Exhibit 10.41
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
DEVELOPMENT AGREEMENT
and
AMENDMENT TO UNITED STATES
DISTRIBUTION AGREEMENT
DEVELOPMENT AGREEMENT and AMENDMENT TO UNITED STATES DISTRIBUTION
AGREEMENT (this "Agreement"), dated September 30, 2002 (the "Agreement Date"),
between GENZYME BIOSURGERY CORPORATION, a corporation duly organized and
existing under the laws of the Commonwealth of Massachusetts and a subsidiary of
GENZYME CORPORATION, (hereinafter "Genzyme"), and INAMED CORPORATION ("Inamed"),
a corporation duly organized and existing under the laws of the State of
Delaware.
WHEREAS, prior to the date hereof Genzyme has been engaged in the
development and manufacture of the Agreement Products (as hereinafter defined);
WHEREAS, Genzyme, as assignee of and successor in interest to
Biomatrix, Inc., and Inamed, as assignee of and successor in interest to
Collagen Corporation, on June 14, 1996, entered into a United States
Distribution Agreement, as subsequently amended (the "U.S. Agreement"), pursuant
to which Genzyme granted to Inamed exclusive promotion, marketing, sale and
distribution rights for Hylaform® in the United States (the "Distribution
Rights") on the terms and subject to the conditions set forth therein;
WHEREAS, under the U.S. Agreement Inamed agreed to pay Genzyme [*] upon
the receipt of FDA Approval (as hereafter defined) for Hylaform in connection
with and as part of the consideration for the grant by Genzyme of the
Distribution Rights to Inamed;
WHEREAS, Genzyme and Inamed executed a Non-Binding Letter of Intent,
dated October 22, 2001, and subsequent correspondence related to such letter
(together, the "Letter of Intent"), relating to development work on the
Agreement Products;
WHEREAS, Genzyme and Inamed have agreed that, as anticipated by the
Letter of Intent, but in accordance with new understandings relating to the
development work on the Agreement Products, Genzyme and Inamed shall develop the
Agreement Products cooperatively as described below; and
WHEREAS, in order to clarify certain provisions of the U.S. Agreement
relating to payments contemplated thereunder, Genzyme and Inamed have agreed to
amend certain provisions of the U. S. Agreement.
1
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants of the parties hereto, it is hereby agreed as follows:
1.
Definitions and Interpretation
1.1
In addition to the defined terms that are defined elsewhere in this
Agreement, the following words and expressions shall have the following
meanings:
"Affiliate" shall mean, with respect to any party, any Person, which, directly
or indirectly, is controlled by, controls or is under common control with such
party. For purposes of this definition, the term "control" (including with
correlative meanings, the terms "controlled by" and "under common control with")
shall mean, with respect to any Person, the direct or indirect ownership of more
than fifty percent (50%) of the voting or income interest in such Person or the
possession otherwise, directly or indirectly, of the power to direct the
management or policies of such Person.
"Agreement Date" shall mean the date this Agreement is dated