Exhibit 4.20
Portions of this exhibit were omitted and filed separately with the Commission
pursuant to an application for confidential treatment filed with the Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934. Such portions
are marked with a series of asterisks.
AGREEMENT
THIS AGREEMENT, effective as of the 15th day of February, 2001,
between PHARMACIA CORPORATION, a company organized under the laws of the State
of Delaware, having a place of business at 000 Xxxxx 000 Xxxxx, Xxxxxxx, Xxx
Xxxxxx 08807("Pharmacia"), and HAEMACURE CORPORATION, a corporation organized
under the laws of the State of Delaware, having its principal place of business
at One Sarasota Tower, STE 000, Xxx Xxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
("HAE").
WITNESSETH:
WHEREAS, Pharmacia markets and sells its Gelfoam(R) Product Line (as
hereinafter defined) to the Accounts (as hereinafter defined), and desires to
utilize the services of HAE's sales force to market, and promote the Product
with sales presentations and appropriate marketing media to hospitals and
physicians in order to increase sales of the Product; and
WHEREAS, HAE has the resources and expertise to participate in the
promotion, marketing and detailing of the Product to the Accounts; and
WHEREAS, the parties desire to enter into an exclusive arrangement
whereby HAE would engage in sales promotion, or other activities appropriate to
promote sales of the Product to the Accounts under the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and conditions hereinafter set forth, the parties agree as follows:
ARTICLE 1
DEFINITIONS
The following terms shall, for the purposes of this Agreement, have
the meanings designated to them under this Article unless otherwise specifically
indicated.
1.1. "Account" shall mean the hospitals described in Schedule B, and
as amended from time to time by mutual written agreement.
1.2. "Act" shall mean the United States Federal Food, Drug and
Cosmetic Act, as amended, and regulations promulgated thereunder.
1.3. "Affiliate" of an entity shall mean any entity which controls, is
controlled by, or is under common control with such entity. For purposes of this
definition, an entity shall be deemed to control another entity if it owns or
controls, directly or indirectly, more than forty percent (40%) of the voting
equity of the other entity or if it possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies of such other
entity.
1.4. "Claims" shall mean any and all liabilities and expenses
whatsoever, including, without limitation, claims, adversary proceedings
(whether before a court, administrative agency or any other tribunal), damages
(whether compensatory, multiple, exemplary or punitive), judgments, awards,
penalties, settlements, investigations, costs, and attorneys fees and
disbursements.
1.5. "Competitive Product" shall mean any topical, gelatin-based
absorbable hemostatic product that is directly competitive with the Product
Line.
1.6. "Detail" or "Detailing" shall mean, with respect to a medical
device, including the Product, the activity undertaken by a qualified sales
representative during sales calls on Account surgeons, physicians or other
appropriate personnel of providing a discussion of the FDA-approved indicated
use, safety, effectiveness, contraindications, side effects, warnings and other
relevant characteristics of Product, in a fair and balanced manner consistent
with the requirements of the Act and instructions of Pharmacia, including, but
not limited to, the regulations at 21 CFR Part 202, and using, as necessary or
desirable, the Product Labeling or the Product Promotional Materials.
1.7. "Effective Date" shall mean the date appearing at the beginning
of this Agreement.
1.8. "Exclusive" with respect to the rights granted herein shall mean
that Pharmacia shall not, during the term of this Agreement, appoint any person
or entity, other than HAE, Pharmacia's own employees and Warehouse Distributors,
authorized to solicit orders or distribute Products to or from the Accounts.
1.9. "FDA" shall mean the United States Food and Drug Administration,
or any successor entity thereto.
1.10. "Marketing Plan" shall mean the marketing and promotional plans
for the Product, as determined by HAE and Pharmacia.
1.11. "Product" and "Product Line" shall mean any or all Gelfoam(R)
product line products described on Schedule A attached hereto, including any
product improvements, extensions, supplements or additions to the Product Line,
and as amended from time to time by mutual written agreement.
1.12. "Product Labeling" shall mean (a) the FDA-approved full
prescribing information for Product and (b) all labels and other written,
printed, or graphic matter upon or accompanying any container, wrapper or
utilized with or for Product.
