Exhibit 10.36
[BIOENVISION LETTERHEAD]
November 2, 2006
CONFIDENTIAL
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Mayne Pharma Limited
Xxxxx 00, 000 Xx. Xxxxx Xxxx
Xxxxxxxxx Xxxxxxxx 0000
Xxxxxxxxx
Attention: Company Secretary
Re: Amendment to Clofarabine Marketing and Distribution Agreement,
dated March 24, 2006
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Dear Sir:
Bioenvision, Inc. ("Bioenvision") and Mayne Pharma Limited ("Distributor") are
desirous of making an amendment (the "Amendment") to that certain Marketing and
Distribution Agreement, effective as of March 24, 2006 (the "Agreement"),
between Bioenvision, Inc. ("Bioenvision") and Mayne Pharma Limited
("Distributor"). All terms not herein defined shall have the meanings ascribed
to them in the Agreement.
In consideration of the mutual covenants set forth in this Amendment and in the
Agreement, Bioenvision and Distributor agree as follows:
1. Amendment. Section 5.1A of the Agreement is deleted in its entirety and
replaced with the following:
5.1A Pre-Registration Approval. Prior to the grant of
Registration Approval Distributor shall be entitled to order Product
labeled in accordance with the relevant requirements of the EMEA ("EU
Labeled Product"), and Bioenvision will deliver such EU Labeled Product
to the Distributor within thirty (30) days of receipt of such order,
provided that (i) the order does not exceed one hundred (100) vials, and
(ii) the Distributor has no more than twenty (20) vials of EU Labeled
Product in stock at the time it places the order, and (iii) Distributor
has paid Bioenvision the Final Payment (as defined below) for all EU
Labeled Product previously delivered to Distributor and further sold by
Distributor to a third party prior to Distributor's placing such current
order. EU Labeled Product will be delivered CIP Incoterms 2000 to the
Distributor's warehouse. The price for EU Labeled Product will be as set
out in section 6.2, except that the Distributor will pay AU$[****] per
vial ("Initial Payment") within thirty (30) days of receipt of each
invoice for EU Labeled Product from Bioenvision. The remaining payment
per vial ("Final Payment") is made in accordance with clause 6.2, except
that all Initial Payments are subtracted from the calculation of Net
Sales. Both parties acknowledge that (A) if EU Labeled Product purchased
by Distributor is not sold by Distributor to a third party, Bioenvision
will not receive any Final Payment in this circumstance, (B) Bioenvision
may withhold further deliveries of EU Labeled Product if and to the
extent the Distributor is in breach of any of its payment obligations
under this Agreement, and (C) all terms of the Agreement, including
Section 4.3, apply equally to EU Labeled Product as they do to Product.
The Initial Payment shall be considered non-refundable unless the reason
for Distributor not being able to sell EU Labeled Product is due to
breach of any term of the Agreement by Bioenvision.
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934. Material filed separately with the
Securities and Exchange Commission.
2. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same instrument.
3. Affirmation. This Amendment is to be read and construed with the
Agreement as constituting one and the same agreement. Except as
specifically modified by this Amendment, all remaining provisions,
terms and conditions of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officer, as of the date first above written.
BIOENVISION, INC. MAYNE PHARMA LIMITED
By: /s/ Xxxxx X. Xxxx By: /s/Xxxx Xxxxxxxx
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Print Name: Xxxxx X. Xxxx Print Name: Xxxx Xxxxxxxx
Title: CFO, General Counsel Title: EVP & CFO
Witness: /s/ Xxxxxx Xxxxxxxx Witness: /s/ Xxxxxxxx Xxxxxx
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Print Print Name:
Name: Xxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxx
Date: 11/6/06 Date: 11/22/06
