Exhibit 10.5.2
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TRANSITION SERVICES AGREEMENT
by and among
THE EXOREX COMPANY, LLC,
BIOGLAN PHARMA PLC
MEDICIS PHARMACEUTICAL CORPORATION
and
IMX PHARMACEUTICALS, INC.
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Dated as of June 30, 1999
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..........................................................1
ARTICLE II RESPONSIBILITIES OF PARTIES.........................................2
SECTION 2.1 PROVISION OF SERVICES...........................................2
SECTION 2.2 COOPERATION AND ASSISTANCE......................................2
SECTION 2.3 DISTRIBUTION AGENCY SERVICES....................................2
SECTION 2.4 MARKETING SUPPORT SERVICES......................................2
SECTION 2.5 REPORTS.........................................................3
SECTION 2.6 NDC NUMBERS.....................................................3
SECTION 2.7 PAYMENT OF NET SALES............................................3
SECTION 2.8 GOVERNMENT CONTRACTS............................................3
SECTION 2.9 ORDERS FOLLOWING TERMINATION OR EXPIRATION......................3
SECTION 2.10 GUARANTEE BY IMX................................................3
ARTICLE III PRODUCT RETURNS....................................................4
ARTICLE IV PAYMENTS............................................................4
SECTION 4.1 FEES............................................................4
SECTION 4.2 RECORDS; AUDIT..................................................4
SECTION 4.3 CONTRIBUTION MARGIN.............................................4
ARTICLE V STANDARD FOR SERVICES................................................5
ARTICLE VI TERM AND TERMINATION................................................6
SECTION 6.1 TERM............................................................6
SECTION 6.2 TERMINATION.....................................................6
SECTION 6.3 RIGHTS AND DUTIES OF PARTIES UPON TERMINATION...................6
ARTICLE VII CONFIDENTIALITY....................................................6
ARTICLE VIII INDEPENDENT CONTRACTOR............................................7
ARTICLE IX NOTICES.............................................................7
ARTICLE X SUCCESSORS AND ASSIGNS...............................................8
ARTICLE XI SURVIVAL OF TERMS...................................................8
ARTICLE XII ADDITIONAL TERMS...................................................9
SECTION 12.1 ENTIRE AGREEMENT................................................9
SECTION 12.2 AMENDMENTS; NO WAIVER...........................................9
SECTION 12.3 COUNTERPARTS....................................................9
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SECTION 12.4 SEVERABILITY....................................................9
SECTION 12.5 CAPTIONS........................................................9
SECTION 12.6 INJUNCTIVE RELIEF...............................................9
SECTION 12.7 EXPENSES........................................................9
SECTION 12.8 ATTORNEYS' FEES................................................10
SECTION 12.9 GOVERNING LAW; JURISDICTION....................................10
SCHEDULES AND EXHIBITS
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Schedules
Schedule 1................................................Form of Monthly Report
Exhibits
Exhibit A...............................................................Contacts
Exhibit B.......................................Current List Prices for Products
Exhibit C........................................THE LLC's Returned Goods Policy
Exhibit D.........................The LLC's Disposition of Returned Goods Policy
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TRANSITION SERVICES AGREEMENT
TRANSITION SERVICES AGREEMENT (the "Agreement") is entered into as of this 30th
day of June, 1999 by and among THE EXOREX COMPANY, LLC, a Delaware limited
liability company (the "LLC") and BIOGLAN PHARMA PLC, a company incorporated
under the laws of England and Wales under company registration number 1779870
("Bioglan") and MEDICIS PHARMACEUTICAL CORPORATION ("Medicis") and IMX
PHARMACEUTICALS, INC. ("IMX"). All capitalized terms used herein but not
otherwise defined shall have the meanings assigned to them in the Exorex Asset
Purchase Agreement (the "Exorex Asset Purchase Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Exorex Asset Purchase Agreement, dated as of June
29, 1999, by and among the LLC, Bioglan, Medicis and IMX, Bioglan has purchased
from the LLC the Purchased Assets; and
WHEREAS, Bioglan desires to retain the LLC, and the LLC is willing to be
retained by Bioglan, to provide certain sales, finance and distribution services
during the period of transition of the Products from the LLC to Bioglan.
