Exhibit 10(ad)
Supply Agreement dated January 14, 1997*
* Certain portions of Exhibit 10(ad) have been omitted and have been filed
with the Commission pursuant to a request for confidential treatment
thereof.
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SUPPLY AGREEMENT
This Agreement, entered into as of the 14th. day of January, 1997, by
and between Lannett Company, Inc. ("Lannett"), a Delaware corporation, having
offices in Philadelphia, Pennsylvania, and MOVA Pharmaceutical Corporation
("MOVA"), a Puerto Rico corporation, having offices in Caguas, Puerto Rico.
WITNESSETH:
WHEREAS, Lannett manufactures and sells pharmaceutical products and
has represented that it has developed a generic versions of certain
pharmaceutical products (as hereinafter defined); and
WHEREAS, MOVA distributes a line of generic versions of branded
pharmaceutical products such as the Products; and
WHEREAS, MOVA would like to distribute the Products as manufactured
by Lannett and Lannett is willing to supply the Products to MOVA for such
purpose, all upon the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, which are
hereby incorporated as substantive part of this Agreement, and in
consideration of the performance of the mutual covenants and promises herein
contained, Lannett and MOVA have agreed as follows:
ARTICLE 1 - DEFINITIONS
1.1 The Products. The "Products" shall mean each of the Products listed in
Exhibit A for which the FDA has approved an Abbreviated New Drug
Application. Products may be added to Exhibit A by mutual agreement of the
parties.
1.2 The ANDA. The "ANDA" shall mean the Abbreviated New Drug Applications
for the Products which has been submitted to the FDA by Lannett, including
any amendments or supplements thereto.
1.3 The FDA. The "FDA" shall mean the United States Food and Drug
Administration.
1.4 Patents. The "Patents" shall mean any issued patents or patent rights
held by third parties which would be infringed by the manufacture, use or
sale of the Products to be sold by Lannett to MOVA pursuant to the terms of
this Agreement.
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1.5 Purchase Term. The "Purchase Term" shall mean the five (5) year period
that begins on the date the first order for Products is shipped after the
date first appearing above. In the event that neither party gives the other
written notice six (6) months prior to the end of the initial five (5) year
Purchase Term, the Agreement shall automatically be extended so that after
the end of the initial Purchase Term the Agreement may be terminated only
upon six (6) months prior written notice by Lannett or MOVA to the other.
1.6 Purchase Price. The "'Purchase Price" shall mean the price per shelf
keeping unit as specified in Exhibit A hereof and subject to adjustment in
accordance with Paragraph 2.7 hereof.
1.7 Affiliate. "Affiliate" shall mean, with respect to either party, all
corporations or other business entities which, directly or indirectly, are
controlled by, control or are under the common control with that party. For
this purpose, the meaning of the word "control" shall include, but not be
limited to, ownership of more than fifty percent (50%) of the voting shares
or interest of such corporation or other business entity.
1.8 Active Ingredient. "Active Ingredient" shall be the one specified for
each of the Products in Exhibit A.
ARTICLE 2 - SUPPLY
2.1 Supply. Subject to the terms and conditions of this Agreement, Lannett
shall supply and MOVA shall purchase from Lannett substantially all of
MOVA's requirements for the Products throughout the Purchase Term.
MOVA shall not purchase the Products or any product having the same
Active Ingredient, strength and indication as the Products, from any party
other than Lannett throughout the Purchase Term except that MOVA may
purchase the Products or any such product from any party pursuant to
Paragraph 2.4 and Article 12 hereunder.
2.2 Forecasts. As early as reasonably possible after the date first
appearing above, and thirty (30) days prior to every calendar quarter
thereafter, MOVA shall give to Lannett a written forecast of the quantities
of the Products, including quantities for each strength and unit size of the
Products, and delivery dates that MOVA anticipates it will order from
Lannett during the two (2) calendar quarters following the date of the
written forecast. Such forecast shall not create a binding obligation on-the
part of either Lannett or MOVA, except as provided in Paragraph 2.3 hereof.
