Zyber – Macoven Pharmaceuticals Agreement
EXHIBIT
10.2
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Introduction:
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An
agreement (“AGREEMENT”) is made this 27th day of July, 2009 by and between Zyber
Pharmaceuticals, Inc. (“Zyber”), a Louisiana Corporation having an
office at 000 Xxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000 and Macoven
Pharmaceuticals, LLC. (“Macoven Pharmaceuticals”), a Louisiana Limited Liability
Company. Zyber and Macoven Pharmaceuticals may be collectively
referred to as the “Parties.”
RECITALS:
WHEREAS,
Zyber currently promotes various pharmaceutical products;
WHEREAS,
Macoven Pharmaceuticals also currently promotes various pharmaceutical
products;
WHEREAS,
Zyber desires to into an agreement with Macoven Pharmaceuticals for Macoven
Pharmaceuticals to have the right to develop and sell generic pharmaceutical
products based on and/or derived from Zyber’s pharmaceutical products whereby
Zyber will pay Macoven Pharmaceuticals a one time development fee and all sales
proceeds from Macoven Pharmaceuticals’ sales of said generic pharmaceutical
products will belong to and be paid to Zyber; and
WHEREAS,
Macoven Pharmaceuticals wishes to enter into an agreement with Zyber so that
Macoven Pharmaceuticals can develop and sell generic pharmaceutical products
based on Zyber’s pharmaceutical products whereby Macoven Pharmaceuticals will
pay Zyber an administrative fee for administrative services that Zyber performs
for Macoven Pharmaceuticals.
NOW
THEREFORE, in consideration of the promises and of the mutual covenants and
agreements herein contained, receipts and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
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1.
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DEFINITIONS
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1.1.
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“ACTION
OR PROCEEDING” means any action, suit, proceeding, arbitration, Order,
inquiry, hearing, assessment with respect to fines or penalties, or
litigation (whether civil, criminal, administrative, investigative or
informal) commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental or Regulatory
Authority.
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1.2.
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“APPLICABLE
LAWS” means all applicable statutes, ordinances, regulations, rules or
orders of any kind whatsoever of any government authority or court of
competent jurisdiction, including, without limitation, the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. §301 et
seq.),
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1.3.
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“PRODUCTS
” means any past, current, and/or future Zyber pharmaceutical product
including, generics for Zyber brand products.
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1.4.
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“THIRD
PARTY” means any business entities or individuals other than Zyber or
Macoven Pharmaceuticals.
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1.5.
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“ADMINISTRATIVE
SERVICES” means any acts/services performed by Zyber, its subsidiaries,
affiliates, or its successor(s) in interest or any acts/services performed
on behalf of Zyber that are performed for the benefit of Macoven
Pharmaceuticals or any of its subsidiaries, affiliates, parents, and/or
successor(s) in interest, regarding the administration, distribution,
and/or management of distribution of any products sold by Macoven
Pharmaceuticals under the terms of this
AGREEMENT.
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1.6.
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“KNOW-HOW”
means all product specifications; manufacturing, physical chemistry and
formulation know-how; analytical testing methods and validations;
technical knowledge; expertise; skill; practices and procedures; formulae;
trade secrets; confidential information; analytical methodology;
processes; preclinical, clinical, stability and other data and results;
market studies; and all other experience and know-how, in each case in
tangible form and only to the extent related to Zyber and the PRODUCTS,
whether or not patentable, together with inventions and methods (whether
patentable or unpatentable and whether or not reduced to practice) and all
improvements to those inventions and
methods.
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2.
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TERMS
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2.1.
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Ownership: Subject
to the other terms and conditions of this AGREEMENT, Zyber and Macoven
Pharmaceuticals acknowledge, agree, and understand that Zyber currently
owns and will retain ownership in all rights of any kind, including but
not limited to intellectual property rights, trademarks, copyrights,
patents, KNOW-HOW, trade secrets, and the like in all of Zyber’s current,
past, and future PRODUCTS. This AGREEMENT does not assign,
transfer, convey, or change those ownership rights in any
way.
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2.2.
