Parties
Exhibit 10.74
Aralast Promotion Agreement
Parties
This Aralast Promotion Agreement (the “Agreement”) is effective March 26, 2004, (the “Effective Date”) by and between Baxter Healthcare Corporation, with offices at One Baxter Way, Westlake Village, California 91362 (“Baxter”) and InterMune, Inc. with offices at 3280 Bayshore Blvd., Brisbane, California 94005 (“InterMune”).
Recitals
WHEREAS, Baxter is engaged in the manufacture, promotion and sale of a plasma-derived Alpha1 Proteinase Inhibitor, a biological pharmaceutical with the trade name Aralast, (“Aralast”), which is used to treat certain pulmonology indications; and
WHEREAS, InterMune has a direct sales force which specializes in the sale of biological pharmaceuticals, including those used to treat pulmonology indications, and who directly call on pulmonologists; and
WHEREAS, InterMune has represented to Baxter that it has the capability, technical ability, expertise and experienced sales force to promote Aralast and achieve Baxter’s sales targets; and
WHEREAS, Baxter and InterMune desire to enter into this Agreement for InterMune to promote Aralast in the United States.
Now Therefore It Is Hereby Agreed As Follows:
1. Promotion Services.
(a) During the term of this Agreement, Baxter grants to InterMune the [*] right to promote Aralast within the Territory (as defined below) in accordance with the terms, covenants and conditions hereof. The “Territory” shall include the 50 states of the United States and the District of Columbia, but excludes the territories, possessions and commonwealths of the United States.
(b) InterMune accepts such appointment and agrees to promote Aralast for Baxter on the terms and subject to the conditions described in this Agreement. InterMune shall have no right to assign or sublicense the rights granted hereunder (except as set forth in Section 26), or to appoint agents or co-promoters to promote Aralast or to satisfy its obligations under this Agreement.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS
1
(c) During the term of the Agreement, Baxter grants InterMune the right to use trademarks, trade names, servicemarks and logos belonging to Baxter that directly relate to Aralast (the “Aralast Trademarks”) for the purpose of promoting Aralast. The Aralast Trademarks are set forth in Attachment A. The right to use the Aralast Trademarks is subject to Baxter’s guidelines (attached as Attachment B hereto), as may be amended from time to time; [*] All use by InterMune shall inure to the benefit of Baxter, and InterMune agrees not to contest Baxter’s rights in such Aralast Trademarks. InterMune further agrees not to use any trademarks, trade names, servicemarks, logos or designs that would be confusingly similar to the Aralast Trademarks. InterMune does not, and shall not, acquire any rights whatever in or to such trademarks or trade names. Baxter, by this Agreement, does not make any claim to nor does it purport to authorize any use of or grant any rights in trademarks and trade names belonging to others. The packaging and labeling for Aralast shall not bear InterMune’s trademark. InterMune agrees to immediately cease the use of Aralast Trademarks upon the expiration of the Agreement, and shall return all marketing and other materials bearing such Aralast Trademarks to Baxter upon such expiration.
(d) Baxter has the sole right and responsibility for establishing and modifying the terms and conditions for Aralast sales, including the selling price, and any other terms of sale and distribution. Baxter shall continue to promote Aralast and [*] prompt written notice upon [*] receipt of such notice, the parties will promptly meet to negotiate in good faith a commercially reasonable [*] set forth in Sections [*]
(e) [*] at any time upon 60-days prior written notice to [*] as further set forth in Section [*]
2. Sales Scope, [*]
(a) Sales Force. At all times during the term of the Agreement, InterMune will maintain a direct sales force [*] (the “Direct Sales Force”). For purposes of determining whether InterMune has satisfied its obligation to meet the [*] it shall be entitled to [*] so long as it equals or exceeds [*] must equal the equivalent of [*] For example, if InterMune has [*] it shall be deemed to meet this requirement.
