EXHIBIT 10.48
DISTRIBUTION AGREEMENT
***Confidential treatment has been requested as to certain portions of this
agreement. Such omitted confidential information has been filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended, and the Commission's rules and
regulations promulgated under the Freedom of Information Act, pursuant to a
request of confidential treatment.
This agreement ("Agreement") is made and entered into as of
October 15, 1998, by and between Carme Cosmeceutical Sciences, Inc., a
Corporation ("Carme"), and ICN Pharmaceuticals, Inc., a Delaware Corporation
("ICN").
Senetek PLC ("Senetek") holds certain patents for Kinetin and
has granted its subsidiary Carme certain rights arising under the patents,
including the right to manufacture, have manufactured and sell products
containing Kinetin. ICN desires to market and sell in the ethical market channel
specific formulations containing Kinetin for use as a skin care product. Carme
is willing to grant ICN the right to market and sell such formulations subject
to the terms and conditions of this Agreement.
Accordingly, in consideration of the mutual promises,
covenants, and conditions set forth below, the parties agree as follows:
1. DEFINITIONS
When used in this Agreement, each of the following capitalized
terms shall have the respective meaning set forth in this Article.
1.1 "Affiliate" means, with respect to any Person, another Person
controlled by, controlling or under common set forth in this Article.
1.2 "Authorized Channel" means the sale of the products in the ethical
market channel, including (by way of example and not limitation) physicians,
pharmacies, medical clinics, and HMO's, and other recognized prescription drug
channels.
"*Filed Separately with the Commission*"
1.4 "Best Efforts" shall mean that commercially reasonable degree of
effort, expertise, knowledge and resources which one skilled, able, familiar
with and experienced in the matters set forth herein would utilize and otherwise
apply with respect to fulfilling an obligation.
1.5 "Carme Confidential Information" means the Know-How, non-public
information concerning the Patents, Improvements, marketing, sales, financial,
scientific, and other non-public and/or proprietary information concerning the
products, projects, business and operations of Carme to ICN.
1.6 "Calendar Quarter" means a period beginning on the first day of
January, April, July or October and ending on the last day of March, June,
September, or December, respectively.
1.7 "Contract Year" means the period beginning on the date of the initial
launch or any anniversary thereof during the Term and ending on the first to
occur of one (1) year after such date and the termination of this Agreement.
1.8 "Disruption Period" means any period during which Carme is unable to
deliver Products to ICN which conform to the specifications and are manufactured
in compliance with section 5.2.3.
1.9 "Improvement" means any information, discovery, creation, derivative
work, invention, or trade secret, whether or not patented or patentable or
copyrighted or copyrightable, that relates to or is based upon the Patents or
Know-How and is developed or otherwise acquired by either party or its
respective affiliates.
1.10 "Know-How" shall mean such know-how, special knowledge, technical or
other information, whether or not patented or patentable, owned or controlled by
Carme or its Affiliates at any time prior to or during the term of this
Agreement specifically related to the development, manufacture or use of any
device relating to the Product.
1.11 "ICN Confidential Information" means marketing, sales, financial,
scientific and other non-public and/or proprietary information concerning the
products, projects, business and
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operations of ICN including the manufacture, use, or sale of the Products
disclosed by ICN to Carme.
1.12 "Net Sales" as used herein, shall mean the gross amount billed for
commercial sales of the Products sold, or otherwise distributed to any party by
ICN, its Affiliates or its sublicenses (not including sales by ICN to its
Affiliates or sublicensees), less the following deductions:
"*Filed Separately with the Commission*"
1.13 "Patents" means the patents and patent applications for Kinetin set
forth on Exhibit A.
1.14 "Person" means an individual, legal entity, government or agency
thereof.
1.15 "Product(s)" means the lotion formulation containing Kinetin as set
forth in Exhibit B (the "Lotion"), the cream formulation containing Kinetin as
set forth in Exhibit C (the "Cream"), and all line extensions and enhanced
formulations of the foregoing.
1.16 "Specifications" means the specifications for the Lotion set forth in
Exhibit B and for the Cream set forth in Exhibit C.
1.17 "Territory" means worldwide; "Core Territory" means the continental
United States, Alaska, Hawaii, Puerto Rico and Canada.
1.18 "Term" means the period starting on the date of this Agreement and
ending upon the expiration of the last to expire of the Patents.
