Exhibit
10.14


 


CONFIDENTIAL TREATMENT REQUESTED


 


INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED IS OMITTED

AND NOTED WITH “****”.

AN UNREDACTED VERSION OF THIS DOCUMENT HAS ALSO BEEN PROVIDED TO THE

SECURITIES AND EXCHANGE

COMMISSION.


 


Execution Counterpart




 





 


AMENDED AND RESTATED SUPPLY
AGREEMENT


(Thallium and Generators)


 


by and between


 


LANTHEUS MEDICAL IMAGING, INC.


 


and


 


CARDINAL HEALTH 414, LLC


 


dated October 1, 2004




 





 

















 


	
  ARTICLE 1

  
	
  DEFINITIONS

  
	
   

  	
   

  
	
  1.1

  	
  Defined Terms

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  GENERAL TERMS OF PURCHASE
  AND SALE OF THALLUM

  
	
   

  	
   

  
	
  2.1

  	
  Sale and Purchase of Thallium

  	
  5

  
	
  2.2

  	
  Thallium Purchase Price

  	
  5

  
	
  2.3

  	
  Cessation of Sale of Product

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  GENERAL TERMS OF PURCHASE AND SALE OF GENERATORS

  
	
   

  	
   

  
	
  3.1

  	
  Sale and Purchase of Generators

  	
  5

  
	
  3.2

  	
  Purchase Price

  	
  5

  
	
  3.3

  	
  Cessation of Sale of Product; New Product

  	
  5

  
	
  3.4

  	
  Minimum Purchase Obligation

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  GENERAL TERMS OF PURCHASE AND SALE OF PRODUCTS

  
	
   

  	
   

  
	
  4.1

  	
  Purchase Orders; Acceptance; Cancellation

  	
  6

  
	
  4.2

  	
  Shipments

  	
  7

  
	
  4.3

  	
  Invoicing and Payment

  	
  7

  
	
  4.4

  	
  Taxes

  	
  7

  
	
  4.5

  	
  Specifications

  	
  7

  
	
  4.6

  	
  Non-Conforming Product

  	
  7

  
	
  4.7

  	
  Product Recalls

  	
  7

  
	
  4.8

  	
  Radiopharmacy Status

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  TERM AND TERMINATION; COMPLIANCE BONUS; REPORTING

  
	
   

  	
   

  
	
  5.1

  	
  Term

  	
  8

  
	
  5.2

  	
  Consequences of Termination

  	
  8

  
	
  5.3

  	
  Reporting by Supplier

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  WARRANTIES; INDEMNIFICATION

  
	
   

  	
   

  
	
  6.1

  	
  Warranties

  	
  8

  
	
  6.2

  	
  Indemnification by Cardinal

  	
  9

  
	
  6.3

  	
  Indemnification by Supplier

  	
  9

  
	
  6.4

  	
  Indemnification Procedures

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  FORCE MAJEURE

  
	
   

  	
   

  
	
  7.1

  	
  Force Majeure

  	
  11

  



 

















 


	
  ARTICLE 8

  MISCELLANEOUS

  
	
   

  	
   

  
	
  8.1

  	
  Governing Law

  	
  11

  
	
  8.2

  	
  Entire Agreement

  	
  11

  
	
  8.3

  	
  Adverse Event Reporting

  	
  11

  
	
  8.4

  	
  Compliance with Safe Harbors

  	
  12

  
	
  8.5

  	
  Severability

  	
  12

  
	
  8.6

  	
  No Partnership

  	
  12

  
	
  8.7

  	
  Compliance with Laws

  	
  13

  
	
  8.8

  	
  Arbitration

  	
  13

  
	
  8.9

  	
  Confidentiality

  	
  14

  
	
  8.10

  	
  Notices

  	
  14

  
	
  8.11

  	
  Failure or Delay in Performance

  	
  15

  
	
  8.12

  	
  Assignment

  	
  15

  
	
  8.13

  	
  Amendments

  	
  15

  
	
  8.14

  	
  Absence of Presumptions

  	
  15

  
	
  8.15

  	
  Third Party Beneficiaries

  	
  16

  
	
  8.16

  	
  Consents

  	
  16

  
	
  8.17

  	
  Successors and Assigns

  	
  16

  
	
  8.18

  	
  Compliance with Terms

  	
  16

  
	
  8.19

  	
  Headings

  	
  16

  
	
  8.20

  	
  Exhibits

  	
  16

  
	
  8.21

  	
  Counterparts

  	
  16

  
	
  8.22

  	
  Waiver

  	
  16

  
	
  8.23

  	
  Publicity

  	
  16

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Initial Thallium Purchase
  Price; Adjustments

  
	
  Exhibit B

  	
  Initial Generator Purchase
  Price; Adjustments

  
	
  Exhibit C

  	
  Quarterly Share
  Calculation Reports

  
				



 


2

















 


Amended and Restated Supply
Agreement


(Thallium and Generators)


 


This Amended and Restated Supply Agreement (this “Agreement”),
entered into as of January 1, 2009 (the “Amendment Date”) and effective
as of October 1, 2004 (the “Effective Date”), is made by and between
Lantheus Medical Imaging, Inc., a corporation duly organized and existing under
the laws of Delaware with its offices located at 331 Treble Cove Road, North
Billerica, Massachusetts (“Supplier”), and Cardinal Health 414, LLC, a
Delaware limited liability company doing business as Cardinal Health Nuclear
Pharmacy Services, with its principal place of business located at 7000
Cardinal Place, Dublin, Ohio (“Cardinal” and, together with Supplier,
the “Parties” and, individually, each a “Party”).