2
(b) Promotion. During the term of the Agreement, InterMune shall have the Direct Sales Force promote and detail Aralast on prescribing pulmonologist sales calls as the [*] (“Aralast Details”) in accordance with subsection (c) below. The [*] on the detail. During Aralast Details, InterMune representatives shall deliver Baxter’s quarterly Plans of Action (to be provided by Baxter pursuant to Section 11). Attached as Attachment C is the call sheet to be used for each Aralast Detail.
(c) [*] During the term of the Agreement, InterMune’s Direct Sales Force must:
(i) [*]; and
(ii) [*]
Up to [*] the parties will meet to re-evaluate the [*]
(d) [*] InterMune is being engaged by Baxter to provide reach into the community of pulmonologist physicians with the expectation that InterMune’s regular detailing of these physicians, as described herein, will [*] so that the [*] If one of the following occurs:
(i) [*]; or
(ii) [*];
[*] upon thirty (30) days written notice, at [*] for any reason, or (2) any [*] relating to Aralast. [*]
Provided that [*] requirements set forth in Section [*] will have no right to [*] if, during the time such [*] (as defined in Section [*] in the Territory. As used herein, “Affiliate” means (a) any corporation or business entity fifty percent (50%) or more of the voting stock of which is and continues to be owned directly or indirectly by Baxter; (b) any corporation or business entity which directly or indirectly owns fifty percent (50%) or more of the voting stock of Baxter; or (c) any corporation or business entity under the direct or indirect control of such corporation or business entity as described in (a) or (b).
(e) [*] During the term of the Agreement, [*] where at least:
(i) approximately [*] and
(ii) at least [*]; and
(iii) at least [*]
3
The parties have agreed upon [*] no later than 30 days after the Effective Date. InterMune shall promptly notify Baxter of any [*] the three criteria listed above, and if [*] upon 30 days prior written notice; provided that [*]
3. Training [*] Sales Force Communications.
(a) InterMune. InterMune shall ensure its Direct Sales Force is trained within [*] business days of the later of the Effective Date or initial receipt of Baxter’s training materials. Thereafter, InterMune will ensure its Direct Sales Force attends Baxter training and receives any updated training materials [*] InterMune will [*] and will provide Baxter with the [*] InterMune will [*] InterMune will take sole responsibility for the ongoing training of its sales force and new hires throughout the year. InterMune shall provide training [*] to any new hires to the Direct Sales Force within sixty [*] after hire.
(b) Baxter.
(i) Baxter will provide the training materials and [*] to be used for training the Direct Sales Force within the [*] business days of the Effective Date. Baxter shall provide [*] Baxter will provided updated training materials as needed.
(ii) Baxter will [*] based on the assumption that [*]
(iii) Baxter will ensure that [*] within a reasonable period of time.
4. Compliance with Laws.
(a) During the term of this Agreement, each party shall in all material respects conform its practices and procedures relating to the manufacture, sale, distribution, marketing, detailing and promotion of Aralast in the Territory to all applicable laws, rules, regulations and guidelines, including, without limitation, all applicable provisions of the Food, Drug and Cosmetic Act, current Good Manufacturing Practices, the Prescription Drug Marketing Act, the Federal Health Care Programs Anti-Kickback Law, 42 U.S.C. 1320a-7b(b), the Office of the Inspector General (“OIG”) Final Compliance Program Guidance for Pharmaceutical Manufacturers, the Pharmaceutical Research and Manufacturers of America Code on Interactions with Healthcare Professionals and/or the Advanced Medical Technology Association Code of Ethics on Interactions with Healthcare Professionals, the Accreditation Council for Continuing Medical Education Standards for Commercial Support and the American Medical Association (“AMA”) Guidelines on Gifts to Physicians from Industry, as the same may be amended from time to time.
(b) Each of Baxter and InterMune shall promptly notify the other party of and provide such party with a copy of any material adverse correspondence or other material adverse reports with respect to the Aralast Details or the manufacture, use, sale, distribution or promotion of Aralast, respectively, that is received from the U.S. Department of Health and Human Services or its components (including the FDA and
4
the OIG) or any foreign counterparts, or the AMA relating to such laws, rules, regulations and guidelines. Further, InterMune shall inform Baxter of any material correspondence it receives from a healthcare provider, competitor or any other party relating to promotional practices used to detail Aralast.
