1
Exhibit 10.11
ALTEON
Alteon Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(201) 934-5000- Fax (▇▇▇) ▇▇▇-▇▇▇▇
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 25th day of September, 1995 by and between ALTEON
INC. of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (hereinafter called
"Alteon") of the one part and ERYPHILE BV of Marten ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (hereinafter called "Eryphile") of the other part
WHEREAS :
(A) Alteon has developed and is the owner of the proprietary rights to the
Product (as hereinafter defined), and
(B) Alteon and Eryphile desire to enter into an agreement pursuant to which
Eryphile will have the sole and exclusive right to market, distribute
and sell such Product in the Territory (as hereinafter defined)
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, THE PARTIES HERETO AGREE as follows :
Grant and Acceptance of Rights
1.01 Alteon, subject to the terms and conditions of this Agreement, hereby
grants to Eryphile the sole and exclusive right to purchase the Product
for re-sale in the Territory (as such terms "Product" and "Territory"
are defined in Section 2), and Eryphile accepts such appointment. Said
appointment shall mean that Alteon shall not appoint any third party
for the promotion, distribution or sale of the Product (whether under
Alteon's own or any other trademarks) in the Territory, and shall not
itself distribute or sell the same in or to the Territory. Alteon shall
refer to Eryphile all contacts for the sale of and any enquiries
relating to the Product in the Territory.
1.02 Eryphile shall be an independent contractor under this Agreement.
Except as otherwise provided in this Agreement or expressly agreed
between the parties hereafter in writing, Eryphile is not authorised
to: (i) enter into agreements for or on behalf of Alteon; (ii) create
any obligation or liability, express or implied, for or on behalf of
Alteon; (iii) accept settlement of any debt or other obligation due or
owed to Alteon; (iv) accept service of process for Alteon; or (v) bind
Alteon in any manner or thing whatsoever; and Eryphile shall not list,
print or display Alteon's name in such manner as to indicate or imply
that there is an employer-employee or principal-agent relationship
between Alteon and Eryphile. Distribution Agreement Page 2
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1.03 Subject to its material compliance with all applicable laws and
regulations and except as otherwise provided in this Agreement,
Eryphile shall have full control over the manner and means of
performing its obligations hereunder. All expenses incurred by Eryphile
in connection with the performance of such obligations, including the
appointment and remuneration of employees, agents or representatives,
shall be the sole responsibility of Eryphile.
2. Product and Territory
2.01 The Product is described in Exhibit A hereto, and includes any and all
ancillary products relating thereto and any and all modifications,
improvements, developments or replacements of or appertaining to such
Product except that the Product shall in all events be therapeutic
dosage forms only in finished product form only. The parties from time
to time by mutual agreement in writing may add to such Exhibit any
other existing or future product of Alteon.
2.02 The "Territory" shall consist of the countries specified in Exhibit B
hereto and such other countries (if any) as the parties from time to
time to time may add to such Exhibit by mutual agreement in writing.
2.03 Eryphile is not acquiring any rights to the Product outside the
Territory. Accordingly, Eryphile shall not sell any Product to anyone
outside the Territory, and shall not sell any Product to anyone in the
Territory who either Eryphile or Alteon has reasonable grounds to
believe might resell it outside the Territory or might permit any
Product obtained by it to be transported outside the Territory.
2.04 Alteon is and will at all times be the owner of all rights to the
Product, including registrations with governmental authorities in the
Territory, except for the distribution rights granted pursuant to this
Agreement.
3. Promotion and Sale of Product
During the term of this Agreement:
3.01 Eryphile shall use its best efforts in the registration and related
clinical testing, promotion, distribution and sale of the Product in
the Territory. Such efforts in Israel and South Africa shall not be
less than the efforts which it devotes to new products of comparable
commercial promise in countries with comparable market opportunities.
3.02 Eryphile shall organize and maintain a competent promotional and
selling organization for the Product in the Territory, and hold an
inventory of the Product sufficient to meet market demand therefor in
the Territory without undue delay.
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3.03 Alteon shall provide Eryphile with reasonable quantities of such
English-language promotional and advertising material as it from time
to time shall have available on the Product. On the basis of such
material, Eryphile shall be responsible for the preparation of such
local-language promotional and advertising material as may be required,
such material to be subject to the reasonable prior approval of Alteon.
Alteon shall also provide Eryphile with such quantities of samples of
the Products as from time to time shall be reasonably agreed between
the parties.
