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EXHIBIT 10.84
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (the "Agreement") is entered into as
of February 24, 1997 by Hoffmann-La Roche Limited, a corporation organized and
existing under the laws of Canada ("Roche") and Medicis Pharmaceuticals, Inc. a
Delaware corporation ("Buyer").
WHEREAS, pursuant to an Asset Purchase Agreement dated January 21, 1997
between Roche's Affiliate, Syntex (U.S.A.) Inc. ("Syntex"), and Buyer (the
"Asset Purchase Agreement"), Buyer has purchased from Syntex certain assets
relating to certain dermatology products; and
WHEREAS, Buyer desires to retain Roche, and Roche is willing to be
retained by Buyer, to provide certain warehousing of inventory, order taking,
distribution, billing and collection, and processing of returns services during
the period of transition of the Products from Syntex to Buyer.
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:
1. DEFINITIONS
1.1 "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(e.g., of spoiled, damaged or outdated Products) which are the responsibility of
Buyer under the Asset Purchase Agreement.
1.2 "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.
1.3 "Sales" means the gross invoice amount of Products sold to third
parties in the Territory on behalf of Buyer from and after the Closing Date.
1.4 "Services" means any and all services with respect to the
Products provided by Roche to Buyer pursuant to this Agreement.
1.5 "Territory" means Canada.
1.6 The term "Products" as well as other capitalized terms used
herein and not defined above shall have the respective meanings assigned to such
terms in the Asset Purchase Agreement.
2. RESPONSIBILITIES OF PARTIES
2.1 Provision of Services. Subject to the terms hereof, Roche shall
(a) cooperate with Buyer and assist in the orderly transition of the Products to
Buyer, and (b) provide the Services described herein that are requested by
Buyer.
2.2 Cooperation and Assistance. Roche and Buyer shall make
available the individuals identified on Exhibit A, or their qualified designees,
for consultation with the other party's representatives via telephone,
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correspondence or in person at Roche's facilities for the purpose of conveying
and transferring information relating to the operation of the Products. 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
Closing.
2.3 Distribution Agency Services. With respect to the Products,
Roche, or subcontractors used by Roche in the ordinary course of conducting its
business, shall provide all services (including storing, delivering and
distributing Products and filling orders) requested by Buyer and customarily
performed by a distribution agent in connection with the sale of ethical
pharmaceutical products in the Territory, including the following: (a) accepting
orders and invoicing purchasers on behalf of Buyer; (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 Asset
Purchase Agreement; and (f) customer complaint and inquiry services. Roche
further covenants and represents to Buyer that it shall comply with all 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
Roche can demonstrate that such non-compliance was directly caused by following
the written instructions of Buyer. Roche shall charge customers and pay Buyer
for Products sold only on the basis of list prices for each unit of the Product.
The current list prices for Products are set forth on Exhibit B. Buyer may
change the list prices from time to time by written notice to Roche, which price
changes shall be effective within seven (7) days of receipt of such notice.
2.4 Marketing Support Services. In order to inform customers of the
sale of the Products to Buyer, and otherwise transition the Products, the
parties shall: (a) notify all contracted customers, trade customers, and
wholesalers of the transfer of the Products to Buyer by a method and at a time
mutually agreed to by the parties in the form substantially as set forth on
Exhibit C, 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, Roche shall provide Buyer 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 Roche shall not be responsible for providing the Buyer with any sales or
promotional support.
2.5 Reports. Roche shall submit in writing to Buyer: (a) within
seven (7) business days after the end of each calendar month a report as set
forth on Schedule 1; (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 end of
the preceding calendar month; and (c) such other information as Buyer shall
reasonably request that is agreed to by Roche. Roche shall also submit to Buyer
weekly reports setting forth Net Sales in dollars by Product family.
2.6 DIN Numbers. Immediately following the Closing, Buyer shall take
any and all action necessary to change the Drug Identification Number for the
Products, which change shall be implemented pursuant to the terms of the Asset
Purchase Agreement with Syntex.
2.7 Payment of Net Sales. On the twentieth calendar day of each
calendar month, Roche will wire transfer to Buyer the amount equal to total Net
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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 discount based on payment terms of two percent (2%) thirty net
thirty-one (31) days; and (iii) the amount of the fee, if any, calculated for
such prior month under Section 4.1.