NOW, THEREFORE, in consideration of the above and of the mutual covenants
contained herein and for other good and valuable consideration, receipt of which
is hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
In this Agreement the following terms shall have the following meanings:
"Fully Loaded Costs" means all direct expenses and, with respect to time
spent on a project by employees, an hourly rate which equals salary plus
benefits plus fifty percent (50%) allocated overhead.
"Net Sales" means the gross invoice amount of Products sold to third
parties in the Territory from and after the Closing Date, less: (a) promotional
and trade discounts; (b) sales and excise taxes, value added and other taxes and
insurance premiums and duties which are billed to customers as separate items on
invoices; (c) allowances for short-shipments and price adjustments; and (d)
those contract chargebacks, government rebates, and returns (e.g., of spoiled,
damaged or outdated Products) which are the responsibility of Bioglan under the
Agreement.
"Sales" means the gross invoice amount of Products sold to third parties
in the Territory on behalf of Bioglan from and after the Closing Date.
"Services" means any and all services with respect to the Products
provided by the LLC to Bioglan pursuant to this Agreement.
"Territory" means the United States of America and its territories,
possessions, and commonwealth including the Commonwealth of Puerto Rico.
ARTICLE II
RESPONSIBILITIES OF PARTIES
Section 2.1 Provision of Services. Subject to the terms hereof, the
LLC shall (i) reasonably cooperate with Bioglan and assist in the orderly
transition of the Purchased Assets to Bioglan, and (ii) provide the Services
described herein that are requested by Bioglan.
Section 2.2 Cooperation and Assistance. The LLC and Bioglan shall
make available the individuals identified on Exhibit A, or their qualified
designees, for consultation with the other party's representatives via
telephone, correspondence or in person at the LLC's facilities for the purpose
of conveying and transferring information relating to the operation of the
Purchased Assets. Such consultation shall occur for reasonable periods of time,
upon reasonable notice during normal business hours. Either party may appoint
substitutes for the individuals listed on Exhibit A. Notwithstanding any other
provision of this Agreement, the individuals listed on Exhibit A (or their
substitutes) shall be available for minimal consultation for a period of six (6)
months following the Closing Date.
Section 2.3 Distribution Agency Services. With respect to the
Purchased Assets, the LLC, or subcontractors used by the LLC in the ordinary
course of conducting its business, shall provide all services (including
storing, delivering and distributing the Products and filling orders) requested
by Bioglan and customarily performed by a distribution agent in connection with
the sale of the Products in the Territory, including the following: (a)
accepting orders and invoicing purchasers on behalf of Bioglan; (b) processing
all Products returned by customers in accordance with Article 3 of this
Agreement; (c) order entry and billing services; (d) recording sales and
collecting amounts due; (e) making appropriate payments for chargebacks and
rebates subject to the Agreement; and (f) customer complaint and inquiry
services, including adverse drug reaction reporting. The LLC further covenants
and represents to Bioglan that it shall use reasonable efforts to comply with
all material laws, rules, regulations and requirements of any governmental body
which may be applicable to the distribution or sale of the Products under this
Agreement, provided, however, that it shall not be deemed a breach of this
Section 2.3 if the LLC can demonstrate that such non-compliance was caused by
following the written instructions of Bioglan. The LLC shall charge customers
and pay Bioglan for Products sold only on the basis of list prices for each unit
of the Product, except as may already be committed for the quarter ended June
30, 1999. The current list prices for Products are set forth on Exhibit B.
Bioglan may change the list prices from time to
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time by written notice to the LLC, which price changes shall be effective within
seven (7) days of receipt of such notice.
Section 2.4 Marketing Support Services. In order to inform customers
of the sale of the Purchased Assets to Bioglan, and otherwise transition the
Purchased Assets, the parties shall: (a) notify all contracted customers, trade
customers, and wholesalers of the transfer of the Purchased Assets to Bioglan by
a method and at a time mutually agreed to by the parties in the form
substantially as agreed by the parties, and (b) provide notice to wholesalers at
mutually agreed to times which allows adequate transition time for the
wholesalers. In providing marketing support services hereunder, the LLC shall
provide Bioglan with necessary pricing information concerning the Products, but
shall not be required to disclose copies of customer contracts. The parties
hereto acknowledge and agree that the LLC shall not be responsible for providing
Bioglan with any sales or promotional support.
