EXHIBIT 10.4
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AGREEMENT
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SINTESIS XXXXX, X.X. DE C.V., Av. San Xxxxxx no. 35, Parque Industrial Xxxxx,
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52000 Xxxxx, Mexico,
- as one party -
and
ALCO CHEMICALS LTD., Paradiso, Switzerland Branch Office, with company
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headquarters in Lugano, [Switzerland] Via X. Xxxxxxxxx no. 7, hereinafter
referred to as ALCO
- as the other party -
whereas
- Xxxxx manufactures chemical products for the pharmaceuticals industry,
hereinafter referred to as Products;
- ALCO has for some time worked with XXXXX for purposes of commercial promotion
of the Products;
- the Parties intend for this agreement to regulate their relationship in
systematic manner;
- ALCO has the marketing know-how and resources in general that are necessary
in order to adequately promote sales of the Products;
agree upon and provide the following:
. ROLE AS AGENT
1.1. Xxxxx confers upon ALCO, and ALCO accepts, the role of exclusive agent,
without representation authority, for ongoing promotion on a worldwide scale,
excluding the clients that reside or carry out their activities in the country
of Mexico (within the borders of same
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that are internationally recognized at the time this Agreement is adopted), of
sales of the products manufactured by Xxxxx or by third parties on behalf of
Xxxxx), which are listed in Appendix 1.
1.2. ALCO, with respect to the Products set forth in Appendix 1, shall have
exclusive rights and obligations as XXXXX'x agent.
1.3. Xxxxx may not engage in promotional activities for the Products [either]
directly or by simultaneously availing itself of other parties for the purpose
of promoting sales of the Products; in the event of a violation of the
exclusivity obligation provided herein, in addition to any right provided by
applicable law, ALCO shall also be entitled to the commission referred to in
Article 2.1 hereinafter.
. ALCO'S RIGHTS
2.1. ALCO, with respect to sales obtained for XXXXX in its role as Exclusive
Agent, shall be entitled to a commission equal to 4% of the billing for properly
executed transactions or, if the transaction has been executed only in part,
equal to 4% of the executed portion.
No commission shall be due ALCO in the event that the sales solicited and
obtained are carried out at a price below the XXXXX-ALCO price list in effect as
of that date, unless the sale at a lower price was authorized by Xxxxx.
In addition, no commission shall be due ALCO for Xxxxx sales to the clients
referred to in Clause 1.2.
2.2. ALCO, upon a routine written request from XXXXX, shall be required to
provide "del credere", and shall therefore be fully liable vis-a-vis XXXXX for
the proper execution of the transaction it has initiated. In that event, ALCO
shall be entitled to a higher commission equal to 1% of the billing.
2.3. At the request of ALCO, XXXXX obligates itself to provide to same the
documentation
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required from registration of the Products in the territories that are covered
by this agreement.
3. ALCO'S OBLIGATIONS
3.1. ALCO obligates itself in accordance with the following:
3.1.1. ALCO must, during the entire term of this agreement, diligently and in
good faith serve and assist XXXXX so as to increase XXXXX'x business, as well as
sales of the Products;
3.1.2 ALCO must refrain from any act that might obstruct or interfere with
promotion of sales of the Products;
3.1.3. ALCO shall be required to provide "del credere" in accordance with the
provisions of Article 2.2. hereinabove;
3.1.4. ALCO must comply with all existing provisions of law and regulations
pertaining to the Products in every country in which it operates for purposes of
promoting sales of the Products;
3.1.5. ALCO must not, throughout the term of this agreement, manufacture or
market, either directly or indirectly, products competing with the Products. On
the other hand, it may unrestrictedly act as agent of companies belonging to the
same group to which Xxxxx belongs;
3.1.6. ALCO may not imitate, produce, or modify the Products;
3.1.7 ALCO must promote sales of the Products with XXXXX'x name or trademark,
without in any may marketing them with its own trademark, and without erasing or
covering XXXXX'x distinguishing marks, including but not limited to notations
that cite possible patents, trademarks, or other intellectual property rights
held by XXXXX;
3.1.8. ALCO must transmit to XXXXX no later than the end of October of every
calendar year the projected budget for the following calendar year for each of
the Products whose sales
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ALCO is promoting;
3.1.9. ALCO must transmit to XXXXX the purchase orders received with the
greatest possible speed;
3.1.10. ALCO guaranties to XXXXX that it will solicit and obtain sales of the
Products with a minimum annual billing of USD 3,000,000.00. Such minimum
billing may be modified by consent of the Parties upon every contractual
expiration, within the meaning of Clause 7.1. hereinafter, with a minimum of
three months advance notice;
3.1.11 ALCO must indemnify XXXXX for any damage caused to XXXXX by negligent or
in any event untimely performance by ALCO of the obligations assigned to ALCO by
this Agreement or by law.