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License: Macoven
Pharmaceuticals acknowledges, agrees, and understands that this AGREEMENT
acts as a non-exclusive license agreement whereby for a one-time fee,
discussed herein pursuant to Section 6, and for a set term, as discussed
herein pursuant to Section 5, Macoven Pharmaceuticals is given the
non-exclusive right to develop, market, and sell generic pharmaceutical
products based on and/or derived from Zyber’s
PRODUCTS.
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2.3.
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Marketing: Subject
to the other terms and conditions of this AGREEMENT, Zyber and Macoven
Pharmaceuticals acknowledge, agree, and understand that Zyber, its
partners, affiliates, its subsidiaries, and/or its successors in
interests, shall have the right to use any marketing materials developed
by and/or for Macoven Pharmaceuticals for marketing and/or selling any
products developed as a result of this
AGREEMENT.
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2.4. Exclusiveness: Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that the rights
granted to Macoven Pharmaceuticals under this AGREEMENT are non-exclusive and
Zyber has the right to grant the same and/or similar rights to any THIRD PARTY
at Zyber’s discretion.
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2.5.
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Distribution: Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that
Macoven Pharmaceuticals is responsible for the distribution and marketing
of any products developed as a result of this
AGREEMENT. However, Zyber and Macoven Pharmaceuticals further
acknowledge, agree, and understand that Macoven Pharmaceuticals can choose
to pay Zyber an agreed upon fee, as discussed herein pursuant to Section
8, for Zyber to assist Macoven Pharmaceuticals by providing Administrative
Services, distribution, marketing, and/or other services for the benefit
of Macoven Pharmaceuticals.
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3.
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PRODUCT
COMMERCIALIZATION
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3.1.
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Subject
to the other terms and conditions of this AGREEMENT, Zyber and Macoven
Pharmaceuticals acknowledge, agree, and understand that Zyber retains
complete control over the commercialization and promotion of any and all
products developed, marketed, and sold as a result of this
AGREEMENT.
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3.2.
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Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that
Macoven Pharmaceuticals will consult with Zyber and obtain Zyber’s consent
prior to partaking in any activity that would be considered the
commercialization and/or promotion of any products developed as a result
of this AGREEMENT.
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4.
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MANUFACTURE
OF PRODUCTS
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4.1.
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Any
products developed as a result of this AGREEMENT will be manufactured at a
location that is acceptable to
Zyber.
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4.2.
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Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that Zyber
has the right and control to make all final approvals and/or other
decisions regarding the manufacturing of any products developed as a
result of this AGREEMENT.
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4.3.
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Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that
Macoven Pharmaceuticals is solely responsible for any and all payments to
any manufacturer for the development and/or manufacturing of any products
developed as a result of this
AGREEMENT.
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5.
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TERM
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5.1.
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The
initial term (“INITIAL TERM”) of this AGREEMENT is eighteen (18)
months.
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5.2. After
expiration of the INITIAL TERM described in 5.1, this AGREEMENT shall
automatically renew for 12 months unless Zyber chooses not to
renew. This AGREEMENT will then renew for a new 12 month term at the
end of each 12 month period unless otherwise terminated by Zyber as provided for
under the terms of this AGREEMENT.
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5.3.
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The
overall term of this AGREEMENT shall commence on the __________ day of
_____________, 2009, and expire after the INITIAL TERM, unless this
AGREEMENT is terminated sooner by Zyber or unless this AGREEMENT is
renewed pursuant to the terms and conditions
hereof.
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5.4.
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Zyber
has the right to terminate this AGREEMENT after the INITIAL TERM at
will. Macoven Pharmaceuticals can only terminate this AGREEMENT
with 90 days notice.
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5.5.
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Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that Zyber
must provide 30 days advance notice to Macoven Pharmaceuticals before
terminating this AGREEMENT.
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5.6.
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Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that if
both Zyber and Macoven Pharmaceuticals agree to terminate this AGREEMENT,
then this AGREEMENT may be terminated at
anytime.
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6.
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PAYMENTS
BY ZYBER TO MACOVEN PHARMACEUTICALS
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6.1.
