THE CONFIDENTIAL PORTIONS OF THIS EXHIBIT, WHICH HAVE BEEN REMOVED AND REPLACED
WITH AN ASTERISK, HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE
406 PROMULGATED UNDER THE SECURITIES ACT OF 1933 AND RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934.
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EXCLUSIVE MANUFACTURING AND DISTRIBUTION AGREEMENT
This Exclusive Distribution Agreement (the "Agreement"), effective June 9, 2004
(the "Effective Date"), is between MINRAD, INC., a Delaware corporation with
offices at 847 Main Street, Buffalo, New York 14203, USA ("Manufacturer") and
RxElite Holdings Inc., a Delaware corporation with offices at 1404 N. Main,
Suite 200, Meridian, Idaho 83642 ("Distributor").
Manufacturer and Distributor agree as follows:
1. Definitions
"Affiliate" of a party hereto shall mean any person, corporation or other
entity, which controls, is controlling or is under common control with such
party.
"ANDA" shall mean abbreviated new drug application.
"Hospital Market" shall mean those accounts that purchase anesthetic agents for
human use.
"Manufacturer's Representative" shall mean MINRAD Inc., which is a
manufacturer's representative of Manufacturer with respect to the Products.
"NDC" means national drug code number.
"Products" shall mean the MlNRAD branded products set forth on Attachment A
hereto.
"Purchase Commitments" shall mean those outlined in Attachment A-1 hereto.
"Territory" shall mean the geographical area set forth in Attachment A-2 hereto.
2. Grant Exclusive Distributorship
2.1 Appointment. Subject to Distributor's compliance with Section 2.2 hereof,
Manufacturer hereby grants to Distributor for the Term the exclusive right to
purchase the Products from Manufacturer for the sole purpose of selling the
Products to end-use customers in the human market in the Territory, and
Distributor accepts such grant, subject to the limitations, terms and conditions
stated in this Agreement. Subject to any increases permitted hereunder, the
initial prices for the Products shall be as set forth on Attachment A-1 hereto.
Distributor shall not itself manufacture or have manufactured for it or directly
or indirectly sell, any products from third parties that are similar to the
Products. Notwithstanding anything herein to the contrary, Manufacturer and
Distributor acknowledge Manufacturer's right to sell, from time to time,
Enflurane to Baxter, who bottles and markets the Products under its own name for
the purpose of selling the Products to end-use customers in the human market in
the Territory (the "Private Label Distributor").
2.2 Initial Order. Distributor agrees to place an initial non-cancelable
stocking order for Products as set forth on Attachment A-1 hereto at the time of
signing (the "Initial Order"). The Sevoflurane component of the Initial Order is
subject to and will be shipped after FDA approval has been received and any
existing exclusivity granted by the FDA has expired.
2.3 Purchase Commitment. Distributor agrees to purchase Products from
Manufacturer as set forth in Attachment A-1 hereto during the Term. The purchase
commitment for Sevoflurane will commence when FDA approval to sell Sevoflurane
in the Market has been received and any existing exclusivity granted by the FDA
has expired. The Initial Order will