BAUSCH & LOMB PHARMACEUTICALS, INC.
CONTRACT MANUFACTURING SUPPLY AGREEMENT
THIS AGREEMENT, made this 21st, day of November, 1997, ("Effective Date")
by and between BAUSCH & LOMB PHARMACEUTICALS, INC., a Delaware corporation,
having its principal office located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("BLP"), and AMERX HEALTH CARE CORPORATION ("AHC") , having its principal
office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, AHC desires that BLP be appointed the exclusive contract
manufacturer for certain Product(s);
WHEREAS, AHC and BLP are parties to an exclusive supply agreement which
commenced on January 1st, 1998, and which will expire on December 31st, 2002,
AHC desires to appoint BLP as its exclusive manufacturer of such Product(s)
under the terms and conditions of this Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
DEFINITION OF TERMS
AHC and BLP, therefore agree the terms defined in this section shall have the
meanings stated as follows:
1.1 "ACT" means the United States Federal Food, Drug and Cosmetic Act, as
amended, and the regulation promulgated thereunder.
1.2 "FDA" means the United States Food and Drug Administration or any
successor entity thereto.
1.3 "cGMP" means current good manufacturing practices, as defined in the
ACT.
1.4 "Label" or "Labeling" means all labels and other written, printed or
graphic matter any container or packaging utilized with the Product(s) or any
written material accompanying the Product(s).
AMERXSA.DOC 11/21/97 -1-
1.5 "Facility" shall mean BLP' facility located in Tampa, Florida.
1. Product(s)
----------
The term Product(s) shall mean those Product(s) listed on Appendix A.
2. Term.
----
Within ninety (90) days following the effective date, AHC agrees to order
exclusively from BLP all Product(s) it requires during the term of this
Agreement. This Agreement shall become effective on the Effective Date and
shall remain in effect for five (5) years from such date, subject to
Section 16. Thereafter, this Agreement shall automatically renew for
additional successive one (1) year renewal periods, subject to Section 16.
For purposes of this Agreement, references to Term shall include any
renewal periods hereunder.
3. Price
-----
A. Prices. The purchase price per unit of Product(s) to be paid by AHC to
BLP shall be in accordance with the terms of the price schedule set forth
in Appendix A, which is attached hereto and incorporated herein by
reference. Prices for Product(s) sold to AHC during the Tenn are F.O.B,
BLP, Tampa, freight collect.
B. Price Increase. Notwithstanding the terms of Section 3A hereof, no more
than once during each calendar year of the Term, BLP may increase the
prices for any of the Product(s), upon sixty (60) days prior written notice
by an amount which equals the increase in BLP's verifiable cost of
manufacturing the Product(s). If the purchased cost of raw materials and
components dedicated for the manufacture of the Product(s) listed on
Appendix A decreases and this decrease is sustained prospectively, BLP
agrees to reduce the cost of the final product accordingly, no more than
once during each calendar year of the Term.
C. Payment. BLP will invoice AHC for each order at its principal address
upon shipment of the products. Invoices shall be due and payable within
thirty (30) days of the date of the invoice. In the event that any invoice
is not paid when due, AHC agrees to pay a "late charge" on the unpaid
delinquent balance at an interest rate of 10% per annum. AHC agrees not to
AMERXSA.DOC 11/21/97 -2-
make any deductions of any kind from any payment becoming due to BLP unless
AHC has received an official credit memorandum from BLP authorizing such
deduction.
4. Product Manufacture and Supply
------------------------------
A. Manufacture and Supply BLP agrees to manufacture at its facility located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ the products in Appendix A, in
accordance with cGMPs, and to meet the mutually agreed upon product
specifications, supplies and test methods, respectively.
B. Ingredients. Supplies and Packaging Materials BLP agrees to supply at
its expense all of the raw material ingredients with the exception of the
oak bark extract which AHC will supply to BLP at AHC's expense, and to meet
the mutually agreed upon specifications for supplies, test methods, and
packaging materials necessary to manufacture and supply the Product(s) as
set forth in A.
C. Testing and Inspection of Materials BLP shall analyze and evaluate all
materials to confirm that they satisfy the mutually agreed upon material
product specifications. The cost of all such analyses and evaluations shall
be bome by BLP. AHC is liable for all obsolete materials due to forecasting
errors or FDA changes required by the customer.
