* The confidential material marked by brackets contained herein has been
omitted and has been separately filed with the Commission pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
SUPPLY AGREEMENT
THIS Agreement is made this 6th day of October, 1997 by and between
PharmaPrint Inc., a corporation organized and existing under the laws of the
State of Delaware having its principal place of business at 0 Xxxx Xxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000 and its subsidiaries, including
PharmaPrint B.V., and Whitehall-Robins Healthcare, a division of American
Home Licensed Products Corporation, a corporation organized and existing
under the laws of the State of Delaware, having its principal place of
business at Five Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 ("AHP").
A. PharmaPrint has developed a method for the identification,
characterization of and regulation of the amounts of bioactive components in
herbal products and is seeking to commercialize certain of the herbal
products identified, characterized and regulated thereby.
B. PharmaPrint has developed technological know-how, obtained patents
and filed patent applications relating to and/or covering the subjects of
Paragraph A above.
C. Concurrently herewith, AHP and PharmaPrint have entered into
license agreements under which AHP has acquired certain exclusive rights to
market such herbal products within specified territories.
D. AHP desires to secure a coordinated and continuous manufacture and
supply of said herbal products.
2
ARTICLE I
DEFINITIONS
Terms defined in this Article I shall for all purposes of this
Agreement, as the same may be amended or supplemented from time to time, have
the meaning herein specified.
1.1 The term "Effective Date" shall mean the date first written
hereinabove.
1.2 The term "OTC Market" shall have the same meaning as set forth in
Paragraph 1.18 of the License Agreement (U.S.).
1.3 The term "FDA" shall mean the Federal Food and Drug Administration
of the United States Department of Health and Human Services or any successor
agency thereto as well as governmental agencies of comparable jurisdiction in
countries within the Territory other than the United States.
1.4 The term "GMP" means the good manufacturing practice regulations of
the FDA as described in the United States Code of Federal Regulations or any
successor regulations in the United States and as may be described in comparable
regulations in force in countries within the Territory other than the United
States, as applicable. For DSHEA Licensed Products, "GMP" shall mean compliance
with the regulations of the United States Dietary Supplement Health and
Education Act of 1994 and comparable regulations in force in countries within
the Territory other than the United States, as applicable.
3
1.5 The term "Government Approvals" shall mean any approvals, licenses,
registrations or authorizations, howsoever called, of any United States
federal, state or local regulatory agency, department, bureau or other
government entity, including the FDA, necessary for the manufacture, use,
storage, transport or sale, both interstate and intrastate, in the Territory
of Licensed Products. In the case of DSHEA Licensed Products, the term
"Government Approvals" shall mean compliance with the applicable sections of
the United States Dietary Supplement Health and Education Act of 1994. In
countries of the Territory other than the United States, "Governmental
Approvals" shall mean comparable regulations to those noted above.
1.6 The term "License Agreements" shall mean the License Agreement
(U.S.) and License Agreement (Foreign) granting certain rights to AHP, as
executed by the parties concurrently with this Agreement.
1.7 The term "Affiliate" shall mean any company which directly or
indirectly through stock ownership or through other arrangement is controlled
by either of the parties.
1.8 The term "Licensed Product" shall have the meaning set forth in the
License Agreements and shall include DSHEA Licensed Products. Licensed
Products shall comply with the Specifications defined below.
1.9 The term "Contract Year" shall mean, for the initial Contract Year,
the period commencing on the Effective Date and ending 365 days
4
thereafter. Subsequent Contract Years will commence upon the anniversary of
the Effective Date and end 365 days thereafter.
1.10 The term "Specifications" shall mean the specifications for the
Licensed Products set out in Schedule A of the License Agreements.
1.11 The term "Territory" shall mean those countries, and their
respective territories, possessions and affiliated Commonwealths as are then
in effect in the License Agreements.
1.12 The term "Contractor" shall mean a third party manufacturer of
Licensed Product(s) who agrees to manufacture such Licensed Product(s) for
PharmaPrint during the term of this Agreement.
1.13 The term "DSHEA Licensed Products" shall mean those products the
sale of which is governed by the United States Dietary Supplement Health and
Education Act of 1994.
1.14 The term "Global Shortage" relates to the botanical raw material
from which a Licensed Product is produced and shall mean either (i) the
unavailability of such raw material, or (ii) the limited availability of such
raw material to the extent that its price on the open market increases at
least twenty percent (20%) over a period of one Contract Year.