 


WHEREAS, Supplier (formerly known as Bristol Myers
Squibb Medical Imaging, Inc.) and Cardinal (formerly known as Cardinal Health
414, Inc.) previously entered into that certain Supply Agreement, dated October
1, 2004, and as amended from time to time (including as of March 17, 2008) (“Prior
Agreement”); and


 


WHEREAS, the Parties now wish to replace and
supersede the Prior Agreement in its entirety by the terms and conditions of
this Agreement as set forth herein.


 


In consideration of the mutual covenants established
herein, the Parties agree as follows.


 


ARTICLE 1


DEFINITIONS


 


1.1.          Defined Terms.


 


As used in this Agreement, the following terms shall
have the following meanings:


 


“AE” means any untoward medical occurrence in
a patient or clinical investigation subject, which results in any unfavorable
and unintended sign, symptom, or disease temporally associated with the use of
a medicinal product, whether or not considered, related to the medicinal
product. All noxious and unintended responses to a medicinal product related to
any dose should be considered adverse drug reactions. Responses to a medicinal
product means that a causal relationship between the product and AE is at least
a reasonable possibility (i.e., the relationship cannot be ruled out or cannot
be determined). The failure of a Product to localize as expected shall not be
deemed an AE, whereas a significant failure of expected pharmacologic action
would be considered an AE.


 


“Agreement” has the meaning set forth in the
preamble.


 


“Amendment Date” has the meaning set forth in
the preamble.


 


“Cardinal” has the meaning set forth in the
preamble.


 


“cGMP” means all current good manufacturing
practices under Title 21 of the United States Code of Federal Regulations, as
amended from time to time.


 


3

















 


“Effective Date” has the meaning set forth in
the preamble.


 


“Force Majeure” means any war, rebellion,
mutiny, terrorist attack, epidemic, act of God (e.g., landslide, lightning,
earthquake, fire or hurricane, flood, sinking, drought), explosion, act or
decision of any duly constituted municipal, state or national governmental
authorities or of any court of law, supply or batch failure, equipment failure
or malfunction, shortages of fuel, power or raw materials, which failure,
malfunction or shortage is not under the reasonable control of the affected
Party, or any other cause or event which is not under the reasonable control of
the affected Party.


 


“Generator Purchase Price” has the meaning
set forth in Section 3.2.


 


“Generators” means
technetium Tc 99m generators sold under the trademark TechneLite®.


 


“including”, “includes” and derivates
thereof shall be deemed to be followed by “without limitation”.


 


“Party” or “Parties” has the meaning
set forth in the preamble.


 


“Products” means Thallium and Generators.


 


“Quarter” means each of the three (3) month
periods ending on March 31, June 30, September 30 and December 31 of any year;
provided that the last quarter shall end on the date of termination of this
Agreement.


 


“Serious AE” means any untoward medical
occurrence that at any dose: results in death; is life-threatening (defined as
an event in which the subject or patient was at risk of death at the time of
the event; it does not refer to an event which hypothetically might have caused
death if it were more severe); requires inpatient hospitalization or causes
prolongation of existing hospitalizations; results in persistent or significant
disability/incapacity; results in a congenital anomaly/birth defect; is an
important medical event (defined as a medical event(s) that may not be
immediately life-threatening or result in death or hospitalization, but based
upon appropriate medical and scientific judgment, may jeopardize the
patient/subject or may require intervention, e.g., medical surgical, to prevent
one of the other serious outcomes listed in the definition above). Examples of
such events include, but are not limited to, intensive treatment in an
emergency room or at home for allergic bronchospasm; blood dyscrasias or
convulsions that do not result in hospitalization. For reporting purposes,
Supplier also considers the occurrences of cancer, pregnancy, or overdose
(accidental or intentional and regardless of adverse outcome) as events that
must be expeditiously reported as important medical events.


 


“Specifications” has the meaning set forth in
Section 4.5.


 


“Supplier” has the meaning set forth in the
preamble.


 


“Term” has the meaning set forth in Section 5.1.


 


“Thallium” means thallous chloride (TI-201).


 


4

















 


“Thallium Purchase Price” has the meaning set
forth in Exhibit A.


 


ARTICLE 2


GENERAL TERMS OF PURCHASE
AND SALE OF THALLUM.


 


2.1.          Sale and Purchase of
Thallium. All purchases of Thallium by Cardinal from Supplier
during the Term shall be governed by and shall be subject to the terms of this
Agreement.


 


2.2.          Thallium Purchase Price. The purchase
price to be paid by Cardinal for the Thallium it orders shall be the purchase price
determined in accordance with Exhibit A (the “Thallium Purchase Price”).


 


2.3.          Cessation of Sale of Product. Supplier
reserves the right to cease to manufacture or sell Thallium at any time during
the Term upon at least **** (****) days prior written notice to Cardinal.


 


ARTICLE 3


GENERAL TERMS OF PURCHASE
AND SALE OF GENERATORS


 


3.1.          Sale and Purchase of
Generators. All purchases of Generators by Cardinal from Supplier
during the Term shall be governed by and shall be subject to the terms of this
Agreement. Supplier will use commercially reasonable efforts to produce and
sell to Cardinal sizes and quantities of Generators as requested by Cardinal
(including Sunday calibrated Generators), taking into account Supplier’s
manufacturing capacity and availability of supply.