1.13. "Product Promotional Materials" shall mean all written, printed,
graphic, audio or video matter, other than Product Labeling, intended for use by
HAE qualified sales representatives and relating or referring to Product.
1.14. "Trademarks" shall mean those trademarks and trade names,
whether or not registered in the United States for the Product, Product
Labeling, trade dress and packaging which are applied to or used with the
Product, or any Product Promotion Materials.
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1.15. "Warehouse Distributors" shall mean the qualified warehouse
distributors currently utilized by Pharmacia to distribute the Product, and such
similar distributors added by Pharmacia during the term of this Agreement.
ARTICLE 2
APPOINTMENT, RESPONSIBILITIES
2.1. Appointment. Pharmacia hereby appoints HAE, and HAE hereby
accepts such appointment, as Pharmacia' s Exclusive sales and marketing
representative for the Product for the Accounts.
2.2. Pharmacia Responsibilities. During the term of this Agreement,
Pharmacia shall, at its sole expense (except as otherwise expressly provided
herein), have responsibility for performing the activities set forth in this
Section 2.2:
(a) Hold and maintain the NDA for Product and conduct all FDA
relations and filings;
(b) Perform regulatory, medical and legal review and approval of
promotional materials;
(c) Distribute finished product and xxxx trade accounts with
wholesalers, hospitals, and retailers as appropriate;
(d) Book sales on Pharmacia Accounts;
(e) Supply Product sample packages, as described more fully
below;
(f) Keep HAE informed of new sales plans, objectives, and product
offerings with respect to the Product Line;
(g) Pay commissions to HAE in accordance with Article 4.
2.3. HAE Responsibilities. During the term of this Agreement, HAE
shall, at its sole expense (except as otherwise expressly provided herein), in
addition to sales promotion, including Detailing, as described herein, have
responsibility for performing the activities set forth in this Section 2.3:
(a) Recruit and hire qualified sales representatives.
(b) With the reasonable assistance of Pharmacia, supervise, train
and maintain such competent and qualified personnel as may be required to
promote Product as provided herein.
(c) Appoint a competent and qualified HAE manager to serve as the
product manager for Product whose primary responsibility will be to:
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(i) coordinate the implementation of a Marketing Plan by the
HAE marketing and sales organization in collaboration with Pharmacia's
liaison manager for Product;
(ii) coordinate marketing and sales-related oral and written
communications between Pharmacia and HAE;
(iii) receive and disseminate marketing and sales
promotional material to the appropriate members of HAE's sales and
marketing management and qualified representatives engaged in
Detailing of Product; and
(iv) schedule and conduct periodic briefing meetings on
marketing or sales-related matters.
(d) Commence Detailing of Product to the Accounts as promptly as
practicable after training.
(e) Conform its practices and procedures relating to sales,
marketing and Detailing of the Product to (i) FDA rules and regulations and
(ii) not making further warranty of Pharmacia's Product.
(f) Promptly, but in any event in accordance with the Act, submit
to Pharmacia all adverse drug experience information, including a copy of
any records or other documentation which HAE has received relating thereto,
concerning the Product and coming to the attention of HAE.
(g) Take such other actions as Pharmacia and HAE may jointly
agree upon and deem as necessary, desirable or appropriate to market,
promote and Detail the Product effectively.
2.4. HAE Deliverables. HAE will prepare an annual Product Marketing
Plan with semi-annual updates.
2.5. Pricing. Pharmacia shall at all times have responsibility for
formulating and establishing all prices, pricing strategies and terms of sale
relating to the Product Line.
2.6. Addition and Deletion to Account List. HAE and Pharmacia can
mutually agree upon adding and/or subtracting Accounts to Schedule B hereto.
Unless otherwise agreed upon by the parties, any such agreed upon deletion or
addition shall be effective at the beginning of the next calendar quarter.
2.7. Sales Procedures. Sales orders generated by HAE shall, at the
discretion of the Account, either be: a) forwarded to Pharmacia's Distribution
Centers by HAE; or b) ordered directly by the Account through Pharmacia; or c)
ordered by the Account indirectly through a Wholesaler Distributor. Pharmacia
retains complete discretion to accept or decline sales orders.
