Exhibit
10.32.3
The confidential portions of this
exhibit have been filed separately with the Securities and Exchange
Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 of the Securities and Exchange Act of
1934, as amended. REDACTED PORTIONS OF THIS EXHIBIT ARE MARKED BY
AN ***.
AMENDMENT TO SALES
REPRESENTATIVE SERVICES AGREEMENT
This AMENDMENT TO
SALES REPRESENTATIVE SERVICES AGREEMENT (this “
Amendment ”), is entered into as of this 8
th
day of May, 2009 by
and between VENTIV COMMERCIAL SERVICES, LLC, a New Jersey limited
liability company (“ VCS ”), and ENDO
PHARMACEUTICALS INC., a Delaware corporation
(“CLIENT”).
W I T N E S
S E T H :
WHEREAS, Client and VCS entered into a Sales
Representative Services Agreement dated as of April 1, 2008
(the “ Sales Rep Agreement ”) relating to the
provision by the VCS Field Force of certain sales and promotional
services on behalf of Client. All capitalized terms used herein
without definition shall have the meanings given to them in the
Sales Rep Agreement; and
WHEREAS, VCS and Client desire to amend the Sales Rep
Agreement to, among other things, (i) *** under the Sales Rep
Agreement and (ii) reflect the inclusion of Lidoderm as one of
the Products for which Services are provided under the Sales Rep
Agreement; and
WHEREAS, the parties desire to amend the Sales Rep
Agreement on the terms and conditions set forth in this
Amendment.
NOW, THEREFORE,
in consideration of the foregoing
and the mutual promises made herein and of the mutual benefits to
be derived herefrom, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as
follows:
1. The Sales Rep Agreement is hereby
amended effective as of June 1, 2009 (the “ Effective
Date ”) by replacing all references to “Tube
Sales” with “Rx Sales” and adding a new
Section 1.65 , which shall read as follows:
“1.65 “ Rx Sales
” means the total number of prescriptions filled with respect
to VOLTAREN® as measured by IMS Prescription Audit or other
third party vendor selected by CLIENT from time to time.
Appropriate adjustments in the measurement of Rx Sales agreed to by
the Parties shall be made in the event that any third party vendor
selected by CLIENT as referred to above uses different measurement
metrics than the previous vendor.”
In addition, former
Section 1.77 is hereby deleted and former Sections
1.65 through 1.85 are hereby numerically adjusted
accordingly.
2. The Sales Rep Agreement is hereby
amended effective as of July 1, 2009 by deleting Subsection
3.2(a) in its entirety and effective as of the Effective Date
by deleting Subsection 3.2(b) in its entirety and
substituting the following in lieu thereof:
“a. VCS shall maintain an
experienced, well-trained VCS Field Force, whose time is dedicated
exclusively to the promotion of the Products and who collectively
will provide a minimum of *** Primary Details per calendar quarter
effective with the calendar quarter starting July 1, 2009, for
a total of *** Primary Details per Agreement Year. For every
Primary Detail shortfall below *** commencing with the calendar
quarter starting July 1, 2009, VCS shall provide CLIENT
***.
b. The VCS Field Force shall consist
of 80 Sales Representatives, 8 District Managers, and one Project
Manager. Each District Manager and Sales Representative shall have
the qualifications and meet the hiring profile and criteria set
forth on Schedule A-1C. The Project Manager designated by VCS from
time to time shall be subject to the approval of CLIENT, which
approval shall not be unreasonably withheld. VCS and CLIENT hereby
agree that Tom Bonk, VCS’ designee to the position of Project
Manager, is acceptable to CLIENT. CLIENT hereby designates John
Gilbert as its Project Manager. Each Party may change its Project
Manager upon written notice to the other Party.”
3. The Sales Rep Agreement is hereby
amended effective as of the Effective Date by deleting
Subsection 3.2(c)(ii) in its entirety.
4. Section 3.2(k) of the Sales
Rep Agreement is hereby amended effective as of the Effective Date
by reducing the number of computers included in the Spare Pool
Threshold from *** computers to *** computers. On or before
June 30, 2009, VCS shall return to CLIENT the Information
Technology that had been provided by CLIENT to the members of the
VCS Field Force whom are no longer engaged to provide services
under the Sales Rep Agreement.
5. The description of the manner in
which the At-Risk Management Fee is calculated as set forth in
Section 4.1(a) and the manner in which CLIENT reports
certain information as set forth in Section 4.1(b) , in
each case for the period from and after July 1, 2009 shall be
modified to refer to Rx Sales instead of Tube Sales and to delete
all references to Active Representative/Active Territory
goals.