D. Testing and Inspection of Product BLP shall conduct all quality control
and other tests required to ensure that the Product(s) as manufactured meet
the mutually agreed upon product specifications. The cost of all such
analyses and evaluations shall be borne by BLP.
5. Product Changes
---------------
A. New Packaging Configurations. AHC may submit new package configurations
to BLP for pri ce quotes. On acceptance of such quotes by AHC, the package
configuration and pricing terms set forth in Appendix A will be adjusted to
reflect additional or reduced costs to BLP.
B. Changes by AHC. If AHC at any time requests a change to a Product and
BLP agrees such change is reasonable with regard to the manufacture of a
Product, (i) such change shall be incorporated into the Product
Specifications, (ii) BLP shall adjust, at its sole discretion, the price of
the Product, if necessary, to reflect increased costs of such change, and
(iii) AHC shall pay BLP the costs associated with such change, including,
AMERXSA.DOC 11/21/97 -3-
for any additional development work, a reasonable charge based upon BLP's
then-prevailing research and development rates. (iv) AHC is liable for all
obsolete material resulting from the implementation of this change.
C. Changes by BLP. BLP agrees that any changes developed by BLP which may
be incorporated into the manufacture of a Product shall require the written
approval of AHC prior to such incorporation. At the time of such
incorporation and FDA approval, if required, such changes shall become part
of the Product Specifications.
D. Changes by Regulatory Authorities. If BLP is required by a regulatory
authority to perform validation studies for purposes of validating new
manufacturing procedures or new raw material and finished product assay
procedures with respect to a Product in order to continue to engage in the
manufacture of the Product for AHC (and AHC, after notice that such
validation studies are required, and upon notice to AHC of an estimate of
all related validation study expenses, desires BLP to continue
manufacturing the Product), all direct expenses borne by BLP in the conduct
of any such validation study shall be reimbursed to BLP by AHC as incurred.
6. Inspections and Manufacturing Compliance
A. Inspections by AHC. Representatives from AHC shall be permitted access,
at reasonable times during BLP's normal business hours and upon reasonable
advance notice to BLP, to visit, in the company of a BLP representative,
the manufacturing and/or packaging facility or facilities where AHC's
Product will be or are being manufactured and/or packaged for the purposes
of auditing BLP's processes to ensure that AHC's Product are being
manufactured, packaged, stored and handled in accordance with the mutually
agreed upon product specifications, cGMP's and applicable laws, rules and
regulations.
B. Inspection by Regulatory Agencies. Duly authorized representative(s)
from the FDA or other applicable regulatory agencies shall be permitted
access, at reasonable times during BLP's normal business hours, to visit,
in the company of a BLP representative, the manufacturing and/or packaging
facility or facilities where the Product will be or are being manufactured
and/or packaged for the purposes of auditing BLP's processes to ensure that
the Product are being manufactured, packaged, stored and handled in
accordance with the Product Specifications, cGMP's and applicable laws,
rules and regulations. BLP shall, at its own expense, promptly respond to
AMERXSA.DOC 11/21/97 -4-
all inquiries and questions resulting from such visits and inspections and,
at its own expense, promptly correct any deficiencies reported as a result
of such inspections. BLP shall immediately notify AHC if an authorized
agent of the FDA or other governmental agency visits BLP's manufacturing
facility for the purposes of inspecting the manufacturing and testing of
Amerx. Health Care Corporation's Products.
7. Ordering and Rolling Forecasts
A. Ordering Through Submittal of Rolling Forecast. At least (90) days
before the last day of each calendar year throughout the term of this
Agreement, AHC, shall submit to BLP a non binding forecast of its
requirements for the products for that year. Subject to BLP's acceptance,
AHC agrees to order from BLP both "Minimum Annual Quantity" and "Minimum
Quarterly Quantity" of units of Product(s) as described in Appendix B,
which is attached hereto and incorporated herein by reference for a period
commencing each January 1st, and ending December 31st. Should the volumes
fall below minimum quantities, customer will be invoiced for the difference
between the outlined prices and the adjusted prices as noted in Appendix B.
Order quantities should be submitted in ftill batch size, understanding
that there may be a small yield gainiloss during manufacturing processing,
(Full batch sizes and the theoretical unit yield is specified on Appendix
C). AEC will provide BLP with a twelve month rolling forecast of its
Product(s) requirements, by month, delivered to BLP by the first day of
each calendar quarter. The first three months of each twelve month rolling
forecast shall be binding on AHC and shall be for no less than the minimum
quarterly quantities as described on Appendix B, and shall constitute a
firm purchase order for the Product(s) indicated for such months. AHC shall
also issue individual purchase orders for such firm three month orders by
the first day of each calendar quarter. AHC's initial twelve month rolling
forecast shall be provided within 30 days of the date of this Agreement.