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2.8. Competitive Products. During the term of this Agreement, HAE
hereby covenants and shall cause its Affiliates to covenant, not to sell,
Detail, market, promote, or otherwise distribute any Competitive Product to the
Accounts.
2.9. Non-Accounts. During the term of this Agreement, Pharmacia agrees
not to appoint any person or entity, other than Pharmacia's own employees and
Warehouse Distributors authorized to solicit orders or distribute Products to or
from hospitals or other similar entities that are not included on Schedule B
(Accounts), without first offering HAE the opportunity to serve as the exclusive
sales and marketing representative for such account.
ARTICLE 3
PRODUCT TRAINING/PROMOTIONAL MATERIALS; SAMPLES
3.1. Training Materials. In connection with HAE's commencement of
Detailing of Product and for purposes of training new HAE personnel added during
the term of this Agreement, Pharmacia shall provide HAE, free of charge and in a
timely manner, with training materials at the sole cost of Pharmacia.
3.2. Supply of Samples. Sufficient Product samples for the purpose of
hospital product presentation, conventions and sales training will be supplied
by Pharmacia at no cost to HAE. Product samples will be shipped at Pharmacia's
cost to HAE's warehouse and/or to HAE's qualified sales representatives on a
quarterly basis.
3.3. Use of Samples. The Product samples shall be used only for the
purposes contemplated herein. All supplies of the Product must be stored,
handled and administered in accordance with the instructions of Pharmacia, and
in a manner appropriate to the nature and properties of the Product. HAE agrees
not to sell or generate revenue from Product samples provided by Pharmacia. Any
breach relative to the agreed upon sampling policies and procedures outlined in
Exhibit C to this Agreement will result in Pharmacia discontinuing the shipment
of Product samples to HAE.
3.4. Supply of Promotional Materials. Sufficient Product Promotional
Materials will be supplied by Pharmacia at no cost to HAE and shipped to HAE's
warehouse and/or to HAE qualified sales representatives on a quarterly basis.
Only Pharmacia generated promotional materials will be used, unless HAE submits
promotional materials and such materials are approved for use by Pharmacia.
Pharmacia shall use commercially reasonable efforts to comment upon and approve
such materials as promptly as possible.
3.5. Content of Product Promotion Materials. Each party hereto shall
promptly notify the other party hereto of and provide such other party with a
copy of any correspondence or other reports or complaints submitted to or
received by the first party from the FDA or other third party claiming that
Product Promotional Materials are inconsistent with Product Labeling or
otherwise in violation of the Act.
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ARTICLE 4
PAYMENT
****
ARTICLE 5
Trademarks
5.1. Required Use and Compliance. HAE shall promote the Product only
under the Trademarks.
5.2. Validity of Trademarks. HAE acknowledges the validity of
Pharmacia's right, title and interest in and to its Trademarks and shall not
have, assert or acquire any right, title or interest in or to any of Pharmacia's
Trademarks, except as otherwise explicitly provided in this Agreement.
5.3. Use of Trademarks. HAE shall use Pharmacia's Trademarks only in
the manner directed in writing by Pharmacia or consistent with Pharmacia's own
use of its Trademarks for purposes of selling the Product and shall not use any
Pharmacia Trademark in connection with any goods or products other than the
Product.
5.4. Notice of Infringement. HAE shall give Pharmacia notice of any
infringement or threatened infringement of any of Pharmacia's Trademarks used in
connection with the Product. Pharmacia shall determine in its sole discretion
what action, if any, to take in response to the infringement or threatened
infringement of Pharmacia's Trademark. In the event that Pharmacia chooses to
take enforcement action in response to the infringement or threatened
infringement of its Trademark, HAE shall reasonably cooperate in such
enforcement; provided, however, that Pharmacia shall reimburse HAE for
reasonable expenses incurred by it that are related to such enforcement.
