Exhibit 10.9


 


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.


 


SALES AGREEMENT


 


CONTRACT NO: NTP CRT 09/005 BC


 


Entered into between:


 


NTP RADIOISOTOPES (PTY) LTD


 





 


and


 


LANTHEUS MEDICAL IMAGING, INC.


 





 

















 


This Agreement is
effective from the 1st day of April, 2009 and once signed by all Parties
(hereafter the “effective date of this Agreement”).


 


THE PARTIES:


 


The Parties to
this agreement are:


 


NTP
Radioisotopes (Pty) Ltd, a commercial company registered and existing under the laws of
Republic of South Africa, having its registered office at Building 1700,
Pelindaba, Church Street West Extension, Brits District, North West Province of
South Africa (hereinafter called “NTP”), and


 


Lantheus
Medical Imaging, Inc., a corporation organized and existing under the laws
of Delaware with a place of business at 331 Treble Cove Road, North Billerica,
Massachusetts, United States of America 01862 (“Lantheus”).


 


RECITALS:


 


WHEREAS
NTP is a producer and supplier of Fission Molybdenum-99 (hereinafter “Product”)
and NTP has joint supply and back-up supply arrangements in place with another
producer and and supplier (****) of Product set forth on Exhibit B
(hereinafter called “The Subcontractor”); and


 


WHEREAS
Lantheus has secured permission from the United States to import into the
United States large amounts of Product (“Permissions”) from NTP and has also
secured such Permissions to import such amounts of Product into the United
States from NTP’s Subcontractor; and


 


WHEREAS,
Lantheus desires to purchase Product from NTP and such Subcontractor; and


 


WHEREAS,
NTP and its Subcontractor desire to cooperate with each other to supply
Lantheus with Product in an effective and safe manner.


 


NOW
THEREFORE in consideration of the mutual covenants set out below, the Parties
agree as follows:


 


SECTION 1
- PURCHASE AND SALE OF PRODUCT


 


1.1                                 NTP shall sell Product to Lantheus, and
Lantheus shall purchase Product from NTP, the specification of which is set
forth in Lantheus Purchasing Specification number 08-040-998 attached as
Exhibit A and which is for use in the manufacture of Technetium-99m generators
and Technetium-99m labeled products in Lantheus’ and its contract
manufacturers’ facilities located in North America and elsewhere, in accordance
with the terms set out in this Agreement.


 


1

















 


1.2                                 NTP shall identify its preferred
Subcontractor to Lantheus, and if the parties hereto agree that such
Subcontractor shall supply Product to Lantheus hereunder, such Subcontractor
shall be set forth in Exhibit B and Lantheus shall secure Permissions to
import Product from the Subcontractor as soon as practicable.


 


1.3                                 Nothing herein shall prevent Lantheus and
its affiliates from selling such Technetium-99m generators and Technetium-99m
labeled products anywhere in the world.


 


SECTION 2
- ORDERS FOR PRODUCT


 