3.04 Eryphile shall refer to Alteon all enquiries for the Product from
outside the Territory.
3.05 Alteon undertakes to provide Eryphile as and when appropriate with
scientific, technical and clinical advice and information in relation
to the Product, and to respond promptly and constructively to enquiries
or recommendations made from time to time by Eryphile, whether on its
own initiative or at the request of opinion leaders or other interested
parties in the Territory, concerning the use of the Product or possible
improvements or modifications thereof.
3.06 Eryphile shall comply with all health registration laws, regulations
and orders of any government authority within the Territory and with
all other governmental requirements applicable to its sales activities
with respect to the Product. Alteon shall furnish Eryphile with such
assistance and cooperation as may reasonably be requested in connection
with compliance with such governmental requirements, including without
limitation the file of clinical and other data and such samples of the
Product or its active ingredients as may be required for registration
purposes. Eryphile shall also use its best efforts to obtain, at its
own expense, any import license, foreign exchange permit, or other
permit or approval it may need for the performance of its duties under
this Agreement. In particular and whenever appropriate, Eryphile will
proceed expeditiously to take all such steps as shall be reasonably
necessary to obtain regulatory approval for each and every new
application or therapeutic dosage form of the Product, including the
conduct, at Eryphile's expense, of further clinical trials or similar
procedures within the Territory to the extent (if any) required in each
case. All registrations, licences, permits and other government
approvals and filings relating to the Product shall specify that Alteon
is the owner of the Product and of the registrations and all other
rights to the Product except for the distribution rights granted
pursuant to this Agreement.
3.07 The Product shall be packaged and labelled for distribution and sale in
the Territory in accordance with local law in a manner to be mutually
agreed between the parties. Eryphile shall be entitled to have included
on such packaging and labelling an indication that it is the
territorial source of the Product.
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3.08 Eryphile undertakes not, without the prior written consent of Alteon,
to promote and sell in the Territory any product which is used for the
same therapeutic purpose as the Product.
4. Planning & Minimum Standards
4.01 Prior to 30th September of each year during the continuance of this
Agreement, Eryphile will submit to Alteon a plan for the marketing,
distribution and sale of the Product in the Territory during the next
calendar year (hereinafter referred to as "the Plan"), the first such
Plan to be annexed to this Agreement.
4.02 The Plan will include, on a country by country basis, Eryphile's
forecasted sales and marketing programme for the relevant year in
respect of each therapeutic dosage form of the Product and will propose
for such year in relation to Israel and South Africa respectively:
4.2.1 a minimum purchase quota (hereinafter referred to as the
"Minimum Quota"), and
4.2.2 a minimum program of marketing efforts (hereinafter referred
to as the "Minimum Program").
4.03 The Minimum Quotas and Minimum Programs for the said countries for each
calendar year will be finally established by mutual agreement between
the parties prior to the first day of the relevant year, failing which
an expert shall be appointed to resolve the open issues outstanding
between the parties, such expert to be named by mutual agreement of the
parties or, failing which and at the request of either party, by the
Secretary-General of the International Chamber of Commerce.
4.04 It is agreed with respect to Minimum Quotas that
4.4.1 they shall not exceed seventy per cent (70%) of reasonable
full purchase forecasts for the countries respectively
concerned for each relevant year;
4.4.2 in the fixing of Minimum Quotas in accordance herewith,
reasonable regard shall be taken of the sales of the Product
by Alteon or Alteon licensees in other comparable markets,
according to the guidelines included in Exhibit B hereto.
4.05 In the event that, in any calendar year, Eryphile shall fail in either
Israel or South Africa to meet both the applicable Minimum Quota and
Minimum Program, Alteon shall be entitled within ninety (90) days of
the end of such year to serve a written
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notice upon Eryphile, removing the country in question from the
Territory with effect 120 days from the date of such notice, provided
however that if Eryphile places orders with Alteon for Product within
such 120 days, for delivery within 90 days, in quantities equal to or
greater than the shortfall from the Minimum Quota during the prior
calendar year plus any shortfall from the pro rata portion of the
Minimum Quota for the current calendar year, such notice shall not take
effect and that country shall remain within the Territory.
4.06 In the event that Eryphile is no longer distributing the Product in
either Israel or South Africa, its distribution rights for Bulgaria,
Cyprus and Jordan shall be terminated and this Agreement shall be
terminated.