Section 2.5 Reports. The LLC shall submit in writing to Bioglan (a)
within seven (7) business days after the end of each calendar month a report
setting forth total Net Sales by SKU for the period ending the last Sunday in
the preceding calendar month, (b) within seven (7) business days after the end
of each calendar month a report setting forth inventory on-hand by SKU as of the
last Sunday in the preceding calendar month, and (c) within fifteen (15) days
after the end of each calendar month a report as set forth on Schedule 1 and
such other information as Bioglan shall reasonably request that is agreed to by
the LLC.
Section 2.6 NDC Numbers. Immediately following the Closing, Bioglan
shall take any and all action necessary to change the National Drug Code ("NDC")
number for the Products, which change shall be implemented pursuant to the terms
of the Agreement.
Section 2.7 Payment of Net Sales. On the twentieth calendar day of
each calendar month, the LLC will wire transfer to Bioglan the amount equal to
total Net Sales for the prior month, less (i) a one-half percent (.50%) reserve
for uncollected Sales based on Net Sales; (ii) a two percent (2%) deduction from
Sales for cash discounts based on payment terms of two percent (2%) thirty net
thirty-one (31) days; (iii) the amount of the fee, if any, calculated for such
prior month under Section 4.1; and (iv) any and all direct costs related to the
Products, including assumed litigation costs, and any allocated costs which the
LLC may receive which are not allocated by Product, including but not limited to
freight, product liability, warehousing, broker fees, sales incentives,
insurance and administrative services, including payroll processing.
Section 2.8 Government Contracts. The parties shall mutually agree
on the timing and method of notifying applicable federal agency customers and
the Health Care Financing Administration ("HCFA") of the sale of the Products to
Bioglan, and shall take whatever action is necessary to simultaneously add the
Products to Bioglan's federal supply schedule and Medicaid rebate agreement, if
applicable, and delete the Products from the federal supply schedule and
Medicaid rebate agreement of the LLC as applicable.
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Section 2.9 Orders Following Termination or Expiration. For a period
of two (2) weeks following the termination or expiration of this Agreement, the
LLC shall forward to Bioglan as soon as practicable via facsimile any orders for
Products received by the LLC. For a period of six (6) weeks following the end of
the two (2) week period in the preceding sentence, the LLC shall forward to
Bioglan via facsimile at least every three (3) days any orders for Products
received by the LLC. At the end of such six (6) week period, the LLC shall
reject all orders for Products received by the LLC, but shall notify any such
orderer that future orders should be placed directly with Bioglan.
Section 2.10 Guarantee by IMX. In consideration of Medicis' purchase
of IMX's interest in the LLC, IMX hereby agrees to guarantee the due and timely
performance of all obligations of the LLC under this Agreement which are within
the reasonable control of IMX.
ARTICLE III
PRODUCT RETURNS
The LLC shall process and pay all claims received by it for returns
of Products in accordance with the provision of the return goods policy attached
hereto as Exhibit C. Bioglan shall not engage in any special pricing, rebate
allowance, promotional or marketing program or activities, special returns
policy or special restocking program that would impact the normal course or
level of expected returns with respect to Products sold prior to Closing.
Returned goods will be destroyed in accordance with the provisions of the
disposition of returned goods policy of the LLC, a copy of which is attached
hereto as Exhibit D.
ARTICLE IV
PAYMENTS
Section 4.1 Fees. In consideration of the LLC's Services under this
Agreement, Bioglan shall pay to the LLC a fee equal to six per cent (6%) of
Bioglan's Net Sales of Products for the period during which the LLC provides
Services to Bioglan, payable monthly. In addition, the LLC shall be reimbursed
its Fully Loaded Costs for any special services or expenses, provided that
Bioglan has given its prior written approval for such special services or
expenses, including without limitation the cost of destruction of returned goods
other than pursuant to on-going, normal business operations, the participation
of the LLC in any recall of Products, "scrap" charges incurred due to labeling
or packaging changes requested by Bioglan, and any components with the LLC's NDC
number ordered on or after the date six (6) months after termination of this
Agreement with the prior written approval of Bioglan, transportation costs
associated with the delivery of inventory and records upon termination of this
Agreement, and any other expenses incurred by the LLC specifically as a result
of this Agreement. Bioglan will reimburse the LLC with respect to the foregoing
costs, if any, within thirty (30) days of receipt of the LLC's statement.