ARTICLE 6
CONFIDENTIAL INFORMATION
6.1. Confidentiality. Each party agrees on behalf of itself, its
employees and agents that during the term of this Agreement and for a period of
five (5) years thereafter, such party shall not use (except as contemplated
herein) or disclose Confidential Information of the other party without the
other party's prior written consent. "Confidential Information" shall mean all
trade secrets and other proprietary information, including, without limitation,
proprietary information related to the Product, Marketing Plan and Accounts.
Confidential information does not include:
(a) information which was already known by the receiving party at
the time of its disclosure hereunder, as evidenced by its written records
or other competitive evidence;
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(b) information disclosed to the receiving party by a third party
lawfully in possession of such information and not under an obligation of
nondisclosure to the disclosing party in respect thereof;
(c) information which at the time of disclosure is or
subsequently becomes patented, published or otherwise part of the public
domain except by breach of this Agreement by the receiving party; or
(d) information developed independently by the receiving party
without the benefit or use of the Confidential Information.
ARTICLE 7
COMPLIANCE AND AUTHORIZATION
7.1. Pharmacia Legal Compliance. Pharmacia shall comply in all
material respects with all laws and regulations applicable to the conduct of
business pursuant to this Agreement including, but not limited to, the
applicable requirements under the Act (together, the "Laws").
7.2. HAE Legal Compliance. HAE shall comply in all material respects
with all Laws.
7.3. Pharmacia Representation and Warranty. Pharmacia represents and
warrants that the Products, at the time of delivery to the Accounts, will be in
compliance with all applicable Laws and it has no knowledge of any violation of
Laws that could affect the marketing and sale of the Products.
7.4. Authorization. Pharmacia hereby represents and warrants to HAE
that all corporate action on the part of Pharmacia and its officers and
directors necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of Pharmacia hereunder has been
taken.
7.5. HAE Representation and Warranty. HAE hereby represents and
warrants to Pharmacia that all requisite action on the part of HAE and its
officers and directors necessary for the authorization, execution and delivery
of this Agreement and the performance of all obligations of HAE hereunder has
been taken.
ARTICLE 8
INDEMNIFICATION
8.1. Indemnification by HAE. HAE shall indemnify, defend and hold
harmless Pharmacia and its parent and subsidiary corporations, divisions and
Affiliates and their respective present and former directors, officers, agents,
attorneys, representatives and employees (collectively, the "Pharmacia
Indemnitees") from and against any and all Claims arising or resulting from:
7
(a) any breach of this Agreement by HAE, its employees, agents
and/or representatives (including, without limitation, the qualified sales
representatives);
(b) any breach or violation of applicable law by HAE, its
employees, agents and/or its representatives (including, without
limitation, the qualified sales representatives); and
(c) any Claim asserted against any of the Pharmacia Indemnitees
by any HAE employee, agent and/or representative based on compensation or
benefits allegedly owed to such employee, agent or representative.
8.2. Indemnification by Pharmacia. Pharmacia shall indemnify, defend
and hold harmless HAE, its parent and subsidiary corporations, divisions and
Affiliates and their respective present and former directors, officers, agents,
attorneys, representatives and employees, (collectively, the "HAE Indemnitees")
from and against any and all Claims arising or resulting from:
(a) any breach of this Agreement by Pharmacia, its employees,
agents and/or representatives;
(b) any breach or violation of applicable law by Pharmacia, its
employees, agents and/or representatives; and
(c) the sale, distribution or use of the Products or the
publication/distribution of the Product Labeling and/or the Product
Promotional Materials, except to the extent such Claim arises from the
negligence or willful misconduct of any HAE employee, agent and/or
representative.
