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Exhibit 10.7
EXECUTION COPY
OVCON TRANSITIONAL SUPPORT AND SUPPLY AGREEMENT
between
BRISTOL-MYERS SQUIBB LABORATORIES COMPANY
and
WARNER CHILCOTT, INC.,
Dated as of January 26, 2000
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS..........................................1
Section 1.1 Definitions........................................................................1
Section 1.2 Other Definitions..................................................................2
Section 1.3 Interpretations....................................................................4
ARTICLE II GENERAL TERMS OF SUPPLY...................................4
Section 2.1 Sale and Purchase of Product.......................................................4
Section 2.2 Forecasts..........................................................................5
Section 2.3 Ordering...........................................................................6
Section 2.4 Minimum Inventory..................................................................6
Section 2.5 Shipments..........................................................................7
Section 2.6 Receipt of Product; Acceptance.....................................................7
Section 2.7 Quality Control; Change in Specifications or Supplier..............................8
Section 2.8 Material Safety Data Sheets........................................................9
Section 2.9 BMSLC Supply Contracts.............................................................9
Section 2.10 Line Extension Products and New Products.........................................10
ARTICLE III
PURCHASE PRICE FOR PRODUCTS AND CLOSING INVENTORY.......................................................10
Section 3.1 Purchase Price....................................................................10
Section 3.2 Audit of Cost Records............................................................11
ARTICLE IV PAYMENTS AND REPORTS....................................12
Section 4.1 Payment..........................................................................12
Section 4.2 Mode of Payment..................................................................12
Section 4.3 Taxes............................................................................12
Section 4.4 Late Payments....................................................................12
ARTICLE V COMPLIANCE WITH LAWS; REPRESENTATIONS AND WARRANTIES....................12
Section 5.1 Compliance with Law; Cooperation.................................................12
Section 5.2 BMSLC Warranties.................................................................13
Section 5.3 WC Warranties....................................................................14
Section 5.4 DISCLAIMER OF WARRANTIES.........................................................14
Section 5.5 No Reliance by Third Parties.....................................................14
ARTICLE VI INDEMNIFICATION; REMEDIES FOR BREACH............................14
Section 6.1 BMSLC Indemnity..................................................................14
Section 6.2 WC Indemnity.....................................................................14
Section 6.3 Control of Proceedings...........................................................15
Section 6.4 Remedy for Failure to Supply Products....................................16
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Section 6.5 Insurance........................................................................18
Section 6.6 Limitations on Liability.........................................................18
ARTICLE VII COMPLIANCE WITH GOVERNMENT REGULATIONS..........................19
Section 7.1 Government Communications.........................................................19
Section 7.2 Access to Records.................................................................19
ARTICLE VIII PRODUCT RECALLS; ADVERSE EXPERIENCES; PRODUCT QUALITY COMPLAINTS;
AND MEDICAL INQUIRIES .........................................................................20
Section 8.1 Product Recalls..................................................................20
Section 8.2 Adverse Experience...............................................................20
Section 8.3 Product Quality Complaints........................................................21
Section 8.4 Medical Inquiries.................................................................22
ARTICLE IX
CONFIDENTIALITY.........................................................................................22
Section 9.1 Confidentiality Requirement......................................................22
Section 9.2 Use of Information...............................................................23
Section 9.3 Purchased Assets..................................................................23
Section 9.4 Relief...........................................................................23
ARTICLE X TERMINATION.........................................23
Section 10.1 Term............................................................................23
Section 10.2 Breach..........................................................................24
Section 10.3 Insolvency or Bankruptcy........................................................24
Section 10.4 Termination Without Cause.......................................................24
Section 10.5 Effect of Termination...........................................................24
Section 10.6 Accrued Rights, Surviving Obligations...........................................25
ARTICLE XI FORCE MAJEURE.......................................25
ARTICLE XII ALTERNATE MANUFACTURER..................................25
Section 12.1 Qualification of Initial Alternate Manufacturer..................................25
Section 12.2 Manufacture of Products by the Initial Alternate Manufacturer During the Term....27
Section 12.3 Transition of Entire Manufacturing to the Initial Alternate Manufacturer.........27
Section 12.4. Technical Assistance Upon Termination of Agreement...............................28
ARTICLE XIII NOTICES.........................................28
ARTICLE XIV MISCELLANEOUS PROVISIONS.................................30
Section 14.1 Assignment......................................................................30
Section 14.2 Non-Waiver......................................................................31
Section 14.3 Dispute Resolution..............................................................31
Section 14.4 Entirety of Agreement. ..........................................................32
Section 14.5 Public Announcements.............................................................32
Section 14.6 Governing Law....................................................................32
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Section 14.7 Relationship of the Parties......................................................32
Section 14.8 Counterparts.....................................................................32
Section 14.9 Severability.....................................................................32
Section 14.10 Expenses........................................................................33
Section 14.11 Descriptive Headings............................................................33
Section 14.12 Amendments and Waivers..........................................................33
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OVCON TRANSITIONAL SUPPORT AND SUPPLY AGREEMENT dated as of January 26,
2000, between Bristol-Myers Squibb Laboratories Company, a corporation duly
organized and existing under the laws of Ireland ("BMSLC"), and Warner Chilcott,
Inc., a corporation duly organized and existing under the laws of the
State of Delaware ("WC").
Bristol-Myers Squibb Company, a corporation duly organized and existing
under the laws of the State of Delaware and the parent of BMSLC ("BMS"),
directly or indirectly through its Affiliates, manufactures, distributes,
markets and sells three products known as Ovcon(R) 35, Ovcon(R) 50 (together
with Ovcon(R) 35, "Ovcon") and Estrace(R) Cream ("Estrace"). WC (i) has entered
into an Asset Purchase Agreement dated as of the date hereof pursuant to which
BMS will sell to WC, and WC will purchase from BMS, on the Effective Date,
certain rights, title and interest in and to these three products, including
intellectual property assets relating thereto and (ii) has entered into an
Estrace Transitional Support and Supply Agreement dated as of the date hereof
with Westwood-Squibb Pharmaceuticals, Inc., a corporation duly organized and
existing under the laws of the State of Delaware and a subsidiary of BMS
("WSP"), with respect to the supply of Estrace by WSP to WC (the "Estrace Supply
Agreement").
WC wishes to purchase from BMSLC, and BMSLC wishes to supply to WC,
WC's entire requirements of each Product (as hereinafter defined), for use in
the Territory, pursuant to the terms and conditions set forth in this Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement:
"Affiliate" shall mean, with respect to any Person, any Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, the specified Person. For purposes of this definition, the term "control"
as applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management of that Person, whether
through ownership of voting securities or otherwise.
"Agreement" shall mean this agreement, together with all appendices,
exhibits and schedules hereto, and as the same may be amended or supplemented
from time to time.
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"Asset Purchase Agreement" shall mean the Asset Purchase Agreement
dated January 26, 2000, pursuant to which BMS had agreed to sell to WC, and WC
has agreed to purchase from BMS, certain rights, title and interest in and to
Estrace and Ovcon.
"Effective Date" means the Closing Date, as defined in the Asset
Purchase Agreement.
"FDA" means the United States Food and Drug Administration.
"Laws" means all laws, rules, regulations, ordinances and other
requirements of any governmental authority or instrumentality.
"NDA" shall mean a New Drug Application (including an Abbreviated New
Drug Application) or Product License Application for any Product, as
appropriate, requesting permission to place a drug on the market in accordance
with 21 CFR Part 314, and all supplements filed pursuant to the requirements of
the FDA, including all documents, data and other information concerning a
Product which are necessary for FDA approval to market a Product in the United
States.
"Party" means BMSLC or WC and, when used in the plural, shall mean
BMSLC and WC.
"Person" shall mean any individual, group, corporation, partnership or
other organization or entity (including any Federal, state, local or non-U.S.
government or any court of competent jurisdiction, legislature, governmental
agency, administrative agency or commission or other governmental authority or
instrumentality, U.S. or non-U.S.).
"Product" means any of the products listed on Schedule 1.1A, including
any Line Extension Products that may be added to such Schedule pursuant to
Section 2.10.2, packaged and labeled in accordance with applicable Law and the
applicable Product Registration, including all strengths and packaging
configurations of the final finished dosage form presentations existing on the
Effective Date. This definition shall cover both commercial and sample Products
and references to Products in this Agreement shall be references to both
commercial and sample forms of the Products.
"Product Registrations" means the approvals or registrations for each
Product which have been received by BMS or its Affiliates in the Territory,
including without limitation the NDA for each Product.
"Related Agreements" means the Asset Purchase Agreement and the Estrace
Supply Agreement.
"Specifications" for each Product means such specifications for each
Product as set forth in Schedule 1.1B, as the same may be amended or
supplemented from time to time hereafter by WC pursuant to Section 2.7.2, by the
mutual agreement of the Parties in a writing duly executed by authorized
representatives of each Party hereto or in accordance with Section 2.7.4.
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"Term" means the period from the Effective Date until the date that is
ten (10) years from the Effective Date. The Term shall be deemed to expire on
such earlier date as the Agreement is terminated in accordance with Article 10.
"Territory" means all countries worldwide.
"Third Party" means any Person who or which is neither a Party nor an
Affiliate of a Party.
Section 1.2 Other Definitions. The following terms have the meanings
set forth in the Sections set forth below:
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TERM SECTION
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12.3.1 Notice 12.3.1
AAA 14.3.2
Additional Alternate Manufacturer 12.2.3
Back-up Termination Date 12.3.1
BMSLC Party 6.2
Confidential Information 9.1.1
Estrace Supply Agreement Preamble
Executed Supply Default 6.4.5
Forecast 2.2
Initial Alternate Manufacturer 12.1.1
Initial Period 6.4.5
Line Extension Products Schedule 2.10.2
Lost Profits 6.4.5
New Products Schedule 2.10.3
Non-Serious Adverse Effect 8.2.2
Product Quality Complaint 8.3
Purchase Price 3.1.1
Qualifying Product 6.4.5
Recall 8.1.1
Rules 14.3.2
Serious Adverse Event 8.2.2
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TERM SECTION
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Significant Customers 6.4.5
Stockout 6.4.5
Subsequent Period 6.4.5
Technical Assistance 12.1.5
WC Party 6.1
WSP Preamble
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Section 1.3 Interpretations.
1.3.1 In the event an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any provisions of this
Agreement.
1.3.2 The definitions of the terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise, (A) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or therein), (B) any
reference herein to any Person shall be construed to include the Person's
successors and assigns, (C) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, and (D) all references
herein to Articles, Sections, Exhibits or Schedules shall be construed to refer
to Articles, Sections, Exhibits and Schedules of this Agreement.
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ARTICLE II
GENERAL TERMS OF SUPPLY
Section 2.1 Sale and Purchase of Product.
2.1.1 During the Term of this Agreement, WC hereby grants to
BMSLC a royalty-free, non-exclusive and non-transferrable right and license in
the Territory under such rights and to use such assets that are owned or
licensed by WC as are necessary to allow BMSLC to manufacture and supply the
Products exclusively to WC under this Agreement. Notwithstanding the foregoing,
BMSLC may transfer its right and license under this Section 2.1.1, at BMSLC's
election, to an Affiliate or to the Initial Alternate Manufacturer in connection
with the transfer of its manufacturing and supply obligations under this
Agreement to such Affiliate or the Initial Alternate Manufacturer in accordance
with Sections 2.7.3 and 12.3.1, respectively, provided that BMSLC may retain
such right and license to the extent necessary to continue manufacturing the
Products in accordance with this Agreement (including as contemplated by Section
12.3.2).
2.1.2 BMSLC shall use commercially reasonable efforts to sell
to WC, and subject to Sections 6.4.3, 12.2.2 and 12.3, WC shall purchase from
BMSLC, all of WC's requirements for each Product for distribution, sale and use
in the Territory during the Term, pursuant to purchase orders submitted by WC to
BMSLC from time to time in accordance with Section 2.3, at a price determined in
accordance with Section 3.1, and subject to the warranties set forth in Section
5.2.1.