2. GRANT OF RIGHTS TO SELL
2.1 Grant. Carme hereby grants to ICN during the Term hereof the right to
sell the Products in the Authorized Channel within the Territory, subject to
terms of this Agreement (the "Rights").
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2.2 Non-Core Territories. In the event ICN does not launch the Product in
any market outside the Core Territory within two (2) years from the date of this
Agreement, ICN's rights in that market shall, at Carme's option on written
notice to ICN, become non-exclusive or terminate.
2.3 Right of First Offer. During the Term hereof, ICN shall have the right
of first offer to obtain the right to sell in the Authorized Channel in the
Territory new and enhanced products, developed or otherwise acquired by Carme
and/or its affiliates, which utilized Kinetin analogues, including Zeatin, as
the primary active ingredient for use as a skin care product; provided, however,
that such right of first offer shall not apply with regard to products that are
protected through patents or other exclusivity as to, owned by, or vested in a
third party and as to which Carme or its Affiliates have not acquired the right
to grant marketing rights to others. ICN shall have sixty (60) days from the
date that Carme notifies ICN that such a new or enhanced product is to or may
become available for sale to deliver an offer to Carme setting forth in
reasonable detail the terms upon which ICN would purchase, market and resell
such product. If Carme elects not to accept ICN's offer (or if no offer is made
within such period), Carme shall be free to grant such rights to others on terms
no better to such other party than those last offered by ICN, (or, if Carme has
made a counter offer, on terms no better to such other party than those offered
by Carme to ICN exercise such rights itself, or any combination thereof, all in
Carme's sole and absolute discretion.
2.4 Exclusivity. Carme shall not grant any other party the right to sell
the Products in the Authorized Channel in the Territory during the Term and
shall not grant the right to sell the Products with a concentration of Kinetin
of 0.1% or greater in any marketing channel within the Territory (the
"Exclusivity Right"). The Exclusivity Right may be terminated by Carme upon
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notice given to ICN if ICN fails to meet any Minimum Purchase Requirement or
satisfy the Promotion Commitment, or as provided in section 2.2 above.
2.5 No Other Rights. It is expressly understood that this Agreement grants
no rights to ICN for the sale of the Product or under the Patents except those
express rights set forth in Sections 2.1 through 2.4. Without limiting the
foregoing, it is understood and agreed that ICN has not right pursuant to this
Agreement to, and shall not, (i) sell or permit its customers to sell the
Products outside the Authorized Channel or the Territory, (ii) manufacture or
have made other than by Carme any Products (other than pursuant to Section 4.6
of this Agreement) or (iii) have any right with respect to Improvements except
as set forth in Section 2.3. Upon any termination of this Agreement, ICN shall
have no right of any kind with respect to the Products, Patents or Improvements
other than the right to complete the sale of Products then lawfully in its
possession subject to the payment of royalties pursuant to Section 3.3.2.
Nothing in the foregoing sentence shall diminish ICN's rights in any trademark
or other intellectual property owned by ICN and used in connection with the
Products.
3. PURCHASE COMMITMENTS
3.1 Initial Order. Concurrently with execution of this Agreement, ICN shall
issue a non-cancelable purchase order for "*Filed Separately with the
Commission*"units of the Lotion and "*Filed Separately with the
Commission*"units of the Cream (the "Initial Order").
3.2 Minimum Purchase Requirements. During the first Contract Year, ICN
shall purchase not less than "*Filed Separately with the Commission*"unit (the
"Minimum Purchase Requirement"). The Minimum Purchase Requirement may be met
with units any combination of Products (including line extensions and/or
additional formulations) purchased by ICN pursuant to this Agreement. In advance
of each subsequent Contract Year, ICN and Carme shall agree on a reasonable
Minimum Purchase Requirement for that year. In the event the parties fail to
agree
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on a reasonable minimum purchase requirement, Carme may at its option terminate
the Exclusivity Right. In the event ICN fails to meet the Minimum Purchase
Requirement, Carme's sole remedy shall be termination of this Agreement pursuant
to Section 9.2 below or termination of the Exclusivity Right pursuant to section
2.4 above.
3.3 Payment.
3.3.1 Base Price. Carme may send an invoice for the Base Price for
Product ordered by ICN at any time after shipment. ICN shall pay Carme such
amount within thirty (30) days of the date of such invoice. Late payments shall
be subject to a monthly processing fee of "*Filed Separately with the
Commission*"of the amount due or, if such amount is not permitted by law, the
maximum amount permitted by law. Shipping charges for the Initial Order shall be
invoiced upon shipment and paid by ICN as otherwise set forth in this Section
3.3.1.