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Zyber
agrees to pay to Macoven Pharmaceuticals a one time development and
service fee (“DEVELOPMENT FEE”) of One Million Five Hundred Thousand and
00/100 ($1,500,000.00) for developing, promoting, commercializing,
marketing, and selling any pharmaceutical products that are based on
and/or derived from Zyber’s PRODUCTS. This development and
service fee will be paid in full or partial payments within 10 days of a
request in writing by Macoven Pharmaceuticals. Zyber can deduct
this payment from credit that Zyber has with
Macoven.
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6.2.
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Upon
execution of this AGREEMENT by the Parties, Zyber agrees to pay Macoven
Pharmaceuticals Twenty Thousand and 00/100 ($20,000.00) dollars
representing payment of a portion of the DEVELOPMENT FEE set forth in
section 6.1 of this AGREEMENT. If for any reason, this
AGREEMENT terminates during the first SIX (6) months, then Macoven
Pharmaceuticals acknowledges, agrees, and understands that Zyber is only
required to pay Macoven Pharmaceuticals one-third (1/3) or thirty-three
percent (33%) of the DEVELOPMENT
FEE.
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6.3.
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Zyber
agrees to pay Macoven Pharmaceuticals the full DEVELOPMENT FEE by the end
of the INITIAL TERM, unless the AGREEMENT is terminated prior to the
expiration of the INITIAL TERM. In the event that this
AGREEMENT is terminated prior to the INITIAL TERM, payment will be
governed by Section 6.4 of this
AGREEMENT.
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6.4.
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In
the event of a termination of this AGREEMENT prior to the INITIAL TERM,
Zyber will be responsible for paying Macoven Pharmaceuticals a percentage
of the DEVELOPMENT FEE
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based
upon the number of months that this AGREEMENT has been in effect (“PARTIAL
DEVELOPMENT FEE”).
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7.
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PAYMENTS
BY MACOVEN PHARMACEUTICALS TO ZYBER/ OWNERSHIP OF
SALES
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7.1.
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Macoven
Pharmaceuticals acknowledges, agrees, and understands that all proceeds up
to 1.5 million dollars during the initial term will be the sole and
exclusive property of Zyber.
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7.2.
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Macoven
Pharmaceuticals acknowledges, agrees, and understands that any and all
payments submitted to Macoven Pharmaceuticals and/or any of its
affiliates, employees, officers, directors, agents, subsidiaries, or
successors, from any THIRD PARTIES for any orders of any products
developed as a result of this AGREEMENT and placed after the execution of
this AGREEMENT are the exclusive property of
Zyber.
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7.3.
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Macoven
Pharmaceuticals acknowledges, agrees, and understands that at the time of
termination of this AGREEMENT for any reason, any outstanding invoices and
accounts receivables relating to the sale of any products developed as a
result of this AGREEMENT will be the exclusive property of and belong to
Zyber. Macoven Pharmaceuticals hereby assigns to Zyber full
ownership of any accounts receivables and outstanding invoices relating to
sales of any products developed as a result of this
AGREEMENT.
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7.4.
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Macoven
Pharmaceuticals acknowledges, agrees, and understands that it is
responsible for any and all costs and fees, including but not limited to
attorney’s fees, incurred and/or associated with collecting any sales
proceeds associated with the sale of any products developed as a result of
this AGREEMENT. Macoven Pharmaceuticals acknowledges and agrees
that it will reimburse Zyber for any costs and/or fees, including but not
limited to attorney’s fees, incurred and/or expended by Zyber in
collecting sales proceeds associated with the sale of any products
developed as a result of this
AGREEMENT.
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7.5.
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Macoven
Pharmaceuticals agrees to forward all payments due Zyber pursuant to the
terms of Sections 7.1 to 7.4 to Zyber on at least the 15th
and 30th
of each month
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8.
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PAYMENT
FOR ZYBER’S ADMINISTRATIVE SERVICES
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8.1.