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Section 4.2 Records; Audit. Medicis, on behalf of the LLC, shall
keep records relating to the calculation of Net Sales and the fees under Section
4.1 in accordance with generally accepted accounting principles in the United
States and provide copies of such records to Bioglan within ninety (90) days of
termination of this Agreement. During and at any time within six (6) months
following termination of this Agreement, Bioglan, at its expense, shall have the
right to conduct one examination or audit of said records of the LLC which
relate solely to the services provided hereunder and costs and expenses incurred
hereunder, for the sole purpose of verifying information provided by the LLC and
payments made to the LLC hereunder. The LLC and Medicis shall cooperate fully
with the auditor and provide all reasonable access to records and employees
necessary to promptly complete this audit. During and at any time within six (6)
months following termination of this Agreement, Bioglan, at its expense, shall
have the right to appoint an independent certified public accounting firm
reasonably acceptable to the LLC and Medicis who will be bound by
confidentiality terms reasonable to the LLC and Medicis, to conduct one audit of
customer invoices for the Products for the sole purpose of verifying the
information provided by the LLC and payments made to the LLC hereunder. Such
auditor shall not disclose any information to Bioglan relating to the LLC's
products or business other than information which pertains directly to the
purpose of the audit. If any such examination or audit discloses an underpayment
or overpayment hereunder, written notice of such fact, specifying the amount and
basis of the underpayment or overpayment shall promptly be furnished to the LLC.
Subject to the LLC's right to dispute the amount of any overpayment or
underpayment, the amount of any overpayment upon resolution of such dispute, if
any, shall be credited against future amounts owed to the LLC hereunder, or if
there will be no such future amounts, the LLC shall refund the overpayment to
Bioglan within thirty (30) days of such notice; and the amount of any
underpayment shall be paid to the LLC within thirty (30) days after such
disclosure. If the audit determines that the LLC has overcharged Bioglan by five
percent (5%) or more for the fee under Section 4.1 for the period audited, the
LLC shall promptly reimburse Bioglan for all reasonable expenses incurred in
conducting said audit.
Section 4.3 Contribution Margin. LLC shall pay to Bioglan the
Contribution Margin at the later of (i) twenty (20) business days after the
Closing Date or (ii) the date on which Medicis receives the US $39.1 million
payment from Bioglan as set forth in Article II of the Asset Purchase Agreement
dated June 29, 1999 between Medicis and Bioglan. Medicis shall have no
obligation to pay the Contribution Margin unless and until it receives in a
timely manner such $39.1 million payment from Bioglan.
ARTICLE V
STANDARD FOR SERVICES
The LLC shall meet the standards of the applicable profession in
performing Services hereunder; provided that except as otherwise set forth
herein, neither the LLC nor its employees shall have any liability to Bioglan in
connection with such performance absent bad faith, gross negligence or willful
misconduct. In performing its duties hereunder, the quality and quantity of
Services provided hereunder by the LLC to Bioglan (including without limitation
the substance, timeliness and diligence thereof) shall be substantially the same
as the
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quality and quantity of services rendered in relation to the LLC's other
products by the LLC personnel. Nothing contained in this Agreement shall require
the LLC to alter its operations, policies, procedures, method of doing business,
reporting mechanisms or formats or information technology systems in order to
provide Services hereunder or otherwise engage in any extraordinary activities,
except as set forth in this Agreement. If Bioglan suffers any loss or damage
caused by the LLC's bad faith, gross negligence or willful misconduct, the LLC
shall pay all direct out of pocket costs incurred as a result thereof. Under no
circumstances shall the LLC have any liability to Bioglan for consequential or
incidental damages.