5
ARTICLE II
SUPPLY
2.1 PharmaPrint and its Affiliates shall have the right and obligation
to supply to AHP and AHP Affiliates one-hundred percent (100%) of their
requirements of Licensed Products in the Territory. During the period in
which AHP's rights under Paragraph 2.1(a) of the License Agreement (U.S.) are
exclusive, PharmaPrint and its Affiliates agree not to supply to any third
party or market for sale in the Territory a Licensed Product to any party for
use or sale in the OTC Market other than AHP.
2.2 By the first day of the first Contract Year, AHP shall provide
PharmaPrint with a forecast prepared in good faith of its quarterly
requirements of Licensed Products for the following twenty four (24) month
period, the initial twelve (12) month thereof being known as the "Initial
Forecast". Purchase orders will be placed by AHP corresponding to the first
three (3) months of the Initial Forecast. Throughout the term of the
Agreement, AHP shall further provide PharmaPrint with a rolling monthly
forecast of AHP's anticipated requirements of Licensed Products for the
subsequent twelve (12) month period ("Updated Forecast"). The forecasted
requirements of Licensed Products in the initial three (3) month Period of
the Initial Forecast and each subsequent Updated Forecast shall be binding
upon AHP. The remaining period of the Initial Forecast and each subsequent
Updated Forecast shall not bind AHP to order or accept such forecasted
requirements or any part
6
thereof and shall be only for the purpose of assisting PharmaPrint and its
Contractor(s) to plan their manufacturing of Licensed Products for the
applicable period.
2.3 AHP shall place purchase orders for each of the Licensed Products
with PharmaPrint from time to time specifying the quantities of the Licensed
Products desired, and the places to which and the manner and dates by which
delivery is to be made; said delivery dates to be no earlier than ninety (90)
days from the date of the purchase order unless requested by AHP and agreed
to by PharmaPrint.
2.4 PharmaPrint shall acknowledge all purchase orders within ten (10)
business days of their receipt. PharmaPrint shall execute all accepted
purchase orders by delivery of all ordered quantities of the Licensed
Products no later than the delivery dates provided in the purchase orders of
AHP to the destination recited therein, unless requested by AHP and agreed to
by PharmaPrint.
2.5 To the extent that the terms of any purchase order or
acknowledgment thereof are inconsistent with the terms of this Agreement, the
terms of this Agreement shall control.
2.6 Title and risk of loss will pass to AHP upon delivery of Licensed
Products to the designated carrier of AHP at Contractor's manufacturing
facility or PharmaPrint's storage facility as set forth in Schedule A or may
be agreed to by the parties. The parties agree that Contractors' facilities
shall be domestically located unless otherwise agreed.
7
2.7 All Licensed Products supplied by PharmaPrint to AHP in response to
purchase orders placed by AHP will conform to the Specifications and shall be
accompanied by the applicable certificate of analysis. PharmaPrint shall
further have the sole responsibility for obtaining all Government Approvals.
2.8 PharmaPrint and/or its Contractor(s) shall procure all active
ingredients, inactive ingredients and excipients necessary for the production
of the Licensed Products. Title in all such materials shall reside in
PharmaPrint.
2.9 The initial prices for the Licensed Products are set forth on
Schedule A. All prices for Licensed Products are F.O.B. Contractor's
manufacturing or PharmaPrint's storage facility as noted in Schedule A or as
may be agreed to by the parties.
2.10 Except as set forth in Paragraph 2.16, such prices of each such
Licensed Product shall remain fixed for a period of two (2) years from the
date of receipt by PharmaPrint of AHP's first purchase order for each of such
Licensed Products. After such two (2) year period, PharmaPrint may adjust
the price of each of the Licensed Products not more than once per Contract
Year upon not less than ninety (90) days written notice to AHP, to adjust for
increases or decreases in raw material costs ("Raw Materials Costs"), and not
more often than once in any Contract Year to adjust for increases or
decreases in Contractor's manufacturing costs ("Manufacturing Costs")
incurred in the manufacture of the Licensed Product. Any price adjustment
hereunder shall apply only
8
to Licensed Products sold in response to orders placed after the date on
which such adjustment becomes effective. Increases or decreases in the price
of the Licensed Product for Manufacturing Costs in any Contract Year shall
not exceed in the aggregate sixty percent (60%) of the increase or decrease
in the Consumer Price Index for the related product area published by the
U.S. Department of Commerce for the preceding calendar year. PharmaPrint
shall cause its Contractors to keep complete and accurate records of all Raw
Materials Costs and Manufacturing Costs incurred in the manufacture and
delivery of Licensed Products to AHP. PharmaPrint shall provide access to
said records during reasonable business hours to a certified public
accountant selected by AHP, and reasonably acceptable to PharmaPrint, who
shall, at AHP's expense, have access to such records deemed by such
accountant as reasonably necessary in verifying for AHP, not more often than
once each calendar year, such costs incurred by PharmaPrint and/or its
Contractors.