5. Prices and Terms of Sale
5.01 The price from Alteon to Eryphile for the Product will be established
by Alteon, in reasonable consultation with Eryphile, once the Product
is approved for sale in Israel. Alteon may change said price from time
to time upon giving Eryphile written notice of the change at least
ninety (90) days in advance of the effective date thereof. The new
price will apply to all orders accepted by Alteon after said effective
date, and also to orders accepted by Alteon prior to such date in the
case of any quantities of the Product ordered for shipment more than
ninety (90) days after that date. Alteon agrees, notwithstanding the
foregoing, that the prices charged by it to Eryphile shall not exceed
Alteon's lowest prices to other distributors for similar quantities.
5.02 Alteon will use reasonable commercial efforts to meet each order for
the Product placed by Eryphile on or before the requested shipment
date, provided such date is at least sixty (60) days from the date on
which Alteon receives the order. Orders from Eryphile shall be deemed
accepted by Alteon unless rejected in writing within fourteen (14) days
of receipt of order. Alteon reserves the right to specify a different
reasonable shipment date by written notice to Eryphile given within
such fourteen (14) days' period, failing which the shipment date
requested by Eryphile shall be deemed accepted. Shipments shall be made
pursuant to Eryphile's instructions; all deliveries shall be properly
packed for overseas shipment. It is understood that Eryphile may use
its normal purchase order form with respect to its purchases of the
Product, which form may specify (inter alia) the quantity of the
Product ordered, the method of shipment, the requested shipment
date(s), and the destination to which shipment is to be made. Such form
shall be used for convenience only, however, and any terms or
conditions on such form which are inconsistent with the terms and
conditions of this Agreement shall have no force or effect whatsoever
as between the parties, regardless of whether Alteon might otherwise be
deemed to have accepted such form by reason of its acknowledgement or
execution thereof.
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5.03 All payments due to Alteon from Eryphile for the Product hereunder
shall be payable in US Dollars within ninety (90) days of date of
invoice to such bank account as Alteon from time to time may designate.
The terms of sale shall be FOB Alteon's warehouse. Eryphile agrees to
pay and to hold Alteon harmless from all import duties, sales, use,
excise or other taxes, and all costs of transportation, brokerage,
handling and insurance, applicable to the delivery of the Product
hereunder from point of shipment.
5.04 During the term of this Agreement, if Eryphile so requests, Alteon will
give reasonable consideration to modification of this Agreement to
provide for the supply of Product in bulk form for repackaging in final
dosage form by Eryphile, provided Alteon deems such arrangement to be
in the best interests of both parties under terms and conditions
acceptable to Alteon.
6. Term of Agreement and Termination
6.01 Subject to earlier termination as provided for in this Section 6, this
Agreement shall be for an initial period commencing on the date hereof
and ending on the last day of the tenth (10th) year following the date
upon which regulatory approval is issued for the sale of the Product in
Israel. Thereafter, this Agreement shall automatically continue for
further consecutive periods of three (3) years each, unless and until
it is terminated on the last day of said initial period or of any such
further period by one party serving upon the other party not less than
one hundred and twenty (120) days' prior written notice to such effect.
6.02 In the event of a material default by either party in the performance
of any of its obligations under this Agreement, the other party shall
have the right to give written notice to the defaulting party advising
such party of the default involved. If the defaulting party shall not
have remedied such default within ninety (90) days (or, in the case of
the breach of a financial obligation, 30 days) after receipt of such
notice, the other party shall have the right, in addition to any other
rights or remedies it may have, to terminate this Agreement immediately
upon giving a further written notice to the defaulting party.
6.03 Either party may immediately terminate this Agreement at any time by
giving written notice of such termination in the event that the other
party is adjudged insolvent or institutes or permits to be instituted
against it (without a dismissal thereof within 90 days) any proceedings
in consequence of debt under any applicable law.
6.04 Upon the effective date of termination of this Agreement for whatever
reason, the right of Eryphile to promote, distribute and sell the
Product in the Territory shall cease. Thereupon, Alteon shall
re-purchase Eryphile's outstanding stock of the
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Product in saleable condition at a price equivalent to Eryphile's
landed cost therefor, FOB Eryphile's warehouse, provided, that Alteon
shall not be required to purchase more than 50% of the amount of
Product sold by Eryphile in the previous 12 months, and further
provided that Alteon shall have no obligation to re-purchase any
Product if the termination of this Agreement is on account of a breach
of contract by Eryphile.