8.3. Indemnification Procedures. Promptly after learning of the
occurrence of any event which may give rise to its rights under the provisions
of this Article, any person or entity intending to claim indemnification
hereunder (an "Indemnitee") shall give written notice of such matter to the
party hereunder from whom indemnification is sought (the "Indemnitor"). The
Indemnitor shall diligently defend any such action, claim or liability, and
subject to the Indemnitor's compliance with its indemnification obligations, the
Indemnitee shall, at the Indemnitor's expense, cooperate fully with the
Indemnitor and its legal representatives in the investigation and defense of any
Claim covered by this Agreement. The Indemnitor shall be in charge of and
control such negotiations, compromise and defense and shall have the right to
select counsel with respect thereto, provided that the Indemnitor shall promptly
notify the Indemnitee of all developments in the matter. In no event shall the
Indemnitee compromise or settle any such matter without the prior consent of the
Indemnitor, who shall not be bound by any such compromise or settlement absent
its prior consent, which shall not be unreasonably withheld or delayed. The
Indemnitee shall have the right, but not the obligation, to be represented by
counsel of its own selection and at its own expense. If the Indemnitor fails to
promptly act to protect the interests of the Indemnitee after having been
notified of Claim, the Indemnitee may, at Indemnitor's expense, take action in
its own defense.
8
8.4. Limitation on Liability. Notwithstanding anything to the contrary
contained in this Agreement, liability for indemnification hereunder shall not
include any lost profits of either party to this Agreement.
ARTICLE 9
REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1. Performance by HAE. HAE represents and warrants that it has the
requisite personnel, facilities, equipment, expertise, experience and skill to
perform its obligations hereunder and to render the services contemplated
hereby. HAE further covenants that it shall perform its obligations hereunder in
a professional, timely, competent and efficient manner.
9.2. Performance by Pharmacia. Pharmacia represents and warrants that
it has the requisite personnel, facilities, equipment, expertise, experience and
skill to perform its obligations hereunder. Pharmacia agrees to use commercially
reasonably efforts to make Product available for sale to the Accounts. Pharmacia
further covenants that it shall perform its obligations hereunder in a
professional, timely, competent and efficient manner.
9.3. Third Party Obligations. Each party represents and warrants that
it is under no obligation to any third party that would interfere with its
rendering performance described in and covered by the Agreement.
9.4. Debarment; Convictions. HAE hereby warrants and represents that
neither HAE, its Affiliates, nor, to the best of HAE's knowledge and belief
after due inquiry, any of its employees or agents has ever been (or threatened
to be) (i) debarred or (ii) convicted of a crime for which a person can be
debarred, under Section 306(a) or (b) of the U.S. Federal Generic Drug
Enforcement Act of 1992. HAE covenants that it will promptly notify Pharmacia in
the event of any such debarment, conviction, or indictment.
ARTICLE 10
STATUS OF HAE AND THE REPRESENTATIVES AND MANAGERS
10.1. Independent Contractor. HAE shall perform its obligations
hereunder strictly as an independent contractor. All employees, agents and
representatives of HAE who perform services in connection with this Agreement
shall neither be nor be considered to be employees of Pharmacia for any purpose.
Rather, the employees, agents and representatives of HAE shall be and remain
employees and agents of HAE and subject to the supervision of HAE. Pharmacia
shall not be or be deemed to be an employer or joint employer of HAE employees,
agents or representatives. Except as specifically provided herein, nothing in
this Agreement shall be deemed to authorize HAE to act for, or bind Pharmacia or
any of its Affiliates in any capacity.
10.2. No Pharmacia Benefits. No HAE employees, agents or
representatives shall be eligible to participate in any benefit programs or
sales bonuses offered by Pharmacia to
9
its employees, or in any pension plans, profit sharing plans, insurance plans or
any other employee welfare or benefit plans offered from time to time by
Pharmacia to its employees. HAE acknowledges that none of its employees, agents
or representatives shall be eligible to participate in, and Pharmacia does not
and will not maintain or procure for or on such personnel's behalf, any worker's
compensation or unemployment compensation insurance. HAE acknowledges that it
shall be solely responsible for paying all salaries, wages, benefits and other
compensation which its employees and agents may be entitled to receive in
connection with the performance of the HAE services hereunder.
10.3. Taxes. If any state or other taxing authorities determine that
sales, use or excise taxes are applicable to HAE's services performed hereunder,
Pharmacia shall pay such taxes on behalf of HAE to the appropriate taxing
authorities. In addition, Pharmacia shall be responsible for the payment of any
applicable taxes related to supply of Product Promotional Materials to HAE. HAE
shall be solely responsible for the payment of all federal, state and local
income taxes due on money received from Pharmacia hereunder and shall be
responsible for all employment taxes and withholding with respect to its
employees, agents and contractors. 10.4. No Joint Venture. Nothing contained in
this Agreement shall be construed as making the parties joint venturers or,
except as otherwise provided herein, granting to either party the authority to
bind or contract any obligations in the name of or on the account of the other
party or to make any guarantees or warranties on behalf of the other party.