PROMOTION OF THE PRODUCTS
4.1. ALCO shall reach an agreement with XXXXX by the end of October of every
year with respect to the sales promotion program for the Products for the
following calendar year. The agreed upon program may be modified in the light
of market conditions, without prejudice to the obligation for a promotion that
is reasonably sufficient in relation to the budget referred to in Clause 3.1.8
and the guaranteed minimum billing referred to in Clause 3.1.10.
4.2. Unless there is a written agreement to the contrary, all agency expenses
shall be chargeable solely to ALCO.
4.3. ALCO obligates itself to maintain, throughout the term of this Agreement,
staff and organization that is sufficient for promotion of sales of the Products
and, in particular, to maintain a salesperson network of a size that is
sufficient for timely performance of ALCO's obligations under this agreement.
4.4. ALCO shall communicate to XXXXX all information regarding the competition,
production trends, and supply and demand trends that have a significant impact
on market
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conditions, as well as other information regarding the activities covered by
this Agreement that XXXXX may reasonably require. XXXXX may request that such
information be transmitted on the appropriate standard forms that it may
prepare.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. The patent rights and trade secrets in general as well as trademark rights
are held exclusively by XXXXX. ALCO must adopt any agreement with XXXXX
(including, but not limited to, licenses), perform any formality or carry out
any action, including protective measures, that are necessary or useful in order
to protect XXXXX'x rights in the territories where ALCO promotes sales of the
Products.
5.2. ALCO obligates itself to notify XXXXX of any unauthorized use of
intellectual property or trademark rights held by XXXXX as soon as it should
become aware of same. At XXXXX'x request, ALCO shall participate in legal
actions and administrative procedures, and shall take any other action that
should be reasonably necessary in order to protect the intellectual and trade
secret rights (including, but not limited to trademarks) in the areas where ALCO
operates.
6. EXCLUSION OF JOINT VENTURES OR PARTNERSHIPS
The agreement contained in this agreement is to be adopted by two companies that
have absolutely no control, ownership, or organizational relationship between
each other or with respect to any other party in common, and it does not entail
the founding of partnership or joint venture and, except where otherwise
expressly agreed in writing, neither of the parties is authorized to act in
representation of the other or to make statements or declarations to third
parties, assume guarantees or sureties on behalf of the other, or in any way
obligate the other party vis-a-vis third parties.
7. EFFECTIVE DATE AND EXPIRATION OF THE AGREEMENT. CANCELLATION
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CLAUSES. WITHDRAWAL AND TERMINATION.
7.1. The agreement contained in this legal instrument (except in the event of
termination prior to expiration of its term) shall have a term of three years
beginning on October 1, 1996 and ending on September 31, 1999, and shall
thenceforth be considered to be tacitly renewed from one year to another, unless
there is a termination notice to be communicated to the other Party with a
minimum of six months advance notice.
7.2. In addition to the provisions of applicable law, this agreement shall be
canceled de jure in the event of one party's non-performance of any obligation
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contained in this Agreement, should the nonperforming party fail to comply with
the obligations required of it within fifteen days following receipt of a
performance demand communicated by the other party.
7.3. The parties are also to be granted the right to cancel in the following
instances:
73.1. Should, due to the lack of and termination of permits, authorizations,
[or] licenses, the other party is unable to start up or continue production or
sales promotion, respectively, with respect to any of the Products;
7.3.2 in any instance [in which] the other party is made subject to an
individual or joint insolvency proceedings, or in any instance in which it
should cease operating for more than thirty consecutive days (with the exception
of summer vacations);
7.3.3. in any instance in which the other party is unable or should become
incapable of performing the obligations provided by this agreement;
7.4. Xxxxx shall also be granted the right to cancel in the event that control
of Alco should pass through the current stockholders to other parties that
Xxxxx, at its sole discretion, should consider unsuitable.
8. EFFECTS OF TERMINATION OF THE AGREEMENT
In any instance of termination of this Agreement:
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8.1. ALCO must return all material of any type in its possession or subject to
its control, that pertains to the Products or to XXXXX (except administrative
correspondence between the Parties);
8.2. ALCO shall lose all rights to utilize the patent or trademark rights
possibly granted in implementation of this Agreement and in particular it shall
cease to utilize the XXXXX trademark on letterhead stationary or any other
material;
8.3. ALCO, upon a routine request by XXXXX, must transmit to XXXXX complete
lists containing the background data and addresses of clients interested in the
products;
8.4. ALCO must transfer to Xxxxx'x xxxx, and waive the right to make future use
of, any permit, authorization, or license possibly issued to ALCO by competent
authorities in specific reference to marketing of the Products;
8.5. ALCO shall not be entitled to any type of indemnification, with the
exception of mandatory indemnification or compensation possibly provided by
applicable law regarding the agency relationship.