ARTICLE VI
TERM AND TERMINATION
Section 6.1 Term. Subject to Section 6.2, this Agreement shall
commence as of the Closing Date and shall continue in effect for a period of
four (4) months. This period shall be extended, at the written request of
Bioglan, for an additional two (2) months if, after using its reasonable best
efforts, Bioglan has been unable to develop its own distribution system at the
end of the four month period.
Section 6.2 Termination. At any time after payment in full of the
$39.1 million payment from Bioglan as set forth in Article II of the Asset
Purchase Agreement dated June 29, 1999 between Bioglan and Medicis, Bioglan may
terminate this Agreement upon not less fifteen (15) days written notice that it
has developed its own distribution network, provided any transition issues that
will require cooperation after termination are mutually agreed to by the
parties.
Section 6.3 Rights and Duties of Parties Upon Termination. Upon
expiration or other termination of this Agreement in accordance with the terms
hereof, the parties shall cooperate in the orderly termination of the Services
hereunder, including without limitation the transfer of Products to Bioglan; and
the transfer of other information relating solely to the Products, including
customer information.
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ARTICLE VII
CONFIDENTIALITY
The LLC acknowledges that confidential and proprietary information
with respect to the Purchased Assets is valuable, special and unique. Neither
the LLC nor any of its Affiliates shall at any time after the Closing Date
disclose, directly or indirectly, to any third party, or use or purport to
authorize any third party to use any confidential or proprietary information
with respect to the Purchased Assets, whether or not for the LLC's or an
Affiliate's own benefit, without the prior written consent of Bioglan, including
without limitation, information as to the financial condition, results of
operations, customers, suppliers, products, inventions, sources, leads or
methods of obtaining new supplies, marketing strategies or any other information
relating to the Products which could reasonably be regarded as confidential, but
not including information which (i) does not relate directly and exclusively to
the Purchased Assets, provided that the LLC and its Affiliates shall not
disclose such information to the direct detriment of the Purchased Assets; or
(ii) is or shall become generally available to the public other than as a result
of an unauthorized disclosure by the LLC or an Affiliate or third party to whom
the LLC or an Affiliate has provided such information; or (iii) as may be
necessary for the LLC or any of its Affiliates to perform its obligations under
this Agreement or the Exorex Asset Purchase Agreement or the transactions or
agreements contemplated therein; or (iv) that is required by law to be disclosed
by the LLC or any of its Affiliates.
ARTICLE VIII
INDEPENDENT CONTRACTOR
Each party shall act solely as an independent contractor and nothing
in this Agreement shall be construed to give either the power or authority to
enter into or incur, any commitments, expenses or liabilities whatsoever on
behalf of the other party. Nothing herein shall be construed to create the
relationship of a partnership, principal and agent, or joint venture between
Bioglan and the LLC, other than as expressly set forth herein and the LLC shall
not represent itself to be an agent of Bioglan or incur any obligations for or
on behalf of Bioglan other than is expressly contemplated by this Agreement.
ARTICLE IX
NOTICES
Any notice required or permitted to be given hereunder shall be
deemed sufficient if sent by facsimile letter or overnight courier, or delivered
by hand to Bioglan or the LLC at the respective addresses and facsimile numbers
set forth below or at such other address and facsimile number as either party
hereto may designate. If sent by facsimile letter, notice shall be deemed given
when the transmission is completed if the sender has a confirmed
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transmission report. If a confirmed transmission report does not exist, then the
notice will be deemed given when the notice is actually received by the person
to whom it is sent. If delivered by overnight courier, notice shall be deemed
given when it has been signed for. If delivered by hand, notice shall be deemed
given when received.
All correspondence to the LLC shall be addressed as follows:
c/o Medicis Pharmaceutical Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With copies to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
590 Madison Avenue, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇▇ ▇. Older, Esq.
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All correspondence to Bioglan shall be addressed as follows:
Bioglan Pharma Plc
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ OTJ
England
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
With copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Solicitors
Regent House
Swiss Cottage
▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
All correspondence to IMX shall be addressed as follows:
IMX Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With copies to:
Nason, Yeager, Gerson, White & ▇▇▇▇▇, P.A.
1645 Palm Beach ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
ARTICLE X
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective successors and assigns; provided that this
Agreement may not be assigned by any party without the written consent of the
other party.