B. Orders Other Than Through Rolling Forecasts. Subject to the provisions
of 7.A. above, AHC may submit additional purchase orders for Product(s) in
excess of the quantities specified in the rolling forecasts. BLP shall use
its commercially reasonable efforts to accept and fill such orders
consistent with efforts used by BLP to fill excess orders for other
customers of contract manufactured Product(s). Acceptance of such
AMERXSA.DOC 11/21/97 -5-
additional purchase orders shall be by written order acknowledgment given
to AHC.
C. Acceptance by Order Acknowledgment. BLP will deliver to AHC a written
order acknowledgment form within 30 days of BLP's receipt of each rolling
forecast, confirming the quantities of which BLP shall exercise
commercially reasonable efforts to fill. Only those quantities of AHC's
firm three-month purchase order confirmed by BLP in its written order
acknowledgment shall be binding on BLP.
8. Inventory & Delivery
--------------------
Unless otherwise agreed in writing by the parties, one (1) month's
requirement of each Firm Purchase Order shall be delivered to AHC, F.O.B.
BLP's loading dock at its facility in Tampa, Florida (the "F.O.B. Point"),
commencing within ninety (90) days of the date a Firm Purchase Order is
received by BLP, and continuing each month thereafter. At the request and
expense of AHC, BLP shall ship the Product ordered by AHC by such carrier
or carriers as AHC may designate. Such shipping instructions shall be
submitted by AHC to BLP. Unless otherwise agreed by the parties hereto, all
risk of loss or damage to the Product from any cause whatsoever shall be
borne by AHC after delivery to AHC or AHC's carrier at the F.O.B. Point.
BLP shall not be obligated to maintain an inventory of the Product(s).
9. Packaging and Labgling
During the term of this Agreement, BLP agrees to manufacture, and package
the Product(s) in accordance with mutually agreed upon component
specifications, and approved or mutually agreed upon material suppliers
incorporating any necessary approvals in accordance with Section I I.B.,
and will take into account cGMPs and regulatory requirements. Thereafter,
upon reasonable written notice, BLP will make, at AHC's expense, any
improvements or alterations to packaging or labeling as requested by AHC
and approved by BLP, and shall implement such alterations or improvements
at the earliest opportunity. Should any components be rendered o bsolete by
artwork changes, AHC shall reimburse BLP at actual procurement cost for any
components affected by such changes purchased against AHC's requirements
because of the long lead time to obtain certain components from suppliers.
BLP may have to purchase, or commit to purchase certain components further
AMERXSA.DOC 11/21/97 -6-
in advance than the period of time covered by the purchase order, and in
such case AHC agrees to reimburse BLP at actual procurement cost for such
components, so long as the quantity of such components BLP purchases, or
commits to purchase, is based on AHC's written estimate of requirements.
10. Warranties: Acceptance and Claims
---------------------------------
A. Limited Product Warrmiy. BLP represents and warrants to AHC that at the
time of delivery, the Product manufactured and supplied hereunder will
conform to the cGMPs and the FFDC Act, and other applicable laws and
regulations. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT
WHERE BLP COMMITS A WILLFUL, INTENTIONAL BREACH OF ANY MATERIAL PROVISION
UNDER THIS AGREEMENT, BLP SHALL NOT BE RESPONSIBLE OR LIABLE UNDER ANY
PROVISION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY RESULTANT INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF
REVENUES AND LOSS OF PROFITS FROM BLP'S FAILURE TO PROVIDE THE PRODUCT TO
AHC OR OTHERWISE.
B. Notification of Defects. All Product shall be received subject to AHC's
inspection and may be rejected if any such Product fails to be in the
condition warranted hereunder. AHC shall be deemed to have accepted each
order of Product if BLP does not receive written notice to the contrary as
set forth in this Paragraph I O.B. AHC shall notify BLP in writing within
15 days after delivery to AHC or its customers of any non-conforming
Product containing obvious defects discoverable without affecting the
integrity of the Product's packaging and within 30 days of its discovery of
any latent defects, or AHC's rights as to such obvious or latent non
conformance shall be waived by AHC. At BLP's request, AHC shall promptly
supply either some of the Product which are allegedly defective or some
other evidence of deficiency which BLP shall specify. In the event of any
dispute between BLP and AHC as to whether any of the Product conform to the
warranties hereunder, a sample of the units in dispute shall be sent by
AMERMADOC 11/21/97 -7-
AHC and BLP to a testing laboratory mutually agreed to by BLP and AHC whose
findings will be binding on the parties except in cases of gross and
manifest error. The cost of such testing and Product shall be borne by the
losing party.