However, MOVA shall use all reasonable efforts to make each forecast as
accurate as possible. MOVA shall promptly advise Lannett of any significant
changes in its estimated forecast of Products.
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2.3 Orders. MOVA shall submit written purchase orders to Lannett for the
quantities of the Products, including the quantity of each strength and unit
size and delivery dates, which MOVA desires to purchase under this
Agreement. For the first three (3) month period of each forecast given by
MOVA pursuant to Paragraph 2.2 hereof, MOVA shall submit purchase
orders to Lannett for at least the greater of: seventy-five percent (75%) of
the forecasted quantities for that period on the then current forecast or
fifty percent (50%) of the forecasted quantities for that period as shown on
the immediately preceding forecast. Regardless of the quantities ordered,
Lannett shall use all reasonable efforts to deliver the full quantities of
the Products ordered by MOVA. Deliveries of the Products ordered by
MOVA to the destination designated by MOVA will be made within sixty
(60) days following the date on which MOVA submitted the purchase order
unless a later delivery date has been specified by MOVA.
2.4 Inability to Supply. Within thirty (30) days following its receipt of
each forecast according to Paragraph 2.2 hereof, Lannett shall advise MOVA
in writing if it is unable to supply the entire quantity forecasted. MOVA
shall have the right to purchase from third parties, such quantities of the
Products for which Lannett shall have advised that it will be unable to
supply, for as long as Lannett's inability to supply continues and for a
three (3) month period following notice by Lannett that it is able to supply
MOVA the entire quantity forecasted.
2.5 Shipments. Delivery shall be C.I.F. Caguas freight and insurance prepaid
by Lannett. Products shall be shipped by Lannett according to MOVA's
instructions, to MOVA's facility at Xxxxx Xxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, XX
00000; provided, however, that should MOVA instruct Lannett to ship to
another location, Lannett shall do so and MOVA shall reimburse for any
incremental costs involved, if any.
2.6 Billing and Payment. Lannett shall invoice MOVA the Purchase Price
for all shelf keeping units in each shipment of Products delivered to
MOVA. Payment terms shall be 2%, 10 days, Net 30 days from receipt of
the invoice therefor. Interest shall accrue at a monthly rate of one and
one-half percent (1 1/2%) on balances for which payment has not been
received forty-five (45) days from the date of delivery, unless such balance
is subject to the rejection and dispute resolution provisions of Sections
3.2 and 3.4 hereunder.
2.7 Purchase Price. The Purchase Price set forth in Exhibit A shall be valid
for Purchase Term. The parties agree to meet from time to time, but not less
than every six (6) months, to review the Purchase Price as it relates, to
market conditions. At that time the parties, if market conditions so
require, shall negotiate in good faith an adjustment to the Purchase Price.
If at any time during the Purchase Term, the price for any of the Products
generally charged to other clients of Lannett is lower than the then current
Purchase Price, then Lannett shall immediately make available this lower
price to MOVA
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION -- ASTERISKS DENOTE SUCH OMISSION
and adjust the Purchase Price in Exhibit A, including the price for
purchases for which a purchase order has already been issued by MOVA in
accordance with Section 2.3 hereof. If at any time during the Purchase Term,
Lannett increases the price generally charged to other clients and MOVA for
any of the Products and such price is higher than the then current Purchase
Price, then Lannett shall promptly notify MOVA of such increase. If MOVA
does not accept such increase, then the parties shall negotiate in good
faith for up to thirty (30) days from the date MOVA gives notice, to arrive
at a mutually acceptable Purchase Price. If, during such thirty (30) day
period the parties agree on a mutually acceptable Purchase Price then
Lannett shall adjust the Purchase Price in Exhibit A. If at the end of such
thirty (30) day period the parties have not reached agreement, MOVA, at its
option, may amend Exhibit A to exclude such Product and shall cease to have
obligations to purchase such Product. From time to time the parties may
agree to adjust the Purchase Price through a rebate or other similar
mechanism to accommodate promotions or other sales incentive given by MOVA
to its clients.