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Zyber
and Macoven Pharmaceuticals acknowledge, agree, and understand that
Macoven Pharmaceuticals will pay Zyber ten percent (10%) of net profit for
Zyber providing ADMINISTRATIVE SERVICES and managing all of Macoven
Pharmaceuticals generic products.
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9.
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MISCELLANEOUS
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9.1.
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The
scope of this AGREEMENT shall include all pages of this AGREEMENT along
with any and all attachments and/or
exhibits.
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9.2.
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All
notices to be given under this AGREEMENT shall be in writing and shall be
deemed to be fully given by a party when sent by certified or registered
mail, postage prepaid, or by
reputable
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overnight
carrier to the other party at the respective address shown below or to
such other address as a party hereto shall supply to the other in
writing:
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If to Zyber:
Zyber
Pharmaceuticals, Inc.
000
Xxxx Xxxx Xxxxx
Xxxxxxxx,
Xxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxx
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If to Macoven Pharmaceuticals
:
Macoven
Pharmaceuticals, LLC .
XXXXXX
NEED ADDRESS
Attention: Xxxx
Xxxxxxx
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9.3.
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All
terms and provisions of this AGREEMENT shall survive any change of control
for both Zyber and Macoven Pharmaceuticals. In addition all
terms and provisions of this AGREEMENT shall apply to any change of
ownership for both Zyber and Macoven
Pharmaceuticals.
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9.4.
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This
AGREEMENT may be executed in any number of counterparts and by facsimile,
each of which will be deemed an original, but all of which together will
constitute one and the same
instrument.
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10.
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CONFIDENTIALITY
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10.1.
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Confidential
Information. Each party acknowledges and agrees that it will
have access to, or become acquainted with, Confidential Information of the
other party in connection with the performance of the services required by
this AGREEMENT. For the purposes of this AGREEMENT,
“Confidential Information” shall mean any information of the disclosing
party or any affiliate thereof, which gives the disclosing party an
advantage over its competitors who do not possess such information and
constitutes valuable trade secrets and proprietary data which was revealed
to the receiving party as a result of entering into or performing its
obligations under this AGREEMENT, including but not limited to,
information which relates to the PRODUCTS, designs, methods, discoveries,
improvements, documents, trade secrets, proprietary rights, business
affairs, customer information or employee
information. Confidential Information shall not include any
information that:
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10.1.1.
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was
known to the receiving party prior to the date of this AGREEMENT, without
an obligation to keep it
confidential;
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10.1.2.
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was
lawfully obtained by the receiving party from a third party without any
obligation of confidentiality;
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10.1.3.
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is,
at the time of disclosure, in the public
knowledge;
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10.1.4.
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becomes
part of the public knowledge after disclosure by publication or otherwise
except by breach of this AGREEMENT;
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10.1.5.
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is
developed by the receiving party independently by persons who did not have
access to the Confidential information and apart from this
AGREEMENT.
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10.1.6.
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is
otherwise knowledge possessed by the receiving party or its employees as
the result of their industry experience or
education.
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10.2.
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The
receiving party shall keep all Confidential Information in confidence and
shall not, at any time during or for a period of five (5) years from the
termination of this AGREEMENT, without the disclosing party’s prior
written consent, disclose or otherwise make available, directly or
indirectly, any item of Confidential Information to anyone other than its
employees (and its legal counsel and consultants provided they are bound
by similar obligations of confidentiality) who need to know the same in
connection with fulfilling the purposes of this AGREEMENT. The
receiving party shall use the Confidential Information only in connection
with fulfilling the purposes of this AGREEMENT and for no other
purpose. Each party shall inform its employees of the trade
secret, proprietary and confidential nature of the Confidential
Information.
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10.3.
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Extraordinary
Relief. Any violation by either Zyber or Macoven
Pharmaceuticals of its obligations pursuant to the confidentiality
provisions herein shall not be adequately compensable by monetary damages
and the non-violating party shall be entitled to an injunction order or
other appropriate decree specifically enforcing such party’s obligations
pursuant to the confidentiality provisions of this
AGREEMENT. The rights granted by this Section 10.3 are in
addition to all other remedies and rights available at law or in
equity.
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10.4.