2.1                                 Lantheus shall buy from NTP, and NTP
shall supply to Lantheus, a **** of Product on a **** basis to be supplied and
delivered to John F. Kennedy International Airport, Jamaica, New York (“JFK”)
or Logan International Airport, Boston, Masssachusetts (“BOS”) (or other
mutually agreed upon delivery location), on **** with follow-on trucking delivery to the
Lantheus facility in North Billerica, Massachusetts. Lantheus shall provide NTP
with notice of its intention to change such location at least forty-five (45) days
in advance of the required inception date of such changes. Subject to
Section 5.1, such initial **** shall be at least **** (****) curies per ****
with a **** (****) day reference, and may be changed upon the mutual
written agreement of the parties hereto. NTP shall be responsible to ensure
that the full **** quota of Mo-99 (****Ci or the amended amount agreed to in
writing) is delivered to Lantheus other than during scheduled outages for
routine maintenance, unscheduled outages or failures of the production lines of
the NTP and its Subcontractor (i.e., under conditions of normal operations
prevailing at NTP and its Subcontractors facilities). At the discretion of the
Account Manager at NTP (“Account Manager”), such material shall be supplied by
NTP or its Subcontractor. Lantheus shall be advised in a timely way of the
manner in which supply obligations hereunder will be allocated amongst NTP and
its Subcontractor. NTP will schedule deliveries to Lantheus so as to compensate
for scheduled outages at either facility in such a way that the full supply
quota will be maintained under such circumstances. In the case of unscheduled
outages or production line failures for whatever reason at either facility the
Account Manager will employ best efforts to fulfill quotas. In situations where
a global supply shortage arises for whatever reason (and for Events of Force
Majeure (as hereinafter defined)) Lantheus will receive a share of Product
available that is not less than that which is directly proportional to its average
share of the total **** purchasing (averaged over the preceding **** (****)
days) from NTP and its Subcontractor. NTP has established and shall maintain
relationships with air carriers for the Lantheus route such that the
probability of a Lantheus shipment being refused by the carrier shall be highly
improbable. NTP shall liaise (via the Account Manager at NTP) with its
Subcontractor, taking into account the reactor, production and maintenance
schedules of each facility, and supply Lantheus **** (****) days in advance of
the first delivery of a ****, the supply schedule for the following ****
detailing clearly which supplier (NTP or a


 


2

















 


Subcontractor)
will supply which delivery. For clarity and as an example, NTP will provide
Lantheus the **** supply schedule on ****. This supply schedule will be binding
on NTP and its Subcontractor and will be used by Lantheus to register each
shipment with applicable U.S. governmental authorities as dictated by U.S. regulations.
If the airport of delivery is John F. Kennedy (JFK) then Product will be
available for pick-up by Lantheus no later than ****. If the airport of
delivery is Logan International (BOS) then Product will be available for
pick-up by Lantheus no later than ****. Pick-up time for any other delivery
location will be mutally agreed upon.


 


2.2                                 Should Lantheus wish to increase or
decrease the minimum contracted weekly volume of Product supplied by NTP by
more or less than **** percent (****%) of the regular **** **** Ci per **** for
a period of time less than **** (****) months, then Lantheus shall provide
NTP with notice of its intention to change such volume at least **** (****)
days in advance of the required inception date of such changes. NTP will make
every commercially reasonable effort to comply with any such request and will
confirm ability to accommodate the change at the latest **** (****) days before
the requested commencement of the delivery of the new volume of product.


 


2.3                                 Should Lantheus wish to increase or
decrease the minimum contracted **** volume of Product supplied by NTP by more
or less than **** percent (****%) of the regular **** **** Ci per **** for a
single delivery Lantheus shall provide NTP with notice of its intention to
change such volume in as timely a manner as possible prior to the date
requested. NTP will make every commercially reasonable effort to comply with
this request.


 


2.4                                 In cases of emergency and pending
Lantheus’ inability to register and obtain approval from applicable U.S.
governmental authorities, Lantheus may with less than one (1) month’s
notice, request to change the volume of Product to be supplied for any
shipment. NTP and its Subcontractor shall make best efforts to accommodate such
request for ad hoc changes.


 


2.5                                 The number of curies of Product shipped
from NTP or its Subcontractor shall be calibrated **** (****) hours from **** (****)
**** ****, at **** on the day of **** from the ****. This is equivalent to ****
hours in US Summer time and **** hours in US Winter time from **** on day of
dispensing at NTP.


 


2.6                                 Lantheus, NTP and the Subcontractor shall
engage one another in the periodic calibration of their respective
radioactivity measurement systems by reference to the U.S. National Institute
of Standards and Testing (NIST) or equivalent standard reference materials.