2.8 Conflicting Terms. In ordering and delivering the Products, MOVA and
Lannett may use their standard forms, but nothing in such forms shall be
construed to amend or modify the terms of this Agreement and in case of
conflict herewith, the terms of this Agreement shall control unless
otherwise specifically agreed in writing by the parties hereto.
2.9 Market Segment Agreement. Throughout the Purchase Term, Lannett will not
directly sell or distribute Product to Managed Care organizations (except
**** ), Mail Order and Chain market segments (except ****. In the event a
customer makes direct contact with Lannett, then Lannett shall promptly
forward such contact to MOVA's marketing department. However, if any
potential customer expresses to MOVA or Lannett that it prefers to establish
business for Product directly with the manufacturer, then the applicable
party shall promptly notify the other of such potential customer and Lannett
will be able to sell directly to such customer. MOVA shall not solicit
sales, quote prices, directly sell or distribute Product to the customers
included in Exhibit B hereof except when such sale is made to service a
Managed Care, Mail Order, Chain or government market segment customer. MOVA
shall promptly inform Lannett of sales arrangements to such parties which
require sales to customers included in Exhibit B. Such exhibit may be
modified from time to time by Lannett. The provisions of this Section 2.9
shall not be applicable to customers outside the U.S. Such international
customers shall be handled on an individual basis.
2.10 Independent Prices. Each of the parties shall establish the prices at
which it sells the Products to its customers independently of the other
party.
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ARTICLE 3 - QUALITY
3.1 Quality Control. Prior to each shipment of the Products, Lannett shall
perform such quality control procedures to verify that each shipment of the
Products made under this Agreement conforms to the specifications for the
Products contained in the approved ANDA and otherwise complies with the
representations and warranties given by Lannett in Article 4 hereof. Each
shipment of the Products shall be accompanied by a quality assurance
analytical data sheet (the "Q.A. Certificate of Analysis").
3.2 Rejection. MOVA shall have thirty (30) days following the day on
which it receives a shipment to reject same because all or part of the
shipment fails to conform to the applicable specifications or otherwise
fails to conform to the representations and warranties given by Lannett
herein, by giving written notice to Lannett specifying the manner in which
all or part of such shipment fails to meet the foregoing requirements. If
MOVA rejects a shipment before the date on which payment therefor is due
according to Paragraph 2.6 hereof, it may withhold payment for that shipment
or the rejected portion thereof. All shipments or portions thereof not
rejected by MOVA before such date shall be paid for in accordance with
Paragraph 2.6 hereof. All shipments or portions thereof which MOVA
rejected but, as determined pursuant to Paragraph 3.4 hereof, did not have
the right to reject, shall be paid within fifteen (15) days following the
day on which such determination was made, unless MOVA had paid earlier.
In the event MOVA rejects a shipment or portion thereof within such thirty
(30) day period in accordance with the terms hereof but after payment
therefor had been made, MOVA shall be entitled to recoup the payment
amount by, at MOVA's election, Lannett's issuing a prompt refund or by
MOVA's offsetting such amount against the payment of future invoices or
other payments that may become due hereunder. The representations and
warranties given by Lannett hereunder shall survive any failure to reject by
MOVA under this Paragraph.
3.3 Recalls. If the Products is recalled pursuant to FDA regulation or other
applicable laws and returned as a result of any such recall and such recall
is due to Lannett's negligence or willful misconduct or a breach of any
representation or warranty of Lannett hereunder, then Lannett shall bear all
incremental out-of-pocket direct costs in connection with the recall,
including, but not limited to, all notification letters and all shipping
expenses. In no event shall Lannett be responsible for any indirect expenses
incurred by MOVA. If the recalled Products is to be destroyed, Lannett, at
MOVA's request, shall replace free of charge said Products or issue a credit
to MOVA's account or refund payment to MOVA. If the recalled Products is to
be reworked, Lannett shall bear all costs of reworking said product. If the
Products is recalled and such recall is due to MOVA's negligence or willful
misconduct or a breach of any representation or warranty of MOVA hereunder,
then MOVA shall bear all incremental out-of-pocket direct costs in
connection with the recall, including, but not limited to, all notification
letters and all shipping
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expenses. In no event shall MOVA be responsible for any indirect
expenses incurred by Lannett.