9. CONFIDENTIALITY OBLIGATION
9.1. ALCO must keep strictly confidential, not disclose to third parties, and
utilize solely for the purpose of performing this Agreement, all information
regarding the Products, whether technical or commercial, as well as information
regarding Xxxxx, whether such information is communicated by Xxxxx or is in any
way obtained by ALCO for the purposes and effects of this Agreement.
9.2. The confidentiality obligation set forth in Article 9.1 hereinabove does
not pertain to information of those portions of information:
9.2.1. that is in the public domain, unless it becomes so due to actions
attributable to ALCO or to a person for which the latter is liable;
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9.2.2. that should become known to and registered by ALCO prior to its
disclosure by XXXXX;
9.2.3. that should be disclosed to ALCO by a source other than XXXXX without
any violation of the confidentiality obligation on the part of ALCO;
9.2.4. That is independently developed by ALCO without having in any way made
use of the information received for the purposes and effects of this agreement;
10. NON-ASSIGNABILITY OF RIGHTS
The rights and obligations generated by this Agreement are specific to the
Parties and may not be assigned without the prior written consent of the other
Party. Neither of the parties may transfer or assign to third parties all or
part of the rights and obligations set froth in this agreement, with the
exception of ALCO's right to discount at financial institutions accrued accounts
receivable for commissions.
11. MISCELLANEOUS PROVISIONS
11.1. This Agreement lists and contains all existing agreements between the
Parties in reference to the products and, as of October 1, 1996, [and]
retroactively cancels and supersedes for all purposes and effects all
agreements, declarations, commitments, whether written or oral, adopted or made
by the parties at any time, of any nature, wherever they may be contained, which
pertain to the matters governed by this Agreement, with the exception of the
agreement concerning the Sales Franchise referred to in the preamble.
11.2. The rights of the Parties provided in this Agreement are not understood
to be in any way waived or restricted in the event that one of the Parties
should tolerate instances of non-performance by the other, and no refusal to
assert a right resulting from any instance of non-performance by the other party
may be interpreted as a waiver with respect to subsequent or repeated instances
of non-performance.
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11.3. Amendments, supersessions, and cancellations of this Agreement or
individual clauses of same are required to be in writing.
11.4 Should one of the clauses in this Agreement be ruled invalid, such clause
shall be deemed void and all the other clauses of this Agreement shall remain
valid and in effect, with the exception of the obligation of the Parties to
negotiate in good faith a clause to supersede the clause that was ruled invalid,
that can satisfy the legitimate interests of both parties.
12. APPLICABLE LAW AND ARBITRATION CLAUSE
12.1. The law applicable to this Agreement is Swiss law.
12.2. Disputes that should arise between the parties regarding the
interpretation, implementation, and cancellation of this agreement shall be
referred for a decision by an arbitration board in accordance with the
regulations and procedure of the International Chamber of Commerce (ICC), the
first two arbiters shall be appointed by the parties, and the third arbiter
shall be appointed by agreement of the other two or, failing that, by the
International Chamber of Commerce, Paris headquarters.
The arbitration shall take place in Paris and shall be carried out in the
English language.
13. NOTICES AND COMMUNICATIONS
13.1. Any notice provided for in this Agreement must be sent via registered
letter with return receipt to the following addresses:
- to Xxxxx at Xx. Xxx Xxxxxx Xx. 00, Xxxxxx Xxxxxxxxxx Xxxxx, 00000 Xxxxx,
Xxxxxx.
- to Alco at Via X. Xxxxxxxxx, 7 Lugano Paradiso.
13.2. Or at whatever other address for communications the other Party has
provided in accordance with Article 13.1 above.
Attached as Exhibit 1 is the product list of Xxxxx.
Lugano, September 26, 1996
Xxxxx
/s/ Xxxxxx Xxxxxxxx
Alco Ltd.
/s/ Xxxxx Xxxxx
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[LOGO of Sintesis Xxxxx] SINTESIS
XXXXX
PRODUCT LIST
ACTUAL PRODUCTS
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NAME OF PRODUCT PHARMACOPOEIA
MEDROXYPROGESTERONE ACETATE USP 23 - BP'93 - EUR P II
MEGESTROL ACETATE USP 23 - BP'93
CYPROTERONE ACETATE IT P IX - JSPI'91
DEFLAZACORT
ALCLOMETHASONE DIPROPIONATE USP 23
BECLOMETHASONE DIPROPIONATE
MONOHYDRATE
CHLORMADINONE ACETATE BP'68 - JAP P XII - USNF XIII - Fr P X
DESONIDE
ANTICANCERS
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NAME OF PRODUCT PHARMACOPOEIA
CISPLATIN USP 23 - BP'93 - EUR P II
CARBOPLATIN USP 23
MITOXANTRONE HYDROCHLORIDE USP 23
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XXXXX MAKES NO REPRESENTATIONS ABOUT PATENT COVERAGE OUTSIDE MEXICO
FOR ANY OF THE PRODUCTS LISTED ABOVE
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