6.05 Alteon shall continue to meet Eryphile's orders for the Product placed
prior to the effective date of termination hereof, but no termination
of this Agreement shall in any manner whatsoever release, or be
construed as releasing, either party from any liability to the other
arising out of or in connection with such party's breach of or failure
to perform any covenant, undertaking or obligation contained in this
Agreement.
7. Warranties
Alteon warrants that the Product will be manufactured in accordance
with generally accepted good manufacturing practices in the
pharmaceutical industry, will meet its specifications and will be free
from defects in materials or workmanship. Alteon shall promptly replace
any Product found to be defective without charge or expense to
Eryphile. Any such defective Product shall, at Alteon's election and
cost, be either returned to Alteon or destroyed.
Alteon makes no other warranty of any kind and excludes and disclaims,
to the extent permitted by applicable law, any and all implied
warranties, including (without limitation) those concerning the
merchantability of the Product or its suitability for any particular
purpose or use. Alteon excludes, in particular, any liability for
indirect or consequential damages.
Should Eryphile make any warranty or representation inconsistent with
or in addition to the warranties of Alteon stated in this ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ shall at its own expense defend and hold harmless Alteon from
any claim to the extent it is based upon such inconsistent or
additional warranty or representation.
8. Trademarks and Trade Names
8.01 Eryphile recognizes the validity of Alteon's trademarks and trade names
as set forth in Exhibit C hereto and such other trademarks and trade
names as Alteon may designate for the Product, acknowledges that the
same are the property of Alteon, and agrees not to infringe upon, harm
or contest the rights of Alteon to its trademarks and trade names.
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8.02 Eryphile shall not use any of Alteon's trademarks or trade names,
except in conformity with this Agreement or as otherwise approved in
writing by Alteon. Eryphile shall not use Alteon's trademarks or trade
names in connection with any products other than the Product, but shall
have the right during the continuance hereof to use the same in
connection with the Product.
8.03 Eryphile agrees that upon termination of this Agreement for any reason
it will destroy or, at Alteon's option, return to Alteon any
advertising, promotional or other materials bearing any of Alteon's
trademarks or trade names.
8.04 Alteon shall take prompt action at its expense to stop all
infringements in the Territory of its trademarks and trade names
(including court actions, if necessary) whenever it determines such to
be commercially reasonable. If Alteon decides that it would not be
commercially reasonable to take such action, Eryphile may do so, at its
expense, in the names of both Alteon and Eryphile.
9. Intellectual Property Claims
Alteon will defend, indemnify and hold harmless Eryphile against any
and all third party claims of patent, trademark or other intellectual
property infringement which may be asserted against Eryphile because of
its marketing, advertising or sale of the Product in the Territory
(except for claims of infringement of a trade name or trademark other
than one covered by this Agreement). In such event, Alteon will bear
all losses, damages, costs and expenses suffered or incurred by
Eryphile in connection with any such claim and the defense thereof, or
as a result of any settlement made or judgement rendered on the basis
of such claim. Alteon shall have sole and exclusive control of the
defense of any such claim and shall have the right to settle or
compromise any claims on terms acceptable to Alteon. Notwithstanding
the provisions of Section 6 of this Agreement, Alteon shall have right,
upon notice to Eryphile, to withdraw the affected dosage form or forms
of the Product from sale for any country for which such claim is made
and to amend this Agreement accordingly.
10. Product Liability Claims
Alteon shall defend, indemnify and hold harmless Eryphile against any
and all product liability claims arising out of the use of the Product,
except to the extent that such claims arise out of or relate to
mishandling (including improper storage), modification or misuse of the
Product, product claims which were not expressly approved by Alteon, or
other negligence or wrongful action or inaction by Eryphile, its
employees or agents. Eryphile shall give Alteon prompt notice of every
complaint, claim or suit known to Eryphile concerning the Product, keep
Alteon fully informed of the status of each, and afford Alteon
reasonable access to its
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records pertaining to such complaint, claim or suit. Alteon shall have
the right to defend and control the defense of, or to settle, any such
claim. Eryphile shall have the right, at its own expense, to
participate in any such defense action or settlement negotiations.
Eryphile shall likewise defend, indemnify and hold harmless Alteon as
to any product liability claims arising out of the use of the Product
in the Territory to the extent that such claims arise out of or relate
to mishandling (including improper storage), modification or misuse of
the Product, product claims which were not expressly approved by
Alteon, or other negligence or wrongful action or inaction by Eryphile,
its employees or agents.