ARTICLE 11
COMMUNICATIONS and MONITORING
11.1. Communications from Third Parties. HAE shall use commercially
reasonable efforts to communicate to Pharmacia all material comments,
statements, requests and inquiries from the medical profession or any other
third parties relating to the Products that are (i) out of the ordinary, (ii)
not covered by Product Labeling, or (iii) safety-related, whether covered or not
by Product Labeling. All responses to the medical profession or other third
parties shall be handled solely by Pharmacia Medical Information and Education
personnel.
11.2. Field Communications. HAE's Director of Sales shall be
responsible for all primary communications pertaining to field direction. The
Director of Sales shall be responsible for sending informational copies of all
field communications to the distribution list which shall be provided by
Pharmacia.
11.3. Government Agencies. All responses to government agencies
concerning the Products shall be the sole responsibility of Pharmacia. As
necessary, HAE shall provide reasonable assistance to Pharmacia with respect to
communications from or to government agencies to the extent requested by
Pharmacia and at no additional cost and expense to Pharmacia. HAE shall provide
to Pharmacia any and all forms, documents and related records to enable
Pharmacia to fully respond to such communications within a reasonable period of
time.
11.4. Customer Communications. HAE shall assist Pharmacia (as
Pharmacia may reasonably request) with respect to customer communications with
the Accounts and shall
10
keep Pharmacia advised of market, economic, regulatory and other developments of
which HAE may become aware which may affect the sale of the Product to the
Accounts. Pharmacia shall keep HAE advised of market, economic, regulatory and
other developments of which Pharmacia may become aware which may affect the sale
of Products to the Accounts.
11.5. Review of Results. The parties shall meet periodically, but at
least once per calendar quarter (and more often as needed) to review and discuss
results. Pharmacia shall regularly and promptly share with HAE reports, audits
and other data it develops relative to its sales of the Product.
11.6. Attendance at Sales Calls and/or POA Meetings. Pharmacia retains
the right to have Pharmacia personnel accompany sales representatives on sales
calls and/or have Pharmacia personnel attend plan of action meetings.
ARTICLE 12
RETURN/RECALL
12.1. Returned Products. HAE may not authorize return of Products
without prior approval by Pharmacia. All Products returned to HAE shall be
shipped to HAE in accordance with Pharmacia's Returned Goods Policy, a copy of
which is attached hereto as Exhibit C. Pharmacia shall be responsible for
properly documented direct shipping costs which are reasonable or otherwise as
authorized by Pharmacia. HAE shall advise the customer who made the return that
the Products have been returned to Pharmacia.
12.2. Recall or Field Action. At Pharmacia's request, HAE shall
provide reasonable assistance to Pharmacia in (i) obtaining and receiving any
Products that have been recalled and (ii) all other field action resulting from
compliance issues. Pharmacia shall reimburse all direct documented costs
(exclusive of costs for HAE personnel time) incurred by HAE with respect to
participating in any such recall or field action. Pharmacia shall bear the cost
and expense of notification, refund, replacement and destruction or return of
recalled or withdrawn Products.
ARTICLE 13
TERM AND TERMINATION
13.1. Term. This Agreement will have an initial term (the "Initial
Term") of three (3) years from the date of signature and shall renew annually
for one (1) year periods (a "Renewal Term"), unless terminated earlier pursuant
to Sections 13.2, 13.3, or 13.4, or unless either party provides ninety (90)
days' written notice prior to the end of the Initial Term or any Renewal Term of
their intent not to renew the Agreement for the next year.