3.3.2 Royalties. In further consideration of the grant of the rights
under this Agreement, ICN shall pay to Carme a royalty of "*Filed Separately
with the Commission*"of Net Sales from the Products in the Core Territory
beginning in the second Contract Year; "*Filed Separately with the Commission*".
Royalties for other markets will be agreed separately based on prevailing market
conditions, (however the average royalty overall shall not exceed "*Filed
Separately with the Commission*"). The Royalty shall be paid by ICN to Carme
quarterly with respect to sales of the Products during each Calendar Quarter
within thirty (30) days after the end of such Calendar Quarter. Each royalty
payment shall be accompanied by a statement setting forth in reasonable detail
the basis for the calculation of the royalty amount paid. ICN shall permit Carme
reasonable access to the date necessary to audit such calculation upon request
from Carme provided that any such audit shall be conducted by independent
auditors. Any such audit shall be commenced by Carme no later than three (3)
years following the end of the relevant
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contractual year, and no more than one such audit shall be conducted during any
twelve (12) month period.
3.3.3 Adjustments to Base Price. At the end of the first Contract Year
and at the end of each following Contract Year, the Base Price, as previously
adjusted, shall be adjusted based on changes in actual costs during the just
completed Contract Year.
4. MANUFACTURE DELIVERY OF PRODUCTS
4.1 Source. Products shall be manufactured by "*Filed Separately with the
Commission*" or such other manufacturer(s) as Carme may from time to time
designate. ICN shall have the right to conduct reasonable audits of any
manufacturing site designated by Carme. Any manufacturing site transfer shall be
performed in accordance with standards of good manufacturing practices for
cosmetic products.
4.2 Orders. Orders for Products shall be delivered to Carme at the
following address:
Carme Cosmeceutical Sciences, Inc.
000 Xxxxxxx Xxxx
Xxxx, XX 00000
Attention: Purchasing Department
or at such other address as Carme may give ICN notice.
4.3 Packaging and Labeling. The Products shall be packaged and labeled as
set forth in Exhibit D. ICN grants to Carme a license to utilize the trademarks,
service marks and other intellectual property necessary to package and label the
Products as specified in Exhibit C (the "Packaging License"). The Packaging
License shall expire upon the termination of this Agreement.
4.4 Requirements Forecasts. ICN shall provide Carme with a rolling twelve
(12) month forecast of its requirements for Products under this Agreement to be
updated quarterly, and delivered to Carme at least thirty (30) days in advance
of the period forecasted. The first
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ninety (90) days of each forecast shall constitute a firm order that is not
subject to cancellation by ICN.
4.5 Delivery. Carme shall use its best efforts to fulfill orders within
ninety (90) days of the date they are confirmed by Carme. Inability to fulfill
any order within ninety (90) days shall be deemed a Disruption Period. ICN may
not cancel any order after it is confirmed, provided the order is fulfilled
within ninety (90) days. Carme shall ship the Products from the place of
manufacture to such location within the Territory as ICN specifies in the Order.
ICN shall reimburse Carme for all reasonable costs of shipping, including
without limitation reasonable costs of insurance. Such costs shall be reflected
in invoices delivered pursuant to Section 3.3.1.
4.6 Interim Manufacturing License. During any Disruption Period, ICN or its
designee shall have a non-exclusive license to use the Patents, Know-How and
Carme Confidential Information to produce the Products (the "License"). All
manufacturing of the Products pursuant to the License shall be completed in
compliance with the specifications set forth in this Agreement for the Products.
Carme shall make available to ICN (at ICN's expense, limited to the actual cost
of materials) during any Disruption Period any packaging and/or labeling
materials in the possession of Carme or Carme's contract manufacturers for the
Products. ICN shall have the right at any time during this Agreement to perform
technology transfer, manufacturing scale up, and manufacturing development for
the products at a site of ICN's choice. The License shall terminate upon the
first to occur of (a) notice from Carme to ICN that it has resumed production
and can deliver Products immediately or (b) termination of this Agreement.
5. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF THE PARTIES
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5.1 Representations, Warranties and Covenants of ICN. ICN represents,
warrants and covenants as follows:
5.1.1 Qualifications and Authorization. ICN is a corporation duly
formed, validly existing and in good standing in the state of Delaware with full
corporate power and authority to conduct its business as it is now conducted and
to enter into and perform this Agreement. ICN is duly licensed or qualified to
do business and is in good standing in each jurisdiction in which its operations
or ownership of assets in connection with this Agreement requires such licensing
or qualification.
5.1.2 No Conflict or Violation. Neither the execution, delivery or
performance of this Agreement, nor compliance by ICN with any of the provisions
hereof, will (i) violate or conflict with any provision of the Certificate of
Incorporation or Bylaws of ICN, (ii) violate, conflict with, or result in a
breach of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result in
the creation of any encumbrance upon any of ICN's assets under, any of the
terms, conditions or provisions of any material contract, indebtedness, note,
bond, indenture, security or pledge agreement, commitment, license, lease,
franchise, permit, agreement, or other instrument or obligation to which ICN is
a party, or (iii) violate any statute, rule, regulation, ordinance, code, order,
judgment, ruling, writ, injunction, decree or award applicable to ICN, except,
in the case of each of clauses (i), (ii) and (iii) above, for such violations,
conflicts, breaches, defaults or creations of encumbrances which, in the
aggregate, would not have a material adverse affect on the business of ICN or
its ability to perform this Agreement.
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5.1.3 Compliance With Laws. ICN shall comply in all material respects
with any law, regulation, ordinance, order, injunction, decree or requirement
applicable to the marketing or sale of the Products.
5.1.4 Marketing Efforts. ICN will promote and market the Products in a
manner consistent with its efforts for other products and general industry
practice. In connection with these efforts, ICN will spend during the first
Contract Year not less than "*Filed Separately with the Commission*"on
advertising and promotion related exclusively to the Products, with any
additional expenditures to be based on a review of sales trends for the Products
six months following launch (the "Promotion Commitment").
5.1.5 Product Launch. ICN will begin marketing the product not later
than the end of the first Calendar Quarter of 1999, or shall, on the last day of
such Calendar Quarter, place a non cancelable order for not less than "*Filed
Separately with the Commission*" units of Products, with payment to be made in
accordance with section 3.2.2
5.1.6 Packaging License. To the knowledge of ICN, the Packaging License
includes all the intellectual property rights necessary for Carme to produce the
packaging and labeling required by this Agreement.
5.2 Representations and Warranties and Covenants of Carme. Carme
represents, warrants and covenants as follows:
5.2.1 Qualifications and Authorization.Carme is a corporation duly
formed, validly existing and in good standing in the state of Delaware with full
corporate power and authority to conduct its business as it is now conducted and
to enter into and perform this Agreement. Carme is duly licensed or quliaified
to do business and is in good standing in each
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jurisdiction in which its operations or ownership of assets in connection with
this Agreement requires such licensing or qualification.
5.2.2 No Conflict or Violation. Neither the execution, delivery or
performance of this Agreement, nor compliance by Carme with any of the
provisions hereof, will (i) violate or conflict with any provision of the
Certificate of Incorporation and Bylaws of Carme, (ii) violate, conflict with,
or result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default), under,
or result in creation of any encumbrance upon any of Carme's assets under, any
of the terms, conditions or provisions of any material contract, indebtedness,
note, bond, indenture, security or pledge agreement, commitment, license, lease,
franchise, permit, agreement, or other instrument or obligation to which Carme
is a party, or (iii) violate any statute, rule, regulation, ordinance, code,
order, judgment ruling, writ, injunction, decree or aware applicable to Carme,
except, in the case of each of clauses (i), (ii) and (iii) above, for such
violations, conflicts, breaches, defaults or creations of encumbrances which, in
the aggregate, would not have materials adverse effect on the business of Carme
or its ability to perform this agreement.
5.2.3 Products Standards. Carme warrants that the Products will be
manufactured in accordance with the Specifications and in compliance with the
existing master batch record and current good manufacturing practices for
cosmetic products, and that the Products will conform in all respects to the
Specifications when delivered to the shipper for shipment to the ICN. Any
changes in the master batch record, shall be pre-approved in writing by ICN and
Carme.
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5.2.4 Compliance with Law. Carme shall comply in all material respects
with any law, regulation, ordinance, order, injunction, decree or requirement
applicable to the manufacture, packaging, storage, shipment and sale of the
Products.
