EXHIBIT 10.7
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made this 17 day of
October,1995 by and between NICHE PHARMACEUTICALS, INC, a Texas corporation
("Purchaser") and Dow ▇▇▇▇▇▇ Pharmaceuticals, Inc., a
Texas corporation ("Seller").
WHEREAS, Seller owns all right, title and interest in and to that
certain product known as Unifiber(R) (the "Product"); and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, all
of Seller's right, title and interest in and to the Product, on the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and conditions herein contained, the parties agree as follows:
1. PURCHASE AND SALE. Seller shall sell to Purchaser and Purchaser
shall purchase from Seller on the terms and conditions set forth in this
Agreement, all of Seller's right, title and interest, both tangible and
intangible, in and to the Product, free and clear of all claims, liens, security
interests and encumbrances, including but not limited to the following:
A. All state and federal patent, trademark, trade dress,
trade name and copyright rights, whether registered or not;
B. All right, title and interest in and to contracts,
commitments, and orders for the Product and all deposits and
pre-payments, if any, held by Seller therefor;
C. All advertising, promotional and educational materials
and literature, including all artwork related thereto;
D. All educational and training materials;
E. All clinical and medical data, studies and information
within the possession or knowledge of Seller concerning the
Product;
F. All targeted sales data regarding physician, nurse and
other customer users. Purchasers or distributors of the
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Product, including customer, physician, nurse and distributor lists,
and all chargeback lists pertaining to product bids or contracts, and;
G. All goodwill associated with the Product; and
H. Seller shall provide to Purchaser as set forth in Sections
6 and 10 (sub-sections A, B, and C), finished/packaged inventory of
Product, which shall be a six (6) months supply of each unit offered
for sale. The unit breakdown of this inventory shall be based on the
previous six (6) months net unit sales.
2. PURCHASE PRICE. The total purchase price to be paid by Purchaser to
Seller for all the property, assets, inventory and rights of Seller in and to
the Product and the Covenant Not to Compete (as set forth herein below) shall be
a minimum sum of ONE MILLION SEVEN HUNDRED THOUSAND and No/100 DOLLARS
($1,700,000.00) or 20% of annual Unifiber Net Sales over the five (5) year
installment period with a maximum payment cap of Three Million Dollars
($3,000,000).
3. PAYMENT OF PURCHASE PRICE. At the Closing Date, Purchaser shall pay
to Seller the sum of TWO HUNDRED THOUSAND and No/100 DOLLARS ($200,000.00) The
balance of the purchase price shall be paid in five (5) annual installments.
Such installments shall be as follows:
Purchaser shall pay to Seller the greater of
Due Date Minimum
On or Before Payment or Maximum Payment
-------------- --------------------------------------
Down Payment October 31, 1995 $ 200,000.00
installment One March 31, 1997 $ 200,000.00 or 20% of net sales
Installment Two March 31, 1998 $ 250,000.00 or 20% of net sales
Installment Three March 31, 1999 $ 300,000.00 or 20% of net sales
Installment Four March 31, 2000 $ 350,000.00 or 20% of net sales
Installment Five March 31, 2001 $ 400,000.00 or 20% of net sales
TOTAL $1,700,000.00 or 20% of net sales
capped at $3,000,000
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Each such installment shall be due and payable beginning on or before March 31,
1997 and each successive anniversary date thereof over the following four (4)
years and shall be accompanied by a declaration made by an authorized
representative of Purchaser certifying the accuracy of the Net Sales and
Installment payment calculations. For purposes of this Agreement, Net Sales
shall mean (i) the gross amount invoiced by Purchaser, or its affiliates, if
any, to bona fide customers, wholesalers or distributors in arm's length
transactions excluding those sales to affiliates of Purchaser who are purchasing
for resale to a third party, or (ii) the gross amount which would have been
invoiced had such sales been made as a bona fide, arm's length sale of the
Product, less:
A. quantity and/or normal and customary cash discounts
allowed or taken;
B. customs, duties, and taxes (not including sales or
income taxes payable by Purchaser or its affiliate paid
related to such sale; and,
C. rebates, administrative fees, reimbursements or other
similar payments to or for Medicaid or any other government
programs.
