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EXHIBIT 10.34
AGREEMENT
This Agreement is made and entered into as of the 30th day of June,
1998, between Vivus, Inc., a Delaware corporation ("Vivus") and ALZA
Corporation, a Delaware corporation ("ALZA").
Vivus and ALZA hereby agree as follows:
ALZA is entering into a Sales Force Services Agreement with Innovex
Inc. on or about the date of this Agreement (the "Innovex Agreement"). Vivus
shall pay ALZA [ * ] of the amounts payable to Innovex Inc. for (i) the Daily
Fees (as defined in the Innovex Agreement) of up to [*] Territory
Representatives (as defined in the Innovex Agreement) and up to[*] Field
Coordinators (as defined in the Innovex Agreement) and (ii) related expenses for
such personnel (excluding initial training costs and travel expenses associated
with initial training) under the Innovex Agreement; during the period of July 1,
1998 to September 30, 1998, but in no event shall the Daily Fees for Territory
Representatives and Field Coordinators exceed an amount per day of [ * ],
respectively. In addition, in no event shall total amounts paid pursuant to this
Agreement exceed [ * ]. Vivus shall make payments under this Agreement within
thirty (30) days of receiving a copy of the invoices delivered to ALZA from
Innovex Inc. Vivus shall indemnify and hold harmless ALZA and its affiliates,
employees, officers, directors, successors and assignees from and against any
and all liabilities that such person may incur, suffer or be required to pay in
connection with or arising out of Vivus' execution, performance or obligations
under the Sales Force Services Agreement between Vivus and Innovex Inc. dated
February 1, 1998. Subject to the reimbursement provisions hereof, ALZA shall
indemnify and hold harmless Vivus and its affiliates, employees, officers,
directors, successors and assignees from and against any and all liability that
such person may incur, suffer or be required to pay in connection with or
arising out of ALZA's execution, performance or obligations under the Innovex
Agreement.
ALZA shall use reasonable efforts to minimize the amounts payable by
Vivus under this Agreement. It is anticipated that at least [*] former District
Managers (as defined in the Sales Forces Services Agreement by Vivus and Innovex
Inc., dated February 1, 1998) shall become Innovex Personnel (as defined in the
Innovex Agreement).
Vivus shall permit Innovex Personnel to continue promotion of the MUSE
product for an interim period, not to extend beyond July 9, 1998. The parties
shall draft mutually agreeable press releases regarding the subject matter of
this Agreement, which releases shall be made at a time to be agreed upon by the
parties, not to be later than July 9, 1998. Except for such press releases or to
the extent otherwise required by law, neither party shall make any disclosure or
public statement concerning this Agreement without the prior written consent of
the other.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Except as expressly set forth in the indemnification provisions above,
there are no third party beneficiaries to this Agreement. This Agreement may not
be amended except by an instrument in writing signed by both parties that
specifically refers to this Agreement. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and
supersedes all previous writings and understandings, whether oral or written,
relating to the subject matter of this Agreement.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument. ALZA and Vivus have executed this Agreement, effective as of the
date first above written.
ALZA CORPORATION VIVUS, INC.
By: /s/ Xxxxx X. Staple By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Staple Xxxxx Xxxxxx
Title: Senior Vice President Chief Financial Officer