2.8 Orders Following Termination or Expiration. For a period of two
(2) weeks following the termination or expiration of this Agreement, Roche shall
forward to Buyer as soon as practicable via facsimile any orders for Products
received by Roche. For a period of six (6) weeks following the end of the two
(2) week period in the preceding sentence, Roche shall forward to Buyer via
facsimile at least every three (3) days any orders for Products received by
Roche. At the end of such six (6) week period, Roche shall reject all orders
for Products received by Roche, but shall notify any such orderer that future
orders should be placed directly with Buyer.
3. PRODUCT RETURNS
Roche 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 D. Buyer 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 Roche, a copy of which is attached
hereto as Exhibit E.
4. PAYMENTS
4.1 Fees. In consideration of Roche's Services under this
Agreement, Buyer shall pay to Roche a fee equal to six per cent (6%) of Buyer's
Net Sales of Products for any month during which Roche provides Services to
Buyer. In addition, Roche shall be reimbursed its Fully Loaded Costs for any
special services or expenses, provided that Buyer 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 Roche in any recall of Products,
"scrap" charges incurred due to labeling or packaging changes requested by
Buyer, and any components with Syntex's or Roche's DIN number ordered on or
after January 21, 1997 with the prior written approval of Buyer, transportation
costs associated with the delivery of inventory and records upon termination of
this Agreement, and any other expenses incurred by Roche specifically as a
result of this Agreement. Buyer will reimburse Roche with respect to the
foregoing costs, if any, within thirty (30) days of receipt of Roche's
statement.
4.2 Records: Audit. Roche 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 Canada and provide copies of such
records to Buyer within ninety (90) days of termination of this Agreement.
During and at any time within six (6) months following termination of this
Agreement, Buyer, at its expense, shall have the right to conduct one
examination or audit of said records of Roche which relate solely to the
services provided hereunder and costs and expenses incurred hereunder, for the
sole purpose of verifying information provided by Roche and payments made to
Roche hereunder. Roche 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
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this Agreement, Buyer, at its expense, shall have the right to appoint an
independent certified public accounting firm reasonably acceptable to Roche who
will be bound by confidentiality terms reasonable to Roche, to conduct one audit
of customer invoices for the Products for the sole purpose of verifying the
information provided by Roche and payments made to Roche hereunder. Such auditor
shall not disclose any information to Medicis relating to Roche'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 Roche.
Subject to Roche'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 Roche hereunder, or if
there will be no such future amounts, Roche shall refund the overpayment to
Buyer within thirty (30) days of such notice; and the amount of any underpayment
shall be paid to Roche within thirty (30) days after such disclosure. If the
audit determines that Roche has overcharged Buyer by five percent (5%) or more
for the fee under Section 5.1 for the period audited, Roche shall promptly
reimburse Buyer for all reasonable expenses incurred in conducting said audit.
5. STANDARD FOR SERVICES
Roche shall meet the standards of the applicable profession in
performing Services hereunder; provided that except as otherwise set forth
herein, neither Roche nor its employees shall have any liability to Buyer 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 Roche to Buyer (including without limitation the
substance, timeliness and diligence thereof) shall be substantially the same as
the quality and quantity of services rendered in relation to Roche's other
products by Roche personnel. Nothing contained in this Agreement shall require
Roche 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 Buyer suffers any loss or damage
caused by Roche's bad faith, gross negligence or willful misconduct, Roche shall
pay all direct costs incurred as a result thereof. Under no circumstances shall
Roche have any liability to Buyer for consequential or incidental damages.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall commence as of the Closing Date and
shall continue in effect for a period of one (1) year.
6.2 Termination. Either party may terminate this Agreement upon
immediate written notice if the other party is in material breach or default
with respect to any term or provision hereof and fails to cure the same within
twenty-one (21) days of receipt of notice of said breach or default. Buyer may
terminate this Agreement at any time upon not less than thirty days written
notice, provided any transition issues that will require cooperation after
termination are mutually agreed to by the parties; provided further that Buyer
may not terminate this Agreement prior to April 30, 1997.
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 Buyer; and the transfer
of other information relating solely to the Products, including customer
information.