4. GUARANTEE. Purchaser shall cause to be executed and
delivered to Seller prior to or upon Closing Date, a personal
guarantee for al1 amounts due to Seller hereunder from ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, majority shareholder of Purchaser.
5. CLOSING DATE. The consummation of this transaction shall be on such
date after December 31, 1995 as Seller and Purchaser agree that all or
substantially all of the distributors or purchasers of the Product have been
notified of the pending change in ownership of the Product (the "Closing Date").
However, in no event shall such closing be later than January 31, 1996. An
actual physical
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Closing Date is not required and the parties may exchange and deliver documents
and other property and things hereunder by mail, overnight delivery, wire
transfer or other means.
6. SELLER'S DELIVERY AT CLOSING DATE. At the Closing Date,
Seller shall deliver to Purchaser the following:
A. Such bills of sale, assignments and other instruments
deemed necessary or proper to transfer to Purchaser all of the rights
and interests in and to the Product being sold pursuant to this
Agreement, free and clear of all liens, charges and encumbrances
whatsoever; and
B. Any payment which may be due from Seller to Purchaser
as set forth in Section 10;
C. All inventory that is remaining, if any, due to the
Purchaser pursuant to Section lH, hereunder after deducting
those quantities set forth in Section 10, subsections A and C;
and
D. Possession of all properties and assets described in
this Agreement.
7. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The obligation of
Purchaser to consummate the purchase of the Product as contemplated by this
Agreement is subject to and contingent upon Purchaser and Purchaser's agents and
representatives having the right to review, inspect, and approve the inventory
of the Product to be delivered pursuant to this and all of Seller's books and
records relating to the Product, including but not limited to all clinical data
and studies, all educational, advertising and promotional materials and artwork,
and all targeted sales data.
Seller shall cooperate with Purchaser in making all of the documents,
things and properties mentioned in this paragraph available and accessible to
Purchaser during the inspection period. Purchaser agrees not to disseminate or
disclose any of Seller's proprietary information to any party except as
necessary to determine manufacturing capabilities, and then only after obtaining
a nondisclosure agreement from such party or parties. If any of the conditions
set forth in this paragraph are not satisfied, then Purchaser shall have the
right, but not the obligation to terminate
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this Agreement by delivering to Seller written notice of termination within ten
(10) days from the date of this Agreement, and thereafter neither Seller nor
Purchaser shall have any obligations or liability whatsoever to the other with
respect to this Agreement.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The obligation of
Seller to consummate the sale of the Product as contemplated by this Agreement
is subject to and contingent upon satisfaction of each and all of the following
conditions. Purchaser shall deliver to Seller:
A. Two Hundred Thousand dollars ($200,000.00) cash or cash
equivalent as a Down Payment on or about October 31, 1995 as set forth
in the Escrow Agreement which is incorporated by reference as if fully
set forth herein. If the arrangement contemplated herein does not
close, Seller shall return the cash Down Payment plus seven (7%)
percent interest to Purchaser.
B. Purchaser shall deliver to Seller the personal guaranty of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ which shall be incorporated herein by reference as
if fully set forth herein.
9. CONDUCT OF BUSINESS PENDING CLOSING DATE
A. Pending the Closing Date, Seller shall continue to ship the
Product and ▇▇▇▇ and collect all revenues therefrom in the same manner
as previously, provided, however, that Seller shall with regards to
current Product bid contracts or new contract bids will consult with
Purchaser to insure that the customers receive reasonable attention and
a timely bid or quote. The amounts of Products sold by Seller prior to
the Closing Date shall be deducted from those amounts due to Purchaser
pursuant to Section 10H, hereunder. On the Closing Date, Seller shall
pay to Purchaser an amount equal Seller's Net Sales made during the
time from November 1, 1995 to the Closing Date subtracting five (5%)
percent of the total for administrative expenses related to the sales.