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Upon
termination of this AGREEMENT, each party will return the other party’s
Confidential Information which is under its control or in its
possession.
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11.
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ENFORCEMENT,
RENEWAL, TERMINATION, AND/OR
GENERAL
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11.1.
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This
AGREEMENT shall be governed by, and interpreted under, the laws of the
State of Louisiana without giving effect to the conflicts of laws
principles. In the event of a dispute(s), claim(s) or matter(s)
in question of any kind whatsoever arising out of or related or collateral
to the provisions and/or subject matter of this AGREEMENT or the breach
thereof, it is agreed that the parties to this AGREEMENT will attempt to
resolve such dispute(s), claim(s) or other matter(s) in question amicably
by informal discussions and negotiations within a seven (7) day
period. All dispute(s), claim(s) or other matter(s) in question
that can not be settled by negotiations among the parties within such time
shall upon demand of, and at the election of Zyber be submitted by the
parties to arbitration to take place in the state of
Louisiana.
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11.2.
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In
the event that arbitration is not elected by Zyber, then any dispute(s),
claim(s), controversy, or other matter(s), shall be resolved without a
jury in a court located in the State of Louisiana. The parties
consent to jurisdiction in such courts, waive any objection to such venue
and waive trial by jury. The parties stipulate and agree that
any judgment relating to this AGREEMENT which is entered in a court in the
State of Louisiana shall be binding throughout the world. Legal
Process may be served on either party by Certified Mail, Return Receipt
Requested or any other method permitted by the rules of the Court in which
an action is commenced.
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11.3.
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In
the event that this matter proceeds to arbitration or litigation, the
prevailing party shall be entitled to collect reasonable attorney’s fees
for the arbitration and/or
litigation.
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11.4.
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In
the event that any provision of this AGREEMENT shall be held invalid or
unenforceable, it shall be deemed modified, but only to the extent
necessary to make it lawful. To effect such modification, the
said provision shall be deemed deleted, added to and/or rewritten,
whichever shall most fully preserve the intentions of the parties as
originally expressed herein.
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11.5.
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The
obligations of the parties under this AGREEMENT shall be binding upon
their legal assigns and successors, but this AGREEMENT may not be assigned
by a party to this AGREEMENT to a THIRD PARTY except with the prior
written consent of the other party.
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11.6. Either
party shall have the right, but not the obligation, to terminate this AGREEMENT
upon (thirty) 30 days written notice after the occurrence of a material breach
of this AGREEMENT. Such termination shall be without prejudice to any
other right or remedy of the Parties, including, but not limited to, the right
to damages and/or equitable relief and/or to remedy any material breach of this
AGREEMENT.
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12.
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REPRESENTATIONS
AND WARRANTIES
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12.1.
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Macoven
Pharmaceuticals and Zyber represent and warrant that they have the right
and authority to enter into this AGREEMENT with one
another.
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12.2.
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This
AGREEMENT (and any Exhibits attached hereto) supersedes all prior
discussions and agreements, both written and oral, among the Parties with
respect to the subject matter hereof and contain the sole and entire
agreement among the Parties with respect to the subject matter
hereof.
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12.3.
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Macoven
Pharmaceuticals represents and warrants that there are no Actions or
Proceedings pending, threatened or reasonably anticipated against Macoven
Pharmaceuticals or its Affiliates that relate to (a) pharmaceutical
products currently or previously sold by Macoven Pharmaceuticals; (b) this
Agreement; or (c) the transactions contemplated by this
Agreement. Macoven Pharmaceuticals is not subject to any Order
that could reasonably be expected to materially impair or delay the
ability of Macoven Pharmaceuticals to perform its obligations
hereunder.
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12.4.
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Paragraph/Section
headings herein are for convenience only and do not control or affect the
meaning or interpretation of any terms of provisions of this
AGREEMENT.
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12.5.
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No
waiver of any provision of this AGREEMENT will be considered unless it is
in a signed writing, and no such waiver will constitute a waiver of any
other provision(s) or of the same provision on another
occasion.
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13.
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INDEMNIFICATION
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13.1.