2.11 AHP agrees to randomly inspect all shipments of Licensed Products
to determine whether or not the Licensed Products are in conformity with the
Specifications. In the event that any portion of the shipment of Licensed
Products received by AHP fails to conform to the Specifications, AHP may
reject the non-conforming Licensed Products shipment by giving written notice
to PharmaPrint within sixty (60) days of AHP's receipt of the Licensed
Products, which notice shall specify the manner in which the Licensed
Products fail to meet the Specifications. Failing such notification, AHP
will be deemed to have accepted the
9
Licensed Products, and PharmaPrint shall not thereafter be required to
indemnify AHP for breach of its warranties under Paragraph 6.3 as to such
Licensed Products, except for defects not reasonably discoverable by AHP in
such inspection.
2.12 In the event PharmaPrint does not agree that any such Licensed
Product failed to meet the Specifications and PharmaPrint and AHP cannot
reach agreement with respect to such Licensed Product, PharmaPrint will
submit the question of whether the Licensed Product failed to meet the
Specifications to an independent laboratory selected by PharmaPrint and
approved by AHP for determination. The findings of such laboratory shall be
binding upon PharmaPrint and AHP and the cost of such determination shall be
paid by the party in error.
2.13 PharmaPrint shall replace any Licensed Product not conforming to
the Specifications forthwith, at its expense, or if it is unable to make
prompt replacement, PharmaPrint shall either credit AHP's account or refund
any payment made on the nonaccepted Licensed Products, depending on AHP's
account balance, within forty-five (45) days of AHP's receipt of notice of
AHP's nonacceptance. AHP shall return, at PharmaPrint's expense, the
nonaccepted Licensed Products to PharmaPrint or its Contractor, as may be
agreed by the parties.
2.14 AHP's right to inspect and right to replacement of Licensed
Products not conforming to the Specifications shall not preclude AHP from
exercising or enforcing any other rights or remedies it may have to
10
redress any loss or damage resulting from PharmaPrint's failure to supply
Licensed Products conforming to the Specifications.
2.15 PharmaPrint shall secure access for AHP to the operations and
facilities of PharmaPrint and/or its Contractors wherein Licensed Products
are manufactured, packaged, tested, labeled, stored and/or shipped. AHP
shall have the right to inspect such operations or facilities during normal
business hours, and on reasonable prior notice.
2.16 In the event of a Global Shortage affecting at least one Licensed
Product, the parties agree to discuss the institution of a temporary
adjustment to the price then if effect for such Licensed Product. However,
this provision in no way modifies PharmaPrint's obligations with respect to
the supply of such Licensed Product during the time of such discussions or
such Global Shortage.
ARTICLE III
RIGHT TO MANUFACTURE
3.1 In the event that PharmaPrint is unable at any time to supply
commercial quantities of Licensed Products for a period of sixty (60)
consecutive days for any reason, including acts of force majeure, AHP shall
have the right to manufacture Licensed Products itself, or have a third party
manufacture Licensed Products for AHP. The time of such manufacture by
either AHP or such third party shall be for a finite duration of reasonable
length in view of the complexity and costs of arranging such change in
Licensed Product(s) manufacturing. As used
11
herein, commercial quantities of Licensed Products shall mean total units of
Licensed Products equal to seventy five percent (75%) of AHP's quarterly
orders for the preceding two (2) quarters.
3.2 PharmaPrint agrees that information and manufacturing directions,
drawings, processing information, shop practice, standards and specifications
as to the materials to be used, identification of vendors, control methods
and test data, in sufficient detail to enable AHP, or a third party, to
manufacture the Licensed Products (the "Manufacturing Know-How"), will be
deposited with a bank designated by AHP as an independent Escrow Agent
pursuant to an Escrow Agreement containing terms and conditions consistent
with the provisions of this Article III. Any fees of the Escrow Agent will
be paid by AHP. The aforementioned deposit of Manufacturing Know-How shall
be accomplished not later than one (1) year after the Effective Date.