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7. CONFIDENTIALITY
7.1 Roche acknowledges that confidential and proprietary information
with respect to the Business is valuable, special and unique. Neither Roche 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 Business, whether or not for Roche's or an Affiliate's own benefit, without
the prior written consent of Buyer, 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 Business or
Products which could reasonably be regarded as confidential, but not including
information which (i) does not relate directly and exclusively to the Business
or the Products, provided that Roche and its Affiliates shall not disclose such
information to the direct detriment of the Business; or (ii) is or shall become
generally available to the public other than as a result of an unauthorized
disclosure by Roche or an Affiliate or third party to whom Roche or an Affiliate
has provided such information; or (iii) as may be necessary for Roche or any of
its Affiliates to perform its obligations under this Transition Services
Agreement or the Asset Purchase Agreement or the transactions or agreements
contemplated therein; or (iv) that is required by Law to be disclosed by Roche
or any of its Affiliates. Should Roche provide Buyer with any confidential
information relating to Roche's products or business, other than information
which pertains to the Products, Buyer shall be subject to the confidentiality
provisions of the Confidentiality Agreement dated October 15, 1996 between
F. Hoffmann-La Roche A.G. and Buyer.
8. 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 Buyer and Roche,
other than as expressly set forth herein and Roche shall not represent itself to
be an agent of Buyer or incur any obligations for or on behalf of Buyer other
than is expressly contemplated by this Agreement.
9. 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 Buyer or Roche 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 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 Roche shall be addressed as follows:
Hoffmann-La Roche Limited
2455 Meadowpine Blvd.
Mississauga Ontario L5N67L
Attention: President
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Fax Number: 905-542-5507
With a copy to: General Counsel
Fax Number: 905-542-5689
and with copy to:
F. Hoffmann-La Roche Ltd.
Grenzacherstrasse 124
CH-4002 Basel Switzerland
Attention: Dr. Andreas Knierzinger
Fax Number: 011-41-61-688-4169
All correspondence to Buyer shall be addressed as follows:
Medicis Pharmaceuticals Inc.
4383 East Camelback Road
Phoenix, Arizona 85018
Attn: Jonah Shacknai
with a copy to:
Brown & Bain
2901 North Central Avenue
Phoenix, Arizona 85012-2788
Attn: Frank M. Placenti
10. 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.
11. SURVIVAL OF TERMS
The provisions of Sections 2.2, 2.5, 2.6, 2.7 (to the extent payments
due remain outstanding thereunder), 2.8, 6.3 and 12.1 and Articles 4, 5, 7,
and 8 shall survive the termination or expiration of this Agreement.
12. ADDITIONAL TERMS
12.1 Arbitration. Any dispute, controversy or claim arising out of
or relating to this Agreement shall be settled by final and binding arbitration
in accordance with the arbitration provisions of the Asset Purchase Agreement.
12.2 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.
12.3 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
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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.
12.4 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 Buyer and
delivered to Roche and a counterpart has been signed by Roche and delivered to
Buyer.
12.5 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.
12.6 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.
12.7 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, 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.
12.8 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.
12.9 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first hereinabove written.
HOFFMANN-LA ROCHE LIMITED MEDICIS PHARMACEUTICALS, INC.
By /s/ Susan Griswold By /s/ Mark A. Prygocki Sr.
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Name Susan Griswold Name Mark A. Prygocki Sr.
---------------------------- ----------------------------
Title Power of Attorney Title Secretary
--------------------------- ---------------------------
I have authority to bind the I have authority to bind the
corporation. corporation.
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EXHIBIT A: ROCHE CONTACTS
Bill Hammond, Director of Logistics and Distribution
Ralph Wallace, Regulatory Affairs
Peter Schaafsma, QA/QC
Anthony Maricotti, Finance
Dr. Andreas Knierzinger
MEDICIS CONTACTS
Mark Prygocki, Sr., Finance and Accounting
Joe Cooper, Manufacturing, Distribution, and Regulatory
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EXHIBIT B: CURRENT LIST PRICES FOR PRODUCTS
To be attached at or prior to Closing
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EXHIBIT C: FORM OF NOTICE LETTER TO CUSTOMERS
To be attached at or prior to Closing
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EXHIBIT D: ROCHE RETURNED GOODS POLICY
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EXHIBIT E: ROCHE DISPOSITION OF RETURNED GOODS POLICY
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SCHEDULE I: FORM OF MONTHLY REPORT