(c) During the term of the Agreement, InterMune will advertise, promote and market Aralast and promote the goodwill of Baxter in a manner consistent with all applicable FDA requirements. InterMune shall conduct its activities relative to the marketing of Aralast in a professional manner and in accordance with the Baxter’s Sales & Marketing practices (a copy of which is attached as Attachment D hereto), as it may be amended from time-to-time, and in accordance with the terms of this Agreement. [*]
(d) During the term of the Agreement, InterMune shall inform Baxter BioScience North America Customer Service ###-###-#### of any adverse events or any other significant allegation of deficiencies related to the identity, integrity, quality, durability, reliability, safety, effectiveness or performance (Product Complaints) regarding Aralast. InterMune shall comply in all respects with Baxter’s Product Complaints: Receiving and Reporting Guide (a copy of which is attached as Attachment E hereto), as it may be amended from time-to-time. [*] Baxter shall provide reasonable quantities of this guide to InterMune to assist InterMune staff in the reporting of product complaints.
5. Promotional Materials.
(a) During the term of the Agreement, Baxter shall provide in a timely manner reasonable quantities of all necessary and available Aralast promotional materials that may be reasonably requested by InterMune in connection with the training of InterMune’s Direct Sales Force and its promotion of Aralast. Baxter shall own all right, title and interest in and to such promotional materials, including all copyrights appurtenant thereto. Baxter hereby grants to InterMune the right, during the term of this Agreement, to use, display, transmit and reproduce the promotional materials in connection with InterMune’s promotion and detailing of Aralast.
(b) [*] with respect to the [*] of the promotional materials, but [*] that all such materials must be [*] use of such promotional materials to ensure [*] In no event shall [*] of the promotional materials.
6. Term. Unless otherwise terminated as herein provided, the term of this Agreement shall commence on the Effective Date and shall expire on December 31, 2006. [*]
7. Termination.
(a) Either party may terminate this Agreement upon [*]-days prior written notice in the event of a material breach of this Agreement by the other party that is not cured by the breaching party to the non-breaching party’s reasonable satisfaction within such [*]day period. In the event that [*]
5
(b) [*] may terminate this Agreement if [*] fails to meet the requirements for the [*]; or fails to provide the [*] and, in each case, such failure is not cured within [*]days prior written notice.
(c) [*] may terminate this Agreement pursuant to Section [*], or pursuant to Section [*]
(d) [*] may terminate this Agreement upon [*]days prior written notice if [*] Such notice will state the [*] the effective date of termination. As used herein, [*] in the Territory.
(e) [*] may terminate this Agreement: (i) upon [*]days prior written notice if [*], or (ii) upon [*]days prior written notice if [*] In such case, [*] the effective date of termination.
(f) The following provisions shall survive termination of this Agreement: Sections [*] Termination of this Agreement shall not relieve either party of any liability or obligation which accrued hereunder prior to the effective date of such termination, nor preclude either party from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement, nor prejudice either party’s right to obtain performance of any obligation.
8. Transition to Baxter Sales Force. After the expiration of this Agreement, InterMune shall cooperate reasonably with Baxter in returning all Aralast related materials. Thereafter, InterMune shall continue to reasonably assist and advise Baxter in the promotion of Aralast for so long as [*]
6
9. [*] to InterMune.
(a) [*] Baxter shall pay InterMune a [*] shall be calculated based on the [*] as to each [*] of the following [*] regardless of the [*]
(i) [*];
(ii) [*];
(iii) [*]; and
(iv) [*]
Notwithstanding the foregoing, [*]
(b) [*]
(i) [*] shall be:
[*]
In any event, [*]
(ii) [*] shall be:
[*]
In any event, [*]
(iii) [*] shall be:
[*]
In any event, [*]
(c) [*] of the Agreement, [*]
In any event, the [*] there shall be [*] amongst and between the parties.