PharmaPrint shall bear the costs and expenses incurred in the establishment
of the escrow materials. PharmaPrint shall notify AHP in writing of the date
of deposit of the Manufacturing Know-How. PharmaPrint warrants that such
Manufacturing Know-How will contain all information referred to in the first
sentence of this paragraph 3.2 necessary to make Licensed Products conforming
to the Specifications.
3.3 AHP shall have the right to access and use the Manufacturing
Know-How by five (5) days' written notice to the Escrow Agent and to
PharmaPrint that PharmaPrint has failed to supply commercial quantities of
Licensed Products to AHP for a period of sixty (60) days.
12
3.4 PharmaPrint agrees that in the event the provisions of this Article
III are utilized, PharmaPrint will to the best of its ability assist AHP or a
third party designated by AHP to manufacture the Licensed Products.
3.5 If the procedure of Paragraph 3.1 is implemented, manufacture of
Licensed Products and their supply to AHP shall revert to PharmaPrint on a
Licensed Product-by-Licensed Product basis upon (a) notification to AHP from
PharmaPrint that PharmaPrint is again able to manufacture and supply such
Licensed Products, and (b) termination of any third party obligations incurred
by AHP in obtaining supply of Licensed Products pursuant to Paragraph 3.1
hereof. Upon such reversion, AHP right to use the Manufacturing Know-how shall
terminate.
3.6 In the event that Licensed Product(s) are to be produced by a third
party manufacturer for the benefit of AHP hereunder, such third party
manufacturer shall be placed under obligations of confidentiality with respect
to the Manufacturing Know-how at least as strict as those imposed upon AHP
hereunder. Such third party manufacturer shall further be obligated to use such
Manufacturing Know-how only for the purposes of producing Licensed Product for
AHP.
13
ARTICLE IV
RECALLS AND RETURNS
4.1 In the event of a recall of any of the Licensed Products required by a
governmental agency or authority of competent jurisdiction or if recall of any
Licensed Products is reasonably deemed advisable by AHP, such recall shall be
promptly implemented and administered by AHP in a manner which is appropriate
and reasonable under the circumstances and in conformity with accepted trade
practices. In the event that a recall is required as a result of AHP's breach
of its obligations hereunder, all costs and expenses incurred in connection
therewith shall be borne by AHP. PharmaPrint shall bear all costs associated
with such recalls not borne by AHP.
4.2 The provisions and obligations of this Article IV shall survive any
termination of this Agreement.
ARTICLE V
WARRANTIES AND COVENANTS
5.1 PharmaPrint represents and warrants that the execution of this
Agreement and the full performance and enjoyment of the rights of PharmaPrint
and AHP under this Agreement will not breach or in any way be inconsistent with
the terms and conditions of any license, contract, understanding or agreement,
whether express, implied, written or oral between PharmaPrint and any third
party.
14
5.2 PharmaPrint represents and warrants that to the best of its knowledge
no patents or patent applications if issued would be infringed by the
manufacture, use or sale of the Licensed Products.
5.3 PharmaPrint warrants that all Licensed Products supplied by
PharmaPrint pursuant to Paragraph 2.1 shall conform to the Specifications, be
manufactured in accordance with GMP and shall comply with all applicable laws in
the Territory.
5.4 PharmaPrint shall indemnify, defend and hold harmless AHP from all
actions, losses, claims, demands, damages, costs and liabilities (including
reasonable attorneys' fees) except as arise solely from events listed herebelow
in paragraph 5.5, to which AHP is or may become subject insofar as they arise
out of or are alleged or claimed to arise out of (i) personal injury, death or
property damage sustained by any person(s) resulting from the use of any
Licensed Product manufactured by or for PharmaPrint, (ii) any material breach by
PharmaPrint of any the warranties of PharmaPrint, or (iii) any grossly negligent
or willful act or omission by PharmaPrint or its employees, agents or
subcontractors.
5.5 AHP shall indemnify, defend and hold harmless PharmaPrint from all
actions, losses, claims, demands, costs and liabilities including reasonable
attorneys' fees) to which PharmaPrint is or may become subject insofar as they
arise out of or are alleged or claimed to arise out of (i) any grossly negligent
or willful act or omission by AHP or its employees, agent or subcontractors,
(ii) personal injury, death or property damage sustained by any person(s)
resulting from the use of any
15
Licensed Product manufactured by AHP or by a third party at the direction of
AHP, or (iii) any labeling, advertising or promotional materials used by AHP.