3.4 Disputes. If Lannett disputes MOVA's right to reject all or part of
any shipment of the Products as set forth in Paragraph 3.2 or 3.3 hereof,
such dispute shall be resolved by an independent approved FDA testing
organization or consultant of recognized repute within the U.S.
pharmaceutical industry mutually agreed upon by the parties, the appointment
of which shall not be unreasonable withheld or delayed by either party. The
determination of such entity with respect to all or part of any shipment of
the Products shall be final and binding upon the parties, but only as to the
reasons given by MOVA in rejecting shipment or portion thereof and shall
have no effect on any other matter for which said entity did nit render a
determination. The fees and expenses of the third party making the
determination shall be paid by the party against which the determination is
made.
3.5 Obligation to Inform the Other. Parties agree to keep each other
regularly and fully informed of any notification or other information,
whether received directly or indirectly, which might in any way affect the
marketability, safety or effectiveness of the Products, or which might result
in potential liability for either party, or which necessitate action on the
part of either party, or which might result in recall of the Products, or
which might otherwise in any way affect either if the parties' interest with
respect to the distribution or use of the Products. Nothing contained in this
Paragraph shall obligate either party to provide the other with any
information other than information regarding the quality if the Products.
3.6 Inspections. Upon reasonable notice given to Lannett, MOVA shall have the
right to have a reasonable number of its employees inspect any facility at
which the Products to be sold to MOVA hereunder is manufactured, packaged,
stored or shipped.
3.7 Packaging. Lannett shall supply the Product to MOVA in finished
containers bearing the MOVA label as specified by MOVA and approved by the
FDA. MOVA agrees to pay the cost of preparation and printing of all packaging
components (e.g. labels, outserts) specific to MOVA which are not used in the
Products delivered to MOVA. Such payment shall be limited to a maximum of six
(6) month's supply of printed packaging components to satisfy MOVA's
immediately preceding forecast of Product. Such amount shall be payable
thirty (30) days from receipt of the invoice therefor.
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ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
MOVA hereby covenants, represents and warrants to Lannett that:
(a) that after it receives delivery of the Products it will not cause by any
action or omission on its part that the Products be adulterated or
misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, as
amended and in effect at the time of shipment (the "'Act").
Lannett hereby covenants, represents and warrants to MOVA that:
(a) on the date of shipment, all of the Products sold by Lannett to MOVA
hereunder will comply with the specifications for the Products contained in
the approved ANDA and conform with the information shown on the Q.A. Data
Sheet;
(b) all of the Products sold by Lannett to MOVA hereunder shall have been
manufactured, packaged and stored and shipped in conformance with all
applicable current Good Manufacturing Practices which are in force or
hereinafter adopted by the FDA or any successor agency thereto;
(c) on the date of shipment, all of the Products shipped by Lannett to
MOVA hereunder will not be adulterated or misbranded within the meaning
of the Act, or within the meaning of any applicable state or municipal laws
in the USA under which such terms have the same meaning as set forth under
the Act;
(d) on the date of shipment, all of the Products sold by Lannett to MOVA
hereunder may be legally distributed or sold in the USA;
(e) title to all the Products sold by Lannett to MOVA hereunder shall
pass to MOVA as provided herein free and clear of any security interest,
lien or other encumbrance;
(f) the Products sold hereunder shall have been manufactured, packaged and
stored in facilities which are approved by the FDA at the time of such
manufacture, packaging and storage, to the extent such approval is required
by law; and
(g) to the best of Lannett's knowledge and belief, the manufacture, use or
sale of the Products sold by Lannett to MOVA hereunder shall not
constitute an infringement of any Patents.
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ARTICLE 5 - REGULATORY MATTERS
5.1 Administration of the ANDA and other Approvals. Lannett shall be
responsible for maintaining the ANDA and any other approvals current and in
effect. In so doing, Lannett shall comply with all applicable requirements
of the FDA and counterpart governmental agencies outside of the USA.