 


3

















 


SECTION 3
- DELIVERY TERMS


 


3.1                                 Product destined for Lantheus shall be
delivered by NTP and its Subcontractor to the airfreight carrier at the airport
of departure on a **** basis, which carrier and airport will be set forth in
the supply schedule provided pursuant to Section 2.2. “****” in this
Agreement shall be interpreted in accordance with INCOTERMS 2000 as amended.
All export permits and licenses shall be obtained by NTP or its Subcontractor,
as necessary to meet the shipping requirements set forth herein. NTP and its
Subcontractor shall use their best efforts to ensure that all Product destined
for Lantheus is loaded onboard a commercial airfreight carrier accepting
radioactive shipments and that such carrier actually departs the departure
airport with such Product. Upon execution of this Agreement, NTP shall commence
negotiations and use best efforts to obtain a firm, written commitment from the
relevant air carriers for delivery of at least the **** volume of Product
required to be purchased by and destined for Lantheus hereunder.


 


3.2                                 NTP and its Subcontractor shall procure
and manage transportation on Lantheus’ behalf by air or on land and in
accordance with Lantheus’ instructions for delivery to JFK. Lantheus shall make
all shipping arrangements to ship Product from JFK to the final destination.
NTP and its Subcontractor agree to assist Lantheus with making the arrangements
for the transshipment, including, without limitation, providing shipping
documentation such as air waybills. If the information provided by NTP in the
documentation provided by NTP is incorrect or incomplete and this incorrect or
incomplete information delays the delivery of Product to Lantheus to such an
extent that Lantheus cannot use Product at its scheduled production time then
Lantheus will be relieved of it’s obligation to purchase the delayed Product
and NTP shall grant Lantheus a purchase credit for the full amount of the price
of the Product.


 


3.3                                 All costs in respect of transporting any
shipment of Product on a **** basis from the airport of departure as set forth
above, shall be for the account of ****. NTP and its Subcontractor shall
pre-pay such shipping costs and invoice Lantheus accordingly for actual
out-of-pocket costs incurred.


 


3.4                                 Risk of loss and title to Product shall
transfer from NTP or its Subcontractor to Lantheus on **** (“****”) of such
shipment from the **** after acceptance of a Product shipment by the ****. For
clarity if Product is not on the **** at **** then title for Product shall
remain with NTP and Lantheus will not be obligated to purchase the Product.
Lantheus will work with NTP in good faith and at Lantheus’ sole discretion to
accept the Product at a later time. If a later delivery is agreed to NTP will
adjust the volume of the Product delivered to reflect decay over the time of
the delay.


 


3.5                                 Subject to the foregoing obligations of
this Section 3, shipping arrangements shall be subject to the availability
of commercial airfreight services accepting radioactive shipments on the days
necessary to meet the shipping requirements


 


4

















 


set
forth herein. In the event of changes in the availability of existing
airfreight services on such days, NTP or its Subcontractor shall promptly
notify Lantheus and, upon such notification, NTP and its Subcontractor and
Lantheus shall work together to find mutually acceptable alternatives.


 


3.6                                 All air waybill numbers of NTP or its
Subcontractor and the identification number of each container to be used for
each month’s scheduled shipments, shall be forwarded to Lantheus as mutually
agreed.


 


3.7                                 Promptly upon its receipt at Lantheus’
facility, Lantheus shall inspect Product and if Product does not conform to the
specifications set out in Exhibit A (including, without limitation,
calibration as provided in Section 2.1), Lantheus shall promptly notify
NTP of any such non-compliance with specification. Immediately upon NTP’s
receipt of such notice, NTP and its Subcontractor shall make arrangements, at
Lantheus’ sole discretion, either to replace such nonconforming Product at no
extra cost or to grant Lantheus a purchase credit in the amount of the price to
Lantheus of such nonconforming Product. Lantheus and NTP shall immediately
consult on the disposition of such nonconforming Product. Unless NTP and
Lantheus agree otherwise, Lantheus shall discard such nonconforming Product,
and NTP shall indemnify Lantheus for the cost of disposal. Alternatively, the
parties may agree that nonconforming Product may be returned to NTP for
disposal at NTP’s cost.