13.2. Termination For Breach. Either party may terminate this
Agreement upon thirty (30) days written notice thereof to the other party upon
the material breach by the other party of any of its representations,
warranties, covenants or agreements contained in this Agreement. Upon the
expiration of such notice period, this Agreement shall terminate without
11
the need for further action by either party; provided, however, that if the
breach upon which such notice of termination is based shall have been fully
cured to the reasonable satisfaction of the nonbreaching party within such
thirty (30) day period, then such notice of termination shall be deemed
rescinded, and this Agreement shall be deemed reinstated and in full force and
effect. Such right of termination shall be in addition to such other rights and
remedies as the terminating party may have under applicable law.
13.3. Termination For Lack of Product. HAE may terminate this
Agreement upon thirty (30) days' written notice to Pharmacia in the event that
Product representing twenty percent (20%) of the previous QS are unavailable for
delivery to Accounts for more than sixty (60) days.
13.4. Termination Under Section 4.4(d). Either party may terminate
this Agreement upon sixty (60) days written notice to the other party upon
failure to agree upon the modified QB in accordance with the terms of Section
4.4(d) herein.
13.5. Phase Out. If this Agreement is terminated pursuant to Sections
13.2 or 13.3 hereof, the parties shall, at Pharmacia's request, discuss in good
faith an appropriate phase-out of HAE's Detailing activities.
13.6. Termination: Continuing Rights. If this Agreement is terminated
by either party, Pharmacia shall compensate HAE for any commissions earned and
not paid to HAE by Pharmacia for the calendar quarter of the termination.
Further, the termination or expiration of this Agreement shall not affect any
rights or obligations of any party under this Agreement which are intended by
the parties to survive such termination.
13.7. Effect of Termination. Within thirty (30) days following the
termination or expiration of this Agreement, HAE shall, upon written request by
Pharmacia, return to Pharmacia all copies of all Confidential Information,
including but not limited to Product Promotional Materials, marketing plans,
Account lists, reports and any and all other tangible items provided to HAE by
Pharmacia.
ARTICLE 14
MISCELLANEOUS
14.1. No Waiver: Cumulative Remedies. No failure or delay on the part
of either party in exercising any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. No waiver of any provision hereof
shall be effective unless the same shall be in writing and signed by the party
giving such waiver. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
14.2. Governing Law. This Agreement shall be construed and the
respective rights of the parties hereto determined according to the substantive
laws of the State of New Jersey without regard to conflict or choice of laws
principles
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14.3. Severability. If any provision of this Agreement or any other
document delivered under this Agreement is prohibited or unenforceable in any
jurisdiction, it shall be ineffective in such jurisdiction only to the extent of
such prohibition or unenforceability, and such prohibition or unenforceability
shall not invalidate the balance of such provision to the extent it is not
prohibited or enforceable nor the remaining provisions hereof, nor render
unenforceable such provision in any other jurisdiction. In the event any
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the parties hereto shall use their best efforts to substitute
valid, legal and enforceable provisions which, insofar as practical, implement
the purposes hereof.
14.4. Entire Agreement: Modification. This Agreement contains the
entire agreement between the parties in respect of the subject matter hereof and
supersedes and cancels all previous agreements, negotiations, commitments and
writings between the parties hereto in respect of the subject matter hereof.
This Agreement may not be changed or modified in any manner or released,
discharged, abandoned or otherwise terminated unless in writing and signed by
the duly authorized officers or representatives of the parties.
14.5. Notices. Any notice or request required or permitted to be given
in connection with this Agreement shall be deemed to have been sufficiently
given if sent by reliable national courier service (such as FedEx), pre-paid
registered or certified mail to the intended recipient at the address set forth
below or such other address as may have been furnished in writing by the
intended recipient to the sender. The date of mailing shall be deemed to be the
effective date on which notice was given.
Any notice required to be given shall be addressed as follows:
If to Pharmacia: Pharmacia Corporation
000 Xxxxx 000 Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
If to HAE: Haemacure Corporation
One Sarasota Tower, STE. 000
Xxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: President
14.6. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which together shall constitute one and the same
document.