5.6 PharmaPrint shall maintain, during the term of this Agreement,
comprehensive general liability insurance with an insurance carrier reasonably
acceptable to AHP, which insurance policy or policies shall maintain the full
products hazards provisions with Licensed Products hazards limits subject to
deductibles not in excess of $10,000 per occurrence, and with at least
$2,500,000 per occurrence and at least $2,500,000 overall coverage for claims of
bodily injury and property damage arising out of any loss. Such policy or
policies shall extend coverage with respect to occurrences during a policy
period, regardless of the dates on which claims arising from such occurrences
are made, and shall include AHP as named insured in such policy or policies.
Both parties shall provide notice to the other of any loss, whether actual or
threatened, promptly upon receipt of notice thereof.
5.7 A party entitled to indemnification hereunder agrees to give prompt
written notice (in no event later than five (5) business days following its
receipt) to the indemnifying party after the receipt by such party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such party will claim
indemnification pursuant to this Agreement. Unless, in the reasonable judgment
of the indemnified party, a conflict of interest may exist between the
indemnified party and the indemnifying
16
party with respect to a claim, the indemnifying party may assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party.
If the indemnifying party is not entitled to, or elects not to, assume the
defense of a claim, it will not be obligated to pay the fees and expenses of
more than one counsel with respect to such claim. The indemnifying party
will not be subject to any liability for any settlement made without its
consent, which shall not be unreasonably withheld.
5.8 The provisions and obligations of this Article V shall survive any
termination or expiration of this Agreement.
ARTICLE VI
CONFIDENTIALITY
6.1 (a) Except as provided in subparagraph (b) hereto, both AHP and
PharmaPrint agree to keep secret and confidential all Manufacturing Know-How,
regardless of its source, and except as hereinafter specifically provided, shall
not disclose Manufacturing Know-How to any third person or party except such
third parties who agree to maintain such Manufacturing Know-How in confidence
under terms at least as restrictive as those in this Article VI.
(b) The above provision shall not bar the disclosure of Manufacturing
Know-how to a third party manufacturer as provided by Article 3 so long as the
terms of Paragraph 3.6 are adhered to.
17
6.2 Each of AHP and PharmaPrint shall take all such steps as are
reasonably necessary to ensure that its directors, officers and employees and
those of its affiliates, consultants manufacturing agents and third parties to
whom it shall disclose any Manufacturing Know-How shall not disclose the same to
any unauthorized person.
6.3 Either party, however, may disclose Manufacturing Know-How:
a) to the extent necessary by PharmaPrint, AHP and AHP Affiliates to
obtain Government Approvals for Licensed Products;
b) to the extent necessary to file, prosecute and obtain patents;
and/or
c) to the extent the Manufacturing Know-How is in the public domain
or enters the public domain hereafter through no fault of either party.
6.4 The provisions of this Article VI shall remain in force during the
period of this Agreement and for five (5) years thereafter, except that after
termination of this Agreement, a party may disclose Manufacturing Know-How
which:
a) according to the records of the party was known to it before
receipt (if any) from or on behalf of the other party;
b) is disclosed to the party by a third party who is under no
obligation of confidentiality to the other party.
6.5 The confidentiality provisions set forth herein shall supersede those
contained within the Confidentiality Agreement between the parties dated April
4, 1997.
18
ARTICLE VII
DURATION AND TERMINATION
7.1 This Agreement shall continue in full force and effect until
terminated by either party pursuant to the provisions set forth in this Article
VII, or until termination of the License Agreement (U.S.), whichever first
occurs.
7.2 AHP may terminate this Agreement in its entirety or on a Licensed
Product-by-Licensed Product basis, in its sole discretion, at any time upon
thirty (30) days written notice to PharmaPrint, provided that AHP's rights to
the applicable Licensed Product(s) has also been terminated pursuant to the
terms of the License Agreement(s). In such event, AHP shall remain obligated to
purchase under the terms herein such quantities of Licensed Products ordered
prior to the date termination becomes effective.
7.3 PharmaPrint may terminate this Agreement in its sole discretion, upon
thirty (30) days written notice to AHP, if the License Agreements, are
terminated in their entirety for any reason other than expiration pursuant to
paragraphs 12.1 of the License Agreements.
7.4 Either party hereto shall be entitled to terminate this Agreement upon
thirty (30) days written notice to the other party if the other party shall
commit a breach of any material provision hereof and shall not within sixty (60)
days from receipt of notice of such breach by the complaining party remedy the
same (if capable of remedy), or offer
19
full compensation therefor pursuant to the terms of the License Agreement(s).