 


SECTION 4
- CONTAINERS FOR PRODUCT


 


4.1                                 Shipments of Product shall be delivered
and transported in containers complying with U.S. transport regulations for the
transport of radioactive materials. NTP and its Subcontractor agree to allocate
a sufficient number of containers for use by Lantheus in accordance with growth
in Lantheus’ purchase volume or change in shipping schedules which may arise
and to cover emergency shipments. NTP will package Product into containers in
such a way as to minimize the number used for each shipment. Such containers
shall at all times remain the property of NTP or its Subcontractor.


 


4.2                                 Risk of loss of containers shall pass to
Lantheus on an **** basis at the same time as risk of loss and title for the
Product shall pass, and such risk of loss shall revert back to NTP or its
Subcontractor upon Lantheus’ return of containers as set out below.


 


4.3                                 Lantheus shall return Seller’s empty
containers by prepaid airfreight to its appointed agent at the airport
specified by it. Prior to return of containers, Lantheus shall advise NTP or
its Subcontractor of shipment details regarding the delivery of containers,
including, without limitation, air waybill number, flight number, date of
shipment and serial numbers. Containers shall be returned to NTP or its
Subcontractor within **** (****) calendar days of their receipt at the Lantheus
facility in North Billerica, Massachusetts. Should any containers be


 


5

















 


received
later than **** (****) calendar days after receipt by Lantheus a demurrage fee
of **** U.S. dollars ($****) per day or part thereof may be levied for such
late returns.


 


SECTION 5
- PRICE AND PAYMENT


 


5.1                                 The price payable by Lantheus for Product
for the first term of this Agreement shall be as follows:


 


In
exchange for the commitment of Lantheus to purchase a sum of **** (****) curies
(with **** hour calibration time) of Product in any given **** (subject to
NTP’s ability to supply such amount in such ****), the unit price of Product
for such **** shall be **** fixed US dollars (U.S. $****) per Curie at
calibrated date and time as of the signing date of this Agreement. A price
adjustment to **** fixed US dollars (U.S. $****) per Curie will be made for all
Product purchased after ****. The calibration date and time above shall be in
accordance with Section 2.4. Such price will be adjusted **** upon mutual
agreement of the parties as of each subsequent **** of the Agreement on the
basis of market forces prevailing at the time, the then current cost of
production and any contractual sales obligations that Lantheus may have with
its customers and by negotiation and agreement by, at the latest the last day
of **** preceding the commencement of the new pricing term (**** of
each **** that the contract is in place). Lantheus shall have the right to
terminate the Agreement if the parties fail to agree on new pricing by such
last day of ****. Changes in contracted volumes not required during the course
of a contractual period, i.e., **** to **** of the following year,
the latter of which would be handled in terms of Clause 2.2, but applicable for
the ensuing contractual period shall be agreed at the same time as the annual
negotiations on product prices as outlined in 5.1 above.


 


NTP
shall invoice Lantheus at the end of each month for all Product supplied by NTP
or its Subcontractor in that month. Invoicing shall be in respect of the price
applicable to Product upon the delivery of such conforming Product to Lantheus
on an **** basis, and in respect of container charges as the same become
payable under this Agreement. Lantheus shall pay all invoices for shipments of
conforming Product in any given month (as reduced by any outstanding credits
for nonconforming Product) by the end of the following **** to NTP.


 


5.2                                 The prices set forth above include
packaging in accordance with normal shipping laws, regulations and industry
standards for Product [and do not include taxes, duties or other imposts levied
by any competent authority on the Products (other than income taxes levied on
NTP or its Subcontractor or their affiliates), which taxes, duties and imposts
shall be borne by Lantheus.


 


6














 


SECTION 6
- EMERGENCY ORDERS


 


If,
on an occasional or exceptional basis, Lantheus requires Product to be
delivered in different quantities or at different times or to a different
location or with different pre-calibration, to that stipulated in this Agreement,
then NTP and its Subcontractor shall use reasonable best efforts to comply with
such request.