Further, Seller agrees not to enter into any commitments, arrangements,
or other matters that would materially affect the manufacture or sale
of the Product, including any promotional incentives that would cause
wholesalers or other direct accounts to purchase
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more than normal inventory needs, without the prior written consent of
Purchaser. To accomplish the foregoing, Seller agrees to assure the
stability of enough Product to supply normal demand, without
back-orders, until the Closing Date, and to accept returns on all
out-dated Product that was sold or in distribution prior to the Closing
Date. As soon as is reasonably practical after the execution of this
Agreement, Seller and Purchaser will jointly notify all distributors
and Purchasers of the Product of the change in ownership of the
Product, with instructions on ordering and handling returns of the
Product. After the Closing Date, in the event Purchaser, in good faith,
accepts returns of Product delivered by Seller prior to the Closing
Date, Seller agrees to reimburse Purchaser for such reasonable amounts
returned Product upon presentment thereof by Purchaser.
B. For no more than five (5) total business days and upon
fifteen (15) days notice to Seller, Seller agrees at Seller's
convenience to assist Purchaser with training Purchaser's bids &
contract manager on utilizing the order net software and other follow
up programs necessary to manage chargebacks and rebates from the buyers
of the Product. Purchaser shall pay all reasonable travel and other
expenses associated with any and all of the training set forth above.
C. On or about December 27, 1995, Seller shall deliver to
Purchaser Product in the following amounts:
CANISTER SIZE QUANTITY
5 oz 4000 units
9 oz 2000 units
16 oz 4000 units
These amounts shall deducted from those amounts due to Purchaser pursuant to
Section 1H. hereunder. In the event, any of the conditions precedent are not met
and the arrangement contemplated hereunder does not close. Purchaser shall
promptly return the above referenced quantities to Seller.
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10. CONDUCT OF BUSINESS AFTER CLOSING DATE,
A. Seller agrees to let Purchaser ship and invoice Sellers
labeled Product to the trade until Seller's labeled inventory is
exhausted and Purchaser has acquired inventory of the Product with
Purchaser's label affixed which shall in no event be later than
December 31, 1997.
B. Seller agrees not to disseminate to the trade any
communication whether oral or written which pertains to the Product
without first receiving written approval from the Purchaser.
C. Seller agrees to take reasonable steps to make sure that
all of Seller's employees including outside sales, marketing, inside
order support staff, manufacturing, returns, shipping and receiving,
are instructed to refer to the Purchaser any and all inquiries and
orders pertaining to the Product.
D. As set forth in Section 13, Seller agrees to provide
manufacturing and packaging for Product through December 31, 1996.
Purchaser reserves the right to order up to 12 months of Product
inventory to be packaged on or before December 31, 1996. Further,
Purchaser agrees to accept delivery during 1997 of this aforementioned
inventory in no less than quarterly shipments until said inventory is
exhausted.
11. ASSUMPTION OF CERTAIN OBLIGATIONS. Purchaser agrees to assume all
contractual obligations and bid commitments of Seller relating to the Product.
Such assumption shall be as of the Closing Date. Purchaser shall indemnify and
hold harmless Seller from and against any such assumed obligations. All other
liabilities, trade accounts, security interests, liens and encumbrances
affecting the Product and the assets which are the subject hereof shall be
satisfied or discharged by Seller prior to the Closing Date.
12. PURCHASE OF ADDITIONAL INVENTORY. In addition to the assets set
forth in paragraph 1, Purchaser agrees to purchase from Seller, and Seller
agrees to sell to Purchaser, additional quantities of Product through December
31, 1996 to be delivered prior to December 31, 1997 at the prices set forth on
Exhibit "A." Said purchases shall be made based upon a forecasts subrnitted by
Purchaser to Seller no later than July 31, 1996. Purchaser shall not be
obligated to purchase from Seller more than eighty percent (80%) of said
forecast and Seller shall not be obligated
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to sell to Purchaser more than one hundred twenty percent (120%) of said
forecast. In addition, Seller further agrees to ship to Purchaser such inventory
on a quarterly or as needed basis until such Product supplies are exhausted.
13. REPRESENTATIONS AND WARRANTIES OF SELLER. In addition to any other
representations and warranties contained in other paragraphs of this Agreement,
Seller hereby, makes the following representations and warranties to Purchaser,
the fulfillment and accuracy of which is a condition precedent to Purchaser's
obligations under this Agreement, and which representations and warranties shall
survive the Closing Date regardless of what investigations Purchaser shall have
made with respect thereto prior to the Closing Date. Each of the individual
representations and warranties (i) constitutes a material part of the
bargained-for consideration and is being relied upon by Purchaser, and (ii) is
true in all respect as ofthe date of this Agreement, and shall be true in all
respects on the Closing Date.
