EXHIBIT 10.1
AMENDMENT NO.1 MARKETING
AND CO-PROMOTION AGREEMENT
This AMENDMENT NO.1 MARKETING AND CO-PROMOTION AGREEMENT (the "Amendment") is
made this _____day of March, 2000, and effective as of January 1, 2000, by and
between X. X. XXXX, INC. ("BARD"), a New Jersey corporation with offices at 000
Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and CYTOGEN CORPORATION
("CYTOGEN"), a Delaware corporation with offices at 000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000.
WHEREAS, CYTOGEN and BARD are parties to that certain Marketing and Co-Promotion
Agreement, dated August 1, 1996 (the "Agreement"), pursuant to which CYTOGEN
granted BARD certain rights to market Products (as defined in the Agreement)
pursuant to the terms and conditions of the Agreement; and
WHEREAS, by mutual agreement, the parties now desire to amend the term and the
compensation provisions of the Agreement to enable to the parties to terminate
the Agreement as of the end of June, 2000.
WHEREAS, the parties now desire to amend the Agreement as expressly set forth
below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
benefits herein set forth, the parties agree as follows:
1. The parties agree to amend the Agreement as follows:
(A) Section 1.32 of the Agreement, entitled "Term," is deleted in its entirety,
substituting in lieu thereof the following:
1.32 Term - shall mean the term of the Agreement as provided in
Section 10.1 of this Agreement.
(B) Article 1 of the Agreement is amended by adding the following terms:
1.43 Amendment - shall mean that certain Amendment No.1, dated on or
about March , 2000, by and between the parties hereto, which shall
serve as Amendment No.1 to this Agreement, which is incorporated
herein by reference.
1 .44 Amendment Effective Date - shall mean January 1, 2000.
(C) Section 3.2 of the Agreement, entitled "Right of First Offer," shall be
amended by adding the following sentence:
The rights and obligations of the parties under this Section 3.2 shall
terminate as of the Amendment Effective Date.
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(D) Section 4.4 of the Agreement, entitled "Expansion of Territory," shall be
amended by adding the following sentence:
The rights and obligations of the parties under this Section 4.4 shall
terminate as of the Amendment Effective Date.
(E) Section 10.1 of the Agreement, entitled "Term," is hereby deleted in its
entirety, substituting in lieu thereof the following:
10.1 Term. This Agreement will commence on the Effective Date and,
unless sooner terminated in accordance with the provisions of this
Agreement, will continue through and including June 31, 2000.
(F) Section 10.6.3 of the Agreement, entitled "Marketing Rights," is deleted in
its entirety, substituting in lieu thereof the following:
10.6.3 Marketing Rights. Upon termination of this Agreement, Bard's
rights to market and promote the Product shall immediately cease and
concurrent with or as soon as practical following such termination,
Bard shall deliver to Cytogen all marketing and promotional materials
with respect to Product then in the possession of Bard or any of its
Affiliates; provided however, for such marketing materials related to
Product that contain references to Bard or its Affiliates, Bard shall
destroy such marketing materials instead of returning them to Cytogen.
Notwithstanding anything to the contrary in this Section, Bard shall
be entitled to retain necessary copies of any marketing materials
related to Product for archival purposes only.
(G) A new Section 10.6.4, entitled "Transition," shall be added to the Agreement
and shall state as follows:
10.6.4 Transition. In preparation for termination of the Agreement and
assumption of marketing responsibilities by Cytogen, Bard shall:
(a) use its reasonable efforts prior to the termination of
this Agreement to provide a smooth transition that is
transparent to the urologists and nuclear medicine physicians
as a result of the termination of this Agreement;
(b) within forty-five (45) days of the termination of this
Agreement, send to Cytogen a written report identifying at
least 250 urologist and providing, where known to Bard, the
following information regarding each such urologist: (i) name,
(ii) address, (iii) office telephone number, and (iv) Bard's
perception of such urologist's opinions of ProstaScint;
(c) use its reasonable commercial efforts to honor all
outstanding commitments (by way of example only, Product Lunch
and Learns, tumor boards, and dinner meetings) scheduled by
Bard through August 1, 2000; and
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(d) make reasonable efforts to refer to a Cytogen
representative all requests for information as to Product
received by Bard on or before December 31, 2000.
(H) Exhibit "A" of the Agreement is hereby deleted in its entirety, substituting
in lieu thereof the Exhibit "A" attached to this Amendment.
2. Other Terms. Except as otherwise provided is this Amendment, all other terms
and conditions of the Agreement shall remain in full force and effect.
3. Authorization. Each individual executing this Amendment on behalf of an
entity represents and warrants that he or she is duly authorized to execute and
deliver this Amendment on behalf of said entity; that this Amendment is binding
on said entity, and that this Amendment is not in violation of or inconsistent
with or contrary to provisions of any other agreement to which said entity is a
party.
4. Counterparts: Copies. This Amendment may be signed in one or more
counterparts, each of which will be deemed to be an original and all of which
when taken together will constitute the same Amendment. Any copy of this
Amendment made by reliable means shall be considered an original of this
Amendment.
IN WITNESS WHEREOF the undersigned have hereunto set their hand and seal as of
the date first above mentioned.
X. X. XXXX, INC. CYTOGEN CORPORATION
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
Name: Xxxx Xxxxxx Name: Xxxxxx X. Xxxxx
Title: President, BUD Title: Vice President & General Counsel
Date: 04/07/00 Date: 03/14/00
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Exhibit "A"
Commissions
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Period Commission Rate
------ ---------------
During the first twelve 15% of total
months following the Net Sales
Product Launch Date
During the Partial Year Period 10% of that portion of
Net Sales which are less
than or equal to Baseline
Sales,1 and 26% of
Incremental Sales
Commencing with the calendar year following 10% on that portion of the Net
the Partial Year Period and continuing Sales which are less than or
thereafter, through and including equal to Baseline Sales,
December 31, 1999. and 27%-30%2 on Incremental
Sales
January, 2000 9% of total Net Sales
February, 2000 8% of total Net Sales
March, 2000 7% of total Net Sales
April, 2000 6% of total Net Sales
May, 2000 5% of total Net Sales
June, 2000 4% of total Net Sales
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1. During the Partial Year Period only, Baseline Sales shall mean the
amount of Net Sales achieved during the preceding twelve month period
multiplied by a fraction, the numerator of which is the number of days
in this period and the denominator of which is 365. For example, if
the Baseline Sales for the first 12 months following the Product
Launch Date was $10 million and the Product Launch Date was January
31, 1997, the Baseline Sales for the Partial Year Period only would be
equal to $9,150,000 (10 million x 334/365).
2. During the first calendar year following the Partial Year Period, the
Commission Rate for Incremental Sales shall be 27% and it shall
increase by one (1) percentage point each year therefore until it
reaches the level of 30% at which time it shall remain constant.