 


SECTION 7
- PRODUCT WARRANTIES


 


7.1                                 NTP and its Subcontractor warrants and
covenants that Product delivered by it pursuant to this Agreement shall:


 


(1)                                  be free from defects in title, design,
material and workmanship,


 


(2)                                  conform to all specifications set forth
in this Agreement or as, from time to time, otherwise required by applicable
laws and regulations,


 


(3)                                  be of merchantable quality, and fit for
the purposes for which it is being bought or which is indicated by Lantheus to
suppliers,


 


(4)                                  conform to the relevant manufacturer’s
Drug Master File (if it is filed by Seller), and


 


(5)                                  be manufactured and tested in accordance
with current good manufacturing practices (cGMP); comply with all applicable
laws, regulations and industry standards relating to the manufacture, testing,
labeling, storage and shipment of Products; and not be adulterated or
misbranded within the meaning of the United States Federal Food, Drug and
Cosmetic Act (21 U.S.C. 1 et seq.) at the time of delivery to the airfreight
carrier.


 


7.2                                 Notwithstanding anything herein and not
in limitation of any other rights of Lantheus hereunder or under applicable law
or regulation, Lantheus may reject any Product which does not conform to the
above warranties and no charge shall be levied by NTP for any nonconforming
Product. NTP shall reimburse Lantheus for all shipping or disposal costs
associated with the return or disposal of nonconforming Product and all
previously paid taxes and other expenses relating to such shipment. In the
event of any circumstance coming to the attention of NTP or its Subcontractor
with regard to any deviation from specification disclosed by quality control
tests carried out at the site of origin of Product, suppliers shall promptly
inform Lantheus of such circumstance.


 


7.3                                 NTP and its Subcontractor shall retain an
archive sample of each Product lot shipped hereunder for a period of four
(4) weeks following its delivery.


 


7.4                                 The specifications of Product set out in
Section 1.1 may be amended only by a prior written agreement between NTP
and Lantheus after the provision to


 


7

















 


Lantheus
of free sample(s) of Product conforming to such amended specification
sufficient in quantity to enable Lantheus to establish the suitability of such
amended Product for use in the manufacture of Technetium-99m generators and
Technetium-99m labeled products in its facilities. To the extent that a
material change of process at NTP’s facilities is effected, Lantheus shall have
the right in its sole discretion to accept such change, notwithstanding whether
such change of process results in an amendment to the Product specification set
forth in Section 1.1.


 


7.5                                 The parties agree to the terms of the
Quality Assurance Agreement, attached hereto as Exhibit C. The Quality
Assurance Agreement as amended from time to time upon mutually written
agreement of the parties shall apply to supplies of Product under this
Agreement.


 


SECTION 8
- FORCE MAJEURE


 


8.1                                 No party hereto shall be liable to the
other parties for default or delay in the delivery of Product or in the
ordering of Product due to a/an: Act of God; fire; flood; storm; riot;
sabotage; explosion; strike or labour disturbance (excluding a strike or labour
disturbance involving NTP’s or its Subcontractor’s facilities); national
security disaster; change in governmental law, ordinance, rule or
regulation; inability to obtain electricity or other type of energy or raw
materials; or any similar or different contingency beyond its reasonable
control (collectively called “Event of Force Majeure”). For the Subcontractor,
where there is a dependence on sourcing from external reactors in Europe, major
unscheduled shutdowns of such reactors are considered to be events of Force
Majeure.


 


8.2                                 Upon the occurrence of an Event of Force
Majeure, the defaulting party shall:


 


(1)                             forthwith give notice to the other party
of the occurrence of such Event of Force Majeure;


 


(2)                             use its best efforts to eliminate and/or
minimize the effects of the Event of Force Majeure;


 


(3)                             forthwith give notice to the other party
when such Event of Force Majeure has been eliminated, or has ceased to prevent
the defaulting party from fulfilling such obligations.