7.5 Insofar as is lawful and legally permissible, This Agreement may be
terminated with immediate effect by a party upon giving written notice to the
other if the other is insolvent or has committed any act of bankruptcy or an
order is made or resolution passed for the winding up of the other party.
7.6 Failure on the part of either party to exercise or enforce any right
conferred upon it hereunder shall neither be deemed to be a waiver of any such
right nor operate to bar the exercise or enforcement thereof at any time
thereafter.
ARTICLE VIII
SUPPLY OF SAMPLES
8.1 During a three (3) years period commencing on the initial National
Launch Date, PharmaPrint shall supply AHP with additional quantities of Product
for use as marketing programs, such as their use in physician detailing or as
consumer samples. Such Products shall be supplied by PharmaPrint to AHP
annually at no cost to AHP, in quantities equal in value to three percent (3%)
of AHP's annual purchases of Product(s).
20
8.2 The additional Product supplied by PharmaPrint to AHP pursuant to
the terms of Paragraph 8.1 shall be ordered by AHP periodically through
submission of purchase orders as set forth in Paragraph 2.3.
ARTICLE IX
MISCELLANEOUS
9.1 Any notice required or permitted under this Agreement shall be in
writing and deemed to have been sufficiently provided and effectively made as
of the delivery date if hand-delivered with written acknowledgment thereof,
or as of the date received if mailed by registered or certified mail,
postage-prepaid, and addressed to the receiving party at its respective
address as follows:
AMERICAN HOME Licensed Products CORPORATION
Five Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Senior Vice President and General Counsel
PHARMAPRINT INC. (and/or PHARMAPRINT B.V.)
0 Xxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: President
or such other address which the receiving party has given notice pursuant to
the provisions of this Paragraph 9.1.
9.2 The relationship of the parties under this Agreement is that of
independent contractors and not as agents of each other or partners or joint
venturers, and neither party shall have the power to bind the other in any
way with respect to any obligation to any third party unless a specific power
of attorney is provided for such purpose. Each party
21
shall be solely and exclusively responsible for its own employees and
operations.
9.3 In the event that the performance of this Agreement or of any
obligation hereunder, other than payment of money as herein provided by
either party hereto is prevented, restricted or interfered with by reason of
any cause not within the control of the respective party, and which could not
by reasonable diligence have been avoided by such party, the party so
affected, upon giving prompt notice to the other party, as to the nature and
probable duration of such event shall be excused from such performance to the
extent and for the duration of such prevention, restriction or interference,
provided that the party so affected shall use its reasonable efforts to avoid
or remove such cause of non-performance and shall fulfill and continue
performance hereunder with the utmost dispatch whenever and to the extent
such cause or causes are removed.
For the purpose of the preceding paragraph but without limiting the
Generality thereof, the following shall be considered as not within the
control of the respective party: acts of God, acts or omissions of a
governmental agency, compliance with requests, recommendations, rules,
regulations or orders of any governmental authority or any officer,
department, agency or instrument thereof, flood, storm, earthquake, fire,
war, riots, insurrection, accidents, acts of the public enemy, invasion,
quarantine restrictions, strike, lockout, differences with workmen,
22
embargoes, delays or failure in transportation and acts of a similar nature.
9.4 Should one of the provisions of this Agreement become or prove to
be null and void, such will be without effect on the validity of this
Agreement as a whole. Both parties will, however, endeavor to replace the
void provision by a valid one which in its economic effect is most consistent
with the void provision.
9.5 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of
conflicts of laws.
9.6 This Agreement and the rights and obligations hereunder shall not
be assignable by either of the parties without the previous written consent
of the other party, such consent not to be unreasonably withheld, except that
AHP may assign this Agreement (i) in connection with the transfer of all or
substantially all of
23
IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have caused this Agreement to be executed.
AMERICAN HOME PRODUCTS CORPORATION PHARMAPRINT INCORPORATED
By: By:
------------------------------- -------------------------------------
Title: Title:
---------------------------- ----------------------------------
Date: Date:
----------------------------- -----------------------------------
PHARMAPRINT B.V.
By:
-------------------------------------
Title:
----------------------------------
Date:
-----------------------------------
SCHEDULE A
PRICES FOR INITIAL PRODUCTS
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PRODUCT CONTENT ENCAPSULATION PRICE
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