2.1.3 All Products supplied hereunder shall be in finished
dosage form, filled, labeled and packaged for commercial sale by WC in
accordance with the terms and conditions of this Agreement and the
Specifications and applicable Laws. BMSLC shall solely and exclusively supply
the Products to WC and WC's designees, and neither BMSLC nor its Affiliates
shall have the right to manufacture or supply the Products to any other Person.
BMSLC shall be responsible for the purchase of all raw materials in accordance
with the NDAs and other regulatory filings for the Products as necessary to
supply finished Products to WC under this Agreement.
2.1.4 For up to 180 days following the Closing Date (or such
earlier time as BMSLC may, in its sole discretion, determine), each Product
manufactured hereunder shall continue to be labeled and packaged with the same
labels and packaging that are currently used BMSLC in connection with the
Products. After such time, each such Product shall be manufactured with a
labeling and packaging identifying BMS or any Affiliate thereof as the
manufacturer of the Products and WC (or WC's designee) as the distributor
thereof. Within sixty (60) days following the Closing Date, WC shall provide to
BMSLC final specifications for the revised labeling and packaging of each
Product, including all necessary photo-ready art (or its substantial equivalent)
reflecting such modification. Subject to the provisions of this Section 2.1.4,
WC shall control all labeling and packaging content (and any changes or
supplements thereto) for each Product and shall have the responsibility at WC's
expense for any changes or supplements thereto, including the expense of
securing any approvals required by the FDA or other applicable regulatory
authorities for any such changes or supplements. BMSLC shall be
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responsible for obtaining such labels (and any changes or supplements thereto)
in accordance with the content specified by WC. Any changes to the labeling and
packaging shall be communicated to BMSLC in writing at least 90 days prior to
the desired implementation date together with the required documentation
specifying the content to be included in the labeling and packaging, including
all necessary photo-ready art (or its substantial equivalent). BMSLC shall not
be required to implement such changes until its first batch run after the
expiration of such 90-day period. Each Product shall be sold under one label
throughout the Territory. Notwithstanding the foregoing, if at any time WC
desires to sell Products under one or more additional labels, WC shall notify
BMSLC of such desire, which notice shall include a reasonably detailed
description of such proposed additional labels and WC's anticipated annual
volume requirements for each SKU which will bear an additional label. BMSLC
shall have the right, but not the obligation, to elect, at its sole option, to
manufacture such Products with such additional label(s). If BMSLC elects to
manufacture such Products with such additional label(s), all additional costs
(calculated on a fully burdened cost basis) incurred by BMSLC in connection with
such manufacturing of such Products with such additional labels shall be borne
by WC. If BMSLC elects not to manufacture such Products with such additional
label(s), WC may use the Initial Alternate Manufacturer to manufacture such
Products under such label(s).
2.1.5 No terms and conditions contained in any purchase order,
acknowledgment, invoice, bill of lading, acceptance or other preprinted form
issued by either Party shall be effective to the extent they are inconsistent
with or modify the terms and conditions contained herein.
Section 2.2 Forecasts. Upon execution of this Agreement, and thereafter
on the first business day of each calendar quarter during the Term, WC shall
provide BMSLC with a good faith rolling forecast ("Forecast") of estimated
quantities and anticipated delivery schedules, for each Product on a
country-by-country basis, for the following 24-month period, by calendar
quarters. Subject to Section 2.3.1, the first six (6) months of each such
Forecast shall consist of the 3-month firm order placed by WC concurrently with
such Forecast pursuant to Section 2.3.2 (to be delivered within months 4-6 of
such Forecast) and the 3-month firm order placed on the date of the previous
Forecast (to be delivered within months 1-3 of the current Forecast). Subject to
the foregoing, the Parties agree to use commercially reasonable efforts to
correspond and/or meet periodically, at mutually convenient times and places, to
discuss each Party's requirements under this Agreement and the mechanisms that
can be established to assure that those requirements are met on a timely basis.
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Section 2.3 Ordering.
2.3.1 Upon execution of this Agreement, WC will provide BMSLC
with its best estimate of its requirements for the first six (6) months after
the Effective Date, which estimate shall be attached as Schedule 2.3.1. BMSLC
will supply such Product quantities set forth in Schedule 2.3.1 in accordance
with the delivery schedule set forth therein, and to the extent such estimated
amounts do not meet WC's actual requirements for such six-month period, BMSLC
will use commercially reasonable efforts to supply WC with its requirements
beyond the amounts specified in Schedule 2.3.1. WC agrees to purchase such
quantities of each Product as supplied by BMSLC in accordance with Schedule
2.3.1. Following the initial six-month period, orders shall be filled by BMSLC
in accordance with the orders placed by WC pursuant to Section 2.3.2.
2.3.2 Except as provided in Section 2.3.1, three (3) months
before the beginning of any calendar quarter during the Term, WC shall place an
irrevocable firm purchase order in writing to BMSLC of the Product quantities to
be purchased by WC with respect to such calendar quarter (and specify the
delivery schedule and destination for the Products ordered). BMSLC shall
promptly notify WC in writing if at any time BMS has reason to believe that
BMSLC will not be able to fill an order for Product in all material respects in
accordance with the delivery schedule specified hereunder by WC and pursuant to
the terms and conditions of this Agreement. At any time and from time to time,
upon request from WC, BMSLC shall provide WC with information regarding the
estimated time period at the time of such request between the receipt of a
purchase order in accordance with this Section 2.3.2 and the expected delivery
date for the related Products set forth in such purchase order, which, in any
event, shall not be later than ninety (90) days after the receipt of such
purchase order.
2.3.3 All Product ordered by WC shall be consistent with BMSLC
current minimum batch sizes, or multiples thereof, as set forth in Schedule
3.1.1. BMSLC shall give WC six (6) months' notice prior to changing its minimum
batch sizes, and shall not change the minimum batch sizes without the prior
written consent of WC.
Section 2.4 Minimum Inventory.
2.4.1 WC Requirement. WC will use commercially reasonable
efforts to maintain at least one (1) month's inventory of each Product in its
distribution centers in the United States (calculated for each Product, at any
time, as one-twelfth of the amount of such Product manufactured by BMSLC during
the prior calendar year) at all times beginning six months after the Effective
Date through the date that is one month prior to the end of the Term. Such
requirement will instead continue until the end of the Term if WC and BMSLC
agree in writing at least one month prior to such date that WC will purchase any
remaining inventory on hand at the end of the Term.
2.4.2 BMSLC Requirement. BMSLC will use commercially
reasonable efforts to maintain at least one (1) month's inventory of each
Product in its distribution centers in the United States at all times beginning
six months after the Effective Date through the date that is one month prior to
the end of the Term. Such requirement will instead continue until the end of the
Term if WC and BMSLC agree in writing prior to
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such date that WC will purchase any remaining inventory on hand at the end of
the Term. Said one-month inventory for each Product shall be calculated at any
time, as one-twelfth of the amount of such Product manufactured by BMSLC during
the prior calendar year.
Section 2.5 Shipments. BMSLC shall ship each order, F.O.B. the
manufacturing facility for each Product (whether manufactured by BMSLC or, if
and to the extent permitted hereunder, by an Affiliate of BMSLC or a Third
Party) to WC or its designee to the destinations specified by WC pursuant to
Section 2.3.2. Freight and insurance shall be for the account of WC or shall be
reimbursed by WC, and BMSLC shall use commercially reasonable efforts to assist
WC in arranging any desired insurance. Title shall pass to WC, and the risk of
loss, delay or damage in transit shall be with WC, from and after delivery to
the common carrier. BMSLC shall package each Product for shipment in accordance
with its customary practices therefor, unless otherwise specified by WC, in
which event any extra costs incurred by BMSLC on account of changes requested by
WC shall be reimbursed by WC. BMSLC shall include the following with each
shipment of the Products: (a) the WC purchase order number, (b) the BMSLC lot
and batch numbers, (c) the quantity of the Products and (d) the Certificate of
Analysis (the form of which is attached hereto as Schedule 2.5).
Section 2.6 Receipt of Product; Acceptance.
2.6.1 WC shall be entitled to reject any portion or all of any
shipment of Products that does not conform to the Certificate of Analysis or
otherwise fails to comply with the representations and warranties set forth in
Section 5.2.1 (unless such non-conformity was attributable to an act or omission
of WC or the common carrier once the Product was delivered by BMSLC to such
common carrier provided that the Products were packaged for shipment in
accordance with Section 2.5); provided that (a) WC shall notify BMSLC within
fifteen (15) business days after receipt of such shipment if it is rejecting a
shipment due to obvious physical damage or quantity discrepancies that are
evident upon visual inspection of the packaged Products as shipped by BMSLC, and
(b) in the case of Products having defects other than those obvious defects, WC
shall notify BMSLC within fifteen (15) business days after WC becomes aware of
such defect. Notwithstanding anything contained herein, WC shall have no
obligation to inspect the Products beyond a visual inspection of each shipment
for obvious physical damage or quantity discrepancies that are evident upon
visual inspection of the packaged Products as shipped by BMSLC. Without in any
way limiting BMSLC's indemnity obligation as set forth in Section 6.1, if no
notice is provided by WC within such time periods (i.e., fifteen (15) business
days), then WC shall be deemed to have accepted the shipment. Any notice of
rejection by WC shall be accompanied by a reasonably detailed statement of its
reasons for rejection and a report of any pertinent analysis performed by WC on
the allegedly nonconforming Product, together with the methods and procedures
used. BMSLC shall notify WC as promptly as reasonably possible, but in any event
within ten (10) days after receipt of such notice of rejection, whether it
accepts WC's assertions of nonconformity.
2.6.2 Whether or not BMSLC accepts WC's assertion of
nonconformity, promptly upon receipt of a notice of rejection, unless otherwise
specified by WC,
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BMSLC shall use commercially reasonable efforts to provide replacement Products
for those rejected by WC in the original shipment. However, if the Products
rejected by WC from such original shipment ultimately are found to be
nonconforming (whether pursuant to Section 2.6.3 or if BMSLC so acknowledges in
writing), BMSLC shall bear all expenses for such replacement Product (including
all transportation and/or disposal charges and cost of manufacture for such
nonconforming Product), to the extent WC previously paid for any corresponding
nonconforming Product. If it is determined subsequently that such Product was in
fact conforming (whether pursuant to Section 2.6.3 or if WC so acknowledges in
writing), then WC shall be responsible not only for the purchase price of the
allegedly nonconforming Product (including all transportation charges), but
also, upon receipt and acceptance by WC in accordance with the procedures (and
at the same price charged in the original shipment) set forth above, the
replacement Product. Replacement shipments shall also be subject to the
procedures contained in this subparagraph. BMSLC shall be under no obligation to
accept a return of Product except as provided in this subparagraph.
2.6.3 If BMSLC disagrees with any alleged nonconformity, then
an independent Good Manufacturing Practices certified laboratory (or other
expert) of recognized repute, reasonably acceptable to both Parties, shall
analyze an aliquot sample or such other portions of a shipment, furnished by WC
from the shipment received by WC, as may be necessary to substantiate whether
the shipment rejected by WC conformed in all material respects to the
Certificate of Analysis and/or any other pertinent Specifications at the time of
delivery to the common carrier. The laboratory shall use such procedures and
tests as the laboratory may consider necessary or appropriate to reach a
conclusion. Both Parties agree to cooperate with the independent laboratory's
reasonable requests for assistance in connection with its analysis hereunder.
Both Parties shall be bound by the laboratory's results of analysis, which,
absent manifest error, shall be deemed final as to any dispute over compliance
of the Product in all material respects with the Certificate of Analysis and/or
any other pertinent Specifications at the time of delivery to the common
carrier. The costs incurred by the laboratory shall be borne by the losing
Party.