 


8.3                                 In the event that any shortage of Product
is anticipated, NTP shall provide notice to Lantheus by telephone (followed by
written confirmation) as soon as reasonably possible. If either NTP or its
Subcontractor is at short notice unable to supply scheduled Product, then NTP
and its Subcontractor will liaise and move delivery on a best effort basis to
the other supplier in as far as Lantheus is able to register the change in
delivery with its regulatory authorities. If such efforts fail to yield
satisfactory results, NTP shall relieve Lantheus of its purchase


 


8

















 


obligations
hereunder in connection with such specific order and all other orders hereunder
that NTP or its Subcontractor cannot supply. NTP shall allow Lantheus to
purchase the amount of such shortfall from any third party of its choice. In
such case, Lantheus may, at its sole discretion, cancel the initial order
equivalent to such shortfall.


 


8.4                                 If an Event of Force Majeure affects only
a part of the capacity of the defaulting party to produce and deliver Product,
NTP shall use best efforts pursuant to Section 8.3, and if NTP is
nevertheless unable to fulfill Lantheus’ requirement, the defaulting party
shall allocate production and delivery of Product to Lantheus on a first
priority basis, based on Lantheus’ average purchases in the **** (****) days
prior to the time such Event of Force Majeure affected production and delivery.


 


8.5                                 If an Event of Force Majeure shall
continue to exist for more than [**** (****)] consecutive days, Lantheus shall
be entitled to terminate this Agreement without advance notice of such
termination to NTP.


 


SECTION 9
- CONFIDENTIALITY


 


9.1                                 Each party shall maintain in confidence
and safeguard all business and technical information which is disclosed by one
party to the other in connection with this Agreement and which is designated
confidential at the time of disclosure, provided that the parties agree that
the terms of this Agreement and all transactions conducted hereunder are deemed
to be confidential information and subject to the protections set forth herein.
The obligations under this Section shall not apply to:


 


(1)                                  information now in the public domain or
which hereafter becomes available to the public through no fault of the
receiving party;


 


(2)                                  information already known to the
receiving party at the time of disclosure;


 


(3)                                  information disclosed to the receiving
party by any third party who has a right to make such a disclosure;


 


(4)                                  information independently developed by
the receiving party through the work carried by its employees, agent, or
representatives;


 


(5)                                  information approved for release in
writing by disclosing party; or


 


(6)                                  information as may be required to be
disclosed by applicable law, regulation or order of a governmental authority of
competent jurisdiction.


 


9.2                                 The parties acknowledge that any
disclosure or misappropriation of confidential information in violation of this
Article may cause irreparable harm, the amount of which may be difficult
to determine, thus potentially making any remedy at law


 


9

















 


or
in damages difficult to determine, thus potentially making any remedy at law or
in damages inadequate, Each party, therefore, agrees that the other party shall
have the right to apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of the confidentiality provisions
of this letter agreement and for any other appropriate relief. This right shall
be in addition to, and not in lieu of, any other remedy available in law or
equity.


 


9.3                                 The obligation under this
Article shall continue for five (5) years after the expiry or
termination of this Agreement.


 


9.4                                 NTP and its Subcontractor agree that
Lantheus may disclose information with its shareholders upon their request.
This Section shall survive termination or expiration of this Agreement.


 


SECTION 10
- INDEMNITY AND INSURANCE


 


10.1                           Each party (“Indemnifying Party”) shall
indemnify the other (“Indemnified Party”) in respect of any costs, losses,
judgments or any other liabilities incurred by the Indemnified Party,
including, without limitation, any personal injury or death, or loss of or
damage to property, suffered by a third party or by the Indemnified Party
hereto, arising out of or as a result of the negligent acts or omissions of, or
breach or alleged breach of this Agreement by, the Indemnifying Party, its
directors, officers, employees or agents, during the performance of the
Indemnifying Party’s obligations pursuant to this Agreement.