 


3.2.          Purchase Price. The purchase
price to be paid by Cardinal for the Generators it orders shall be the purchase
price determined in accordance with Exhibit B (the “Generator Purchase Price”).
If Cardinal purchases from Supplier **** percent (****%) or greater of its
total technetium Tc 99m generators for one calendar **** beginning after ****,
the Parties shall, in good faith, negotiate a reasonable price reduction
commensurate with market conditions and the increased volume level.


 


3.3.          Cessation of Sale of Product;
New Product.


 


(a)           Notwithstanding Section 3.1,
Supplier reserves the right to cease to manufacture and sell Generators at any
time during the Term upon at least **** (****) days prior written notice to
Cardinal; provided, however, that this Section 3.3(a) shall not apply to a
cessation as a result of the sale or transfer of all or substantially all of
Supplier’s assets used to manufacture, sell or distribute Generators, which
shall be governed by Section 8.12 hereof.


 


(b)           Supplier also reserves the
right to modify Exhibit B to reflect the introduction of any new size of
Generator (and to establish the initial price therefor) or the discontinuation
of any size of Generator upon at least [**** (****) days] prior written notice
to Cardinal.


 


5

















 


3.4.          Minimum Purchase Obligation. Cardinal
guarantees, subject to Supplier’s ability to supply, a minimum purchase of
Generator curies as set forth in this Section.


 


(a)           Cardinal shall purchase from
Supplier at least the Minimum Quantities (as hereinafter defined) of
Generators. Compliance with such Minimum Quantities will be determined on ****,
and on a calendar **** basis thereafter. In any calendar **** in which Cardinal
does not purchase at least the applicable Minimum Quantities of Generators from
Supplier, Cardinal will promptly pay to Supplier the Minimum Payment (as
hereinafter defined).


 


“Minimum Quantities”
means:


 


	
  January 1, 2009 to ****

  	
   

  	
  ****% of all technetium Tc 99m generator curies purchased by Cardinal
  and its Affiliates

  
	
  **** and thereafter

  	
   

  	
  ****% of all technetium Tc 99m generator curies purchased by Cardinal
  and its Affiliates

  



 


“Minimum Payment” means, as of an applicable
date, the payment calculated on such date pursuant to the terms of this
Agreement (and based on the average curie price of all Generators purchased
hereunder over the prior **** (****) month period) for any remaining portion of
the applicable Minimum Quantities for which purchase orders were not received
by Supplier prior to such date.


 


ARTICLE 4


GENERAL TERMS OF PURCHASE
AND SALE OF PRODUCTS


 


4.1.          Purchase Orders; Acceptance;
Cancellation.


 


(a)           Cardinal shall place orders
for Products hereunder in written, electronic or verbal form which shall
specify: (i) the amount of each Product being ordered, (ii) the requested
shipping date, (iii) the location of delivery and (iv) the shipping destination
(which must be a licensed radiopharmacy) and requested method of shipment.
Cardinal may order Products in each purchase order only in Initial Minimum
Quantities or in such other minimum quantities as may be agreed upon by the
Parties from time to time. As used herein, “Initial Minimum Quantities”
means **** (****) mCi for Thallium and **** (****) **** for Generators. All orders
are subject to (1) Supplier’s customary ordering requirements and lead times as
in effect from time to time between Supplier and Cardinal, (2) Supplier’s
discretion to determine the method of shipment and (3) acceptance by Supplier,
which shall not be unreasonably withheld. In the event of any conflict between
the terms of any purchase order, purchase order acceptance or purchase order
confirmation and the terms of this Agreement, the terms of this Agreement shall
control.


 


(b)           Subject to Section 3.1,
Supplier may cancel any outstanding purchase order submitted by Cardinal (or
any portion thereof) upon at least **** (****) days prior written notice to
Cardinal. In such case Supplier shall not be required to sell to Cardinal any
Products to be supplied pursuant to such purchase order after the date of
cancellation.


 


6






 










 


4.2.          Shipments. Delivery of
each Product shall be ****. (****). All freight and insurance shall be for the
account of Supplier, and the risk of loss, delay or damage in transit shall be
with Supplier until delivery to the Cardinal radiopharmacy. Subject to the two
preceding sentences of this Section 4.2, the delivery and shipping practices
used by the Parties shall be substantially in accordance with the delivery and
shipping practices between Supplier and Cardinal for the week ending December 26,
2008.


 


4.3.          Invoicing and Payment. Supplier
shall provide an invoice to Cardinal for the Products then delivered. All
payments shall be due and payable as set forth in Supplier’s Invoice.


 


4.4.          Taxes. Cardinal
shall be responsible for any and all federal, state, county or municipal sales
or use tax, healthcare tax, excise, customs charges, duties or similar charges,
or any other tax assessment (other than that assessed against Supplier’s
income), license, fee or other charge lawfully assessed or charged on the sale
or transportation of each Product sold pursuant to this Agreement or on any
amounts payable to Supplier hereunder.


 


4.5.          Specifications. Each Product
supplied to Cardinal pursuant to this Agreement shall be manufactured by
Supplier in accordance with Supplier’s specifications for such Products as in
effect from time to time (the “Specifications”).