5.2 Products Complaints. Each party shall immediately inform the other of
product quality, health or safety related concerns or inquiries that raise
potentially serious and unexpected quality, health or safety concerns. All
such other information not involving the above described situation shall be
transmitted to the other party within three (3) business days following
receipt.
ARTICLE 6 - INDEMNIFICATION
6.1 Lannett's Obligation to Indemnify. Lannett agrees to indemnify, defend,
and hold harmless MOVA, its Affiliates and subsidiaries and their
respective employees against any and all claims, losses, damages and
liabilities, including reasonable attorneys' fees and costs associated with
a recall of the Products as defined in Paragraph 3.3 hereof, incurred by any
of them arising out of any breach of any obligation hereunder or any
representation or warranty by Lannett hereunder or any act or omission of
Lannett in connection with its obligations hereunder.
6.2 MOVA's Obligation to Indemnify. MOVA agrees to indemnify, defend and
hold harmless Lannett, its Affiliates and subsidiaries and their respective
employees against any and all claims, losses, damages and liabilities,
including reasonable attorneys' fees and costs associated with a recall of
the Products as defined in Paragraph 3.3 hereof, incurred by any of them
arising out of any breach of any obligation hereunder or any representation
or warranty by MOVA hereunder or any act or omission of MOVA in connection
with its obligations hereunder.
6.3 Obligations of the Party Seeking to be Indemnified. If MOVA or any
of its Affiliates or subsidiaries or Lannett or any of its Affiliates or
subsidiaries (in each case an "Indemnified Party") receive any written
claims which it believes is the subject of indemnity hereunder by Lannett or
MOVA, as the case may be (in each case an "Indemnifying Party"), the
Indemnified Party shall, as soon as reasonably practicable after forming
such belief, give notice thereof to the Indemnifying Party, including full
particulars of such claim to the extent known to the Indemnified Party;
provided, that the failure to give timely notice to the Indemnifying Party
as contemplated hereby shall not release the Indemnifying Party from any
liability to the Indemnified Party except to the
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extent that the Indemnifying Party is injured by such delay. The
Indemnifying Party shall have the right, by prompt notice to the Indemnified
Party, to assume the defense of such claim with counsel reasonably
satisfactory to the Indemnified Party, and at the cost of the Indemnifying
Party. If the Indemnifying Party does not assume the defense of such claim,
or, having done so, does not diligently pursue such defense, the Indemnified
Party may assume such defense, with counsel of its choice, but for the
account of the Indemnifying Party. If the Indemnifying Party so assumes such
defense, the Indemnified Party may participate therein through counsel of
its choice, but the cost of such counsel shall be for the account of the
Indemnified Party. The party not assuming the defense of any such claim
shall render all reasonable assistance to the party assuming such defense,
and all out-of-pocket costs of such assistance shall be for the account of
the Indemnifying Party. No such claim shall be settled other than by the
party defending the same, and then only with the consent of the other party,
which shall not be unreasonably withheld; provided, that the Indemnified
Party shall have no obligation to consent to any settlement of any such
claim which imposes on the Indemnified Party any liability or obligation
which cannot be assumed and performed in full by the Indemnifying Party.
6.4 Insurance. Each party and its Affiliates shall carry products liability
insurance in an amount at least equal to $3,000,000 with an insurance
carrier reasonably acceptable to the other party. Such insurance shall cover
the indemnifications set forth in Article 6 hereof. Each party shall name
the other party as additional insured under such policy. A certificate(s) of
insurance evidencing such coverages shall be delivered to the other party
within ten (10) days prior to the date any such Products is first
commercially sold by such party, and shall provide among other things, that
such insurance shall not be canceled or modified without giving the other
party at least thirty (30) days prior written notice.
ARTICLE 7 - CONFIDENTIALITY
7.1 Each party shall at all times maintain as confidential any know-how or
other business information received from the other party under this
Agreement, during the term of this Agreement, shall only use such
information in furtherance of this Agreement shall only disclose such
information to those of its employees with a need to know in furtherance of
this Agreement, provided, however, that nothing contained herein shall
prevent a party from submitting information to a governmental
instrumentality in connection with seeking approval to market the Products.