 


10.2                           NTP and its Subcontractor shall each
maintain, at all times during the term of this Agreement, at their own expense,
Product Liability Insurance with a per occurrence limit of not less than the
equivalent of **** U.S. dollars ($****) under a liability policy and/or under
an umbrella policy. NTP and its Subcontractor shall provide Lantheus with
certificates evidencing such insurance as soon as practicable after the
effective date of this Agreement and after subsequent renewals of the policies.


 


Lantheus
will maintain, at all times during the term of this Agreement, at Lantheus’ own
expense, Product Liability Insurance with a per occurrence limit of not less
than the equivalent of **** U.S. dollars ($****) under a liability policy
and/or under an umbrella policy. Lantheus will provide NTP with certificates
evidencing such insurance as soon as practicable after the effective date of
this Agreement and after subsequent renewals of the policies.


 


SECTION 11
- TERM


 


11.1                           The term of this Agreement shall commence
on the effective date of this agreement and end at midnight GMT on the 31st day
of December 2013. Lantheus may terminate this Agreement for convenience by
giving six (6) months written notice prior to the expiry of each term. Lantheus
may also terminate this


 


10

















 


Agreement
immediately after **** (****) supply failures in the space of any **** (****)
month period. Supply failures shall be considered to be events where an amount
not exceeding ****% of the ordered activity of Mo-99 is delivered to Lantheus
provided that the root cause of such failures was within or should have been
within the control of NTP and its Subcontractor.


 


11.2                           Either party may terminate this Agreement
(i) upon thirty (30) days written notice to the other party in the event
of any material breach of any provision of this Agreement, provided that the
breaching party is unable to cure the breach within such thirty (30) day period
or (ii) immediately upon written notice if a trustee or receiver or
similar officer of any court is appointed for a party or for a substantial part
of the property of such party, whether with or without consent; or bankruptcy,
composition, reorganization, insolvency or liquidation proceedings are
instituted by or against such party without such proceedings being dismissed
within ninety (90) days from the date of the institution thereof.


 


11.3                           Upon termination for any reason set forth
herein, Lantheus shall have the option to purchase additional quantities of
Product from NTP for an additional **** (****) month period, which orders
shall be subject to the terms and conditions of this Agreement.


 


11.4                           Should NTP and Lantheus agree on a new
Agreement prior to the termination date of this Agreement, then this Agreement
shall terminate on the effective date of the new replacement Agreement.


 


11.5                           Should no notice be given by either party
as per Section 11.1, then this Agreement, including without limitation the
price terms in Section 5.1, will be automatically renewed for another term
pending agreement being reached by both parties on pricing and volume issues.


 


SECTION 12
- NOTICE


 


12.1                           All notices, demands and other
communications by one party to the other with respect to this Agreement shall
be made in writing by registered airmail, postage prepaid, or facsimile, or
electronic mail, or personal delivery at the addresses below, or at such other
address as may be notified by such other party pursuant to the provisions of this
Article from time to time, Note: For reasons of efficiency, certain
communications relating to deliveries, QA and regulatory matters (and others
that are relavant) will be made directly between the Subcontractor and Lantheus
(with a simultaneous copy to NTP).


 


To
Lantheus:


 


Lantheus
Medical Imaging, Inc.

331 Treble Cove Road

North Billerica, MA 01862 U.S.A.


 


11

















 


Attention:
William Dawes, Jr.


 


with
a copy to:


 


Lantheus
Medical Imaging, Inc.

331 Treble Cove Road

North Billerica, MA 01862 U.S.A.

Attention: Michael Duffy, Esq.


 


To
NTP:


 


Building
1700

Private Bag 582

PRETORIA

0001

South Africa

Attention: RG von Gogh or PA Louw


 


12.2                           All notices, demands and other
communications mentioned above shall be deemed to have been given at the time
of receipt when made by personal delivery, at the time of confirmation when
made by facsimile or electronic mail, and seven (7) days after posting
when made by registered airmail.