 


4.6.          Non-Conforming Product. Cardinal may
reject a shipment of any Product only if such shipment fails to conform to (A) the
type and quantity of Products ordered by Cardinal or (B) the Specifications;
provided that Cardinal notifies Supplier by telephone (or any other method
agreed to by the Parties from time to time) of any such rejection within two
(2) days after receipt by Cardinal of such shipment of Products. Cardinal’s
sole remedy with respect to any non-conforming Products shall be to receive
replacement quantities for any non-conforming Product or credit for the
purchase price thereof against future purchases of Products; provided that
Supplier shall be entitled to make reasonable substitutions, e.g., the
provision of two (2) 2.500 curie Generators or one (1) 6.000 curie Generator in
fulfillment of an order for one (1) 5.000 curie Generator. Cardinal may reject
any such shipment by following the customary procedures for rejection of
Products as is established by Supplier or as otherwise agreed to by the Parties
from time to time.


 


4.7.          Product Recalls. In the event
that Supplier determines that a recall or withdrawal of the Products from the
market is necessary, Cardinal shall take all actions appropriate in order to
reasonably assist Supplier with such recall or withdrawal. The costs of the
recall (including all costs of collecting, shipping and disposing of the
recalled Product) shall be borne by Supplier unless the circumstances leading
to the recall result from the fault of Cardinal.


 


4.8.          Radiopharmacy Status. If any
radiopharmacy owned or operated by Cardinal or its affiliates fails to maintain
all necessary state, federal and local licenses, Cardinal shall notify Supplier
promptly of such failure, but in any event not later than ten (10) days
following the expiration, suspension, termination, cancellation, non-renewal or
other loss of any such license.


 


7

















 


ARTICLE 5


TERM AND TERMINATION;
REPORTING


 


5.1.          Term. The term of
this Agreement shall commence on the Effective Date hereof and continue until
December 31, 2012 (the “Term”). Either Party may terminate this
Agreement (i) upon twenty (20) days prior written notice to the other Party if
the other Party has committed a material breach of a provision in this
Agreement and has failed to remedy such breach within such twenty (20) day
period or (ii) as expressly permitted by Sections 7.1 and 8.12 hereof.


 


5.2.          Consequences of Termination. Termination
of this Agreement shall be without prejudice to any rights or remedies which
shall have accrued to the benefit of any Party prior to such termination.
Without limiting the foregoing, termination of this Agreement shall not
terminate Cardinal’s obligation to pay all invoices for Product that had been
shipped during the Term. Such termination shall not relieve any Party from its
obligations which are expressly indicated to survive the termination of this
Agreement. All of the Parties’ rights and obligations under Articles 5, 6 and 8
and Sections 4.4 and 4.7 hereof shall survive such termination.


 


5.3.          Reporting by Supplier.


 


(a)           Supplier shall provide
Cardinal with reports approximately every **** (****) days of the volume of
Generators shipped by Supplier (or deemed to have been shipped by Supplier as
provided below) to each individual Cardinal radiopharmacy location. If Cardinal
orders (consistent with Section 4.1(a)) a quantity of Generators for shipment
during the period covered by such reports and Supplier (x) has accepted such
order, (y) has not cancelled such order (or the applicable part thereof) as
permitted by Section 4.1(b) and (z)  fails to ship such quantity for
any reason (other than Force Majeure) during such period, Supplier shall be
deemed to have shipped such quantity during such period for reporting purposes.


 


(b)           Cardinal will provide
Supplier reports, in substantially the form of Exhibit C, promptly at
the end of each calendar **** of (i) the total technetium Tc 99m curie volume
purchased by Cardinal in such **** and (ii) the portion of such curie volume
purchased from Supplier.


 


(c)           All reports provided by
Cardinal hereunder will be signed and certified by a duly authorized officer of
Cardinal, to the effect that all information in such reports are true and
complete.


 


ARTICLE 6


WARRANTIES; INDEMNIFICATION


 


6.1.          Warranties. (a) Supplier
warrants that the Products supplied hereunder will (i) be free from defects in
material and workmanship; (ii) conform to the Specifications; (iii) not be (a) adulterated
or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act,
as amended or (b) an article which may not be introduced in interstate commerce
within the provisions of Sections 404 and 405 of such Act, as amended; (iv) otherwise
be produced in accordance with applicable cGMPs to the extent such cGMPs affect
salability of the Products; and (v) to Supplier’s knowledge, not infringe any
patent, or trademark right of any third party.


 


8

















 


(b)           EXCEPT AS EXPRESSLY SET
FORTH HEREIN OR STATED IN THE LABELING AND INFORMATION PROVIDED BY SUPPLIER AND
ACCOMPANYING EACH OF THE PRODUCTS, SUPPLIER MAKES NO OTHER WARRANTY, EXPRESSED
OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL SUCH WARRANTIES
ARE HEREBY EXCLUDED. CARDINAL ASSUMES ALL RISK AND LIABILITY THAT MAY RESULT
FROM THE USE OF THE PRODUCTS WHETHER USED SINGLY OR IN COMBINATION WITH OTHER
PRODUCTS. Cardinal shall not give or make any guarantees, warranties, or
representations as to the condition, quality, durability, performance,
merchantability or fitness for a particular use or purpose or any other feature
of any Product or other than or different from those provided by Supplier
hereunder. Any such other guarantee, warranty or condition, whether express or
implied, made by Cardinal to its customers shall be and remain the sole
responsibility of Cardinal and shall not impose any obligation on Supplier.