5.2.5 Patents. Senetek owns the Patents. To the knowledge of Carme and
Senetek: (i) the Patents do not infringe upon the rights of any third party; and
(ii) the Patents are valid. In the event Senetek and/or Carme intends to file
any additional patent applications with respect to the Products, Carme shall, to
the extent possible to do so without impairing its intellectual property rights
or violating agreements with or intellectual property rights of others, furnish
a draft of the proposed filing to ICN for review and comments at least thirty
(30) days in advance of filing. Any such draft shall be treated as Carme
Confidential Information and shall not constitute an offer to sell any product
to ICN. Carme and/or Senetek shall maintain and prosecute the Patents at their
own expense during the term of this Agreement. In the event Carme and Senetek
fail to maintain or prosecute any patent or patent application, they shall so
notify ICN and ICN may itself maintain and prosecute the same and deduct the
associated costs from any royalty due hereunder.
5.2.6 Survival. The representations and warranties made in this
Agreement shall survive the termination of this Agreement for the longer of (a)
the statute of limitations applicable to claims for the breach of such
representation or warranty and (b) such other period as may be specified in this
Agreement.
6. CONFIDENTIAL INFORMATION AND ANNOUNCEMENTS
6.1 Carme Confidential Information. ICN shall not (a) use Carme
Confidential Information except to perform its obligations under this Agreement,
or (b) disclose Carme Confidential Information to any Person (except to its
employees and agents who reasonably require same for the purpose hereof and who
are bound to ICN by the same obligations as to
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confidentiality) without the express written permission of Carme, unless such
disclosure is required by order of a court of competent jurisdiction.
6.2 ICN Confidential Information. Carme shall not (a) use ICN Confidential
Information except to perform its obligations under this Agreement, or (b)
disclosed ICN Confidential Information to any Person (except to its employees
and agents who reasonably require same for the purpose hereof and who are bound
to Carme by the same obligations as to confidentiality) without the express
written permission of ICN, unless such disclosure is required by order of a
court of competent jurisdiction.
6.3 No License. The furnishing of Confidential Information by one party to
the other shall not constitute any grant, option or license to the other under
any patent or other rights now or hereafter held by the furnishing party.
6.4 Announcement. The parties will issue an agreed upon press release upon
execution of the agreement between ICN and Senetek Drug Delivery Technologies,
Inc. ("SDDT") described in section 9.2 below, or, if no such agreement is
reached and this Agreement is not voided within the time provided in section
9.2, then on November 2, 1998. Except for such release and except as may
otherwise be required by law, neither party will disclose the terms of this
Agreement to any other Person; provided, however, that each party may make such
disclosure of the terms of this Agreement to its employees and agents as is
necessary to permit such party to perform its obligations under this Agreement;
provided further that any such employee or agent agrees to maintain the
confidentiality of this Agreement. Except as may be required by law, neither
Carme nor Senetek will disclose the results of any clinical studies or other
technical data concerning the Products without ICN's approval, provided,
however, that Carme may make such disclosures (or permit disclosures) to show
that
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products including Kinetin are more effective than those that do not include
Kinetin, provided further, that such permitted disclosures to the extent made by
Carme do not compare concentration levels of Kinetin.
6.5 Survival. The provisions of this Article 5 shall survive termination of
this Agreement and continue for a period of ten (10) years.
7. INDEMNIFICATION, INSURANCE AND LIMITS ON LIABILITY
7.1 Indemnification of Carme. ICN shall defend, indemnify, and hold
harmless Carme, its offices, agents, employees and affiliates from any loss,
claim, action, damage, expense or liability (including defense costs and
attorneys' fees)(collectively, "Claims") arising out of or related to a breach
or alleged breach of any representation, warranty or covenant made by ICN
herein, or the handling, possession, marketing, sale or other use of the
Products, except insofar as such claims are related to or arise from Carme's
negligence or breach of this Agreement.
7.2 Indemnification of ICN. Carme shall defend, indemnify, and hold
harmless ICN(less than symbol) its officers, agents, employees and affiliates
from any Claims arising out of or related to a breach or alleged breach of any
representation, warranty, or covenant made by Carme herein, or Carme's
manufacture or handling of the Products, except insofar as such claims are
related to or arise from ICN's negligence or breach of this Agreement.