C. Warranty Limited to AHC. AHC shall deliver to its customers its own
warranty concerning the Product. AHC's warranty to its customers shall
state conspicuously that the same is the sole and exclusive warranty to
customers.
D. Returns. BLP shall accept for return and replacement any Product
manufactured and supplied to AHC under this Agreement which at the time of
delivery does not conform with the warranty set forth above and for which
proper notice has been given, provided AHC obtains prior shipping
authorization from BLP. All returns of Product with obvious defects shall
be in the original manufactured condition. BLP will pay reasonable return
freight and shipping charges, but AHC shall assume the risk of loss in
transit associated with such returns.
E. Indemnification of AHC. BLP shall indemnify, defend, save and hold AHC
and each of its Affiliates, officers, directors, employees and agents
harmless from and against Loss or Losses resulting from, or arising out of
(a) any material breach of any warranty hereunder or material
non-fulfillment or non-performance by BLP of any agreement, covenant or
obligation of BLP under this Agreement; (b) any actual or alleged defect in
any Product manufactured and delivered to AHC hereunder arising out of
BLP's failure to manufacture Product in accordance with the terms of this
Agreement; (c) any actual or alleged infringement or violation of any
patent, trade secret or proprietary rights used by BLP in manufacturing
Product; and (d) FDA enforcement action, inspection or Product recalls or
market withdrawals resulting from BLP's failure to manufacture the Product
in accordance with the terms of this Agreement.
F. Exclusivi1y. In consideration of AHC's continued development of a market
for the Product, AHC appoints BLP during the term of this Agreement as it
exclusive manufacturer of the Product and grants AHC the exclusive right to
purchase the Product from BLP for resale. Additionally, BLP will have the
first right of refusal to manufacture Amerx New products.
G. Insurance Each of the parties shall maintain Commercial Liability
Insurance, during the term of this agreement, including contractual and
product liability, in amounts of not less than $1,000,000.00 per occurrence
and $3,000,000 annual aggregate naming the other party as an additional
insured. The parties shall exert their best efforts to obtain such
insurance on a date of occurrence basis (not a date of claim basis) and all
AMERXSA.DOC 11/21/97 -8-
insurance companies providing such insurance shall have an A.M. Best rating
of A- or better. Upon request, either party shall submit a certificate of
insurance evidencing such insurance to the other party, and providing that
it may not be canceled or reduced in amount without thirty (30) days prior
notification to the other party.
11. AHC's Warranties and Obligations
--------------------------------
A. Indemnification of BLP. AHC shall indemnify, defend, save and hold BLP
and each of its Affiliates, officers, directors, employees and agents
harmless from and against Loss or Losses resulting from, or arising out of
(a) any material breach of any warranty hereunder or material
non-fulfillment or non-performance by AHC of any agreement, covenant or
obligation of AHC under this Agreement; (b) any bodily injury arising as a
result of a negligent act or omission of AHC; (c) FDA enforcement action,
inspections or Product recalls or market withdrawals except where arising
out of or resulting from BLP's failure to manufacture Product in accordance
with the terms of this Agreement; (d) AHC's acts relating to the promotion,
marketing and/or distribution of Product, except where arising out of or
resulting from BLP's failure to manufacture Product in accordance with the
terms of this Agreement; and (e) any actual or alleged infringement or
violation of any patent, trade secret or proprietary right governing the
Product.
B. Registration. Any FDA or governmental approvals necessary for sale of
the Product(s) shall be the responsibility of AHC. AHC shall use its best
efforts to maintain all necessary FDA or governmental approvals for sale of
the Product(s)and that the packaging and labeling of such Product(s) shall
comply with all applicable FDA or governmental and rules and regulations.