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ARTICLE XI
SURVIVAL OF TERMS
The provisions of Sections 2.2, 2.5, 2.6, 2.7 (to the extent
payments due remain outstanding thereunder), 2.9, 6.3 and 12.1 and Articles 4,
5, 7, and 8 shall survive the termination or expiration of this Agreement.
ARTICLE XII
ADDITIONAL TERMS
Section 12.1 Entire Agreement. This Agreement and the exhibits
hereto embody the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede and replace all previous negotiations,
understandings, representations, writings, and contract provisions and rights
relating to the subject matter hereof. If there is any conflict between this
Agreement and the terms and conditions contained on any purchase order or
invoice, the terms and conditions of this Agreement shall prevail.
Section 12.2 Amendments; No Waiver. No provision of this Agreement
may be amended, revoked or waived except by a writing signed and delivered by an
authorized officer of each party. No failure or delay on the part of either
party in exercising any right hereunder will operate as a waiver of, or impair,
any such right. No single or partial exercise of any such right will preclude
any other or further exercise thereof or the exercise of any other right. No
waiver of any such right will be deemed a waiver of any other right hereunder.
Section 12.3 Counterparts. This Agreement may be executed in one or
more counterparts all of which shall together constitute one and the same
instrument and shall become effective when a counterpart has been signed by
Bioglan and delivered to the LLC and a counterpart has been signed by the LLC
and delivered to Bioglan.
Section 12.4 Severability. The parties agree that (a) the provisions
of this Agreement shall be severable and (b) in the event that any of the
provisions hereof are held by a court of competent jurisdiction to be invalid,
void or otherwise unenforceable, (i) such invalid, void or otherwise
unenforceable provisions shall be automatically replaced by other provisions
that are as similar as possible in terms to such invalid, void or otherwise
unenforceable provisions but are valid and enforceable and (ii) the remaining
provisions shall remain enforceable to the fullest extent permitted by law,
provided that the rights and interests of the parties hereto shall not be
materially affected.
Section 12.5 Captions. Captions herein are inserted for convenience
of reference only and shall be ignored in the construction or interpretation of
this Agreement. Unless the context requires otherwise, all references herein to
Articles and Sections are to the articles and sections of this Agreement.
Section 12.6 Injunctive Relief. It is possible that remedies at law
may be inadequate and, therefore, the parties hereto shall be entitled to seek
equitable relief including,
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without limitation, injunctive relief, specific performance or other equitable
remedies in addition to all other remedies provided hereunder or available to
the parties hereto at law or in equity.
Section 12.7 Expenses. Except as otherwise expressly provided in
this Agreement, all legal, accounting and other costs and expenses incurred in
connection herewith and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
Section 12.8 Attorneys' Fees. If there is any litigation or
arbitration with respect to this Agreement, the prevailing party shall be
entitled to receive from the non-prevailing party and the non-prevailing party
shall pay upon demand all reasonable fees and expenses of counsel for the
prevailing party.
Section 12.9 Governing Law; Jurisdiction. This Agreement shall be
governed by the substantive laws of the State of Arizona, United States of
America (without regard to principles of conflicts of laws) as to all matters,
including but not limited to matters of validity, construction, effect,
performance and remedies. Bioglan consents and submits to the personal
jurisdiction of the state and federal courts in Arizona.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE EXOREX COMPANY, LLC
By:
-------------------------------------------
Name:
Title:
BIOGLAN PHARMA PLC
By:
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
MEDICIS PHARMACEUTICAL CORPORATION
By:
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
IMX PHARMACEUTICALS, INC.
By:
-------------------------------------------
Name:
Title:
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SCHEDULE 1
FORM OF MONTHLY REPORT
EXHIBIT A
THE LLC CONTACTS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
BIOGLAN CONTACTS
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
EXHIBIT B
CURRENT LIST PRICES FOR PRODUCTS
[To be negotiated by the parties prior to the termination of this agreement.]
EXHIBIT C
THE LLC'S RETURNED GOODS POLICY
EXHIBIT D
THE LLC'S DISPOSITION OF RETURNED GOODS POLICY
The LLC does not have a formal policy regarding disposition of returned
products.