11. Confidential Information
Each party agrees that it will treat in the strictest confidence all
oral and written communications from the other party which are
designated, or which should reasonably be regarded in a normal
commercial view, as constituting business secrets or proprietary
information (hereinafter referred to as "Proprietary Information").
Each party agrees to refrain from disclosing or making available to any
third party and to refrain from using for any purpose other than the
implementation of the Agreements between the parties any of the other
party's Proprietary Information without such other party's prior
written consent. Each party also agrees to reveal Proprietary
Information only to those persons who have a need to know it in
connection with the implementation of such Agreements and who are
required to keep it confidential, and to impose upon its respective
affiliates, employees and agents the same obligations with respect to
said other party's Proprietary Information as it employs with respect
to its own confidential information. The provisions of this Section
shall survive the termination of this Agreement.
Proprietary Information hereunder shall not, however, include
information
(i) which is in or enters the public domain through no breach of
this Agreement, or
(ii) which is known to the party receiving the same at the time of
disclosure, as evidenced by such party's prior written
records, or
(iii) which such party may receive from a third party lawfully
entitled to disclose the same.
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12. Miscellaneous Provisions
12.01 Rights Cumulative
Each and all of the respective rights and remedies of the parties
hereunder shall be considered to be cumulative with and in addition to
any other rights or remedies which such parties may have at law or in
equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or
remedy shall neither constitute the exclusive election thereof, nor the
waiver of any other right or remedy available to either party.
12.02 Notices
Any notice or other formal communication which either party may wish or
be required to serve on the other party in connection with this
Agreement shall be in writing and may be delivered by personal service
or sent by registered or certified air mail, return receipt requested,
with postage fully prepaid, provided that a copy of every such notice
sent by mail shall be simultaneously transmitted by telefax.
Notices shall be addressed as follows:
If to Alteon:
ALTEON Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Telefax No: 1 - 201 - 934 0090
If to Eryphile:
ERYPHILE BV
▇.▇.▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telefax No: 31 - 20 - 661 0654
Either party may from time to time, by notice in writing served upon
the other as provided above, designate a change of address for the
service of notices.
Nothing contained in this Agreement shall excuse either party from
giving oral notice to the other when prompt notification is
appropriate, but such notice shall not satisfy the requirement of
written notice as specified in this Section.
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12.03 Severability
If any provision of this Agreement is held to be void or unenforceable
by or as a result of the decision of any court or other authority,
which decision is binding upon the parties, the parties agree that such
decision shall not result in the nullity or unenforceability of the
remaining provisions of this Agreement. The parties further agree to
use their mutual best efforts to replace such void or unenforceable
provision in a manner which will achieve, to the extent possible, the
economic, business and other purposes of said void or unenforceable
provision.
12.04 Force Majeure
No failure to observe any of the terms or conditions of this Agreement
shall be deemed to be a breach of this Agreement, if the same is caused
by or arises out of one or more of the following conditions, namely:
acts of God; acts, regulations or laws of any government or similar
authority; war; civil commotion; destruction of facilities or materials
by fire, earthquake or storm; labor disturbances; epidemics; failure of
public utilities or of suppliers; or any other event, matter or thing
wheresoever occurring and whether or not of the same class or kind as
those set forth above, which is not reasonably within the control of
the affected party. However, the parties shall endeavor to avoid or
cure all such conditions, and any party temporarily excused from
performance by such conditions shall resume performance promptly when
such conditions are removed. Any party claiming any such conditions as
an excuse for delay in performance shall give prompt notice in writing
of such conditions to the other party. The parties, furthermore, while
any such conditions shall prevail, will cooperate by reasonable mutual
agreement to minimize the effects of such conditions by adopting any
suitable temporary measures which may be available to them.
12.05 Choice of Law
The internal laws of the State of New Jersey, without reference to any
principles concerning conflicts of law, shall govern the validity of
this Agreement, the construction of its terms and the interpretation of
the rights and duties of the parties hereunder.
12.06 Arbitration
Any dispute or claim in any way arising out of or relating to this
Agreement shall be finally settled by arbitration under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce.
In the event that the request for arbitration shall be submitted by
Alteon, the arbitration shall be held in Tel-Aviv, Israel, and in the
event that such request shall be made by Eryphile, the arbitration
shall take
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place in New Jersey, USA. The language to be used in the proceedings
shall be English, and each party shall bear one half of the costs of
the arbitration. The decision of the arbitrator(s) shall be definitive,
binding and without appeal, and judgement upon the award rendered may
be entered in any court of competent jurisdiction.