14.7. Assignment. Except as otherwise expressly provided in this
section, neither party may assign this Agreement in whole or in part without the
prior written approval of the other party (such approval not to be unreasonably
withheld or delayed). Any such attempted assignment without prior written
consent shall be void and ineffective. Notwithstanding the foregoing, either
party may, without the other party's consent, assign its right, title and
interest in this Agreement to any entity with which it may merge or consolidate,
which acquires all or
13
substantially all of its business and assets, or which otherwise controls, is
controlled by or is under common control with the assigning party.
14.8. Public Announcements. Any public announcement or similar
publicity with respect to this Agreement or the transaction contemplated herein
shall be at such time and in such manner as the parties shall mutually agree in
writing, provided that nothing herein shall prevent either party from, upon
notice to and opportunity to review by the other, making such public
announcements as such party's legal obligations require.
14.9. Force Majeure. Failure of either party hereto to fulfill or
perform its obligations under this Agreement shall not subject such party to any
liability if such failure is caused or occasioned by, without limitation, acts
of God, acts of the public enemy, fire, explosion, flood, drought, war, riot,
sabotage, embargo, strikes or other labor disputes (which strikes or disputes
need not be settled), compliance with any order, regulation, or request of
government, or by any other event or circumstance of like or different character
to the foregoing beyond the reasonable control and without the fault or
negligence of such party, (a "Force Majeure Event") provided such party uses
reasonable efforts to remove such Force Majeure Event and gives the other party
prompt notice of the existence of such Force Majeure Event.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized and empowered officers and representatives as
of the day and year first above written.
PHARMACIA CORPORATION HAEMACURE CORPORATION
______________________________________ _______________________________________
Xxxxx X. Xxxxxx Xxxx Xxxxxx
Director of Marketing, Global Business President and Chief Executive Officer
Management
14
Schedule A
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Film envelope of 1
--------------------------------------------------------------------------------
absorbable gelatin film
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Ophthalmic Film box of 6
--------------------------------------------------------------------------------
absorbable gelatin film
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Powder 1 g jar
--------------------------------------------------------------------------------
absorbable gelatin powder
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R) Sterile Sponge 12-7 mm 12s
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge size 50 4s
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge size 100 6s
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge size 200 6s
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge Compressed size 100 6s
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge Dental Pack size 4-jar of 15
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge Pack size 2 cm 1s
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge Pack size 6 cm 6s
--------------------------------------------------------------------------------
0000-0000-00 GELFILM(R)Sterile Sponge Prostatectomy Cone size 18 cm 6s
--------------------------------------------------------------------------------
absorbable gelatin sponge
--------------------------------------------------------------------------------
15
Schedule B
****
16
Schedule C
Return Goods Policy. P&U products in original containers, partials
included, may be returned by our customer for credit or exchange, transportation
prepaid.
Product which have expired but are returned no later than one (1) year
past the expiration date may be credited or exchanged at 100% of an approximate
dollar equivalent of the Agreement price listed herein. Products that are within
six (6) months of expiration are considered expired. No credit or exchange will
be extended for products received after the one-year grace period.
Products returned prior to their expiration date may be credited or
exchanged at 80% of an approximate dollar equivalent of the Agreement price
listed herein.
Products may be returned, however, for 100% credit or exchange for an
approximate dollar equivalent of the Agreement price listed herein prior to
their expiration date IF:
* Return or exchange is made within one (1) year of the product's NDC number
production date (i.e., prestocked products, new product introductions, new
product line extension introductions, and new package size introductions).
Please note, this does not apply to "customer friendly" packages. Since the
customer friendly NDCs are created exclusively for the convenience of
customer ordering, they are not considered to be new products;
* Either a billing or shipping error has occurred or merchandise is received
damaged, AND P&U is notified within thirty (30) days of receipt of goods;
or
* A Product is recalled.
Credit is not allowable on merchandise damaged by improper storage, by
fire, or from smoke or water resulting from fire.
When credit is allowed, the value of the return will be based on the
Agreement price listed in this agreement.
A P&U Returned Goods Form must be completed with the information
required to comply with FDA good manufacturing practices. These forms can be
obtained from your Distribution Center or your Sales Representative. Returned
goods cannot be processed without this form.
To assure credit, preauthorization will be required for returns from
all P&U Company national accounts.
17