2.6.4 If BMSLC acknowledges an alleged nonconformity (or if
the laboratory concludes that the Product was nonconforming), BMSLC promptly
(and in any case within thirty (30) days thereafter) shall make arrangements for
the return, reworking or disposal, at BMSLC's option, of the nonconforming
Product. If BMSLC requests that WC dispose of such nonconforming Product, BMSLC
shall give WC written instructions as to how WC or its agent should, at BMSLC's
expense and liability, lawfully dispose of any non-conforming Products, and WC
shall provide BMSLC with written certification of such destruction. BMSLC shall
pay, or reimburse WC, for any reasonable return shipping charges or
out-of-pocket costs incurred by WC for such return shipment or lawful disposal
of such nonconforming Product in accordance with BMSLC's instructions.
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Section 2.7 Quality Control; Change in Specifications or Supplier.
2.7.1 BMSLC shall conduct all quality control testing of the
Products prior to shipment in accordance with the applicable NDAs and Laws.
BMSLC shall retain records pertaining to such testing as required by Law and,
from time to time upon the prior notice shall provide WC with reasonable access
during normal business hours to such records; provided, however, that such
access does not unreasonably disrupt the normal operations of BMSLC.
2.7.2 WC shall have the right, at its expense and in
consultation with BMSLC, to change the Specifications from time to time,
including as may be required by any regulatory agency having jurisdiction over
the Product, on not less than one hundred and twenty (120) days prior written
notice to BMSLC (or such shorter period as required by any regulatory agency or
mutually agreed by the Parties). In such event, BMSLC shall, at WC's request and
expense, assist with all analytical or experimental work to be performed in
connection with making such change, and WC shall be responsible, at its expense,
for filing all changes proposed by WC and for seeking approval of any such
change by each applicable regulatory authority. The Parties may also amend the
Specifications by mutual agreement.
2.7.3 At any time and from time to time, BMSLC in its sole
discretion may change, without the consent of but with prior notice to and
consultation with, WC, the manufacturer used in the manufacturing of the
Products to BMS or another Affiliate of BMS, provided that (a) BMSLC shall bear
all costs of transferring production to BMS or such Affiliate and (b) the
Purchase Price for the Products shall remain substantially the same. WC shall
cooperate with BMSLC in any reasonable manner to effect such transfer and shall
be responsible for making any required filing with respect to such change in
manufacturer and seeking approval from each applicable regulatory authority.
BMSLC shall reimburse WC for all reasonable out-of-pocket expenses incurred by
WC or its Affiliates or agents in connection with such filings and the
preparation thereof.
2.7.4 Subject to Section 2.7.2, at any time and from time to
time, BMSLC in its sole discretion may change, without the consent of but with
prior notice to and consultation with, WC, any manufacturing processes and/or
locations used in manufacturing any Product, any intermediates, excipients,
reagents or other compounds used in the manufacture of any Product, and any
suppliers of any components used in making a Product, provided that (a) BMSLC
shall bear all costs associated with changing any manufacturing processes and/or
locations used in manufacturing any Product and (b) the Purchase Price for any
such Products shall remain substantially the same. WC shall cooperate with BMSLC
in any reasonable manner to effect such transfer and shall be responsible for
making any required filing with respect to such change and seeking approval from
each applicable regulatory authority. BMSLC shall reimburse WC for all
reasonable out-of-pocket expenses incurred by WC or its Affiliates or agents in
connection with such filings and the preparation thereof.
2.7.5 With respect to any regulatory filings and approvals
made or sought by either Party under this Section 2.7, each Party shall provide
reasonable cooperation to the other Party in connection therewith. If a change
proposed to be made to the Specifications or the manufacture of the Products
under this Section 2.7 requires prior
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approval by any applicable regulatory authority before implementation, such
change will not be implemented in respect of a Product until such change has
been so approved.
Section 2.8 Material Safety Data Sheets. BMSLC shall provide WC with
all information currently set forth in the applicable Material Safety Data Sheet
for each Product provided by BMSLC to its own employees.
Section 2.9 BMSLC Supply Contracts. Notwithstanding any provision of
this Agreement that may imply or provide to the contrary, BMSLC shall have the
sole right, but not the obligation, at its sole discretion and expense, to
maintain and enforce any contract entered into by BMSLC or its Affiliates
covering the supply of any compounds, intermediates, biomaterials, packaging
components, containers and other materials used in the manufacture of a Product.
Section 2.10 Line Extension Products and New Products.
2.10.1 Except as set forth in Section 2.10.3, BMSLC shall have
no obligation, express or implied, to develop new formulations, dosages, forms
of administration, or preparations for the Products.
2.10.2 Once WC has obtained any regulatory approvals that may
be required, if any, to market a Line Extension Product in any country, such
Line Extension Product shall be included as a Product under this Agreement and
the Parties shall amend Schedule 1.1.A to reflect the inclusion of such Line
Extension Product.
2.10.3 During the Term, upon request by WC, BMSLC shall
provide WC with a reasonable level of technological assistance and consultation
in support of WC's development and regulatory efforts in connection with all
Line Extension Products and New Products, including those services set forth in
Schedule 2.10.3(B). WC will reimburse BMSLC and its Affiliates for their
fully-burdened costs associated with such development and regulatory efforts,
including without limitation, capital expenses, equipment and supplies,
personnel costs and reasonable out-of-pocket expenses. Any and all rights
arising out of any development work under this Section shall be owned by WC
regardless of inventorship, and to the extent that BMSLC or its Affiliates or
any of their employees or consultants acquire rights in or to any such
developments, BMSLC shall, or shall ensure that its Affiliates or their
employees or agents shall, promptly take such actions and execute such documents
as may be necessary to assign such rights to WC or WC's designee.
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ARTICLE III
PURCHASE PRICE FOR PRODUCTS AND CLOSING INVENTORY
Section 3.1 Purchase Price.
3.1.1 The purchase price for commercial and sample supplies of
each Product sold to WC pursuant to Article 2 hereof shall be equal to the price
for such Product set forth on Schedule 3.1.1 for purchase orders received by
BMSLC under Section 2.3 prior to January 1, 2001 (as adjusted from time to time
pursuant to this Section 3.1.1 and Section 3.1.2, the "Purchase Price"). The
Purchase Price of each such Product shall be adjusted as of January 1, 2001, and
on each January 1 thereafter during the Term, by such percentage increase in the
U.S. Producers Price Index for Finished Goods (or successor index) as published
by the U.S. Department of Labor, Bureau of Statistics (or successor governmental
entity), as shall have occurred for the immediately preceding twelve-month
period, except to the extent, however, that BMSLC has elected to adjust the
Purchase Price as set forth in Section 3.1.2 below for such year. The Purchase
Price adjustment under this Section 3.1.1 shall be retroactively effective to
said January 1, and shall apply to all purchase orders received on or after such
date, even though the index figures needed to calculate such change will not be
available until published by the Bureau of Statistics at a time after January 1.
3.1.2 BMSLC may elect in its discretion to adjust for any
given year that portion of the prior year's Purchase Price of a Product that
represents such Product's variable costs (including without limitation costs of
labor, cost of supplies, materials, and cost of Third Party supplies and
services, but excluding overhead) by the actual percentage change in such
variable costs incurred in that year, rather than adjusting such portion by the
change in the index set forth above. Schedule 3.1.2 sets forth the applicable
variable costs for each Product as of January 1, 2000. All other components of
the Purchase Price of such Product for such year shall be adjusted by the index
set forth above. BMSLC shall act in good faith in connection with the above
Purchase Price adjustment.
For purposes of pricing Products ordered by WC on said January
1 and thereafter, all components of the Purchase Price of such Product shall be
adjusted as of January 1 by the change in the index as set forth in Section
3.1.1, until such time as BMSLC notifies WC that it is electing to change said
portion of the annual adjustment to the Purchase Price attributable to variable
costs by the difference between the percentage change in the actual variable
cost component of such Product and the percentage change attributable to the
index. If BMSLC has so notified WC in writing that BMSLC is electing, for such
year, to change the portion of the annual adjustment to the Purchase Price that
is attributable to variable costs in accordance with the foregoing, then the
Purchase Price with respect to all firm orders placed by WC during such year
shall be deemed to be increased accordingly, retroactive to January 1 of such
year. If BMSLC does not notify WC of any change under this Section 3.1.2 within
a given calendar year, BMSLC shall be deemed to have waived its right to apply
this Section 3.1.2 with respect to such year.
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3.1.3 Unless otherwise set forth on Schedule 3.1.1, the
initial Purchase Price for Line Extension Products and New Products shall be
determined using substantially the same methodology as was used to determine the
initial purchase prices for the Products set forth on Schedule 3.1.1 (i.e.,
fully burdened manufacturing costs plus 15%), and shall be subject to the same
purchase price adjustments applicable to all Purchase Prices as set forth in
Section 3.1.
Section 3.2 Audit of Cost Records. Not more frequently than once with
respect to any year in which BMSLC has elected to adjust its price under Section
3.1.2, WC shall have the right to have a "Big Five" accounting firm audit,
within 12 months of such price adjustment, BMSLC's books and records relating to
the manufacture of the Products, for the sole purpose of verifying BMSLC's
determination of the change in costs underlying such price adjustment. Such
audit shall be at WC's expense (which shall include reimbursement to BMSLC for
the administrative costs it incurs in connection with the review), at reasonable
times during normal business hours and upon reasonable notice to BMSLC. A copy
of the auditing entity's conclusions of its audit shall be furnished to BMSLC at
least ten (10) days prior to disclosure to WC to allow BMSLC an opportunity to
review the accuracy of the auditing firm's conclusions prior to disclosure to
WC. WC shall bear the full cost of such audit unless such audit discloses a
variance of more than five percent (5%) from the amount due, in which event,
BMSLC shall bear the full cost of such audit. Any amounts that are determined to
be due and owing by BMSLC to WC following such audit shall be paid within thirty
(30) business days thereafter, together with any interest due thereon from the
date of overpayment by WC at the rate of twelve percent (12%) per annum;
provided that in no event shall such rate exceed the maximum legal annual
interest rate. The payment of such interest shall not limit WC from exercising
any other rights it may have as a consequence of the lateness of any payment.
ARTICLE IV
PAYMENTS AND REPORTS
Section 4.1 Payment. BMSLC shall submit invoices to WC for Products
promptly after shipment. The invoices shall reflect the price for the Products
as set forth in Section 3.1. Payments shall be made by WC within thirty (30)
days of receipt of the invoice. In addition, BMSLC, in its sole discretion,
shall determine, and may from time to time change without the consent of, but
with notice to, WC, the identity of the party that shall invoice WC for any
Product supplied hereunder which shall be BMSLC, BMS or an Affiliate of BMS.
Section 4.2 Mode of Payment. WC shall make all payments required under
this Agreement by electronic funds transfer in United States dollars to a bank
account designated by BMSLC.
Section 4.3 Taxes. Any and all transfer, sales, use, registration and
other taxes imposed upon or with respect to or measured by the sale or delivery
by BMSLC to WC of any Product hereunder shall be the responsibility of and for
the account of WC. Such amounts shall be included on BMSLC's invoices to WC for
such Products. If BMSLC
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obtains any credit for the amounts of the tax, such amount shall be repaid by
BMSLC to WC when it is received by BMSLC. Anything to the contrary
notwithstanding, WC shall have no obligation to pay any income tax imposed on
BMSLC or any of its Affiliates which may arise from the transactions
contemplated by this Agreement.
Section 4.4 Late Payments. In the event that any payment due hereunder
is not made when due, the payment shall accrue interest from the date due at the
rate of twelve percent (12%) per annum; provided that in no event shall such
rate exceed the maximum legal annual interest rate. The payment of such interest
shall not limit BMSLC from exercising any other rights it may have as a
consequence of the lateness of any payment.
ARTICLE V
COMPLIANCE WITH LAWS; REPRESENTATIONS AND WARRANTIES
Section 5.1 Compliance with Law; Cooperation.