[*] or is otherwise [*] shall be obligated to [*] The foregoing shall be [*]
7
(d) Timing of [*] Payments and Reports.
(i) During the term of the Agreement, InterMune shall provide Baxter with the reports and tracking data as set forth in Section 12(a). Baxter shall pay the [*] described in subsection (b) above for each [*] Baxter shall provide to InterMune contemporaneously the reports described in Section 12(b). The first [*] payments and reports under this Agreement shall [*]
(ii) Following the [*] described in subsection [*] and shall provide to [*] described in Section [*]
(iii) Baxter shall remit all payments under this Section by wire transfer to a bank account to be designated in writing by InterMune.
(e) [*]
(i) [*] in accordance with the [*] In the event [*] as set forth below. The [*] the requirements set forth above shall be considered [*] as applicable.
(1) In the event [*]
(2) In the event [*]
(3) In the event [*]
(4) In the event that [*]
Provided that [*]
(ii) Notwithstanding the foregoing, [*] shall not be permitted to [*]
(iii) Notwithstanding the foregoing, [*] for any reason or other [*]
10. [*] in the Territory [*] during the term of this Agreement and (i) [*] or (ii) in the event of any [*] pursuant to Section [*] or (B) [*] pursuant to Section [*] as set forth in Section [*] as set forth in Section [*] will have no obligations under this Section 10 if [*] in the Territory.
11. Marketing.
(a) Generally. Baxter will prepare and deliver the Aralast Quarterly Plans of Action to be used during Aralast Details. Both parties’ sales representatives will meet periodically to discuss marketing territories and marketing coverage in those territories.
(b) JMT. Baxter and InterMune shall form a joint marketing team (“JMT”) for the marketing of Aralast. The JMT shall be comprised of six representatives, three for each party. The JMT shall meet at least [*] each year shall be [*] unless otherwise agreed in writing. Each party shall pay their own costs for attending each meeting. [*]
8
shall not be obligated to [*] The JMT shall be responsible for, among other things, coordinating the promotional efforts of both the parties’ sales forces, the form and timing of reporting Aralast Details and sales, developing training materials for the sales forces and developing tactical plans for promotional materials.
12. Reports.
(a) InterMune.
(i) InterMune shall provide Baxter with [*] reports [*] which reports will include the data fields in Attachment C, within [*] The form of these reports may be revised and modified subject to InterMune’s written agreement.
(ii) InterMune shall provide Baxter with [*] reports [*] to include the data fields in Attachment F, within [*] The form of these reports may be revised and modified subject to InterMune’s written agreement.
(iii) InterMune shall also provide Baxter with [*]
(b) Baxter. Baxter shall provide, on a monthly basis, reports on [*] broken down into [*] will include a [*] will include a [*]
13. Right to Audit.
(a) Compliance Audits. Each party will have the right to audit the other party to ensure that such other party is materially compliant with the terms and conditions of the Agreement, including, without limitation, Section 4. Such audit will be conducted by an internal or external specialist selected by the auditing party and reasonably acceptable to the other party. Such audits may be made [*] at reasonable times mutually agreed by InterMune and Baxter. Such expert shall hold all information discovered as part of the audit confidential, and only report to the auditing party such information as is necessary for the auditing party to ascertain the other party’s material compliance with this Agreement.
(b) Financial Audits. The parties shall maintain the records used to calculate compliance with all obligations under this Agreement, including all [*] payable under Section 9 and all records which support the calculation of each component of the [*] Such records shall be maintained for at least [*] years following the end of the calendar year to which they pertain. Such records will be open for audit during by an independent certified public accountant selected by a party and reasonably acceptable to the other party for the purpose of verifying the other party’s compliance with their obligations hereunder, including [*] Such audits may be made [*] at reasonable times mutually agreed by InterMune and Baxter. The party requesting the audit shall bear the costs and expenses of audits conducted under this subsection (b) unless a variation or error producing an underpayment in [*] payable or underperformance of obligations exceeding [*] for the time period inspected is established in the course of any such
9
audit, whereupon all costs relating to the audit and any unpaid amounts that are discovered will be paid promptly by the other party, together with interest on such unpaid amounts equal to the lesser of prime rate plus [*] per year, or the maximum rate permitted by law.