C. Insurance Each of the parties shall maintain Commercial Liability
Insurance, during the term of this agreement, including contractual and
product liability, in amounts of not less than $1,000,000.00 per occurrence
and $3,000,000 annual aggregate naming the other party as an additional
insured. The parties shall exert their best efforts to obtain such
insurance on a date of occurrence basis (not a date of claim basis) and all
insurance companies providing such insurance shall have an A.M. Best rating
of A- or better. Upon request, either party shall submit a certificate of
AMERXSA.DOC 11/21/97 -9-
insurance evidencing such insurance to the other party, and providing that
it may not be canceled or reduced in amount without thirty (30) days prior
notification to the other party.
12. Indemnification Procedures
--------------------------
A. Upon the occurrence of an event which requires indemnification under
this Agreement, the Indemnified Party shall give prompt written notice to
the Indemnifying Party providing reasonable details of the nature of the
event and basis of the indemnity claim. The Indemnifying Party shall then
have the right, at its expense and with counsel of its choice, to defend,
contest, or otherwise protect against any such Action. The Indemnified
Party shall also have the right, but not the obligation, to participate at
its own expense in the defense thereof with counsel of its choice. The
Indemnified Party shall cooperate to the extent reasonably necessary to
assist the Indemnifying Party in defending, contesting or otherwise
protesting against any such Action provided that the reasonable cost in
doing so shall be paid by the Indemnifying Party. If the Indemnifying Party
fails within thirty (30) days after receipt of such notice (a) to notify
the Indemnified Party of its intent to defend, or (b) to defend, contest,
or otherwise protect against such suit, action, investigation, claim or
proceeding, or fails to diligently continue to provide such defense after
undertaking to do so, the Indemnified Party shall have the right, upon ten
(10) days' prior written notice to the Indemnifying party, to defend,
settle and satisfy any such suit, action, claim, investigation or
proceeding and recover the costs of the same from the Indemnifying Party.
B. Survival. The indemnification contained herein shall survive any
termination of this Agreement.
13. Product Recalls
If BLP meets all mutually agreed upon release specifications it will have
no liability for recall expenses. In the event that such recall results
from the breach by BLP of its warranties under this Agreement, defective
manufacture by BLP or other actions of BLP, BLP shall be responsible for
the reasonable expenses of the recall to which BLP will reimburse AHC
either by AHC's product price or replacement of product as agreed and
reasonable administrative fees. In the event the recall results from the
AMERXSA.DOC 11/21/97 -10-
actions of AHC (not including the recall order), AHC shall be responsible
for the expenses of the recall and any costs associated with the
distribution of replacement Product(s).
14. Product Complaints
------------------
Product complaints to be received by AHC and at its own expense, AHC will
promptly respond to all reasonable inquires from customers pertaining to
Product complaints.
15. Confidentialty.
--------------
For five years from the termination of this Agreement, each party hereto
agrees to keep any proprietary information furnished under this Agreement
confidential within its respective company and agrees not to disclose same
to third parties without the prior written consent of the other party
hereto, except as required by law or to the extent such information (i) was
already in the rightful possession of a party prior to its receipt from the
other party, (ii) becomes generally known to the public otherwise than as a
result of the breach of this Section, (iii) is disclosed by a third party
having no obligation to keep such information confidential, or (iv) was
independently developed by such party or its agent(s). During the Tenn, of
this Agreement, both AHC and BLP agree to keep the subject matter of this
Agreement confidential and not disclose it to any third party except as
required by law, in which instance timely notice shall be given to the
party not making the disclosure, or except as necessary under this
Agreement or as mutually agreed to.
16. Patents and Trademarks
----------------------
AHC further warrants that manufacture or sale of the Product(s) to AHC will
not infringe any third party's patent or other proprietary rights and that
AHC will indemnify, defend and hold BLP harmless from any damage from any
and all infringement claims relating to the Product(s) and any trademarks,
trade names, patent, proprietary right, trade name, trademark, service ▇▇▇▇
or copyright used by AHC in connection with the Product(s).
17. Termination.
------------
A. For Default. Without prejudice to any other legal or equitable remedy or
remedies either party may have, this Agreement may be canceled by either
party for breach of any material provision of this Agreement, or for a
AMERXSA.DOC 11/21/97 -11-
pattern or practice of repeated non-material breaches of provisions of this
Agreement, if such cause remains after the giving of not less than thirty
(30) days prior written notice (ninety (90) days in the case of BLP's
failure to deliver) to the breaching party of the existence of such cause
to terminate this Agreement. BLP will have the right to terminate if
volumes fall below the minimum annual volumes and AHC will pay for all
existing inventory to components to cover Purchase Orders consistent with
the AHC forecast.