5.1.1 Compliance with Law. Each Party shall maintain in full
force and effect all necessary licenses, permits and other authorizations
required by Law to carry out its duties and obligations under this Agreement.
Each Party shall comply with all Laws applicable to its activities under this
Agreement and each Related Agreement, including without limitation, any
requirements of any product license applicable to the Products in the Territory.
WC shall store the Products sold to it in compliance with all applicable Laws,
including, without limitation, the Prescription Drug Marketing Act, as amended
during the term of this Agreement. BMSLC and WC each shall keep all records and
reports required to be kept by applicable Laws. The Parties will reasonably
cooperate with one another with the goal of ensuring full compliance with Laws.
Each Party will cooperate with the other to provide such letters, documentation
and other information on a timely basis as the other Party may reasonably
require to fulfill its reporting and other obligations under applicable Laws to
applicable regulatory authorities.
5.1.2 Reasonable Cooperation. BMSLC and WC each hereby agrees
to use commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or proper to make
effective the transactions contemplated by this Agreement, including such
actions as may be reasonably necessary to obtain approvals and consents of
governmental Persons and other Persons; provided, that no Party shall be
required to (i) pay money (other than as expressly required pursuant to the
terms and conditions of this Agreement or a Related Agreement), or (ii) assume
any other material obligation not otherwise required to be assumed by this
Agreement or any Related Agreement.
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Section 5.2 BMSLC Warranties.
5.2.1 BMSLC warrants that each Product manufactured by or for
BMSLC and sold to WC under this Agreement:
(i) will not be adulterated or misbranded under
applicable Laws at the time the same is tendered to
the common carrier for delivery to WC;
(ii) will meet the Specifications therefor at the time the
same is tendered to the common carrier for delivery
to WC;
(iii) shall be manufactured in accordance with Good
Manufacturing Practices, as established by FDA and
all other applicable Laws, including all applicable
US federal, state and local environmental, health and
safety law and regulations in effect at the time and
place of manufacture of the Products; and
(iv) will have a shelf life of not less than those months
set forth in Schedule 1.1(A) at the time the same is
tendered to the common carrier for delivery to WC.
5.2.2 THE LIMITED WARRANTIES PROVIDED IN SECTION 5.2.1 ARE
BMSLC'S SOLE WARRANTIES WITH RESPECT TO A PRODUCT THAT IS MADE BY BMSLC OR FOR
BMSLC UNDER THIS AGREEMENT AND IS MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. EXCEPT AS MAY BE
EXPRESSLY SET FORTH IN THIS ARTICLE 5 OR IN ANY RELATED AGREEMENT, BMSLC MAKES
NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS,
INCLUDING WITHOUT LIMITATION ANY WARRANTIES WITH RESPECT TO LACK OF INFRINGEMENT
OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS THAT MAY RESULT FROM THE
MANUFACTURE, USE, EXPORT, IMPORTATION, OR SALE OF ANY PRODUCT.
Section 5.3 WC Warranties.
5.3.1 WC represents and warrants to BMSLC that:
(i) WC shall adhere to all applicable Laws relating to
the handling, storage and disposal of each Product in
each country in the Territory; and
(ii) WC will make any filings on its own behalf or on
behalf of BMSLC that are required to be made by it
under any Product Registrations relating to the
Products, including the filing of any "adverse event
reports" as required by applicable law.
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Section 5.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT OR ANY RELATED AGREEMENT, THERE ARE NO OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE OR GIVEN BY EITHER PARTY HEREUNDER,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF ANY PRODUCT.
Section 5.5 No Reliance by Third Parties. The representations and
warranties of a Party set forth in this Agreement are intended for the sole and
exclusive benefit of the other Party hereto, and may not be relied upon by any
Third Party.
ARTICLE VI
INDEMNIFICATION; REMEDIES FOR BREACH
Section 6.1 BMSLC Indemnity. BMSLC shall defend, indemnify and hold
harmless WC, its Affiliates, and its and their employees, agents, officers, and
directors (a "WC Party") from and against any and all losses, liabilities,
damages, fees (including, until such time as BMSLC has notified WC in writing
that it will assume control of a given claim, reasonable attorneys fees and
costs of litigation pertaining to such claim), and expenses paid or payable by a
WC Party to a Third Party and that result from or arise in connection with any
claim, action, suit or other proceeding made or brought by such Third Party
against a WC Party, in any such case, based on the breach of any representation
or warranty of BMSLC contained in Section 5.2.1; provided, however, that BMSLC
shall not be obligated to indemnify a WC Party for any loss, liability, damages,
fees or expenses incurred by such WC Party to the extent attributable to any
breach of this Agreement by WC, a WC Party or WC's contractors/licensees or to
any act or omission constituting gross negligence or wilful misconduct on the
part of WC, a WC Party, or a WC contractor/licensee, or to any action taken
required to be taken by BMSLC pursuant to this Agreement or any action taken by
BMSLC upon the direction of WC (including modifications of the Specifications
pursuant to Section 2.7.2) or to any failure of WC to identify a Product defect
or nonconformity actually known by WC prior to the use of such Product by a
Third Party.
Section 6.2 WC Indemnity. WC shall defend, indemnify and hold harmless
BMSLC, its Affiliates, and its and their employees, agents, officers, and
directors (a "BMSLC Party") from and against any and all losses, liabilities,
damages, fees (including, until such time as WC has notified BMSLC in writing
that it will assume control of a given claim, attorneys fees and costs of
litigation pertaining to such claim), and expenses paid or payable by a BMSLC
Party to a Third Party that result from or arise in connection with (A) subject
to BMSLC's indemnity obligations under Section 6.1, any claim (including,
without limitation, product liability claims, strict liability or tort claims),
action or proceeding made or brought against such BMSLC Party by or on behalf of
a Third Party for bodily injury, death or property damage to the extent such
injury, death or damage is alleged to be or is in fact caused by, or is alleged
to or in fact arises from, the use or supply of a Product or WC's breach of this
Agreement, (B) any claim,
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action, suit or other proceeding made or brought by a Third Party based on (i)
the breach by WC of any of its representations or warranties contained in
Section 5.3.1; (ii) infringement of a Third Party's trademarks by reason of the
use of "WC", "Ovcon" or any variant thereof on the labeling for Products or any
materials used in promoting or advertising a Product; or (iii) infringement of a
Third Party's patent rights by reason of the manufacture, use, import, export,
or sale of a Product by or for WC or its Affiliates under this Agreement (other
than by reason of a manufacturing process used in the manufacture of a Product
by BMSLC or its Affiliates or any or their agents) or (C) the failure by WC to
comply with applicable Laws related to the marketing, promotion, distribution
and sale of the Products; provided, however, that WC shall not be obligated to
indemnify a BMSLC Party for any loss, liability, damages, fees or expenses
incurred by such BMSLC Party to the extent attributable to a breach by BMSLC of
any obligation, covenant, agreement, representation or warranty of BMSLC
contained in this Agreement or any Related Agreement, or to any act or omission
constituting gross negligence or wilful misconduct on the part of BMSLC or a
BMSLC Party.
Section 6.3 Control of Proceedings. To receive the benefits of the
indemnity under Section 6.1 or 6.2, as applicable, an indemnified Party must (i)
give the indemnifying Party written notice of any claim or potential claim
promptly after the indemnified Party receives written notice of any such claim
and (ii) allow the indemnifying Party to assume exclusive control of the defense
and settlement (including all decisions relating to litigation, defense and
appeal) of any such claim (so long as it has confirmed its indemnification
obligation to such indemnified Party under this Section 6.3 with respect to a
given claim); provided that the controlling Party may not settle such claim or
enter into any voluntary consent judgment in any manner that would require
payment by the other Party, or would materially adversely affect the rights
granted to the other Party hereunder, or would materially conflict with the
terms of this Agreement, without first obtaining the other Party's prior written
consent. The indemnified party shall (so long as such cooperation does not
vitiate any legal privilege to which it is entitled) reasonably cooperate with
the indemnifying Party in its defense of the claim (including, without
limitation, making documents and records available for review and copying and
making persons within its/his/her control available for pertinent testimony). If
the indemnifying Party defends the claim, an indemnified Party may participate
in, but not control, the defense of such claim using attorneys of its/his/her
choice and at its/his/her sole cost and expense. An indemnifying Party shall
have no obligation or liability under this Article 6 as to any claim for which
settlement or compromise of such claim is made by an indemnified Party without
the prior written consent of the indemnifying Party.
If the indemnifying Party notifies the other in writing that
it will not defend the other Party against such claim asserted against the other
Party, or if the indemnifying Party fails to defend or take other reasonable,
timely action, in response to such claim asserted against the other Party, the
indemnified Party shall have the right, but not the obligation, to defend or
take other reasonable action to defend its interests in such proceedings, and
shall have the right to litigate, settle or otherwise dispose of any such claim
without limiting its rights to indemnification under this Article 6; provided,
however, that the Party shall not have the right to settle such claim or enter
into a consent judgment in a manner that adversely affects the rights granted to
the indemnifying Party
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hereunder, or would materially conflict with this Agreement, or would require a
payment by the indemnifying Party without the prior written consent of the Party
entitled to control the defense.
Section 6.4 Remedy for Failure to Supply Products.
6.4.1 During the Initial Period, in the event BMSLC breaches
its obligation to use its commercially reasonable efforts to supply Qualifying
Products in accordance with Section 2.1.2, and (a) such breach is not due to an
Excused Supply Default and (b) such breach results in a Stockout with respect to
such Qualifying Product, then BMSLC shall indemnify WC for the actual direct
damages and Lost Profits of WC resulting from such Stockout with respect to such
Qualifying Product, provided that the aggregate amount payable by BMSLC under
this Section 6.4.1 for all Stockouts with respect to all Qualifying Products
shall not exceed $45,000,000, less any amounts paid under Section 6.4.1 of the
Estrace Supply Agreement. For the avoidance of doubt, the aggregate amount
payable by BMS and its Affiliates under this Section 6.4.1 and under Section
6.4.1 of the Estrace Supply Agreement shall not exceed $45,000,000.
6.4.2 During the Subsequent Period, in the event BMSLC
breaches its obligation to use its commercially reasonable efforts to supply
Qualifying Products in accordance with Section 2.1.2, and (a) such breach is not
due to an Excused Supply Default and (b) such breach results in a Stockout with
respect to such Qualifying Product, then BMSLC shall indemnify WC for only the
actual direct damages of WC resulting from such Stockout (which, for the
avoidance of doubt, shall not include any Lost Profits).
6.4.3 WC shall use commercially reasonable efforts to avoid
the occurrence of a Stockout, including through the allocation of its
inventories of Qualifying Products at any time amongst its customers that
individually account for more than 5% or more of its sales of any Qualifying
Product (calculated based on its most recent twelve (12) calendar months of
sales) in any effort to fill as many purchase orders, in part, as possible. In
addition, WC shall use commercially reasonable efforts to mitigate any losses
resulting from a Stockout with respect to any Qualifying Product, including
purchasing conforming Products of such stocked-out Products from the Initial
Alternate Manufacturer, if the Initial Alternate Manufacturer has been qualified
in accordance with Section 12.1.1.
6.4.4 Except as expressly provided in Section 2.6 (with
respect to returns of nonconforming Products) and Section 6.1 (with respect to
any breaches of representations or warranties of BMSLC in Section 5.2.1), WC
acknowledges and agrees that the remedies set forth in Sections 6.4.1 and 6.4.2
shall be WC's sole and exclusive remedies with respect to (i) any failure by
BMSLC to comply with its obligations to supply Products to WC in accordance with
the terms of this Agreement, including its obligation to use commercially
reasonable efforts to supply Products set forth in Section 2.1.2, (ii) WC's
inability or failure to supply its customers with Products and (iii) any failure
by BMSLC to maintain an inventory of Products in accordance with Section 2.4.2.