 


(c)           NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY FOR, AND EACH PARTY WAIVES ANY AND ALL CLAIMS AGAINST
THE OTHER PARTY FOR, ALL SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE
OR EXEMPLARY DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE
PRODUCTS OR WHICH MAY ARISE UNDER OR AS A RESULT OF THIS AGREEMENT, INCLUDING
ANY SUCH DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY
PRODUCT. OR PURCHASE OR FAILURE TO PURCHASE ANY PRODUCT, WHETHER BASED ON
NEGLIGENCE, TORT, BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF
ACTION.


 


6.2.          Indemnification by Cardinal. Cardinal,
jointly and severally, shall indemnify and hold harmless Supplier, its
Affiliates, and their respective directors, officers, employees and agents from
and against any suits, claims, losses, demands, liabilities, damages, costs and
expenses (including reasonable attorney’s fees and reasonable investigative
costs) in connection with any suit, demand or action by any third party arising
out of or resulting from (a) any breach of this Agreement by Cardinal or (b) any
negligence or willful misconduct by Cardinal, except to the extent that any of
the foregoing arises out of or results from the breach of this Agreement by Supplier
or the negligence or willful misconduct of Supplier.


 


6.3.          Indemnification by Supplier. Supplier
shall indemnify and hold harmless Cardinal, its Affiliates, and their
respective directors, officers, employees and agents from and against all
suits, claims, losses, demands, liabilities, damages, costs and expenses
(including costs, reasonable attorney’s fees and reasonable investigative
costs) in connection with any suit, demand or action by any third party arising
out of or resulting from (a) any breach of this Agreement by Supplier or (b) any
negligence, or willful misconduct by Supplier, except to the extent that any of
the foregoing arises out of or results from the breach of this Agreement by
Cardinal, or the negligence or willful misconduct of Cardinal.


 


6.4.          Indemnification Procedures. All claims
for indemnification under this Agreement shall be asserted and resolved as
follows:


 


9

















 


(a)           A Party claiming
indemnification under this Agreement (the “Indemnified Party”) shall
promptly notify the Party from whom indemnification is sought (the “Indemnifying
Party”) of any claim by a third party against the Indemnified Party that
could give rise to a right of indemnification under this agreement (“Third
Party Claim”). The Indemnifying Party shall have the right to defend, at
its sole cost and expense, such third party claim, on its own behalf and on the
behalf of the Indemnified Party, by all appropriate proceedings, which
proceedings shall be prosecuted diligently by the Indemnifying Party to a final
conclusion or settled at the discretion of the Indemnifying Party; provided,
however, that the Indemnifying Party may not enter into any compromise or
settlement that involves equitable relief against the Indemnified Party unless
the Indemnified Party consents thereto, which consent shall not be unreasonably
withheld, delayed or conditioned. If requested by the Indemnifying Party, the
Indemnified Party shall, at the sole cost and expense of the Indemnifying Party
(excluding the internal costs and expenses of the Indemnified Party), cooperate
with the Indemnifying Party and its counsel in contesting any third party claim
that the Indemnifying Party elects to contest, including, without limitation,
the making of any related counterclaim against the Person asserting the third
party claim or any cross-complaint against such person.


 


(b)           Notwithstanding the
Indemnifying Party’s election to assume the defense of any third party claim,
the Indemnified Party shall have the right to employ separate counsel and to
participate in the defense of such third party claim, and shall bear the costs
and expenses of such separate counsel, if (i) the use of counsel chosen by the
Indemnifying Party to represent both the Indemnifying Party and the Indemnified
Party would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such third party claim include
both the Indemnifying Party and the Indemnified Party, and the Indemnified Party
shall have reasonably concluded that there may be a legal defense available to
it which is different from or additional to the defenses available to the
Indemnifying Party in which case the Indemnifying Party shall not have the
right to assume the defense of such third party claim on behalf of the
Indemnified Party), (iii) the Indemnifying Party shall not have employed
counsel reasonably satisfactory to the Indemnified party to represent the
Indemnified Party within a reasonable time after notice of the institution of
such third party claim or (iv) the Indemnifying Party authorizes the
Indemnified Party to employ separate counsel at the Indemnified Party’s cost
and expense.


 


(c)           If the Indemnifying Party
fails to notify the Indemnified Party within ninety (90) days after receipt of
notice in accordance with Section 6.4(a) hereof that the Indemnifying Party
elects to defend the Indemnified Party pursuant to this Section, or if the
Indemnifying Party elects to defend the Indemnified Party pursuant to this Section
but fails to defend the third party claim diligently and promptly, then the
Indemnified Party shall have the right to defend, at the sole cost and expense
of the Indemnifying Party, the third party claim by all appropriate
proceedings, which proceedings shall be promptly and vigorously defended  by
the Indemnified Party with respect to a third party claim for which the
Indemnified Party is entitled to indemnification hereunder.


 


(d)           No Indemnified Party shall
have the right to recover punitive or consequential damages in a claim against
an Indemnifying Party pursuant to this Agreement; provided, however, that such
limitation shall not apply to damages paid or payable to a third


 


10

















 


party by an Indemnified Party for which the Indemnified Party is
entitled to indemnification hereunder.