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Indemnification
by Macoven Pharmaceuticals . Macoven
Pharmaceuticals shall defend, indemnify and hold Zyber, its
affiliates, subsidiaries, successors, directors, officers, employees and
agents harmless from and against any and all claims, suits, actions,
damages, assessments, interest charges, penalties, costs or expenses,
including reasonable attorney’s fees (collectively, the “Indemnified Amounts,”)
arising out of (a) the material breach by Macoven Pharmaceuticals of any
of its obligations, representations or warranties under this AGREEMENT,
including, without limitation, Macoven Pharmaceuticals’ failure to submit
payments to Zyber pursuant to Sections 7 and 8 of this AGREEMENT, (b) a
negligent or willful act or omission on the part of Macoven
Pharmaceuticals (including any employee or agent of Macoven
Pharmaceuticals), (c) any federal or state claims or assessment for
nonpayment or late payment by Macoven Pharmaceuticals of any tax or
contribution based on compensation or other benefits owed to any employees
of Macoven Pharmaceuticals, including, without limitation, a claim or
assessment that Zyber should have withheld any amounts related thereto,
(d) requests by Macoven Pharmaceuticals or by third parties (in connection
with a claim against Macoven Pharmaceuticals ) pursuant to a subpoena or
court order for the production by Zyber of documents or any other
materials or to interview, depose and/or elicit testimony from Zyber
employees on any matters related to or involving this AGREEMENT,
including, but not limited to, the ADMINISTRATIVE SERVICES, (e) any
violation by Macoven Pharmaceuticals of any and all APPLICABLE LAWS of any
governmental body having jurisdiction over the exercise of rights under
this AGREEMENT, or (f) any misuse or misappropriation of any products
distributed by Macoven
Pharmaceuticals.
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14.
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INSURANCE
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14.1.
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Macoven
Pharmaceuticals Insurance Coverage Required. During any term of
this AGREEMENT, and with respect to liability hereunder for any post
termination period during which a claim could be asserted against Macoven
Pharmaceuticals, up to 5 years after termination, Macoven Pharmaceuticals
shall maintain at its sole expense insurance coverage as
follows:
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14.1.1.
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Product
liability insurance with respect to any products developed as a result of
this AGREEMENT with coverage limits of not less than $5 million per
occurrence and $5 million in the aggregate;
and
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14.1.2.
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Commercial
General Liability insurance including with a combined single limit of
$1,000,000, minimum liability of $1,000,000 each occurrence and $2,000,000
in the aggregate.
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14.1.3.
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The
foregoing insurance shall be maintained with responsible carriers and
their terms of coverage shall be evidenced by certificates of insurance to
be furnished by Macoven Pharmaceuticals to Zyber within 30 days of the
date of this AGREEMENT. Such certificates of insurance shall
provide that at least 30 days’ written notice shall be
given
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to
Zyber prior to cancellation or modification of any of the material terms
of coverage of any policy.
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15.
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FORCE
MAJEURE
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15.1.
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Neither
party shall be deemed to have breached this AGREEMENT or to be liable for
any damages caused by failure to perform or by delay in rendering
performance hereunder arising out of any occurrence or contingency beyond
its reasonable control, including but not limited to, (a) flood,
earthquake, hurricane, fire, war, strikes, labor unrest, riot, civil
commotion, power or communication line failure, computer equipment failure
or operational failure, (b) failure of independent contractors under
agreement with Zyber to perform or (c) prohibition(s) or restriction(s)
imposed by applicable regulatory authority, the judgment, ruling or order
of a court or agency of competent jurisdiction, or the enactment of or
change in any law or regulation.
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Zyber, Inc.
By: Xxxxxx Xxxxxxx
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Macoven Pharmaceuticals,
LLC.
By: Xxxx Xxxxxxx
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/s/
Xxxxxx Xxxxxxx
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/s/
Xxxx Xxxxxxx
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Name:
Xxxxxx Xxxxxxx
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Name: Xxxx
Xxxxxxx
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Title:
President
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Title:
President
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| Date: July 27, 2009 | Date: July 27, 2009 |
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