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6.4.5 For the purposes of this Section 6.4:
(i) "Excused Supply Default" shall mean the failure
by BMSLC to supply Qualifying Products to WC if such failure
is caused primarily by (a) a force majeure event as specified
in Article XI of this Agreement, (b) a change in Law, (c) an
act or omission which does not constitute, or an event which
does not result from, the gross negligence or wilful
misconduct of BMSLC or its Affiliates, (d) WC's requirements
for such Qualifying Product exceeding its forecasts provided
under Section 2.2 with respect to such Qualifying Product and
(e) WC's requirements for such Qualifying Product exceeding
the firm purchase orders made by WC under Section 2.3 with
respect to such Qualifying Product.
(ii) "Initial Period" shall mean, with respect to any
Qualifying Product, the period beginning on the Effective Date
and ending on the earlier to occur of (i) the fifth
anniversary of the Effective Date and (ii) twelve (12) months
after WC has qualified the Initial Alternate Manufacturer
pursuant to Article XII.
(iii) "Lost Profits" shall mean provable lost profits
suffered by WC with regard to a Qualifying Product as a result
of a Stockout of such Qualifying Product to the extent
suffered or incurred by WC during the period commencing on the
first date on which such Stockout shall have occurred and
ending on the first date thereafter on which WC shall have
received a shipment of such Qualifying Product under this
Agreement.
(iv) "Qualifying Product" shall mean either of (a)
SKU #057801 and (b) SKU #057901; and Qualifying Products shall
not include any other Products.
(v) "Significant Customer", determined as of any time
with respect to any Qualifying Product, shall mean any one or
more customers of WC who, in the aggregate, accounted for more
than 15% of WC's sales of such Qualifying Product during the
twelve (12) calendar months immediately preceding such
determination (or such shorter period of time between such
calculation and the Effective Date).
(vi) "Stockout" shall mean, with respect to any
Qualifying Product, the failure by BMSLC to supply WC with any
conforming Qualifying Product such that WC is unable to supply
any Significant Customer with any conforming Qualifying
Product from the inventories maintained by BMSLC and WC
(including those maintained under Section 2.4), for a period
of sixty (60) consecutive days (in the case of any Significant
Customer that is comprised of more than one customer, sixty
(60) consecutive days with respect to each such customer)
after the exhaustion of all such inventories; provided,
however, that (a) such 60-day period shall be deemed to
commence upon WC's giving notice to BMSLC of its inability to
supply its Significant Customers, and (b) such 60-day period
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shall be extended by the amount of any delay attributable to
an Excused Supply Default. For the avoidance of doubt, a
Stockout shall end on the first date on which WC shall have
received shipment of such Qualifying Product under this
Agreement and any failure thereafter by BMSLC to supply WC
with such Qualifying Product shall not constitute a Stockout
unless and until such time, if any, as all the conditions
included in the definition of Stockout shall have occurred
again with respect to such Qualifying Product.
(vii) "Subsequent Period" shall mean, with respect to
any Qualifying Product, the period beginning on the date that
the Initial Period for such Qualifying Product ends and ending
on the termination or expiration of this Agreement.
Section 6.5 Insurance.
6.5.1 WC shall maintain at all times during the period that
any Product is being distributed or sold by or through WC hereunder, and for
fifteen (15) years thereafter, comprehensive general liability insurance, with
endorsements for contractual liability and product liability with coverage
limits of not less than fifty million dollars ($50,000,000) per occurrence and
in the aggregate. The minimum level of insurance set forth herein shall not be
construed to create a limit on WC's liability hereunder. On the Effective Date,
WC shall furnish to BMSLC a certificate of insurance evidencing such coverage as
of such date. Each such certificate of insurance, as well as any certificates
evidencing new or modified coverages of WC, shall include a provision whereby
sixty (60) days' written notice must be received by BMSLC prior to coverage
modification or cancelation by either WC or the insurer. In addition, WC shall
promptly notify BMSLC of any cancelation or modification of such insurance
coverage and of any new or modified coverage. In the case of a modification or
cancellation of such coverage, WC shall promptly provide BMSLC with a new
certificate of insurance evidencing that WC's coverage meets the requirements in
the first sentence of this Section 6.5.1.
6.5.2 BMSLC will maintain at all times during the period that
any Product is being supplied to WC by BMSLC and is being manufactured by or for
BMSLC, and for fifteen (15) years thereafter, a commercially reasonable program
of self-insurance and insurance with respect to its obligations under this
Agreement and any Related Agreement.
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Section 6.6 Limitations on Liability.
6.6.1 Notwithstanding any other provision in this Agreement,
no Party shall in any event be liable to the other Party or its Affiliates,
officers, directors, employees, stockholders, agents or representatives on
account of any breach hereof or any indemnity obligation set forth herein for
any indirect, consequential or punitive damages (including, but not limited to,
lost profits, loss of use, damage to goodwill or loss of business), except to
the extent expressly provided in Section 6.4.1. Any action for breach of this
Agreement must be commenced within twelve (12) months after the end of the Term,
provided that the foregoing shall not apply to any claim by either Party for
indemnification under Section 6.1 or 6.2, or to any claim by either Party for
breach of the other Party's indemnity obligation.
6.6.2 BMSLC and WC shall cooperate with each other in
resolving any claim or liability with respect to which one Party is obligated to
indemnify the other under this Agreement, including without limitation, by
making commercially reasonable efforts to mitigate or resolve any such claim or
liability.
6.6.3 The amount of any loss, liability, damage or expense for
which indemnification is provided under this Article VI shall be net of any
amounts actually recovered by the indemnified party in respect of such loss,
liability, damage or expense under its insurance policies, except that this
Section 6.6.3 shall not apply to Section 6.4.
ARTICLE VII
COMPLIANCE WITH GOVERNMENT REGULATIONS
Section 7.1 Government Communications. WC shall be solely
responsible for communicating with any governmental authority concerning the
Products or the marketing, distribution, or sale of the Products, and BMSLC
shall have no such communications except to the extent that they relate to
BMSLC's manufacturing activities under this Agreement or otherwise relate to the
Products, in which case BMSLC shall be responsible for such communications (it
being understood, however, that, notwithstanding the foregoing, (i) except to
the extent that an immediate communication is necessary under the circumstances
or required by Law, BMSLC in good faith shall consult in advance with WC
regarding such communications insofar as they relate to the Products or to
BMSLC's ability to perform its obligations pursuant to this Agreement and (ii)
nothing in this paragraph shall be deemed to restrict WC's independent rights to
communicate with any governmental authority, provided that to the extent such
communications by WC relate to BMSLC's manufacturing activities under this
Agreement, WC in good faith shall, except to the extent that an immediate
communication is necessary under the circumstances or required by Law, consult
in advance with BMSLC regarding such communications).
Section 7.2 Access to Records. WC shall have reasonable access during
normal business hours to BMSLC's files, from time to time upon prior notice, to
review all such records, correspondence, notices, documents and other materials
(including warning
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letters and letters of adverse findings) relating to the production, use or sale
of the Products; provided, however, that such access does not unreasonably
disrupt the normal operations of BMSLC.
Section 7.3 Governmental and Regulatory Inspections. BMSLC shall notify
WC of any inspections by any governmental or regulatory authorities of the
premises where the Product is being manufactured, to the extent such inspection
relates to the manufacture of the Products, promptly after such inspection, and
shall provide to WC copies of all correspondence, reports, notices, findings and
other material pertinent to such inspections or otherwise relating to the
production, use or sale of the Products (including all Form 483s), promptly
after they are received or produced by or on behalf of BMSLC from or to the FDA
or any other federal, state or foreign governmental or regulatory authority. All
notices sent to WC pursuant to this Section shall be sent to the attention of
the Senior Vice-President of Regulatory Affairs, Norma Enders.
Section 7.4 WC Inspections. BMSLC shall, or if BMSLC is not
manufacturing the Products, BMSLC shall cause the Person manufacturing the
Products to, afford WC or WC's representatives reasonable access to (i) the
premises where the Products are being tested and/or manufactured and (ii) the
personnel dedicated to the testing and/or manufacture of the Products, in each
case upon reasonable notice and at reasonable times, to the extent necessary to
conduct a reasonable audit; provided, however, that such access does not
unreasonably disrupt the normal operations of BMSLC. WC's exercise of its
inspection rights hereunder shall in no way waive, modify or diminish BMSLC's
obligations under this Agreement.
ARTICLE VIII
PRODUCT RECALLS; ADVERSE EXPERIENCES; PRODUCT QUALITY
COMPLAINTS; AND MEDICAL INQUIRIES
Section 8.1 Product Recalls.
8.1.1 In the event that either Party obtains information that
a Product or any portion thereof should be alleged or proven not to meet the
Specifications, the labeling, or the Product Registration for such Product or to
be otherwise defective in the Territory, such Party shall notify the other Party
immediately and both Parties shall cooperate fully regarding the investigation
and disposition of any such matter, including with respect to any Recall. BMSLC
and WC shall each maintain such traceability records as are sufficient and as
may be necessary to permit a recall or field correction of any Products. In the
event (a) any applicable regulatory authority of a state or country in the
Territory should issue a request, directive or order that a Product be recalled,
or (b) a court of competent jurisdiction orders such a recall, or (c) WC
determines that any Product already in interstate commerce in the Territory
presents a risk of injury or gross deception or is otherwise defective and that
recall of such Product is appropriate (a "Recall"), each Party shall give
telephonic notice (to be confirmed in writing) to the other within twenty-four
(24) hours of the occurrence of such event.
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8.1.2 WC shall consult with BMSLC, but WC shall have sole
responsibility for determining all corrective action to be taken and for
carrying out the Recall. BMSLC will provide full cooperation and assistance to
WC in connection therewith as may be requested by WC. WC shall be responsible
for all expenses of any such Recall (including any reasonable out-of-pocket
expenses incurred by BMSLC in connection with such cooperation, if and to the
extent WC authorized BMSLC to incur any such out-of-pocket expense), except to
the extent such Recall is attributable to a breach by BMSLC of Section 5.2.1,
unless such breach is the direct result of the information provided by WC under
Section 2.1.3.
Section 8.2 Adverse Experience. During the Term, each Party shall
promptly notify the other Party of any significant event(s) that affect the
marketing of the Products, including, but not limited to, adverse drug
experiences and governmental inquiries. WC shall have the reporting
responsibility for such events to applicable regulatory health authorities in
the Territory, and BMSLC shall cooperate with WC in connection therewith as
requested by WC.
8.2.1 Serious Adverse Events (as defined in Section 8.2.2
below) for the Products of which BMSLC becomes aware shall be submitted to WC
within three (3) business days but no more than four (4) days from the date
BMSLC first became aware of such Serious Adverse Event. Non-Serious Adverse
Events for the Products (as defined in Section 8.2.2 below) that are reported to
BMSLC shall be submitted to WC no more than one (1) month from the date received
by BMSLC; provided, however, that medical and scientific judgment should be
exercised in deciding whether expedited reporting is appropriate in other
situations, such as important medical events that may not be immediately
life-threatening or result in death or hospitalization but may jeopardize the
patient or may require intervention to prevent a Serious Adverse Event outcome.
8.2.2 A "Serious Adverse Event" for the Products is defined as
any untoward medical occurrence that at any dose for any of the Products: (a)
results in death; (b) is life-threatening; (c) requires inpatient
hospitalization or prolongation of existing hospitalization; (d) results in
persistent or significant disability/incapacity; (e) is a congenital
anomaly/birth defect; (f) results in drug dependency or drug abuse; (g) is
cancer, or (h) is an overdose. A "Nonserious Adverse Event" for the Products is
defined as an untoward medical occurrence at any dose for any of the Products
that is not a Serious Adverse Event.
8.2.3 BMSLC shall report all such adverse events involving the
Products learned by it to:
Senior Vice President Regulatory Affairs
Warner Chilcott, Inc.