 


SECTION 13
- GENERAL TERMS


 


13.1                           No Party shall be entitled to assign all
or any of its rights or obligations under this Agreement without the consent of
the other Party hereto which shall not be unreasonably withheld. Any transfer
or assignment of this Agreement made without the consent as required herein
shall be of no effect whatsoever. Notwithstanding the foregoing,
(i) either party may assign its rights and obligations under this
Agreement, without the prior written consent of the other Party, to an
affiliate or a successor of the relevant portion of the assigning party’s
business by reason of merger, consolidation, change of control, sale of all or
substantially all of its assets or any similar transaction, provided that such
successor agrees in writing to be bound by this Agreement and (ii) Lantheus
may assign this Agreement for the benefit of any lenders under any financing
arrangement (including, without limitation, with Ableco Finance LLC), without
the prior written consent of NTP. This Agreement shall inure to the benefit of
and be binding upon the respective successors and permitted assigns of the
Parties hereto.


 


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13.2                           This Agreement constitutes the entire
understanding between the Parties with respect to the subject matter hereof.


 


13.3                           Any modification, or addition, to any of
the terms and conditions of this Agreement shall not be effective unless in
writing and signed by the duly authorized representatives of all Parties.


 


13.4                           If any provision of this Agreement is
found to be unenforceable under any of the laws or regulations applicable
thereto, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or unenforceable, it will be
substituted with such provision as will most fully realize the intent of the
Parties as expressed in this Agreement, to the fullest extent permitted by law.


 


13.5                           This Agreement shall be of no effect and
shall not become binding on each Party until signed by the duly authorized
representatives of all Parties. The obligations of NTP hereunder shall be
binding on NTP’s Subcontractor, and NTP shall cause such Subcontractor to
comply with such obligations.


 


13.6                           The waiver of strict compliance or performance
of any of the terms of this Agreement or of any breach thereof on the part of
each Party shall not be held or deemed to be a waiver of:


 


(1)                                  Any subsequent failure to comply strictly
with or perform the same or any other term and condition of this Agreement; or


 


(2)                                  Any subsequent breach hereof.


 


13.7                           This Agreement shall be governed by and
construed in accordance with the laws of England without out reference to its
choice of law rules.


 


13.8                           Any and all disputes arising from this
Agreement shall be amicably and promptly settled upon consultation among the
parties. The parties agree that if an amicable settlement is not reached within
sixty (60) days after commencing consultation, the disputes shall be settled by
arbitration in London (under the rules of Arbitration of the International
Chamber of Commerce as in force on the execution date of this agreement by one
or more arbitrators appointed in accordance with the said rules. The award
shall be final and binding upon the parties.


 


13.9                           Except as otherwise provided herein,
neither party shall have any right, express or implied, to use in any manner
the name or other designation of the other party or any other trade name or
trademark of the other party for any purpose in connection with the performance
of this Agreement.


 


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13.10                     A party shall not make any public announcement with
respect to this Agreement specifically identifying the other party or
referencing the trade name or trademark of the other party without the prior
written consent of the other party, which shall not be unreasonably withheld or
delayed, provided further that each party shall have the right to make any
public statements related to market supply without the consent of the other party
provided there is no reference specifically identifying the other party or
referencing the trade name or trademark of the other party. In the event of
required consent to an announcement required by this Section, the party making
such announcement shall provide the other party with a copy of the proposed
text prior to such announcement at least ten (10) days in advance of the
scheduled release of such announcement to afford such other party a reasonable
opportunity to review and comment upon the proposed text.


 


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


 


 


	
  For and on
  behalf of NTP:

  	
   

  
	
   

  	
  /s/ DG Robertson

  
	
   

  	
  DG Robertson

  
	
   

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  For and on
  behalf of Lantheus:

  	
   

  
	
   

  	
  /s/ Michael
  Duffy

  
	
   

  	
  Michael Duffy

  
	
   

  	
  VP and General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
  Witnessed by
  IRE:

  	
   

  
	
   

  	
  /s/ Jean-Michel
  Vanderhofstadt

  
	
   

  	
  Jean-Michel
  Vanderhofstadt

  
	
   

  	
  General Manager

  



 


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