A. Seller is the sole owner of the Product and all rights
associated therewith, with full right to sell or dispose of it as
Seller may choose and no other person or persons whatsoever have any
claim, right, title, interest or lien in, to or on the Product;
B. No litigation, actions or proceedings, legal, equitable,
administrative, through arbitration, or otherwise, are pending or
threatened which might affect the Product or the consummation of the
purchase and sale described in this Agreement;
C. Seller owes no obligations and has contracted no liabilities
which affect the Product or which might affect the consurnmation of
the purchase and sale described in this Agreement;
D. Seller is a corporation, duly organized, validly existing
and currently in good standing under the laws of the State of Texas
and has full power to own, lease and operate its properties and
carry on its business as and where it is being conducted;
E. The execution and performance of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly
authorized by Seller's Board of Directors and no other or further
corporate action by Seller is necessary, nor is any governmental or
court approval required, and this Agreement constitutes the valid and
binding obligation of Seller, enforceable in accordance with its terms;
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F. To the best of the knowledge of Seller, there is no fact
that materially adversely affects or in the future may materially
adversely affect the Product which has not been set forth in this
Agreement;
G. A true and correct list of all patent, trademark and
copyright registrations or pending applications held by Seller with
respect to the Product is attached hereto as Exhibit "B". With respect
to any pending application, Seller has no knowledge that any such
pending application will not be registered in due course but makes no
guarantees as to whether or not such pending applications will issue;
and,
H. Seller will throughout the term of this Agreement, act in
accordance with all applicable statutes, laws and regulations.
REPRESENTATIONS AND WARRANTIES OF PURCHASER. In addition to
any other representations and warranties contained in other paragraphs of this
Agreement, Purchaser hereby makes the following representations and warranties
to seller, the fulfillment and accuracy of which is a condition precedent to
Seller's obligations under this Agreement, and which representations and
warranties shall survive the Closing Date regardless of what investigations
Seller shall have made with respect thereto prior to the Closing Date. Each of
the individual representations and warranties (i) constitutes a material part of
the bargained-for consideration and is being relied upon by Seller, and (ii) is
true in all respect as of the date of this Agreement, and shall be true in al]
respects on the Closing Date.
A. Purchaser is a corporation, duly organized, validly existing
and currently in good standing under the laws of the State of Texas
and has full power to own, lease, and operate its properties and
carry on its business as and where it is being conducted;
B. The execution and perforrnance of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly
authorized by Purchaser's Board of Directors and no other or further
corporate action by Purchaser is necessary, nor is any governmental or
court approval required, and this Agreement conslitutes the valid and
binding obligation of Purchaser, enforceable in accordance with its
terms; and,
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C. Purchaser will throughout the term of this Agreement act in
accordance with all applicable local, state, statutes, laws and
regulations.
14. COVENANT NOT TO COMPETE. In consideration of the purchase of the
Product and the payment to Seller of the purchase price, Seller, and Seller's
affiliates, subsidiaries, parent, jointly and severally, agree not to, either
directly or indirectly, as principal, agent, employee, consultant, guarantor,
lender or otherwise, manufacture or market the Product for so long as Purchaser
is manufacturing and/or marketing the Product, nor shall any such party or
parties manufacture or market any powdered cellulose dosage form of a dietary
fiber food supplement, anywhere in the world, for a period of seven (7) years
from the Closing Date. The parties agree that the restrictions contained in this
paragraph are reasonable in time, scope and area and are a material part of the
bargained-for consideration in the purchase and sale of the Product and without
which Purchaser would not have entered into this Agreement.
15. COSTS AND EXPENSES. All costs and expenses in conducting the
purchase and s ale described in this Agreement in the manner prescribed
by this Agreement shall be home by the parties in the following manner:
A. Each party shall pay the fee of the attorney representing it
in negotiating this Agreement and supervising the purchase and sale
described herein; and
B. Seller shall bear any and all debts, liabilities,
obligations, charges and expenses ("Liabilities"), known or which may
hereinafter become known, regardless of kind or character, incurred
with respect to the Product prior to the Closing Date except to the
extent such Liabilities are caused by the negligence of intentional
misconduct of Purchaser.