7.3 Insurance. ICN shall maintain at its expense commercial general
liability insurance in a principal amount of not less than the coverage
generally maintained by companies of similar size in the industry, but in no
event shall ICN be required to maintain coverage in excess of "*Filed Separately
with the Commission*" dollars per occurrence and "*Filed Separately with the
Commission*" in the aggregate. Such policy shall name Carme and Senetek as
additional insureds. Within thirty (30) calendar days after the date of this
Agreement, ICN
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shall furnish to Carme certificate evidencing such insurance. Carme may elect
not to ship any product until such insurance is in place and the certificate of
coverage is provided, and may thereafter suspend shipment if it reasonably
believes such insurance is not in place until ICN provides Carme reasonable
assurance that such coverage is in place without any gap in coverage during the
Term and will be maintained as required by this Agreement.
7.4 No Consequential Damages. Except for claims that include consequential
damagers paid to Persons that are not Affiliates of an indemnified party,
neither party shall be liable to the other for consequential damages, lost
profits, injury to reputation or similar claims. EXCEPT FOR CLAIMS BY THIRD
PARTIES ARISING FROM THE FAILURE OF THE PRODUCTS SUPPLIED BY CARME PURSUANT TO
THIS AGREEMENT TO CONFORM TO THE SPECIFICATIONS AT THE TIME OF SHIPMENT, AND
EXCEPT AS PROVIDED IN SECTION 8.3 BELOW UNDER NO CIRCUMSTANCES SHALL CARME OR
ITS AFFILIATES HAVE ANY LIABILITY ARISING FROM THIS AGREEMENT IN EXCESS OF THE
HIGHEST AGGREGATE AMOUNT PAID AS BASE PRICE AND ROYALTIES OVER THE COURSE OF ANY
TWO CONTRACT YEAR PERIOD.
8. RECALLS
8.1 Responsibility. In the event any Product(s) must be recalled from the
channel of distribution by reason of failure to meet any requirements or law or
otherwise, ICN shall have the sole responsibility to effect the recall. Carme
shall use its reasonable best efforts to cooperate with ICN in implementing any
such recalls to the extent such cooperation is necessary to effect the recall.
8.2 Reimbursement of Carme. In the event the recall results from or is
caused by an act or omission by ICN, ICN shall reimburse Carme for any costs
and/or expenses reasonably expended by Carme as a consequence of the recall.
Without limiting the general nature of the
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foregoing, ICN shall bear the cost of (a) any Kinetin involved in such recall,
(b) any other raw materials used to produce recalled products, and (c) the Base
Fee for any Products that are recalled and for any other finished Products that
cannot be shipped due to the condition requiring the recall.
8.3 Reimbursement of ICN. In the event the recall results from or is caused
by an act or omission of Carme, Carme shall reimburse ICN for any costs and/or
expenses reasonably expended by ICN as a consequence of the recall. Without
limiting the general nature of the foregoing, Carme will provide replacement
Products for recalled Products and for any Products that cannot be shipped due
to the condition requiring the recall.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement shall be the Term unless early
terminated pursuant top Section 9.2.
9.2 Termination. Each party shall have the right to terminate this
Agreement at any time upon written notice to the other in the event (i) the
other party fails to perform any material obligation and such failure continues
for a period of thirty (30) days after notice thereof with respect to a payment
failure or, with respect to any other failure, such failure continues for a
period of sixty (60) days after notice thereof, (ii) the other party is declared
insolvent or bankruptcy by a court of competent jurisdiction, or a voluntary
petition of bankruptcy is filed in any court of competent jurisdiction by the
other party, or the other party makes or executes any assignment for the
benefits of creditors, or (iii), ICN fails to meet any Minimum Purchase
Requirement or satisfy the Promotion Commitment. In addition, ICN may terminate
this Agreement without cause at any time after the end of the first Contract
Year upon six (6) months' written notice to Carme. This agreement shall be
voidable ab initio on written notice by either party to the other in the event
ICN and Senetek Drug Delivery Technologies, Inc.
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("SDDT") do not conclude a final distribution agreement covering SDDT's
Reliaject Autoinjector containing epinephrine by October 23, 1998, provided that
such notice must be given, if at all, no later than October 30, 1998.
10. MISCELLANEOUS
10.1 Method of Payments. All payments due under this Agreement shall be
paid in U.S. Dollars in cash by a check drawn on a United States bank or by wire
transfer of immediately available funds.
10.2 No Joint Venture. It is not the intent of the parties hereto to form
any partnership or joint venture. Each Party shall, in relation to its
obligations hereunder, act as an independent contractor, and nothing in this
Agreement shall be construed to give either party the power or authority to act
for, bind or commit the other.