B. For Insolvency. Without prejudice to any legal or equitable remedy or
remedies either party may have, this Agreement may be immediately
terminated at the option of a party, immediately upon written notice, in
the event of the insolvency of the other party, however such insolvency may
be evidenced.
C. Effect of Termination. Within 30 days following the effective date of
termination of this Agreement, BLP will provide AHC with a detailed
accounting of (i) the amount of raw materials, components and printed
materials held by BLP for manufacturing into Product under this Agreement,
(ii) the amount of Product in the process of being manufactured by BLP for
AHC under this Agreement and (iii) the amount of finished Product then held
in inventory by BLP (including Product which has not be subjected to BLP's
quality assurance testing procedures) under this Agreement. Unless
otherwise mutually agreed by the parties prior to the effective date of
termination or as otherwise set forth in this Agreement, BLP shall deliver
to AHC or to such other person or place as AEC shall direct in writing, at
AHC's sole cost and expense (except at BLP's sole cost and expense, if AHC
terminated the Agreement for cause), all raw materials and Product
described above and AHC shall pay BLP, within 30 days of such delivery, the
Product Price owing to BLP for finished Product, Manufacturing Costs for
work in process, and BLP's verifiable out-of-pocket costs incurred in
connection with unused inventories of packaging components and raw
materials. No termination of this Agreement shall have any effect on, or
relieve either party from, the obligation to make any payment or perform
any act arising prior to the effective date of termination.
18. Force Majeure and Allocation.
-----------------------------
The obligations of either party hereunder are contingent upon, and BLP
shall not be liable for, acts of God, war, riots, floods, fires, storms,
strikes, catastrophes or any other acts of force maieure FDA or
oovernmental restrictions prohibitions regulations and reauisitions the
AMERXSA.DOC 11/21/97 -12-
acts of suppliers or common carriers, or other interferences beyond the
reasonable control of such party to the extent that the same prevent or
delay the performance of the obligations herein contained, always provided
that such party shall use its best efforts to fulfill the obligations under
this Agreement and provide the other party with prompt notice of the
occurrence of any such event of force majeure.
19. Assignment or Transfer of Rights.
--------------------------------
AHC and BLP shall not assign, license, or otherwise transfer their rights
and obligations under this Agreement without the prior written consent of
the other, which consent shall not be withheld longer than 30 days, party's
absolute discretion, and any assignment or transfer without such consent
shall be deemed void.
20. Notices.
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All notices or communications required or permitted hereby shall be sent to
the respective addresses set forth below by overnight delivery, telegram,
telex, telefax, or registered or certified mail, return receipt requested
and shall be effective upon delivery.
As to BLP: Bausch & Lomb Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President Marketing & Trade Sales
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Contract Manufacturing Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Bausch & Lomb Incorporated
▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
As to AHC: ▇▇▇ ▇▇▇▇▇▇
President and CEO
Amerx Health Care Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AMERXSA.DOC 11/21/97 -13-
The address to which notice to either party shall be sent may be changed by
such party by written notice to the other party.
21. Order of Preference.
--------------------
All sales by BLP to AHC of Product(s) shall be subject to the provisions of
this Agreement and any provision of any purchase order placed by AHC or
order acknowledgment sent by BLP which is inconsistent herewith or in
addition hereto shall be null and void unless accepted by the receiving
party in writing and signed by one of its authorized representatives.
22. Applicable Law.
--------------
This Agreement shall be governed and construed in accordance with the laws
of the State of Florida, without reference to its choice-of-law rules.
23. Survival.
---------
Those provisions which, by their meaning and intent, have applicability
beyond the term of this Agreement shall survive the termination of this
Agreement.
24. Entire Agreement.
----------------
This is the entire Agreement between the parties hereto regarding the
Product(s) and supersedes any prior agreements made between the parties
regarding the Product(s). No prior statement, representation, promise or
agreement, written or verbal, shall be of any force to vary, expand or
diminish the provisions hereof. The Agreement may be modified or amended
only by an instrument in writing, executed by both parties.
AMERXSA.DOC 11/21/97 -14-
IN WITNESS WHEREOF, the parties have hereunto set forth their signatures
set forth above.
BAUSCH & LOMB AMERX HEALTH CARE
PHARMACEUTICALS, INC. CORPORATION
By: /s/ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: V.P. Marketing & Trade Sales Title: President & CEO
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AMERXSA.DOC 11/21/97 -15-