100 Enterprise Drive B Suite 280
Rockaway, NJ 07866
Facsimile No.: (973) 442-3224
Telephone No.: (973) 442-3200
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A CIOMS-I form or a form that contains the data elements of a CIOMS-I form is
recommended.
8.2.4 Serious Adverse Events concerning the Products learned
by WC shall be reported by WC to BMSLC at the time that WC reports such events
to FDA, and shall be sent to:
Vice President, Worldwide Safety & Surveillance
Bristol-Myers Squibb Company
P.O. Box 5400
Mail Stop HW19-1.01
Princeton, New Jersey 08543-5400
U.S.A.
Facsimile No.: (609) 818-3804
Telephone No.: (609) 818-3737
A CIOMS-I form or a form that contains the data elements of a CIOMS-I form is
recommended.
Section 8.3 Product Quality Complaints. BMSLC shall inform WC's
Regulatory Affairs Department office of any Product Quality Complaint received
within three (3) business days but no more than four (4) days from the receipt
date by BMSLC. "Product Quality Complaint" is defined as any complaint that
questions the purity, identity, potency or quality of either of the Products,
its packaging, or labeling, or any complaint that concerns any incident that
causes the drug product or its labeling to be mistaken for, or applied to,
another article or any bacteriological contamination, or any significant
chemical, physical, or other change or deterioration in the distributed drug
product, or any failure of one or more distributed batches of the drug product
to meet the specifications therefor in the NDA for the Products. Such
information shall be sent to WC as set forth in Section 8.2.3 above. For Product
Quality Complaints received by WC relating to the Products, WC will notify BMSLC
and as appropriate, request the initiation of a complaint investigation. BMSLC
shall conduct such investigation and report its findings to WC's Regulatory
Affairs Department.
Section 8.4 Medical Inquiries. WC's Product Information Department
shall handle all medical inquiries concerning the Products. BMSLC shall refer
all routine medical information requests in writing to WC as set forth in
Section 8.2.3 above. Urgent medical information requests shall be referred by
BMSLC to WC by telephone to: Production Information Department: (973) 442-3236.
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ARTICLE IX
CONFIDENTIALITY
Section 9.1 Confidentiality Requirement.
9.1.1 Each Party acknowledges that it may receive confidential or
proprietary information of the other Party in the performance of this Agreement.
Each Party shall use commercially reasonable efforts to safeguard and to hold
such information received by it from the other Party in confidence, and shall
limit disclosure of the furnishing Party's information to those employees and
consultants of the receiving Party and its Affiliates who are bound by a written
obligation of confidentiality to the receiving Party that is consistent with the
terms of this Article 9. Each Party shall not, directly or indirectly, disclose,
publish or use for the benefit of any Third Party or itself, except in carrying
out its duties hereunder, any confidential or proprietary information of the
other Party, without first having obtained the furnishing Party's written
consent to such disclosure or use. "Confidential Information" shall include,
inter alia, know-how, scientific information, clinical data, efficacy and safety
data, adverse event information, formulas, methods and processes,
specifications, pricing information (including discounts, rebates and other
price adjustments) and other terms and conditions of sales, customer
information, business plans, and all other intellectual property. This
restriction shall not apply to any information within the following categories:
(i) subject to Section 9.3, information that is known to the
receiving Party or its Affiliates prior to the time of
disclosure to it, to the extent evidenced by written records
or other competent proof;
(ii) information that is independently developed by employees,
agents, or independent contractors of the receiving Party or
its Affiliates without reference to or reliance upon the
information furnished by the disclosing Party, as evidenced by
written records or other competent proof;
(iii) information disclosed to the receiving Party or its
Affiliates by a Third Party that has a right to make
such disclosure; or
(iv) any other information that becomes part of the public domain
through no fault or negligence of the receiving Party.
The receiving Party shall also be entitled to disclose the other Party's
Confidential Information (1) that is required to be disclosed in compliance with
applicable laws or regulations (including, without limitation, to comply with
SEC, NASDAQ or stock exchange disclosure requirements) or by order of any
governmental body or a court of competent jurisdiction, (2) as may be necessary
or appropriate in connection with the enforcement of this Agreement or any
Related Agreement or (3) as may be necessary for the conduct of clinical
studies; provided, that the Party disclosing such information shall promptly
notify the other Party and shall use commercially reasonable efforts to obtain
confidential treatment of such information by the agency or court or other
disclosee, and
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that, in the case of disclosures under (1), shall provide the other Party with a
copy of the proposed disclosure in sufficient time to allow reasonable
opportunity to comment thereon.
9.1.2 The obligations set forth in this Section 9.1 shall survive
the termination or expiration of this Agreement for five (5) years. Nothing in
this Article 9 shall be construed to create or imply any right or license under
any patent rights, trademarks, copyrights or other intellectual property rights
owned or controlled by a Party or its Affiliates except as may be expressly set
forth in the other Articles of this Agreement.
9.1.3 The confidentiality obligations set forth in this Article 9
shall supersede the Confidentiality Agreement dated as of November 1, 1999
between the WC and BMS, shall govern any and all information disclosed by either
Party to the other pursuant thereto, and shall be retroactively effective to the
date of such Confidentiality Agreement.
Section 9.2 Use of Information. Each Party shall use, and cause each of
its Affiliates to use, any Confidential Information obtained by it from the
other Party or their respective Affiliates, pursuant to this Agreement or
otherwise, solely in connection with the transactions contemplated hereby.
Section 9.3 Purchased Assets. Notwithstanding anything contained herein,
assets obtained by WC under the Asset Purchase Agreement, including documents,
data and other information provided to WC under clause (a) of Section 12.4.2,
shall be deemed to be WC's Confidential Information and accordingly, shall not
be subject to any confidential treatment by WC, but shall be subject to
confidential treatment by BMSLC in accordance with the terms hereof.
Section 9.4 Relief. Each Party shall be entitled, in addition to any other
right or remedy it may have, at law or in equity, to an injunction, without the
posting of any bond or other security, enjoining or restraining any other Party
from any violation or threatened violation of this Article 9.
ARTICLE X
TERMINATION
Section 10.1 Term. This Agreement shall become effective as of the
Effective Date and, unless sooner terminated as provided in this Article 10 or
in Section 12.3.5, shall expire on the tenth anniversary of the Effective Date.
This Agreement shall automatically terminate if the Asset Purchase Agreement is
terminated.
Section 10.2 Breach. Failure by either Party to comply in any material
respect with any of its material obligations contained in this Agreement shall
entitle the other Party, if it is not in material default hereunder, to give to
the Party in default notice specifying the nature of the default and requiring
it to cure such default. If such default is
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not cured within 60 days after the receipt of such notice (or, if such default
cannot be cured within such 60-day period, if the Party in default does not
commence and diligently continue substantive actions to cure such default), the
notifying Party shall be entitled, without prejudice to any of its other rights
conferred on it by this Agreement and in addition to any other remedies
available to it by law or in equity (except as provided in Article VI), to
terminate this Agreement by giving written notice to take effect immediately
upon delivery of such notice.
Section 10.3 Insolvency or Bankruptcy. In the event that a Party shall
have become insolvent or bankrupt, or shall have made an assignment for the
benefit of its creditors, or there shall have been appointed a trustee or
receiver of such Party for all or a substantial part of its property, or any
case or proceeding shall have been commenced or other action taken by or against
such Party (as to which, if involuntary commenced against such Party, such Party
would not be able to obtain dismissal within 90 days after commencement thereof)
in bankruptcy or seeking reorganization, liquidation, dissolution, winding-up,
arrangement, composition or readjustment of its debts or any other relief under
any bankruptcy, insolvency, reorganization or other similar act or law of any
jurisdiction now or hereafter in effect, then such Party shall not be relieved
in any respect of its obligations hereunder, and, in addition to any other
remedies available to it by law or in equity, the other Party may terminate this
Agreement, in whole or in part as the terminating Party may determine, by
written notice to such Party.
Section 10.4 Termination Without Cause. WC may, at any time at its sole
discretion, terminate this Agreement upon twelve (12) months' notice to BMSLC.
Section 10.5 Effect of Termination.
10.5.1 Without limiting either Party's right to damages for any
breach of this Agreement, neither BMSLC nor WC shall incur any liability to the
other by reason of the expiration or termination of this Agreement as provided
herein, whether for loss of goodwill, anticipated profits or otherwise, and
BMSLC and WC shall accept all rights granted and all obligations assumed
hereunder, including those in connection with such expiration or termination in
full satisfaction of any claim resulting from such expiration or termination.
10.5.2 Any acceptance by BMSLC of any order from WC or the sale of
any Products by BMSLC to WC after the expiration or termination of this
Agreement shall not be construed as a renewal or extension of this Agreement or
as a waiver of termination thereof.
10.5.3 Upon expiration or termination of this Agreement, WC shall
have the option to purchase from BMSLC dedicated Ovcon equipment for the
manufacture of Ovcon for its fair market value on the expiration or termination
date.
10.5.4 Upon expiration or termination of this Agreement, (a) the
right and license granted to BMSLC pursuant to Section 2.1.1 shall immediately
terminate and BMSLC and its Affiliates and their agents shall cease any and all
use of WC Confidential Information; and (b) BMSLC shall transfer and assign, to
the extent transferable in light
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of legal, contractual and practical considerations, any and all regulatory
approvals, if any exist, relating to the Products, including the manufacture
thereof, owned or controlled by BMS or its Affiliates, to WC or WC's designee,
when and as specified by WC.
Section 10.6 Accrued Rights, Surviving Obligations.
10.6.1 Termination, relinquishment or expiration of this Agreement
for any reason shall be without prejudice to any rights which shall have accrued
to the benefit of either Party prior to such termination, relinquishment or
expiration. Such termination, relinquishment or expiration shall not relieve
either Party from obligations which are expressly indicated to survive
termination or expiration of this Agreement.
10.6.2 Without limiting Section 10.6.1, termination, relinquishment
or expiration of this Agreement, in whole or in part, shall not terminate WC's
obligation to pay the Purchase Price for, and BMSLC's obligation to supply,
Products which have been sold to WC or firm-ordered by it hereunder prior to the
effective date of termination. All the Parties' rights and obligations under
Articles 1, 4 , 6, 7, 8, 9, 11, 13 and 14 and Sections 2.5, 2.6, 2.8, 5.1, 5.2,
5.3, 5.4, 5.5, 10.5 (as applicable), 10.6 and 12.4 shall survive termination or
expiration hereof.
ARTICLE XI
FORCE MAJEURE
Any delays in performance by any Party under this Agreement shall not be
considered a breach of this Agreement if and to the extent caused by occurrences
beyond the reasonable control of the Party affected, including but not limited
to acts of God, embargoes, governmental restrictions, materials shortages or
failure of any supplier (including, without limitation, where such shortage or
failure is attributable to a supplier's breach of its agreement with BMSLC or
with a Third Party subcontractor or to an event of force majeure suffered by
such supplier), fire, flood, earthquake, hurricanes, storms, tornados,
explosion, riots, wars, civil disorder, failure of public utilities or common
carriers, labor disturbances, rebellion or sabotage. The Party suffering such
occurrence shall immediately notify the other Party as soon as practicable of
such inability and of the period for which such inability is expected to
continue, and any time for performance hereunder shall be extended by the actual
time of delay caused by the occurrence; provided, that the Party suffering such
occurrence uses commercially reasonable efforts to mitigate. The Party giving
such notice shall thereupon be excused from such of its obligations under this
Agreement as it is thereby disabled from performing, and shall have no liability
for such non-performance, for so long as it is so disabled and the 30 days
thereafter. Notwithstanding the foregoing, nothing in this Article 11 shall
excuse or suspend the obligation to make any payment due under this Agreement or
in any Related Agreement in the manner and at the time provided.
ARTICLE XII
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ALTERNATE MANUFACTURERS
Section 12.1 Qualification of Initial Alternate Manufacturer.