14. Sales and Distribution; Recalls and Other Field Corrective Actions. Baxter shall have the sole right and obligation to take such actions with respect to Aralast, [*] as would normally be done in accordance with accepted business practices and legal requirements to maintain the authorization and/or ability to market Aralast in the Territory, including, without limitation, the following:
(a) manufacturing and distributing Aralast in the Territory;
(b) booking sales and distribution of Aralast hereunder and performance of related services;
(c) handling all aspects of order processing, invoicing and collection, inventory and receivables;
(d) providing customer support, including handling medical queries, and performing other functions consistent with customary practice for prescription pharmaceuticals;
(e) responding to Aralast complaints;
(f) handling all Aralast returns;
(g) handling all voluntary recalls and market withdrawals of Aralast;
(h) communicating with any governmental agencies and satisfying their requirements regarding regulatory approvals of Aralast in the Territory including, but not limited to, BLA approval, labeling approval, promotional materials approval, product and/or establishment licenses, registrations or authorizations of any federal, state or local regulatory agency, department bureau or other governmental entity;
(i) reporting adverse reaction reports to regulatory authorities as required by applicable law or regulation; and
(j) negotiating any and all agreements with providers, managed care organizations, payers, wholesalers, group purchasing organizations, and the like, regarding Aralast.
15. Representations and Warranties.
(a) The parties represent and warrant to each other that they are not a party to any agreement that would prevent it from fulfilling its obligations under this Agreement.
(b) Baxter represents to InterMune that:
10
(i) [*] including without limitation the [*] in each case in accordance with this Agreement.
(ii) [*] in each case in accordance with this Agreement, [*]
(iii) [*] of this Agreement.
(iv) [*]
(c) InterMune represents to Baxter that [*] of this Agreement.
16. Relationship of the Parties. In fulfilling its obligations under this Agreement, each party is acting as an independent contractor. Except as contemplated under this Agreement, it does not have the right to, and will not at any time hereafter without the other party’s prior written consent, transact any business in the name of such other party or obligate it in any manner, character or description. Absent its prior written consent, a party shall not, under any circumstances, be liable for any agreement, contract, representation or warranty which the other party has made or may enter into or make. This Agreement does not establish or create a partnership or joint venture among the parties.
17. Confidentiality.
(a) In the course of this Agreement, it is anticipated that each party (the “Recipient”) will learn of information that the other party (the “Disclosing Party”) regards as confidential or proprietary, including, but not limited to, information relating to the Disclosing Party’s business, products, plans, technical know-how, processes, sales representatives, customers, suppliers, pricing programs and strategies (“Confidential Information”). The Recipient will keep confidential the Disclosing Party’s Confidential Information, unless and until the Disclosing Party consents in writing to such disclosure. The Recipient will take all reasonable precautions, including adequate procedures and discipline, to safeguard the confidential nature of such information. The Recipient shall not disclose any Confidential Information to others, except for the purposes of this Agreement under an obligation of confidentiality at least equivalent to those set forth herein.
(b) The Recipient’s obligation hereunder to protect the Disclosing Party’s Confidential Information shall not apply if the information:
(i) is already in the Recipient’s possession, provided that such information is not subject to the confidentiality provisions of any other agreement between the Recipient and the Disclosing Party, or
(ii) is information developed, generated, compiled or stored by the Recipient without reference to the Disclosing Party’s Confidential Information, or
(iii) was independently developed, as evidenced by written records, by a party without reference to the other party’s Confidential Information, or
11
(iv) becomes generally available to the public other than as a result of a disclosure by the Recipient or its representatives in violation of this Agreement, or
(v) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or its representatives, provided that such source is not known to the Recipient to be bound by obligations of confidentiality with the Disclosing Party, or
(vi) is required to be disclosed by law.
(c) The terms of this Agreement will be deemed both parties’ Confidential Information.
