Exhibit 10.3
CONTRACT MANUFACTURING
AGREEMENT
THIS CONTRACT MANUFACTURING
AGREEMENT (the “Agreement”) is made and entered into
this 1 st day of July, 2009 (the “Effective
Date”) by and among Kirk Pharmaceuticals, LLC
(“Kirk”), a Florida limited liability company, with
offices at 5360 NW 35 th Avenue, Fort Lauderdale, FL
33309, AndaPharm, LLC (“AndaPharm”), a Florida limited
liability company, with offices at 5360 NW 35 th Avenue,
Fort Lauderdale, FL 33309 (“Kirk” and
“AndaPharm” are hereinafter referred to collectively as
“Kirk”) and Svizera USA LLC (“Svizera”), a
Delaware limited liability company, with offices at 505 Thornall
Street, Suite 304, Edison, New Jersey 08837-2260 (each of
“Kirk” and “Svizera” are referred to herein
as a “Party” and collectively the
“Parties”) for the purpose of memorializing the Parties
desire to formulate a strategic business relationship for the
manufacture and supply of certain products.
WHEREAS, Kirk manufactures, sells
and distributes pharmaceutical products in the United States;
and
WHEREAS, Svizera has access to
customers who may wish to purchase the pharmaceutical products
produced by Kirk; and
WHEREAS, Svizera desires to enter
into this Agreement with Kirk in order to supply certain customers
with the pharmaceutical products produced by Kirk;
NOW, THEREFOR, intending to be
legally bound hereby, the Parties hereto agree as
follows:
1.
Contracted Product
. Should Svizera
wish to have Kirk manufacture, sell and distribute finished dosage
form of a Product (as defined on Exhibit A ) to a customer,
Svizera will deliver an executed “Proposed Product
Sheet”, in the form of Exhibit A attached hereto, to
Kirk. If Kirk agrees to the terms and conditions of the Proposed
Product Sheet, which shall include the product, product
specifications, raw materials to be provided by Svizera, pricing,
payment terms and Kirk’s payment, it shall execute and
deliver the same to Svizera within ten (10) days of its receipt.
Upon execution of this Agreement Svizera shall transfer to Kirk the
prepayment listed on Exhibit B attached hereto.
2.
Term
. This
Agreement shall commence on the Effective Date, and shall continue
for an initial term of one (1) year. This Agreement shall
automatically be renewed for successive one (1) year increments
unless either Party requests in writing, at least thirty (30) days
prior to the anniversary date that this Agreement not be so
renewed.
3.
Confidential Information . The term “Confidential
Information” means any data or information, of any kind,
nature or description, about or concerning the business or
operations of Kirk or Svizera, including, but not limited to, any
information relating to past, present, or future sales, financial
structure, pricing, marketing data, personnel data, the Products
and Formulations, software, research, development, inventions,
computer processes, techniques, designs, programs and codes, or
other technical information and data; the names, addresses, buying
habits or practices of any of Kirk or Svizera’s clients or
customers; Kirk or Svizera’s marketing methods, programs and
related data, or other written records used in Kirk or
Svizera’s business; but none of the above includes
information which is or becomes available to the public through no
fault of Kirk or Svizera’s or anyone else receiving
information from Kirk or Svizera.
4.
Trade Secrets . The term “Trade Secret”
means any data or information, including, but not limited to,
technical or non-technical data, specifications, designs, plans,
proposals, copyrightable work, financial, business and marketing
plans or data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, product plans, actual or
potential customer or supplier lists and information, or other
information similar to any of the foregoing, which derives economic
value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons
who can derive economic value from its disclosure or
use.
5.
Acquired Confidential Information . Kirk and
Svizera acknowledge that all information regarding each
other’s business which may be ascertained or compiled or
obtained by either Party or furnished to either Party in connection
with this Agreement, is Confidential Information and each
Party’s exclusive property, except to the extent such
information is or becomes available to the public through no fault
of either Party or anyone receiving information from either
Party.
6.
Preservation and Protection of Confidential
Information . Each Party agrees to preserve and protect the
confidentiality of the Confidential Information and all tangible
forms thereof, whether disclosed to either Party, its officer,
agents, employees, or assigns, before this Agreement is signed or
afterward. Neither Party shall disclose or disseminate Confidential
Information to any person, firm, or entity (other than authorized
personnel of each Party) or use Confidential Information for its
own benefit or for the benefit of any third party, without prior
written approval of the other Party. Within three days after
receipt of a request from either Party, either Party shall return
to the other all requested Confidential Information in tangible
form that is held by that Party or within its custody or
control.
7.
Non-Disclosure of Trade Secrets . Each Party
acknowledges that Trade Secrets of the other Party comprise a part
of the Confidential Information as to which both party’s have
and/or will have knowledge and access. Both parties acknowledge the
competitive value and confidential nature of such Trade Secrets,
and recognize and agree that the disclosure and/or improper use of
such Trade Secrets will cause serious and irreparable injury to the
other Party.
8.
Non-Solicitation . Each Party agrees that during the term of
this Agreement, inclusive of any Renewal Term and for a period of
six (6) months from the termination of this Agreement, neither
party shall directly or indirectly, either for itself or through
any affiliate:
(a) cause
or seek to cause any of the other Party’s suppliers, vendors,
purchasing agents, or customers to cease transacting business with
the other Party; or
(b) cause
or seek to cause any Party’s prospective suppliers, vendors,
purchasing agents, or customers not to transact business with the
other Party; or
(c) solicit
on behalf of any other Party any orders for the Products or
services pertaining to this Agreement now or hereafter sold by
either party from any person or entity whether a customer or
potential customer of Kirk or Svizera; or
(d)
shall recruit
or solicit or attempt to recruit or solicit or induce or attempt to
induce, or take any action in order to induce, or attempt to
induce, any employee or agents of Svizera or Kirk to terminate an
employment or other relationship with the other.
9.
Mutual Acknowledgement . Each party has carefully considered
the nature and extent of the restrictions upon them and the rights
and remedies conferred upon each other under this
2
Agreement, and each hereby
acknowledges and agrees that the same are reasonable in their
nature, extent time and territory, are designed to eliminate only
competition which otherwise would be unfair to either party, are
fully required to protect the legitimate interests of both parties,
and do not confer a benefit upon either party disproportionate to
the detriment to each other individually.
10.
Irreparable Harm . Each party acknowledges that if it
or any of its affiliates breach any of the obligations contained in
Sections 3 through 8 of this Agreement, the injury that will be
suffered by the non-breaching party will be irreparable and such
non-breaching party will not have an adequate remedy at law. Each
party agrees, on its behalf and on behalf of its affiliates,
officers, agents, assigns, and employees that in the event of such
a breach, the non-breaching party shall be entitled to relief by
way of injunction to enforce those obligations in this Agreement,
in addition to all other rights that said non-breaching party may
have at law, in equity, under this Agreement or otherwise. The
exclusive forum for any such proceeding shall be Broward County,
Florida. In the event that any such proceeding is instituted, it is
agreed that the prevailing party shall be reimbursed by the
non-prevailing party