12.1.1 Each Party shall, promptly after the Effective Date, commence
the use of its commercially reasonable efforts to qualify with the FDA and any
other applicable U.S. regulatory agency, an alternate manufacturer for the
Products (the "Initial Alternate Manufacturer") as soon as possible after the
Closing, but in any event not later than 24 months after the Closing. The
Parties acknowledge that the Initial Alternate Manufacturer must have sufficient
capacity to supply WC's forecasted requirements of the Products as of the
Closing Date at substantially the same prices for the Products as the initial
Purchase Prices set forth on Schedule 3.1.1 (assuming such Initial Alternate
Manufacturer manufactures all WC's forecasted requirements). BMSLC shall be
deemed to have used its commercially reasonable efforts for the purpose of this
Section 12.1.1 if it shall provide Technical Assistance with respect to such
qualification of the Alternate Manufacturer.
12.1.2 Notwithstanding anything contained herein, so long as a Party
uses its commercially reasonable efforts to qualify the Initial Alternate
Manufacturer in accordance with the provisions of this Section 12.1.2, failure
to qualify the Initial Alternate Manufacturer shall not constitute a breach by
such Party of Section 12.1.1 of this Agreement or result in any right of the
other Party to terminate this Agreement.
12.1.3 After the Initial Alternate Manufacturer is so qualified, WC
shall use commercially reasonable efforts to maintain the regulatory
qualification of the Initial Alternate Manufacturer.
12.1.4 Any and all costs and expenses involved in obtaining and
maintaining the regulatory qualification of the Initial Alternate Manufacturer
shall be borne by WC, except that BMSLC shall bear the costs of the Technical
Assistance provided pursuant to Section 12.1.1, so long as BMSLC shall only be
responsible for the cost of providing to WC (or WC's designee) one set of copies
of the documents, data or other information set forth in Section 12.1.5(c).
12.1.5 For purposes of the foregoing, "Technical Assistance" shall
mean providing WC (or WC's designee) with:
(a) the assistance of BMSLC's employees and access to BMSLC's other
internal resources to provide WC with a reasonable level of technical
assistance and consultation in connection with the qualification process,
(b) access to all documents, data and other information that (i) are
necessary under applicable Law to qualify or maintain the qualification of
the Initial Alternate Manufacturer and (ii) are Acquired Assets (as
defined in the Asset Purchase Agreement) and that are at such time in
BMSLC's or its Affiliates' or any of their agents' control; and
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(c) copies of all such documents, data and other information that is
required under applicable Law to be provided to any Third Party in
connection with the qualification process or to be held by the Initial
Alternate Manufacturer in order to obtain and/or maintain its regulatory
qualification or is otherwise necessary to qualify or maintain the
qualification of the Initial Alternate Manufacturer. With respect to all
documents, data and other information provided in accordance with this
clause (c), in addition to paper and other tangible copies, BMSLC shall,
upon WC's request, also provide to WC electronic copies of such documents,
data and other information, provided that BMSLC or its Affiliates have
electronic copies thereof, and provided further, that the foregoing
requirement shall only apply to such documents, data and other information
exclusively related to the manufacture of the Products, and BMSLC shall
have no obligation to reformat or otherwise alter or modify any such
materials in order to provide them to WC (or WC's designee).
Section 12.2 Manufacture of Products by the Initial Alternate Manufacturer
During the Term.
12.2.1 Except as provided in Section 2.1.4, 12.2.2 or 12.3.1, WC may
not purchase any Products from the Initial Alternate Manufacturer.
12.2.2 Following qualification of the Initial Alternate
Manufacturer, WC may transfer a portion of the manufacture of the Products to
the Initial Alternate Manufacturer, provided that such transfer shall be limited
to the minimum amount of Products reasonably necessary to maintain the Initial
Alternate Manufacturer's regulatory qualification and to retain the Initial
Alternate Manufacturer as a back-up source of supply for the Products on
commercially reasonable terms, in any event not to exceed, in any calendar year
during the Term, 10% of WC's requirements for the Products during such year,
provided that any Products manufactured by the Initial Alternate Manufacturer
pursuant to Section 2.1.4 shall not be counted for purposes of such 10%
limitation..
Section 12.3 Transition of Entire Manufacturing to the Initial Alternate
Manufacturer.
12.3.1 At any time following regulatory qualification of the Initial
Alternate Manufacturer as contemplated by Section 12.1, BMSLC may elect to
terminate this Agreement and transfer the manufacture of the Products to the
Initial Alternate Manufacturer. BMSLC shall make such election by written notice
to WC (the "12.3.1 Notice") setting forth the intended termination date, which
shall be at least 12 months from the date of the 12.3.1 Notice.
12.3.2 Notwithstanding the Parties' obligations under Section 2.1.2,
following delivery of the 12.3.1 Notice, BMSLC may transfer all or part of its
production of the Products to the Initial Alternate Manufacturer, provided that
BMSLC shall cooperate with WC to ensure a smooth transition to the Initial
Alternate Manufacture and to prevent any interruptions in supply to WC, and
provided further that in any event BMSLC shall continue to manufacture not less
than the minimum amount of Products reasonably necessary to maintain its
regulatory qualification to manufacture the
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Products and to maintain its ability to be readily available to serve as a
back-up supplier to WC, if necessary within a commercially reasonable time.
Following the transfer of the manufacture of any Product to the Initial
Alternate Manufacturer, BMSLC shall not be liable for its obligations with
respect to such Products under this Agreement or for the compliance by the
Initial Alternate Manufacturer with the terms and conditions of this Agreement
with respect to such Products. BMSLC's obligation to maintain its ability to
serve as a back-up shall terminate upon the later of (i) the qualification of an
Additional Alternate Manufacturer and (ii) twelve (12) months after the date of
the 12.3.1 Notice (the "Back-up Termination Date").
12.3.3 Promptly after receipt of the 12.3.1 Notice, WC shall
commence using its commercially reasonable efforts to qualify with the FDA and
any other applicable U.S. regulatory agency an Additional Alternate
Manufacturer, as soon as possible and in any event with 12 months of the date of
the 12.3.1 Notice, to serve as a back-up source of Supply for the Products for
WC following termination of this Agreement. Such Additional Alternate
Manufacturer must have sufficient capacity to supply WC's forecasted
requirements of the Products as of the date of the 12.3.1 Notice at
substantially the same prices for the Products as the Purchase Price at such
time (assuming such Additional Alternate Manufacturer manufactures all of WC's
forecasted requirements at such time).
12.3.4 All costs relating to the initial regulatory qualification of
an Additional Alternate Manufacturer under Section 12.3.3 shall be borne by
BMSLC.
12.3.5 BMSLC may terminate this Agreement with notice to WC at any
time after the Back-up Termination Date.
Section 12.4. Technical Assistance Upon Termination of Agreement.
12.4.1 During the twelve (12) month period following the expiration
of this Agreement or the termination of this Agreement pursuant to Section 10.4,
upon request of WC, BMSLC shall provide WC (or WC's designee) with the
assistance of its employees and access to its other internal resources to
provide WC with a reasonable level of technical assistance and consultation in
connection with the regulatory qualification of an additional alternate
manufacturer for the Product (an "Additional Alternate Manufacturer") for such
Products, provided that WC shall reimburse BMSLC for the fully-burdened cost of,
and reasonable out-of-pocket expenses incurred in connection with, such
technical assistance and consultation.
12.4.2 Promptly after termination or expiration of this Agreement,
BMSLC shall provide WC (or WC's designee) with copies of all documents, data or
other information relating to the manufacture of the Products that are at such
time in BMSLC's or its Affiliates' or its agents' control, that (a) are Acquired
Assets, but were not previously provided to WC either pursuant to the Asset
Purchase Agreement or pursuant to Section 12.1.5, or (b) are not Acquired
Assets, to the extent such documents, data and information are non-proprietary
to BMSLC and its Affiliates and are necessary for the manufacture of the
Products. Following termination or expiration of this Agreement, the documents,
data or other information described in clause (a) above shall not be used by
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BMS and its Affiliates for any purpose other than BMS's and its Affiliates'
internal and operational purposes in the ordinary course of business. With
respect to all documents, data and other information provided in accordance with
the preceding sentence, (A) BMSLC shall be responsible for the cost of providing
one set of copies only, and (B) in addition to paper and other tangible copies,
BMSLC shall, upon WC's request, also provide to WC electronic copies of such
documents, data and other information, provided that BMSLC or its Affiliates
have electronic copies thereof, and provided further, that the foregoing
requirement shall only apply to such documents, data and other information
exclusively related to the manufacture of the Products, and BMSLC shall have no
obligation to reformat or otherwise alter or modify any such materials in order
to provide them to WC (or WC's designee).
ARTICLE XIII
NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed given upon receipt if delivered personally, or when sent if
mailed by registered or certified mail (return receipt requested) or by
reputable overnight express courier (charges prepaid) or transmitted by
facsimile (with confirmation of transmittal) to the Parties at the following
addresses (or at such other address for a Party as shall be specified by like
notice):
(a) If to BMSLC:
Maxwell L.H. Quin
Director , BMSLC
c/o M.L.H. Quin & Co.
Bermuda Commercial Bank Building
44 Church Street
Hamilton HM 12, Bermuda
Telephone: (441) 292-7070
Facsimile: (441) 292-8899
with copies to:
Bristol-Myers Squibb Company
Rte. 206 & Provinceline Rd.
Princeton, NJ 08543
Telephone: (609) 252-3456
Facsimile: (609) 252-6456
Attention: President of Technical Operations
Worldwide Medicines
and
Bristol-Myers Squibb Company
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6000 Thompson Road
East Syracuse, NY 13057
Telephone: (315) 432-2002
Facsimile: (315) 432-2279
(b) If to WC:
Warner Chilcott, Inc.
100 Enterprise Drive
Suite 280
Rockaway, NJ 07866
Telephone: (973) 442-3200
Facsimile: (973) 442-3316
Attention: Beth Hecht, Esq.
General Counsel
with a copy to:
Kirkland & Ellis
153 East 53rd Street
New York, NY 100022
Telephone: (212) 446-4831
Facsimile: (212) 446-4900
Attention: Frederick Tanne, Esq.
All notices shall be deemed given when received by the addressee.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Assignment.
14.1.1 Neither Party shall assign or otherwise transfer this
Agreement or any interest herein or right hereunder without the prior written
consent of the other Party (not to be unreasonably withheld), and any such
purported assignment, transfer or attempt to assign or transfer any interest
herein or right hereunder shall be void and of no effect; except that each Party
(i) may assign its rights and obligations hereunder to one of its Affiliates
without the prior consent of the other Party (although, in such event, the
assigning Party shall remain primarily responsible for all of its obligations
and agreements set forth herein, notwithstanding such assignment) and (ii) may
assign its rights and obligations to a successor (whether by merger,
consolidation, reorganization or other similar event) or purchaser of all or
substantially all its business assets relating to all Products, provided, that
such successor or purchaser has agreed in writing to assume all such Party's
rights and obligations hereunder and a copy of such assumption is provided to
the other Party.
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14.1.2. Notwithstanding Section 14.1.1, WC may assign this
Agreement, in whole but not in part, at any time after the first anniversary of
the Effective Date without the consent of, but with notice to, BMSLC. If WC
makes any such assignment to a Third Party that could reasonably be expected to
purchase materially lower volumes of the Products than the average volumes
purchased by WC hereunder during the immediately preceding twelve (12) calendar
months (as reasonably determined by BMSLC), BMSLC shall be entitled to adjust
the Purchase Prices of the Products based upon the volumes of the Products that
such assignee would reasonably be expected to purchase following such assignment
to reflect BMSLC's fully-burdened manufacturing cost for production of Products
following such assignment (assuming such lower volumes) plus 15%, all calculated
consistent with the methodology used to determine the initial Purchase Prices on
Schedule 3.1.1. Such Purchase Prices shall thereafter be subject to adjustment
as provided in Section 3.1. Upon an assignment of this Agreement by WC, BMSLC
may terminate this Agreement at any time after the earlier of (i) the second
anniversary of such assignment (provided BMSLC has given the assignee at least
12 months' prior notice) and (ii) such time as there is a qualified Initial
Alternate Manufacturer pursuant to Article XII (provided BMSLC has given the
assignee at least 12 months' prior notice).