(d) The Recipient’s undertaking to protect the Disclosing Party’s Confidential Information will survive any expiration or termination of this Agreement for [*] years.
18. Protection of Employees.
(a) The parties acknowledge that information provided hereunder regarding their respective employees is confidential and proprietary information, and that the other party’s unauthorized use thereof would cause irreparable harm.
(b) The parties agree that [*] neither party will directly or indirectly, (through any Affiliate, agent, representative or partner or otherwise) solicit or hire any individual who, [*] nor encourage any such employee to leave the other party, except with such party’s prior written consent.
19. Publicity. Neither party shall make any public announcement concerning this Agreement without the prior written consent of the other party (which will not be unreasonably withheld or delayed), unless counsel to such party advises that such announcement or statement may be required by law (including applicable stock exchange rule). In the case of an announcement required by law, the other party shall be advised in advance and both parties shall use good faith efforts to cause a mutually agreeable announcement to be issued in a timely basis.
20. Force Majeure. The parties shall not be liable for failure or delay in fulfilling its obligations under this Agreement where such failure or delay is due, in whole or in part, causes beyond its reasonable control, including without limitation shortage of supply, manufacturing problems, war, civil commotion, labor strike or lock-out, utility shortage or curtailment, intervention of any governmental authority or acts of regulatory agencies (except due to such party’s failure to comply with applicable law), fires, floods, earthquakes, acts of God or terrorist acts.
21. Notices. Wherever notice is required or permitted hereunder, it shall be by personal delivery, first class mail, overnight delivery service, or sent by facsimile transmission, with electronic confirmation, properly directed to the party at its address and contact information listed below. Said address and contact information may be changed from time to time by similar written notice.
12
| If to InterMune: |
| If to Baxter: |
|
|
|
|
| InterMune, Inc. Attention: Executive Vice President Phone: (415) 466-2200 |
| Baxter Healthcare Corporation Attention: Vice President of Global Phone: (805) 372-3620 |
22. Indemnification; Limitation of Liability.
(a) Subject to subsection (c) below, Baxter shall indemnify, defend and hold InterMune and its Affiliates and their respective directors, officers, agents and employees harmless from any and all claims, liabilities, damages and causes of action arising (collectively, “Liabilities”) to the extent arising from or in any way connected with [*] This indemnity shall not apply to the extent such claims, liabilities and causes of action are caused by the fault, breach of contract or tort (including negligence and strict liability) of InterMune.
(b) Subject to subsection (c) below, InterMune shall indemnify, defend and hold Baxter, and its Affiliates and their respective directors, officers, agents and employees, harmless from and against any Liabilities arising from or in any way connected with [*] This indemnity shall not apply to the extent such claims, liabilities and causes of action are caused by the fault, breach of contract or tort (including negligence and strict liability) of Baxter, its Affiliates or any [*]
(c) A party (the “Indemnitee”) which intends to claim indemnification under this Section shall promptly notify the other party (the “Indemnitor”) in writing of any action, claim or other matter in respect of which the Indemnitee or any of its directors, officers, employees or agents, intend to claim such indemnification; provided, however, the failure to provide such notice within a reasonable period of time shall not relieve the Indemnitor of any of its obligations hereunder except to the extent the Indemnitor is prejudiced by such failure or delay.
13
The Indemnitee shall permit, and shall cause its directors, officers, employees and agents to permit, the Indemnitor at its discretion to settle any such action, claim or other matter, and the Indemnitee agrees to the complete control of such defense or settlement by the Indemnitor. Notwithstanding the foregoing, the Indemnitor shall not enter into any settlement that would adversely affect the Indemnitee’s rights hereunder, nor impose any obligations on the Indemnitee in addition to those set forth herein in order for it to exercise such rights, without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. No such action, claim or other matter shall be settled without the prior written consent of the Indemnitor, which shall not be unreasonably withheld or delayed.
The Indemnitor shall not be responsible for any attorneys’ fees or other costs incurred other than as provided herein. The Indemnitee and its directors, officers, employees and agents shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any action, claim or other matter covered by the indemnification obligations of this Section. The Indemnitee shall have the right, but not the obligation, to be represented in such defense by counsel of its own selection and at its own expense.