 


ARTICLE 7


FORCE MAJEURE


 


7.1.          Force Majeure. No Party
shall be liable for any failure to perform its obligations under this Agreement
or pursuant to any purchase order submitted pursuant to this Agreement by
reason of Force Majeure. Such Party shall give the other Party prompt notice of
any interruption of performance on account of Force Majeure, and of the
resumption of such performance, and shall keep the other Party informed on a
current basis as to the steps being taken to remove, and the anticipated time
of removal of, the circumstances resulting in such Force Majeure.
Notwithstanding the foregoing, nothing in this Section shall excuse or suspend
the obligation to make any payment due under this Agreement in the manner and
at the time provided herein, provided that Cardinal shall be allowed to
purchase from another supplier such quantities of technetium Tc 99m generators
that Supplier is unable to supply hereunder on account of a Force Majeure and
Cardinal shall not be in violation of Section 3.4 (Minimum Purchase Obligation)
in connection with such quantities. In the case of a Force Majeure that
prevents performance of this Agreement by a Party for a period of **** (****) consecutive
days, the other Party shall be entitled to terminate this Agreement upon prior
written notice to the affected Party.


 


ARTICLE 8


MISCELLANEOUS


 


8.1.          Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to the conflict of laws provisions
thereof.


 


8.2.          Entire Agreement. This
Agreement constitutes the entire agreement between the Parties with respect to
the subject matter hereof and supersedes any and all prior or contemporaneous
agreements (whether written or oral).


 


8.3.          Adverse Event Reporting. Cardinal
shall report all AEs to Supplier within 24 hours of the date that Cardinal
first becomes aware of an AE associated with a Product that is reported to
Cardinal or of which Cardinal or any of its agents, including sales
representatives or local radiopharmacists, are otherwise made aware.


 


(a)           In addition, Cardinal shall
provide Supplier with immediate (or as soon as practicable) notification by
telephone of any fatal or life-threatening Serious AE. If an answering machine
is encountered, a message should be left providing detailed information
regarding such Serious AE and further attempts to speak directly with Supplier
should be made.


 


(b)           The telephone report should
contain as much information as is available concerning such event to permit
Supplier to file a MedWatch Form 3500A report that satisfies regulatory
guidelines for content and timeliness.


 


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(c)           Cardinal
shall insure prompt follow-up as necessary to provide Supplier with reasonably
complete information known or otherwise available to Cardinal with respect to
any Serious AE or AEs. If follow-up information is received after reporting an
AE, Cardinal also must report such information within 24 hours of the date that
Cardinal first became aware of such information.


 


(d)           All
reports and any related communications made hereunder shall be sent to:


 


Lantheus Medical Imaging, Inc.


331 Treble Cove Road


North Billerica, Massachusetts 01862


Attn: General Counsel


Facsimile: (978) 671-8724


 


8.4.          Compliance with Safe Harbors. It is the intent of
the Parties for any financial relationship between the Parties under this
Agreement to comply with any state and the federal anti-kickback statute (42
U.S.C. § 1320a-7b(b)) and the federal “safe harbor” regulations regarding
discounts, rebates, or other reductions in price (42 C.F.R. § 1001.952(h) (collectively,
the “Anti-kickback Provisions”). Any prices offered by Supplier under
this Agreement may include from time to time a reduction in price as that
phrase is defined under the Anti-kickback Provisions. Should there be a
reduction in price, then under the Anti-kickback Provisions, Cardinal may have
an obligation to report any such reduction in price, and must provide such
information upon request, to any state or federal health care program or other
government agency. Cardinal represents and warrants that it will satisfy any
and all requirements that may be imposed on Cardinal by the Anti-kickback
Provisions including, when required by law, to accurately report under any
state or federal health care program the net cost actually paid by Cardinal and
to appropriately reflect such net costs if cost reporting to such governmental
program is applicable. Cardinal further represents and warrants that it will
inform its customers of its customers’ obligations to properly report any
reductions in price and will use reasonable efforts to assist its customers in
properly reporting and appropriately reflecting the amount of any reductions in
price in its customers’ claims for payment filed with any state or federal
health care program.


 


8.5.          Severability.
In the event that any provision of this Agreement is found to be invalid or
unenforceable, then the offending provision shall not render any other
provision of this Agreement invalid or unenforceable, and all other provisions
shall remain in full force and effect and shall be enforceable, unless the
provisions which have been found to be invalid or unenforceable shall
substantially affect the rights or obligations granted or undertaken by either
Party.


 


8.6.          No
Partnership. Both Parties are independent contractors under this Agreement.
Nothing contained in this Agreement is to be construed so as to constitute
Supplier and Cardinal as partners or agents with respect to this Agreement or
to create a partnership or joint venture. Neither Party hereto shall have any
right or authority to assume or create any obligations on behalf of, or in the
name of, the other Party or to bind the other Party to any contract, agreement
or undertaking with any third party.


 


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8.7.          Compliance
with Laws. Cardinal represents and warrants that it shall ascertain and comply
in all material respects with (i) all applicable laws, statutes, rules,
regulations, orders, judgments, or injunctions imposed by regulations or laws
of any government or governmental authority, including those covering
pollution, hazardous substances, or the protection of human health, the
environment, or natural resources, (ii) with Cardinal’s internal policies
and procedures regarding marketing and sales, (iii) the Pharmaceutical
Research and Manufacturers of America (PhRMA) Code on Interactions with
Healthcare Professionals and (iv) any guidance from the Health and Human
Services (or any successor agency) Office of Inspector General relating to
Cardinal’s obligations under this Agreement, including, without limitation, the
use, handling, sale and distribution of Products. In the event Cardinal fails
to comply with this Section 8.7 in any material respect, Supplier may
terminate this Agreement, effective upon notice by Supplier to Cardinal on such
date as Supplier may specify in such notice, and provided if such
non-compliance is curable, Cardinal fails to cure such non-compliance within
twenty (20) days of the notice thereof from Supplier (with no such cure period
required if the non-compliance is not curable).