Section 14.2 Non-Waiver. Any failure on the part of a Party to enforce at
any time or for any period of time any of the provisions of this Agreement shall
not be deemed or construed to be a waiver of such provisions or of any right of
such Party thereafter to enforce each and every such provision on any succeeding
occasion or breach thereof.
Section 14.3 Dispute Resolution.
14.3.1 The Parties recognize that disputes as to certain matters may
from time to time arise during the term of this Agreement which relate to either
Party's rights and/or obligations hereunder. It is the objective of the Parties
to establish procedures to facilitate the resolution of disputes arising under
or in connection with this Agreement, including without limitation all financial
disputes and any disputes as to the validity, construction, performance,
default, or breach hereof, in an expedient manner by mutual cooperation and
without resort to litigation. To accomplish this objective, but subject to
Section 14.3.3 below, the Parties agree to follow the procedures set forth in
this Section 14.3 if and when such disputes arise under or in connection with
this Agreement between the Parties. If the Parties cannot resolve the dispute
within 30 days of formal request by either Party to the other, any Party may, by
written notice to the other, have such dispute referred to the President of WC
and the President of the BMS Worldwide Medicines Group (or their designees) for
attempted resolution by good faith negotiations. If such personnel are unable to
resolve such dispute within thirty (30) days after such notice is received, then
such dispute shall be finally resolved, but only if written notice is thereafter
served by a Party on the other Party specifically requesting binding arbitration
pursuant to Section 14.3.2.
14.3.2 Where a Party has served a written notice upon the other
requesting binding arbitration of a dispute pursuant to this Section 14.3.2, any
such arbitration shall be held in New York, New York, according to the
Commercial
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<PAGE> 39
Arbitration Rules (the "Rules") of the American Arbitration Association (the
"AAA"). Any arbitration herewith shall be conducted in the English language. The
arbitration shall be conducted by one arbitrator who is knowledgeable in the
subject matter which is at issue in the dispute and who is selected by mutual
agreement of the Parties or, failing such agreement, shall be selected according
to the AAA rules. The Parties shall have such discovery rights as the arbitrator
may allow, but in no event broader than that discovery permitted under the
Federal Rules of Civil Procedure. In conducting the arbitration, the arbitrator
shall apply the New York Rules of Evidence, and shall be able to decree any and
all relief of an equitable nature, including but not limited to such relief as a
temporary restraining order, a preliminary injunction, a permanent injunction,
or replevin of property, as well as specific performance. The arbitrator shall
also be able to award direct damages, but shall not award any other form of
damages (e.g., consequential, punitive or exemplary damages). The reasonable
fees and expenses of the arbitrators, along with the reasonable legal fees and
expenses of the Parties (including all expert witness fees and expenses), the
fees and expenses of a court reporter, and any expenses for a hearing room,
shall be paid as follows: If the arbitrators rule in favor of one Party on all
disputed issues in the arbitration, the losing Party shall pay 100% of such fees
and expenses; if the arbitrators rule in favor of one Party on some issues and
the other Party on other issues, the arbitrators shall issue with the rulings a
written determination as to how such fees and expenses shall be allocated
between the Parties. The arbitrators shall allocate fees and expenses in a way
that bears a reasonable relationship to the outcome of the arbitration, with the
Party prevailing on more issues, or on issues of greater value or gravity,
recovering a relatively larger share of its legal fees and expenses. The
decision of the arbitrators shall be final and may be entered, sued on or
enforced by the Party in whose favor it runs in any court of competent
jurisdiction at the option of such Party. Whether a claim, dispute or other
matter in question would be barred by the applicable statute of limitations,
which statute of limitations also shall apply to any claim or disputes subject
to arbitration under this Section, shall be determined by binding arbitration
pursuant to this Section 14.3.
14.3.3 Notwithstanding anything to the contrary in this Section
14.3, either Party may seek immediate injunctive or other interim relief without
resort to arbitration from any court of competent jurisdiction as necessary to
enforce and prevent infringement or misappropriation of the patent rights,
copyright rights, trademarks, confidential information, trade secrets, or other
intellectual property rights owned or controlled by a Party or its Affiliates or
to prevent breach of Article 9.
Section 14.4 Entirety of Agreement. This Agreement, the Related Agreements
and the Schedules and Exhibits hereto and thereto, contain the entire agreement
and understanding between the Parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter. Neither Party shall be liable or bound to any other Party in any
manner by any representations, warranties or covenants relating to such subject
matter except as specifically set forth herein or in the Related Agreements.
Section 14.5 Public Announcements. The form and content of any public
announcement to be made by one Party regarding this Agreement, or the subject
matter contained herein, shall be subject to the prior written consent of the
other Party (which
35
<PAGE> 40
consent may not be unreasonably withheld), except as may be required by
applicable law (including, without limitation, disclosure requirements of the
SEC, NASDAQ, or any stock exchange) in which event the other Party shall use
commercially reasonable efforts to give the other Party reasonable advance
notice and reasonable opportunity to review any such disclosure.
Section 14.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
Section 14.7 Relationship of the Parties. In making and performing this
Agreement, the Parties are acting, and intend to be treated, as independent
entities and nothing contained in this Agreement shall be construed or implied
to create an agency, partnership, joint venture, or employer and employee
relationship between BMSLC and WC. Except as otherwise provided herein, neither
Party may make any representation, warranty or commitment, whether express or
implied, on behalf of or incur any charges or expenses for or in the name of the
other Party. No Party shall be liable for the act of any other Party unless such
act is expressly authorized in writing by both Parties hereto.
Section 14.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the Parties and delivered to the other Party.
Section 14.9 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
Parties shall negotiate in good faith with a view to the substitution therefor
of a suitable and equitable solution in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid provision;
provided, however, that the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby, it being intended that all of
the rights and privileges of the Parties hereto shall be enforceable to the
fullest extent permitted by law.
Section 14.10 Expenses. Each of BMSLC and WC shall bear its own direct and
indirect expenses incurred in connection with the negotiation and preparation of
this Agreement and the Related Agreements and, except as set forth in this
Agreement or any Related Agreements, the performance of the obligations
contemplated hereby and thereby.
Section 14.11 Descriptive Headings. The descriptive headings herein are
inserted for convenience only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
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<PAGE> 41
Section 14.12 Amendments and Waivers. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the Parties. By
an instrument in writing either Party may waive compliance by the other Party
with any term or provision of this Agreement that such other Party was or is
obligated to comply with or perform.
37
<PAGE> 42
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed in multiple counterparts by its duly authorized representative.
BRISTOL-MYERS SQUIBB LABORATORIES COMPANY
By: /s/ Robert E. Ewers, Jr.
---------------------------------
Name: Robert E. Ewers, Jr.
Title: Authorized Signatory
WARNER CHILCOTT, INC.
By: /s/ Beth Hecht
---------------------------------
Name: Beth Hecht
Title: Senior Vice President and
General Counsel
38
<PAGE> 43
SCHEDULES
Schedule 1.1A - List of Products and Trademarks
Schedule 1.1B - Specifications for the Products
Schedule 2.3.1 - Initial Order of Product for First Six Months After
Effective Date
Schedule 2.5 - Certificate of Analysis
Schedule 2.10.2 - Line Extension Products
Schedule 2.10.3(A) - New Products
Schedule 2.10.3(B) - Development Activities
Schedule 3.1.1 - Initial Purchase Price; Minimum Batch Sizes
Schedule 3.1.2 - Variable Product Costs
1
<PAGE> 44
SCHEDULE 1.1A
LIST OF PRODUCTS AND ASSOCIATED TRADEMARKS
<TABLE>
<CAPTION>
Products Associated
Trademarks
<S> <C>
Estrace Cream 42.5gm Estrace(R)
Estrace Cream 12gm w/applicator Estrace(R)
Ovcon-35 Tablet Oral 6x28 Ovcon(R); Ovcon & Moon Design
Ovcon-35 Tablet Oral 6x28 CLI Ovcon(R); Ovcon & Moon Design
Ovcon-35 Tablet Oral 28's sample Ovcon(R); Ovcon & Moon Design
Ovcon-35 Tablet Oral 6x21 Ovcon(R); Ovcon & Moon Design
Ovcon-50 Tablet Oral 6x28 Ovcon(R); Ovcon & Moon Design
Ovcon-50 Tablet Oral 1x6x28 Ovcon(R); Ovcon & Moon Design
Ovcon-50 Tablet Oral 6x28 sample Ovcon(R); Ovcon & Moon Design
</TABLE>
Note: The shelf life for Ovcon is two (2) years.
1
<PAGE> 45
SCHEDULE 1.1B
PRODUCT SPECIFICATIONS
See Attached
2
<PAGE> 46
SCHEDULE 2.3.1
INITIAL ORDER OF PRODUCT BY WC
FOR FIRST SIX MONTHS AFTER EFFECTIVE DATE
[To be provided by WC]
1
<PAGE> 47
SCHEDULE 2.5
CERTIFICATE OF ANALYSIS
See Attached
1
<PAGE> 48
SCHEDULE 2.10.2
LINE EXTENSION PRODUCTS
"Line Extension Products" shall mean any of (i) a chewable version of
the Ovcon(R)35 formulation and (ii) a chewable version of the Ovcon(R)50
formulation.
2
<PAGE> 49
SCHEDULE 2.10.3(A)
NEW PRODUCTS
"New Products" shall mean a 20 microgram Ovcon(R) formulation or a
chewable version thereof.
3
<PAGE> 50
SCHEDULE 2.10.3(B)
DEVELOPMENT ACTIVITIES
BMSLC will provide services for Line Extension Products and New Products
including:
1. Formulation Development
2. Analytical Development including stability studies
3. Pilot Scale Production
4. Process Scale-Up
BMSLC will issue written updates and reports, as agreed by the parties, in
respect of the foregoing.
4
<PAGE> 51
SCHEDULE 3.1.1
INITIAL PURCHASE PRICE; MINIMUM BATCH SIZES
<TABLE>
<CAPTION>
INITIAL
PURCHASE PRICE MINIMUM
(U.S. DOLLARS) BATCH SIZE
<S> <C> <C>
Estrace Cream 42.5gm 0.880 22,608
Estrace Cream 12gm w/applicator 0.765 74,496
Estrace Cream 12gm 4 pack* 2.370 74,160
Ovcon-35 Tablet Oral 6x28 4.692 33,988
Ovcon-35 Tablet Oral 6x28 CLI 4.761 33,988
Ovcon-35 Tablet Oral 28's sample 6.429 18,470
Ovcon-35 Tablet Oral 6x21 4.520 33,988
Ovcon-50 Tablet Oral 6x28 5.072 33,852
Ovcon-50 Tablet Oral 1x6x28 5.244 33,852
Ovcon-50 Tablet Oral 6x28 sample 7.360 18,470
</TABLE>
--------
* Line Extension Product
5
<PAGE> 52
SCHEDULE 3.1.2
VARIABLE PRODUCT COSTS
<TABLE>
<CAPTION>
VARIABLE
PRODUCT COSTS
-------------
<S> <C>
Estrace Cream 42.5gm .576
Estrace Cream 12gm w/applicator .505
Estrace Cream 12gm 4 pack* 1.378
Ovcon-35 Tablet Oral 6x28 2.906
Ovcon-35 Tablet Oral 6x28 CLI 2.967
Ovcon-35 Tablet Oral 28's sample 3.789
Ovcon-35 Tablet Oral 6x21 2.763
Ovcon-50 Tablet Oral 6x28 3.239
Ovcon-50 Tablet Oral 1x6x28 3.390
Ovcon-50 Tablet Oral 6x28 sample 4.596
</TABLE>
----------
* Line Extension Product
6