10.3 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California (regardless of that or any
other jurisdiction's choice of law principles).
10.4 No Assignment. Neither party to this Agreement may assign its rights
or obligations under this Agreement without the prior written consent of the
other party to this Agreement; provided, however, that either party may assign
its rights to a person that acquires substantially all of the assets of such
party; provided further, that no such assignment shall relive the assigning
party of its obligations under this Agreement.
10.5 Force Majeure. No party hereto shall be liable to any other in damages
for, nor shall this Agreement by terminable by reason of, any delay or default
in such party's performance hereunder if such delay or default is caused by
conditions beyond such party's control including, but not limited to, acts of
God, regulation or law or other action of any government or any agency thereof,
war, insurrection, civil commotion, destruction of production
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facilities or materials by earthquake, fire, flood or storm, labor disturbances,
epidemic, or failure of suppliers, public utilities or common carriers. Each
party hereto agrees to promptly notify the other party of any event of force
majeure under this Section 11.5 and to employ all reasonable efforts towards
prompt resumption of its performance hereunder when possible if such performance
is delayed or interrupted by reason of such event.
10.6 Notices. Unless otherwise provided herein, any notice required or
permitted to be given hereunder (a "Notice") shall be mailed by certified mail
or generally recognized express courier service with signature required for
delivery, postage prepaid, or delivered by hand to the party to whom such Notice
is required or permitted to be given hereunder. If mailed, any such Notice shall
be deemed to have been given as of the date of receipt, as evidenced by the date
appearing on the delivery notice. If delivered by hand, any such Notice shall be
deemed to have been given when received by the party or agent of such party to
whom such Notice is given, as evidenced by written and dated receipt of the
receiving party.
All Notices to ICN shall be addressed as follows:
ICN Pharmaceuticals, Inc.
ICN Plaza
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attn.: General Counsel
All Notices to Carme shall be addressed as follows:
Carme Cosmeceutical Sciences, Inc.
000 Xxxxxxx Xxxx
Xxxx, XX 00000
Either party may change the address to which any Notice is to be addressed by
notification to the other party as provided herein.
10.7 Captions. The captions in this Agreement are solely for convenience of
reference and shall not be used for purposes of interpreting or construing the
provisions hereof.
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10.8 Severability. Should any part or provision of this Agreement be held
unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provision shall be replaced
with a provision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the remainder of this Agreement shall remain binding upon the parties
hereto.
10.9 Waiver. No failure on the part of any party hereto to exercise, and no
delay in exercising, any right, privilege or power hereunder shall operate as a
waiver or relinquishment thereof; nor shall any single or partial exercise by
any party hereto of any right, privilege or power hereunder preclude any other
or further exercise thereof, or the exercise of any other right, privilege or
power.
10.10 Entire Agreement. This Agreement together with its Schedules and
Exhibits constitute the entire agreement and understanding between the parties
hereto with respect to the subject matter of this Agreement and shall supersede
any prior agreements, negotiations, understandings, representations, statements
and writings thereto. This Agreement may not be amended or modified except in a
writing signed by a duly authorized officer of the party against whom
enforcement of such amendment is sought.
10.11 Counterparts. This Agreement may be executed in one or more
counterparts by exchange of facsimile copies of signature pages, each of which
will be deemed an original and all of which together will constitute one and the
same instrument.
10.12 Document Preparation. The Parties acknowledge that this Agreement is
a product of extensive negotiations and that no inference should be drawn
regarding the preparation of this document.
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To evidence this Agreement, the parties have caused their duly
authorized representatives to execute this Agreement as of the date first
written above.
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ICN PHARMACEUTICALS, INC.
By: /s/ Xxxx X. XxxXxxxxx
---------------------------------------
Name: Xxxx X. XxxXxxxxx
-----------------------------
Title: Executive Vice President
---------------------------
CARME COSMECEUTICAL SCIENCES, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------
Title: President
------------------------------------
approved by:
SENETEK, PLC
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman and CEO
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EXHIBIT A
PATENTS
(List to include all patents and patent applications for Kinetin worldwide.)
22
EXHIBIT B
"*Filed Separately with the Commission*"
23
EXHIBIT C
"*Filed Separately with the Commission*"
24
EXHIBIT D
"*Filed Separately with the Commission*"
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