6. The Sales Rep Agreement is hereby
amended by adding the following sentence to the end of
Subsection 4.6(b) :
“For the purpose of clarity,
Novartis’ audit rights under this Subsection 4.6(b)
and Subsection 4.6(b)(i) shall only constitute a right to
audit those books and records of VCS relating to the promotion and
sale of Voltaren, to the extent such books and records are
separable from VCS’ other books and records relating to
Services hereunder.”
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7. The Sales Rep Agreement is hereby
amended by deleting Subsection 6.4(a) in its entirety and
substituting the following in lieu thereof:
“(a) VCS shall
communicate to CLIENT and Novartis, as specified below, all
comments, complaints, requests and inquiries received from the
medical profession, Governmental Authorities or other third parties
relating to VOLTAREN ® or any other Product, as
applicable. All responses to such communications shall be handled
solely by CLIENT, and VCS shall cooperate with and assist CLIENT to
the extent deemed necessary by CLIENT to respond fully to such
communications. Product complaint reports received by VCS which are
not deemed to be an Adverse Event shall (i) with respect to
VOLTAREN ® , be reported by VCS to Novartis
(at Novartis Consumer Health, Inc., 200 Kimball Drive, Parsippany,
NJ 07054-0622), with a copy to CLIENT, and (ii) with respect
to any other Product, be reported by VCS to CLIENT (at Endo
Pharmaceuticals, 100 Endo Blvd., Chadds Ford, PA 19317), in each
case within 15 days of receipt by VCS. VCS shall promptly forward
to CLIENT any information, including, but not limited to, initial
and follow up reports, that becomes known to VCS from any source in
any form relating to any Adverse Event or any Adverse Event with an
associated product quality complaint for any Product as soon as it
becomes available, but in any event within 24 hours of becoming
aware of such information, by transmitting it to the Endo Triage
Line at 1-800-462-3636. VCS shall also (i) in the case of
VOLTAREN ® , notify Novartis, with a copy
to CLIENT, and (ii) in the case of any other Product, notify
CLIENT, of any communication received from any Governmental
Authority relating to any Adverse Event or other safety issue for
any Product, within 24 hours of receiving such communication, by
transmitting it to the Endo Triage Line at 1-800-462-3636 and by
transmitting any written communication documentation and a written
synopsis of any oral communication to Novartis’ Global Head,
Drug Safety and Pharmacovigilance or Endo’s Pharmacovigilance
Group, as applicable. VCS shall provide to Novartis and CLIENT all
reasonable assistance and take all actions reasonably requested by
Novartis and CLIENT (at CLIENT’s cost) that are necessary to
enable Novartis and CLIENT to comply with any Law applicable to the
Products and any conditions or obligations relating to any
approval. Such assistance and actions will include compliance with
the terms of any Pharmacovigilance Agreement entered into by and
between CLIENT and Novartis (a copy of which shall be provided by
CLIENT to VCS) to the extent that the terms of such agreement
supersede the applicable terms of the Novartis
Agreement.”
8. The Sales Rep Agreement is hereby
amended by adding the following sentence to the end of
Section 9.2 and the Parties agree to negotiate in good
faith and sign within 60 days after the Effective Date a letter
agreement that sets forth certain procedural requirements and
provisions regarding the Conversion of Sales Representatives and
District Managers:
“VCS and CLIENT hereby agree
that CLIENT shall pay VCS a fee equal to *** for every Sales
Representative and *** for every District Manager transferred from
the VCS Field Force to CLIENT’s internal sales force pursuant
to this Section 9.2 .”
9. The Sales Rep Agreement is hereby
amended from and after the Effective Date by deleting Subsection
11.2(b) in its entirety and substituting the following in lieu
thereof:
“(b) CLIENT may terminate this
Agreement in its sole discretion at any time upon 60 days’
prior written notice to VCS.”
10. The Sales Rep Agreement is
hereby amended from and after the Effective Date by deleting the
parenthetical in Subsection 11.2(d) and by deleting
Subsection 11.2(e) in its entirety.
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In addition, CLIENT hereby waives VCS’
failure to meet its Primary Detail requirements under
Section 3.2(a) and its Active Representative and Inactive
Territory requirements under Section 3.2(c)(ii) and
Section 11.2(e) in respect to the calendar quarter
April through June, 2009. CLIENT further agrees that the failure of
the VCS Field force to meet the Primary Detail requirements for the
calendar quarter April through June, 2009 will not be taken into
account in determining whether CLIENT has a right to terminate the
Sales Rep Agreement under Section 11.2(d). CLIENT also
agrees that the Primary Details component of the At-Risk Management
Fee and the Active Territory and Active Representative Days
component of the At-Risk Management Fee shall be deemed achieved
for the second calendar quarter of 2009 so that VCS shall be
entitled to an At-Risk Management Fee of at least *** for such
calendar quarter.
11. The Sales Rep Agreement is
hereby amended from and after the Effective Date by deleting the
second sentence of Section 11.4 in its entirety and
substituting the following in lieu thereof:
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