12.07 Interpretation
(i) The headings used at the beginnings of the Sections and
certain sub-sections of this Agreement are for convenience
only and form no part hereof. They are not to serve as a basis
for interpretation or construction of this Agreement, nor as
evidence of the intention of the parties.
(ii) References in this Agreement to the plural shall where the
context so admits include the singular, and vice versa.
12.08 Counterparts
This Agreement may be executed in separate counterparts, each of which
shall be deemed an original and, when executed separately or together,
shall constitute a single original instrument, effective in the same
manner as if the parties had executed one and the same instrument.
12.09 Waiver
No waiver of any term or condition of this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to
be, or construed as a further or continuing waiver of any such term or
condition, or as a waiver of any other term or condition of this
Agreement.
12.10 Entire Agreement
This Agreement and the Clinical Testing Agreement between the parties
of even date herewith are intended by the parties to be the final
expression of their agreement as to the subject matter herein and
therein, and constitute the entire understanding between them with
respect thereto. They are a complete and exclusive statement of the
terms and conditions of such understanding, and shall supersede any and
all prior correspondence, conversations, negotiations, understandings
or agreements relating to the same subject matter.
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12.11 Amendments
No change in, modification of or addition to the terms conditions
contained in this Agreement shall be valid unless set forth in a
written document signed by both parties, which specifically states that
it constitutes an amendment hereto.
12.12 Assignment
Neither party to this Agreement shall assign or otherwise transfer any
of its rights or obligations hereunder to any third party without the
prior written approval of the other party, except that
(a) Alteon may assign any or all of its rights and obligations
hereunder to an Affiliate (as hereinafter defined), and
(b) Eryphile may delegate or assign any or all of its rights and
obligations hereunder to an Affiliate (as hereinafter defined)
resident in the Territory, provided that
(c) The Affiliate agrees in writing with the parties that it will
be bound by all of the terms of the Agreement which impose
obligations upon its assignor, and
(d) The assigning party will remain fully responsible for the
performance of the Affiliate to which it assigns its rights.
"Affiliate" for the purposes hereof means a company controlling,
controlled by or under common control with the party concerned,
"control" meaning the holding of more than fifty per cent (50%) of the
common voting stock or voting equity share capital of the relevant
company.
Eryphile, moreover, shall be entitled to engage sub-distributors in
connection with its performance hereunder, but only upon terms and
conditions which are consistent in all respects with those of this
Agreement.
Furthermore, Alteon may assign all of its rights and obligations
hereunder without approval to any party to whom Alteon sells its
related business assets.
12.13 Successors and Assigns
This agreement and all of its terms and conditions are intended to be
fully effective and binding, to the extent permitted by applicable law,
upon the successors and permitted assigns of the parties (including, in
the case of Alteon, any successor in title to assets of Alteon which
include rights in relation to the Product).
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12.14 Exhibits
All exhibits referred to in and attached to this Agreement are intended
to be a part of this Agreement as if set forth in full in the text
hereof.
IN WITNESS WHEREOF, this Agreement has been signed by the duly authorized
signatories of the parties hereto the day and year first before written,
ALTEON INC. ERYPHILE BV
by: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ by:
------------------- ---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Director
Title: Chairman and Chief Executive Officer
---------------------------
Director
15
Exhibit 10.11
Distribution Agreement Page 15
EXHIBIT A
Product
PIMAGEDINE
all dosage forms for therapeutic uses
(including all existing and future indications therefor)
EXHIBIT B
Territory
Israel (including Israeli-administered territories
and the areas of Palestinian autonomy and
any future political denominations of such
territories and areas)
Bulgaria
Cyprus
Jordan
South Africa
NOTE: Guidelines for the fixing of Minimum Quotas
(a) in respect of Israel, the comparable market to be
taken into account is Italy, and
(b) in respect of South Africa (to the extent of that
proportion of its population enjoying a standard of
living equivalent to that prevailing in Western
Europe), such comparable market is the United
Kingdom,
on a per capita basis in each case.
16
Exhibit 10.11
Distribution Agreement Page 16
EXHIBIT C
Trademarks & Trade Names
ALTEON
PIMAGEDINE
trademark for Pimagedine to be determined