Said obligation of confidentiality shall not apply, however, to any
information which:
(a) was known to the receiving party, as evidenced by its written records,
prior to receipt from the other party;
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(b) is in the public domain at time of receipt or subsequently enters the
public domain through no breach of this Agreement by the receiving party;
(c) after the date of receipt from the disclosing party, is received without
cover of secrecy from a third party with a bona fide right to disclose
without violating any right of the disclosing party; or
(d) is independently developed by the receiving party without the aid,
application or use of any information for which it is obligated to maintain
as confidential according to this Paragraph.
The respective obligations of Lannett and MOVA under this Paragraph shall
be in effect during the term of this Agreement and for the two (2) years
thereafter.
ARTICLE 8 - TERM, TERMINATION
8.1 Term. This Agreement shall become effective as of the date first written
above and shall remain in full force and effect through the end of the
Purchase Term.
8.2 Termination for Cause. This Agreement may be terminated at any time:
(a) by either party if the other party fails to remedy and make good any
default in the performance of any condition or obligation under this
Agreement within sixty (60) days of the date a written notice of default is
sent to the defaulting party thereof, or if such breach cannot be reasonably
remedied within such 60-day period, the party in default diligently
commences to remedy such breach;
(b) by either party upon bankruptcy or insolvency of the other party or
placing of the business of such party in receivership;
(c) by either party if Exhibit A is amended under the provisions of Section
2.7 and no Product remains listed in such Exhibit A;
(d) by Lannett if MOVA fails to pay three (3) or more consecutive
invoices within forty-five (45) days from the date of delivery of such
Product, unless such invoice is subject to the rejection and dispute
resolution provisions of Sections 3.2 and 3.4 hereunder;
(e) by MOVA in the event Lannett fails to deliver three (3) or more
consecutive orders of Product within thirty (30) days of the delivery date
specified in MOVA's order; or
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(f) By MOVA in the event Lannett fails to supply MOVA's requirements
for the Product for a period of three (3) consecutive months provided such
requirements are within the forecasts given by MOVA to Lannett
pursuant to Section 2.2 hereof.
8.3 Waiver. Failure to terminate this Agreement following a breach or
failure to comply with terms and conditions of this Agreement shall not be
deemed a waiver of the non breaching party's defenses, rights or causes of
action arising from such or any future breach or noncompliance.
ARTICLE 9 - TRADE NAMES AND TRADEMARKS
9.1 MOVA and Lannett hereby acknowledge that they do not have, and
shall not acquire by virtue of this Agreement, any rights to or in any
goodwill, trademark, trade name, copyright, patent or other property of the
other, nor in any of the other's trademarks or trade names appearing on the
label or packaging materials of the Products. MOVA and Lannett each
agrees to do nothing by act or omission which would impair, the rights,
ownership and title to the other, including its Affiliates, in the
aforementioned.
ARTICLE 10 - NOTICES
10.1 Any notice required or permitted to be given or made under this
Agreement by either of the parties to the other shall be in writing and
delivered to the other party at its address indicated below or to such other
address as the addressee shall have theretofore furnished in writing to the
addressor by hand, courier or by registered or certified mail (postage
prepaid) or by telefax, provided all telefax notices shall be promptly
confirmed, in writing, by registered or certified mail (postage prepaid):
If to Lannett:
Lannett Company, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telefax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Vice President - Finance
If to MOVA:
MOVA Pharmaceutical Corporation
X.X. Xxx 0000
Xxxxxx, Xxxxxx Xxxx 00000
Telefax: (000) 000-0000
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Attention: Xxxxxxx X. Xxxx
President
With a Copy to: Xxxxxxxxx X. Xxxxxxx, Esq.
XxXxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Facsimile: (000) 000-0000/000-0000
All notices shall be effective as of the date received by the addressee.
ARTICLE 11 - NON ASSIGNABILITY
11.1 This Agreement and the rights of the parties hereunder shall not be
assignable nor shall the obligations of either party be delegable, except to
Affiliates of MOVA or Lannett, without the prior written consent of the
other party, which consent shall not be unreasonably withheld. In the event
either party seeks and obtains the other party's consent to assign or
delegate its rights or obligations to another party, or in the event of an
assignment or delegation to an Affiliate, the obligations of the assignee or
transferee must be guaranteed in writing by the party who is the assignor or
transferor.