23. Severability. The intention of the parties is to comply fully with all laws and public policies, and this Agreement shall be construed consistently with all laws and public policies to the extent possible. If and to the extent that any court determines that it is impossible to construe any provision of this Agreement consistently with any law or public policy and consequently holds that provision to be invalid, such provision will be amended so to preserve, to the extent possible, the parties’ original intent, or if it cannot be so amended, such provision shall be struck. Such holding shall in no way affect the validity of the other provisions of this Agreement, which shall remain in full force and effect.
24. Waiver. No failure or omission by either party to insist upon or enforce any of the terms of this Agreement shall be deemed a waiver of such terms. Any waiver must be in writing, signed by an authorized representative of the party to be charged, in order to be effective. No waiver will be effective against any further breach.
25. Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of [*] without giving effect to any choice or conflict of law provisions thereof. For any legal action arising from or related to this Agreement, the parties hereby: (i) consent and submit solely to jurisdiction and venue of the state and federal courts located in [*] (ii) agree that such courts shall be the sole courts utilized; and (iii) hereby waive any jurisdictional or venue objections to such courts, including without limitation, forum non conveniens.
26. Assignment. Neither party may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other, except that a party may make such an assignment without the other party’s consent to a permitted successor-in-interest to substantially all of the business assets of such party to which this Agreement relates, whether in a merger, sale of stock, sale of assets or other transaction. [*] Any permitted successor or assignee of
14
rights and/or obligations hereunder shall, in a writing to the other party, expressly assume performance of such rights and/or obligations. Any permitted assignment shall be binding on the successors of the assigning party. Any assignment or attempted assignment by either party in violation of the terms of this Section shall be null and void and of no legal effect. This Agreement shall be binding upon and shall inure to the benefit of each party’s successors-in-interest and permitted assigns.
27. Headings. The article and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.
28. Days. All references herein to “days” mean calendar days, unless specifically stated otherwise.
29. Remedies Cumulative. Unless specifically and expressly provided otherwise, the remedies provided under this Agreement are cumulative, and are not exclusive of other remedies available to a party in law or equity.
30. Complete Agreement. This Agreement constitutes the entire agreement between the parties hereto, and cancels and supersedes any and all previous agreements between the parties with respect to the subject matter hereof. All modifications or amendments hereto must be in writing and signed by all parties. No renewal, termination or cancellation of this Agreement, or modification or waiver of any of the provisions herein contained, or any future representation, promise or condition in connection with the subject matter hereof, shall be binding upon either party unless it is made in writing.
31. Counterparts. This Agreement may be executed in counterparts with the same force and effect as if each of the signatories had executed the same instrument.
32. Ambiguities. Ambiguities, if any, in this Agreement shall not be construed against either party, regardless of which party is deemed to have drafted the provision at issue.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives:
| Baxter Healthcare Corporation | InterMune, Inc. | |||||||
|
|
| |||||||
| By: | /s/ Ron Lloyd |
| By: | /s/ Roger Hawley |
| |||
|
|
| |||||||
| Name: | Ron Lloyd |
| Name: Roger Hawley |
| ||||
|
|
| |||||||
| Title: | VP – Global Marketing |
| Title: Executive Vice President, Commercial Operations | |||||
|
|
| |||||||
| Date: | April 5, 2004 |
| Date: | March 26, 2004 |
| |||
15
ATTACHMENT A – ARALAST TRADEMARKS
[*]
16
ATTACHMENT B – ARALAST TRADEMARK GUIDELINES
[*]
17
ATTACHMENT C – CALL REPORT DETAILS
[*]
18
19
ATTACHMENT D – BAXTER SALES & MARKETING PRACTICES
[*]
20
ATTACHMENT E – PRODUCT COMPLAINTS: RECEIVING AND REPORTING GUIDE
[*]
21
ATTACHMENT F – [*] COMPLIANCE REPORT
[*]
22
