Nycomed in this Agreement, the QA Agreements and the Pharmacovigilance
Agreement shall also apply to Nycomed's Affiliates to the extent such Affiliates
have performed or will perform Nycomed obligations hereunder or thereunder.
2.3.
GENERAL OBLIGATIONS AND LIMITATIONS WITH RESPECT TO DISTRIBUTION.
(A)
SUBJECT TO THE APPLICABLE REGULATIONS IN THE TERRITORY AND TO THE
EXTENT PERMITTED BY LAW, NYCOMED SHALL NOT (I) ESTABLISH OR MAINTAIN ANY
DISTRIBUTION FACILITY FOR THE PRODUCT OUTSIDE THE TERRITORY OR (II) EXCEPT AS
PERMITTED UNDER THE SERVICES AGREEMENT, ACTIVELY ADVERTISE OR PROMOTE THE
PRODUCT TO POTENTIAL BUYERS, WHETHER LOCATED WITHIN OR OUTSIDE THE TERRITORY.
NYCOMED AGREES AND ACKNOWLEDGES THAT, AS BETWEEN NYCOMED AND NYCOMED'S
AFFILIATES, ON THE ONE HAND, AND TMC AND TMC'S AFFILIATES, ON THE OTHER HAND,
TMC AND ITS AFFILIATES SHALL BE RESPONSIBLE FOR THE ADVERTISING, PROMOTION,
DETAILING AND MARKETING OF THE PRODUCT TO POTENTIAL BUYERS IN THE TERRITORY,
AND, EXCEPT TO THE EXTENT SPECIFIED IN THE SERVICES AGREEMENT, NYCOMED,
NYCOMED'S AFFILIATES AND ANY EXISTING SUBDISTRIBUTORS SHALL HAVE NO RIGHT OR
OBLIGATION TO CONDUCT SUCH ACTIVITIES. PARTICULARLY, NYCOMED IS COGNIZANT OF AND
RECOGNIZES THE EXCLUSIVE DISTRIBUTION RIGHTS GRANTED BY TMC TO GRUPO FERRER FOR
SPAIN, PORTUGAL AND GREECE AND FOR CERTAIN COUNTRIES WITHIN CENTRAL AND SOUTH
AMERICA.
(B)
NYCOMED SHALL NOT SEEK APPROVAL FOR THE PRODUCT ANYWHERE IN ANY
COUNTRY IN THE WORLD, EXCEPT AS PROVIDED IN THE TRANSITION AGREEMENT OR WITH
TMC'S PRIOR WRITTEN CONSENT WITH RESPECT TO A PARTICULAR COUNTRY.
8
(C)
NYCOMED SHALL NOT BUNDLE THE PRODUCT WITH OTHER PRODUCTS.
(D)
NYCOMED SHALL USE COMMERCIALLY REASONABLE EFFORTS TO DISTRIBUTE
AND SELL THE PRODUCTS IN THE TERRITORY AND IN DOING SO TO MAXIMIZE THE NET SALES
OF THE PRODUCT. NYCOMED SHALL USE ALL REASONABLE EFFORTS TO CONTINUE TO FOLLOW
THE SALES AND PRICING PRACTICE AND POLICIES WITH RESPECT TO THE PRODUCT IN THE
TERRITORY THAT NYCOMED HAS FOLLOWED IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO
THE EFFECTIVE DATE, EXCEPT TO THE EXTENT IT HAS JUST CAUSE TO DEVIATE FROM THE
SAME.
2.4.
NON-COMPETITION.
During the term of this Agreement, none of Nycomed, its Affiliates or its
Distributors shall manufacture, distribute or sell any Thrombin Inhibitor in the
Territory; provided, however, that with respect to countries in the Territory
which are included in the EEA, this sentence shall only apply from the First
Launch Date until the date which is five years after the First Launch Date.
During the term of this Agreement, Nycomed shall notify TMC regarding new
pharmaceutical products (excluding line extensions and new formulations) Nycomed
or its Affiliates intend to directly or indirectly sell, market or promote in
the Territory. Notwithstanding the above, Nycomed shall be entitled to
distribute any product for the same Indications as approved for the Product,
other than abciximab, eptifibatide, or enoxaparin sodium, that may be used with
the Product and/or which may be used in circumstances where the Product is not
currently indicated or is contraindicated. Notwithstanding anything contained
herein to the contrary, Nycomed shall not be deemed to be in breach of