 


8.8.          Arbitration.
Any dispute, controversy or claim arising out of or relating to compliance
with, or breach or alleged breach, interpretation or validity of, this
Agreement, (each a “Dispute”) shall be exclusively resolved by binding
arbitration, which arbitration may be commenced by sending a written notice to
the other Party demanding arbitration of such Dispute (the “Demand”). In
that event, the Dispute shall be finally resolved by arbitration in accordance
with the United States Arbitration Act and the Commercial Arbitration Rules of
the American Arbitration Association. The place of the arbitration shall be New
York, New York. The arbitration will be conducted in the English language
before a panel of three arbitrators. Each Party shall name one arbitrator, and
the two so named shall name the third arbitrator, who will act as chairman. If
the two party arbitrators cannot agree on a third arbitrator within thirty (30)
days after the Demand, such third arbitrator shall be selected by the American
Arbitration Association. The arbitrators will promptly meet, fix the time, date
and place of the hearing and notify the Parties. The arbitration shall be
conducted within ninety (90) days after any Demand. All documents, exhibits,
testimony or other information that is not in the English language shall be
translated into the English language at the expense of the Party proffering the
evidence requiring translation. The decision of the arbitrators may (depending
on the equities of the case) include an award of legal fees, costs of
arbitration and interest. The panel of arbitrators will promptly transmit an
executed copy of its decision to the Parties. The decision of the arbitrators
will be final, binding and conclusive upon the Parties. Judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. Each Party retains the right to seek from a court any interim or
provisional relief that may be necessary to protect the rights or property of
that Party pending the establishment of the arbitrators’ determination of the
merits of the controversy, and any such action shall not be deemed incompatible
with this Agreement to arbitrate or a waiver of the right to arbitration. The
obligations of the Parties under this Section are specifically enforceable
and will survive any termination of this Agreement. Unless the decision of the
arbitrators provides otherwise, the Parties shall bear their own costs in
preparing for the arbitration and the costs of the arbitrators shall be equally
divided between the Parties. Each Party waives any right to claim
consequential, punitive or exemplary damages against each other and in the
event of a dispute, each shall be limited to recovery of actual damages.


 


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8.9.          Confidentiality.
Each party acknowledges that the disclosure of the terms of this Agreement
(including the terms and conditions hereof and all pricing information related
to the Products under this Agreement, including actual prices, and the
occurrence, timing or amount of any price reductions) would be detrimental to
the other party and that such terms shall be considered Confidential
Information of each party. Each Party shall (i) maintain the Confidential
Information of the other Party in confidence from and after the date hereof
until the seventh anniversary of the termination of this Agreement and (ii) use
such Confidential Information solely for the purpose of performing its
obligations or exercising its rights under this Agreement. Each Party covenants
that (i) it shall not disclose any of the Confidential Information of the
other Party except to its employees, agents or any other person under its
authorization who are obligated to maintain the confidentiality of such
Confidential Information, and (ii) it shall establish and implement a
commercialization plan within such Party’s respective organization that will
indicate serious disciplinary action including and up to dismissal in the event
that a representative makes an unauthorized disclosure. The foregoing
confidentiality obligations shall not apply to information that (i) is
required to be disclosed by a court or tribunal, legal process, applicable law
or the rules of any applicable stock exchange, in which case the
disclosing Party shall promptly notify the other Party of such disclosure and
the procedures, such as a protective order, instituted to protect the
confidentiality of the such information to be disclosed, (ii) is or
hereafter becomes generally available to the public other than by reason of any
default by the disclosing Party with respect to a confidentiality obligation,
(iii) is disclosed to the recipient by a third party that is not in
default of any confidentiality obligation to the disclosing Party or (iv) is
reasonably necessary to explain to customers of Cardinal any increases in
Generator Purchase Prices due to increases in costs of molybdenum as provided
in Exhibit B. Each Party agrees that should the foregoing
confidentiality obligations be breached, money damages may be inadequate to
remedy such a breach, and the other Party shall be entitled to seek, and a
court of competent jurisdiction may grant, specific performance and injunctive
or other equitable relief as a remedy for any such breach or threatened breach.
Such remedy shall be in addition to all other remedies, including money
damages, available to a non-breaching Party at law or in equity.


 


8.10.        Notices.
All notices to be provided to the Parties hereunder shall be delivered to the
address of the relevant Party set forth below:


 


If to Supplier, to:


 


Lantheus Medical Imaging, Inc.


331 Treble Cove Road


North Billerica, Massachusetts 01862


Attn: President


Facsimile: (978) 671-8079


 


with copies to:


 


Lantheus Medical Imaging, Inc.


331 Treble Cove Road


North Billerica, Massachusetts 01862


Attn: General Counsel


Facsimile: (978) 671-8724


 


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If to Cardinal, to:


 


Cardinal Health, Inc.


7000 Cardinal Place


Dublin, Ohio 43017


Attention: Vice President, General Counsel — NPS


Facsimile: 614-757-3142


Telephone: 614-757-5427


 


Either Party may change its notice address by giving
a notice to the other Party pursuant to this Section.