ARTICLE 12 - FORCE MAJEURE
12.1 Force Majeure. No failure or omission by the parties in the performance
of any obligation according to this Agreement shall be deemed a breach of
this Agreement or create any liability if the same shall arise from any
cause or causes beyond the control of the party, including, but not limited
to, strikes, riots, war, acts of God, invasion, fire, explosion, floods,
delay of carrier, shortage or failure in the supply of materials, energy
shortage and acts of government or governmental agencies or
instrumentalities.
12.2 Obligations of the Parties in case of Force Majeure. In the event that
due to force majeure either party hereto shall be delayed or hindered in or
prevented from the performance of its duties or doing acts required under
the terms of this Agreement, the performance of such act, except for the
obligation to pay amounts due under this Agreement, shall be excused for the
period of the delay. Notwithstanding the aforementioned, the party subject
to force majeure shall take all reasonable steps to resolve the condition(s)
forming the basis of force majeure.
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ARTICLE 13 - MISCELLANEOUS
13.1 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Pennsylvania.
13.2 Independent Contractor. The parties shall be considered independent
contractors, and neither the making of this Agreement nor the performance of
any of the provisions hereof shall be construed to make either party an
agent, employee or legal representative of the other, nor shall this
Agreement be deemed to establish a joint venture or partnership.
13.3 Public Announcements. Lannett and MOVA shall consult with each other
before issuing any press releases or otherwise making any public statements
with respect to this Agreement and neither of them shall issue any press
release or make any public statement prior to obtaining the other party's
approval, which approval shall not be unreasonably withheld, except that no
such approval shall be necessary to the extent disclosure may be required by
law.
13.4 Severability. Should any section, or portion thereof, of this Agreement
be held invalid by reason of any law, statute or regulation existing now or
in the future in any jurisdiction by any court of competent authority or by
a legally enforceable directive of any governmental body, then such section
or portion thereof shall be validly reformed so as to approximate the intent
of the parties as nearly as possible and, if unreformable, shall be deemed
divisible and deleted with respect to such jurisdiction; this Agreement
shall not otherwise be affected.
13.5 Taxes. Each party shall be responsible for its own taxes.
13.6 Entire Agreement. The terms and provisions contained in this Agreement,
including the Exhibit hereto, constitute the entire agreement between the
parties and shall supersede all previous communications, representations,
agreements or understandings, either oral or written, between the parties
with respect to the subject matter hereof. No agreement or understanding
varying or extending this Agreement shall be binding upon either party
hereto, unless set forth in a writing which specifically refers to this
Agreement, signed by duly authorized officers or representatives of the
respective parties, and the provisions hereof not specifically amended
thereby shall remain in full force and effect.
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IN WITNESS WHEREOF, Lannett and MOVA have executed this Agreement
in duplicate as of the day and year first above written.
Lannett Company, Inc. MOVA Pharmaceutical Corporation
By: Xxxxxxx X. Xxxxxx By: Xxxxxx Xxxxxxxx
----------------- -----------------------
Name: Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxxx
Title: VP-Finance & Treasurer V.P. Sales, Marketing &
Business Development
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION -- ASTERISKS DENOTE SUCH OMISSION
EXHIBIT A TO THE SUPPLY AGREEMENT
dated January 14, 1997 between
Lannett Company, Inc. and MOVA Pharmaceutical Corporation
PRODUCT AND PRICING SCHEDULE
Product: Dicyclomine 10mg. Active Ingredient: Dicyclomine, USP
Size Purchase Price
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16
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION -- ASTERISKS DENOTE SUCH OMISSION
EXHIBIT B TO THE SUPPLY AGREEMENT
dated January 14, 1997 between
Lannett Company, Inc. and MOVA Pharmaceutical Corporation
Customer List
Pursuant to Section 2.9, Market Segment Agreement
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