FOR A PARTICULAR PURPOSE.
7. Indemnity
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7.1 Upjohn shall indemnify and hold harmless Sicor from and against all
claims or legal proceedings, including legal expenses (other than for
liability which is proved arising out of the negligence or other fault
of Sicor), which may be asserted against Sicor by or on behalf of any
person or entity for personal injury or other damage arising out of or
relating to the failure of the Products to meet the specifications set
forth in Schedule C or a hidden defect in the Products.
7.2 Sicor shall indemnify and hold harmless Upjohn from and against all
claims or legal proceedings, including legal expenses (other than for
liability which is proved arising out of the negligence or other fault
of Upjohn), which may be asserted against Upjohn by or on behalf of
any person or entity for personal injury or other damages arising out
of or relating to the manufacture, distribution, marketing, sale, or
use of the Products or Finished Products.
IV. General Provisions
8. Term and Termination
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8.1 This Agreement shall become effective on the date first written above
and shall remain in effect for a term of five (5) years. Upon
expiration of the initial term, this Agreement shall be renewed
automatically for additional successive terms of one (1) year provided
that neither party has given the other party notice of intent to
terminate within one hundred eighty (180) days of the end of the
current term.
8.2 This Agreement may be terminated by either party if:
A. The other party commits a breach of any of its obligations under
this Agreement which shall not have been remedied within thirty
(30) days from the party's giving of notice of such breach; or
B. The other party becomes insolvent, makes an assignment for the
benefit of its creditors, or is placed in receivership,
liquidation or bankruptcy.
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9. Assignment
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This Agreement shall not be assigned by either party without the
written consent of the other party.
10. Notices
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All notices or other communications which shall or may be given
pursuant to this Agreement shall be effective upon receipt and shall
be in writing and delivered personally or by registered or certified
mail or telefax, addressed as follows:
If to Upjohn: The Upjohn Company
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000 X.X.X.
Attn: X. X. Xxxxxxxx
Fax: 616/000-0000
with a copy to: N.V. Upjohn S.A.
00 xxx xx Xxxxxx
0000 Xxxxxxxx
XXXXXXX
Attn: X. X. Xxxxxxxxxx
Fax: 322/000-0000
If to Sicor: Sicor, S.p.A.
Xxx Xxxxxxxxxx 00
00000 Xxx (Xxxxxx)
XXXXX
Attn: Xx. X. Xxxxxxxxx
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If to Alco: Alco Chemicals, Ltd.
Xxx Xxx Xxxxxxxxx, 0
XX 0000 Xxxxxx,
XXXXXXXXXXX
Attn: Xxxxx Xxxxx
Fax: 91/549777
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly authorized officers or representatives as of the day and
year first written above.
The Upjohn Company Sicor, S.p.A.
By: /s/ X. X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxx
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X. X. Xxxxxxxx Xxxxxxx Xxxxx
Title: Vice President Title: President
Pharmaceutical Commercial
Services
Date: Date:
Alco Chemicals, Ltd.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Title: Managing Director
Date: 29-7-94
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Distribution and Supply Agreement
The Upjohn Company - Sicor, S.p.A.
Schedule A
Products
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[CONFIDENTIAL TREATMENT REQUESTED]
Distribution and Supply Agreement
The Upjohn Company - Sicor, S.p.A.
Schedule B
Territory
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The Territory shall consist of all countries of the world except:
Canada
China
India
Korea
Taiwan
United States
Existing traditional account relationships will be respected by both parties.
Distribution and Supply Agreement
The Upjohn Company - Sicor, S.p.A.
Schedule C
Specifications
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[CONFIDENTIAL TREATMENT REQUESTED]
