[EXHIBIT 99.4.2]
AMENDMENT
Amendment, dated as of January 16, 1998 (this "Amendment"), to the
International Co-Promotion Agreement, effective as of June 28, 1996 (the
"Agreement") by and between Xxxxxx-Xxxxxxx Company, a Delaware corporation,
and Pfizer Inc., a Delaware corporation. Capitalized terms not otherwise
defined herein have the meanings set forth in the Agreement.
WHEREAS, Xxxxxx-Xxxxxxx Company has assigned certain of its rights and
obligations under the Agreement to Xxxxxx-Xxxxxxx Export Limited, a company
organized and existing under the laws of Ireland ("Xxxxxx-Xxxxxxx"), in
accordance with the Assignment and Assumption Agreement dated as of
November 1, 1996; and
WHEREAS, Pfizer Inc. has assigned certain of its rights and
obligations under the Agreement to Pfizer Overseas Inc., a corporation
organized and existing under the laws of Delaware ("Pfizer") in accordance
with the Assignment effective as of June 28, 1996; and
WHEREAS, the Agreement has previously been amended by an Amendment and
Waiver dated as of December 4, 1997; and
WHEREAS, upon this Amendment becoming effective, the parties have
agreed that certain provisions of the Agreement be amended in the manner
provided for in this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I - AMENDMENTS
SECTION 1.01. Amendment of Section 1.01
Section 1.01 of the Agreement is hereby further amended by adding the
following new definition immediately before the definition of "FDA":
"'Distribution Expenses', for each of Malaysia, Singapore and Vietnam,
means, subject to the next sentence, the out-of-pocket costs actually
paid or credited, by XXXXXX-XXXXXXX or its Affiliate, for the order
processing, handling, warehousing and physical distribution of the
Products in trade packaged form from (a) the point at which
XXXXXX-XXXXXXX or its Affiliate in each such country (or if
XXXXXX-XXXXXXX does not have an affiliate in such country, in a
neighboring country) takes title to the Products to (b) unaffiliated
third party customers of the Products which customers are not hired by
XXXXXX-XXXXXXX or its Affiliate to distribute the Products (for
purposes of this definition, "Final Customers"). "Distribution
Expenses" shall include, without limitation, (i) fees and expenses of
third parties hired by XXXXXX-XXXXXXX or its Affiliate to process
orders, handle, warehouse and physically distribute the Products, (ii)
costs related to the operation of distribution centers and warehouses,
(iii) freight, shipping and insurance costs to transport the Products
from the initial destination in each such country to Final Customers,
(iv) customer and collection services, and (v) order entry and
processing costs, but shall not include (i) any payments made by third
party distributors for sales force commissions or sales force
incentives, (ii) freight, shipping and insurance costs paid by
XXXXXX-XXXXXXX or its Affiliate in each such country (or such
neighboring country) to transport the Products from the point of final
manufacture to the initial destination in each such country, and (iii)
any bad debt and accounts receivable carrying charges which are not
customary for such country."
SECTION 1.02 Amendment of Section 3.01
Section 3.01 (b) is hereby amended by inserting the words "and in the
case of Malaysia, Singapore and Vietnam, for fifty percent (50%) of all
Distribution Expenses," in the fourth line, immediately after the words
"Product Expenses," and by inserting the words "and Distribution Expenses"
in the eighth line, immediately after the words "Product Expenses."
SECTION 1.03 Amendments of Section 3.02
(a) Section 3.02(a) is hereby amended by inserting the words "and in
the case of Malaysia, Singapore and Vietnam, for fifty percent (50%) of all
Distribution Expenses," in the third line, immediately after the word
"Expenses," and by inserting the words "and Distribution Expenses" in the
seventh line, immediately after the words "Product Expenses."
(b) Section 3.02(b) is hereby amended by inserting the words "or, in
the case of Vietnam (subject to the next succeeding sentence), Malaysia and
Singapore, as set forth in Exhibit F," in the fifth line, immediately after
the words "Exhibit E."
(c) Section 3.02(b) is further amended by inserting a new closing
sentence as follows:
"Notwithstanding the immediately preceding sentence, in the case of
Vietnam, until such time as a Pharmaceutical Business Intelligence
Research Group ("PBIRG") vendor or supplier makes available a
validated audit having a data accuracy average (measuring accuracy,
completeness, timeliness and standardization) of at least 85%, the
percentage of Net Sales payable to Pfizer shall be fixed at forty five
percent (45%)."
(d) Section 3.02(e) is hereby amended by inserting the words ", or
forty-five percent (45%), in the case of Malaysia, Singapore and Vietnam,"
in the third line after the words "forty-four percent (44%)."
SECTION 1.04 Amendment of Section 3.03
(a) Section 3.03 (a) is hereby amended by inserting the words ", or,
with respect to Malaysia and Singapore, 27%, or, with respect to Vietnam,
but subject to Section 3.02(b) herein, 45%,", in the sixth line after the
words "Countries, 26.40%".
(b) Section 3.03 (c) is hereby amended by inserting the words "the
total amount of Distribution Expenses for each of Malaysia, Singapore and
Vietnam for such Agreement Quarter," in the seventh line after the words
"by Country,".
(c) Section 3.03 (d) is hereby amended by inserting the words "the
total amount of Distribution Expenses for each of Malaysia, Singapore and
Vietnam for the fourth or last Agreement Quarter," in the seventh line
after the words "by Country,".
(d) Section 3.03 (f) is hereby amended by inserting the words "and,
with respect to Malaysia, Singapore and Vietnam, Distribution Expenses," in
each of the sixth line and the twelfth line after the words "Product
Expenses".
SECTION 1.05 Replacement of Exhibit-A.
Exhibit A to the Agreement is hereby replaced by the attached
Exhibit A.
ARTICLE II - MISCELLANEOUS
SECTION 2.01. No Other Amendments; Confirmation. Except as expressly
amended, waived, modified and supplemented hereby, the provisions of the
Agreement, as amended to date, are and shall remain in full force and
effect.
SECTION 2.02. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of New York other than
those provisions governing conflicts of law.
SECTION 2.03 Headings. The headings used in this Amendment have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
SECTION 2.04 Third Party Beneficiaries. None of the provisions of
this Amendment shall be for the benefit of or enforceable by any third
party, including, without limitation, any creditor of either party hereto.
No such third party shall obtain any right under any provision of this
Amendment or shall by reason of any such provision make any claim in
respect of any debt, liability or obligation (or otherwise) against either
party hereto.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
officers, have executed this Amendment as of the date first written above.
XXXXXX-XXXXXXX PFIZER OVERSEAS INC.
EXPORT LIMITED
By: /s/ Xxxx X. Xxxxx By: /s/ Mohand Sidi Said
----------------------------- ------------------------------
Name: Xxxx X. Xxxxx Name: Mohand Sidi Said
Title: Managing Director Title: Vice President