 


8.11.        Failure
or Delay in Performance. Except for the payment of money, neither Party
shall be liable to the other for failure or delay in performance of its
obligations (including shipping delays) if such performance is prevented or
delayed by any cause beyond such Party’s reasonable control.


 


8.12.        Assignment.
Neither this Agreement, nor any right, interest or obligation hereunder, may be
assigned, or otherwise transferred by either Party, whether by operation of law
or otherwise, without the prior written consent of the other Party; provided,
however that (x) either Party may assign or otherwise transfer any or all
of its rights, or delegate any or all of its respective duties or obligations,
under this Agreement without the prior written consent of the other Party to
(i) an acquirer of, or successor to, all or substantially all of the
assets of such Party, or (ii) the surviving entity in any merger,
consolidation, equity exchange or reorganization to which such Party is a
Party, provided that, in each case, such acquirer, successor or surviving
entity, as the case may be, agrees to be bound by all of the obligations of
such Party under this Agreement, and (y) Supplier may assign or otherwise
transfer any or all of its rights, or delegate any or all of its duties or
obligations, under this Agreement to an acquirer of successor to, or other
transferee with respect to all or substantially all of the assets used in or
related to the manufacture, sale and distribution of the Products or otherwise
to the business of Supplier to which this Agreement relates, provided that, in
each case, such acquirer, successor or transferee, as the case may be, agrees
to be bound by all of the obligations of such Party under this Agreement.


 


8.13.        Amendments.
This Agreement may not be supplemented, amended or modified except in a writing
executed by all the Parties. Notwithstanding the preceding sentence but without
limiting the rights of the Parties under Sections 5.1 and 5.2 of this
Agreement, the Parties agree that in the event that there is a change in law or
regulation that makes this Agreement (or any terms hereof) or the performance
of any of the terms of this Agreement illegal in any respect, the Parties shall
negotiate in good faith to amend this Agreement in a manner consistent with
such change in applicable law or regulation.


 


8.14.        Absence
of Presumptions. The Parties hereto understand and agree that each and
every term and condition of this Agreement, have or has been mutually
negotiated, prepared and drafted, and in connection with the interpretation or
construction of any such term or condition or this Agreement, no consideration
will be given to the issue of which Party prepared, drafted or requested any
term or condition of this Agreement.


 


15

















 


8.15.        Third
Party Beneficiaries. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any third party including, without
limitation, any creditor of any Party hereto. No third party shall obtain any
right under any provision of this Agreement or shall by reason of any such
provision make any claim in respect of any debt, liability or obligation (or
otherwise) against any Party hereto.


 


8.16.        Consents.
Any consent or approval to any act or matter required under this Agreement must
be in writing and shall apply only with respect to the particular act or matter
to which such consent or approval is given and shall not relieve any Party from
the obligation to obtain the consent or approval, as applicable, wherever
required under this Agreement to any other act or matter.


 


8.17.        Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and their respective successors and permitted assigns.


 


8.18.        Compliance
with Terms. If any radiopharmacy owned by Cardinal or its affiliates is
operated by an entity other than Cardinal or its affiliates, Cardinal shall
cause such entity to comply with the terms of this Agreement.


 


8.19.        Headings.
Headings in this Agreement are for convenience of reference only and shall not
be considered in interpreting or construing this Agreement.


 


8.20.        Exhibits.
The Exhibits attached to this Agreement are an integral part hereof and all
references to this Agreement include such Exhibits.


 


8.21.        Counterparts.
This Agreement may be executed in one or more counterparts, and by the Parties
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which when taken together shall constitute one and the same
agreement.


 


8.22.        Waiver.
Waiver by a Party of a breach hereunder by the other Party shall not be
construed as a waiver of any succeeding breach of the same or any other
provision. No delay or omission by a Party in exercising or availing itself of
any right, power or privilege hereunder shall preclude the later exercise of
any such right, power or privilege by such Party. No waiver shall be effective
unless made in writing with specific reference to the relevant provision(s) of
this Agreement and signed by a duly authorized representative of the Party
granting the waiver.


 


8.23.      Publicity. Neither Party will make any press release or
other public disclosure regarding this Agreement or the transactions
contemplated hereby that mentions or identifies the other Party without the
other Party’s prior written consent, except as required by a government or
governmental authority and applicable law or the rules of any applicable
stock exchange, in which case the Party required to make the press release or
public disclosure shall use commercially reasonable efforts to obtain the
approval of the other Party as to the form, nature and extent of the press
release or public disclosure prior to issuing the press release or making the
public disclosure. Each Party agrees, on behalf of itself and its Affiliates,
not to do, or authorize to be done, any act or thing that disparages the other
Party or the Products, and Cardinal agrees, on behalf of itself and its
Affiliates, not to do, or authorize to be done, any act or thing which may
reduce or dilute the value or distinctiveness of the TechneLite® trademark.


 


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IN WITNESS WHEREOF, the Parties hereto have duly
executed this Agreement as of the day and year first above written.


 


 


	
   

  	
  LANTHEUS MEDICAL IMAGING,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald R. Kiepert

  
	
   

  	
   

  	
  Name: Donald R. Kiepert

  
	
   

  	
   

  	
  Title: President and CEO

  
	
   

  	
   

  
	
   

  	
  CARDINAL HEALTH 414, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John C. Rademacher

  
	
   

  	
   

  	
  Name: John C. Rademacher

  
	
   

  	
   

  	
  Title: President

  



 


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