16. INDEMNIFICATION. Seller shall indernnify and hold Purchaser and the
property of Purchaser free and harmless from any and all claims, losses,
damages, deficiencies, injuries and liabilities (including reasonable attorney's
fees incurred in defense thereof), arising from any rnisrepresentation, breach
of warranty or non-fulfillment of any agreement made herein, or on account of
Seller's ownership, manufacture, distribution or sale of the Product prior to
the Closing Date, including all Product inventory sold to Purchaser pursuant to
the provisions of this Agreement, unless it is deterrnined that the liability is
on account of Purchaser's handling of such Product inventory.
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Purchaser shall indemnify and hold Seller and the property of Seller
free and harmless from any and all claims, losses, damages, injuries and
liabilities (including reasonable attorney's fees incurred in defense thereof),
arising from or in connection with any misrepresentation, breach of warranty or
non-fulfillment of any agreement made herein or on account of Purchaser's
ownership, manufacture, distribution or sale of the Product after the Closing
Date, except Product inventory sold to Purchaser pursuant to the provisions of
this Agreement, unless it is determined that the liability is on account of
Purchaser's handling of such Product inventory.
17. WAIVER OF BREACH. Failure of any party to protest a breach by any
other party or waiver by any party of a breach shall not operate as or be
construed as a waiver of rights or remedies as to that breach and a waiver by
any party of a breach shall not operate as or be construed as a waiver of rights
or remedies as to any subsequent breach by any other party.
18. SUCCESSORS AND ASSIGNS. The rights and obligations of the parties
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the parties. However, neither party shall assign this
Agreement without the prior written consent of the other party, which consent
shall not be unreasonably withheld.
19. ENTIRE AGREEMENT. This instrument contains the entire Agreement
between the parties concerning the subject matter hereof, and it may not be
amended orally, but only by an agreement in writing, signed by the party against
whom enforcement of any waiver, change modification, extension, or discharge is
sought.
20. PARAGRAPH HEAVINGS. The paragraph headings contained herein are
for convenience only, and do not purport to accurately surnmarize the
contents of the paragraph they head, and shall not modify, or in any way
affect the provisions of this Agreement or be of any relevance in the
construction thereof.
21. MEDIATION AND ARBITRATION OF DISPUTES.
A. Should either Party reasonably believe the other has
committed a breach of this Agreement, such Party shall notify the other
in writing stating its belief that a breach has been committed and
setting forth its reasons for such belief;
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B. If the Party in receipt of such notice does not respond
within thirty (30) days, except in the event of an alleged breach of
Paragraph 3, which time shall be ten (10) days, of its receipt of same,
or if it does respond and the Party receiving such response is not
satisfied with the response or the proposed remedy, such Party may
thereafter demand arbitration;
C. Should the Parties fail to resolve any controversy or claim
ansmg out of or relating to the interpretation or application of any
term or provision set forth herein, or the alleged breach thereof, such
controversy or claim shall be resolved by arbitration in accordance
with the Rules of the American Arbitration Association;
D. Judgment upon any award rendered pursuant to Paragraph 23 C
herein may be entered in any court having jurisdiction of the Party
against whom the award is rendered;
E. Any award rendered pursuant to the terms and conditions set
forth herein shall be final and binding; and
F. Any arbitration held pursuant to this Agreement shall be
held in Austin, Texas. Each Party shall bear its own expenses and shall
equally share the administrative expenses of the hearing, including
arbitration fees, the expenses of a court reporter, hearing room, etc.
22. APPLICABLE LAW. This Agreement shall be subject to, construed in
accordance with, and governed by the laws of the State of Texas.
23. MUTUAL PREPARATION. Each party has read the foregoing Agreement,
fully understands the contents thereof, and is under no duress or pressure of
any sort to execute it. This Agreement was mutually prepared and shall not be
construed against any party by reason of his role in such preparation.
24. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, but this Agreement
shall be construed as if such invalid, illegal, or unenforceable provisions had
never been contained here. If, moreover, any one of more of the provisions
contained in this Agreement shall, for any reason, be held to be excessively
broad as to time, duration,
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geographical scope, activity, or subject, it shall be construed, by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
25. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, but all counterparts taken together shall constitute one and the
same agreement, binding upon all of the parties hereto.
26. FORCE MAJEURE.
A. Except as provided for elsewhere herein with respect to
alternative sources of supply, either Party to this Agreement is
totally or partially prevented or delayed in the performance of any of
its obligations under this Agreement by force majeure and if such Party
gives written notice thereof to the other Party, within five (5)
working days of the occurrence of such event, specifying the matters
constituting force majeure together with such evidence as it reasonably
can give and specifying the period for which it is estimated that such
prevention or delay will continue, then the Party so prevented or
delayed shall be excused from the performance as from the date of such
notice. If the period of any actual non-performance of Purchaser
because of Purchaser's force majeure conditions plus the anticipated
future period of Purchaser's non performance because of such conditions
will exceed an aggregate one hundred eighty (180) days within any
twenty-four (24) month period. Seller may terminate this Agreement by
notice to Purchaser.
B. For the purpose of this Agreement, the term "force majeure"
shall be deemed to include any cause affecting the performance of the
obligations set forth in this Agreement arising from or attributable to
acts, events, omissions or accidents beyond the reasonable control of
the Party who is obligated to perform and in particular but without
limiting the generality thereof shall include strikes, lock-outs or
other industrial action, civil commotion, riot, invasion, war, threat
of or preparation for war, fire, explosion, storm, flood, earthquake,
subsidence, epidemic or other natural physical disaster, impossibility
of the use of railways, shipping aircraft, motor transport, or other
means of public or private transport.
C. As soon as practicable after such notification, the Parties
shall consult together to decide how, if at all, the effects of the
force majeure can be mitigated, and what, if any, modification of
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the terms set forth herein may be required in order to arrive at an
equitable solution.
27. NOTICES. Any notice required under this Agreement shall be in
writing sent by registered or certified mail or by telex or telegrams,
and shall be deemed to be effective on the date of mailing. Unless
otherwise changed by notice in writing from Purchaser to Seller.
Purchaser may serve notice to Seller as follows:
Dow ▇▇▇▇▇▇ Pharrnaceuticals, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
P. O. Box 2006
Sugar Land, Texas 77487
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Unless otherwise changed by notice from Seller to Purchaser, Seller may serve
notice to Purchaser as follows:
Niche Pharmaceuticals, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇, President/CEO
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
28. FURTHER ASSISTANCE. Purchaser and Seller agree to duly execute and
deliver, or cause to be duly executed and delivered, such further instruments
and do and cause to be done such further acts and things, including, without
limitation, the filing of such additional assignments, agreements, documents and
instruments, that may be necessary or as the other party hereto may at any time
and from time to time reasonably request in connection with this Agreement or to
carry out more effectively the provisions and purpose of, or to better assure
and confirm unto such other Party its rights and remedies under this Agreement.
29. AUDIT. Purchaser shall keep accurate books and records using
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Generally Accepted Accounting Principles ("GAAP") which shall:
A. contain inforrnation reasonably necessary for determination
of all payments due pursuant to this Agreement;
B. be maintained at Purchaser's principal offices; and
C. be available for inspection by Seller or Seller's agent
upon reasonable written notice to Purchaser.
Seller's right to inspect Purchaser's books and records shall
be;
A. those books and records containing information reasonably
necessary to verify the accuracy of Purchaser's payments;
B. Purchaser's regular hours of business; and
C. reasonable duration
30. CONFIDENTIALITY. The Secrecy Agreement executed between the Parties
hereto on May 24, 1993 shall apply to this Agreement as if fully set forth
herein and is hereby incorporated by reference. The term of the Secrecy
Agreement shall be exlended until the later of March 31, 2002 or the termination
of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
PURCHASE AGREEMENT as of the date set forth above.
SELLER: PURCHASER:
Dow ▇▇▇▇▇▇ Pharmaceuticals, Inc. Niche Pharmaceuticals, Inc.
a Texas corporation a Texas corporation
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
Its: and Chief Financial Officer ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President/CEO
DATE: October 6, 1995 DATE: October 9, 1995
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