PRIOR TO THE EFFECTIVE DATE) SHALL MEAN
SUCH QUALITY AGREEMENT UNAMENDED BY THE TRANSACTION AGREEMENTS, AND ALL
REFERENCES TO SUCH QUALITY AGREEMENT WITH RESPECT TO
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ACTIVITIES ON OR AFTER THE EFFECTIVE DATE SHALL MEAN SUCH QUALITY AGREEMENT AS
AMENDED BY THE TRANSACTION AGREEMENTS.
1.35.
"RELEASE AGREEMENT" MEANS THE QUALITY (GMP) AGREEMENT FOR THIRD
PARTY CONTRACT QUALITY RELEASE, ENTERED INTO AS OF FEBRUARY 24, 2004, AMONG TMC,
NYCOMED AND NYCOMED AUSTRIA GMBH.
1.36.
"SERVICES" HAS THE MEANING SET FORTH IN SECTION 2.1(A).
1.37.
"TARGET PRESCRIBERS" MEANS SUCH TYPE(S) OF PHYSICIANS AND HOSPITAL
ADMINISTRATORS IDENTIFIED BY TMC, OR IDENTIFIED BY NYCOMED AND APPROVED BY TMC.
1.38.
"TRADEMARKS" MEANS TRADEMARKS, TRADE NAMES, SERVICE MARKS, AND
OTHER PROPRIETARY SYMBOLS OWNED OR CONTROLLED BY TMC AND AS DESIGNATED BY TMC IN
EXHIBIT C HERETO.
1.39.
"TRANSACTION AGREEMENTS" MEANS, COLLECTIVELY, THIS AGREEMENT, THE
NEW DISTRIBUTION AGREEMENT AND THE TRANSITION AGREEMENT.
2.
SERVICES
2.1.
SERVICES AND PERFORMANCE.
(A)
NYCOMED SHALL PERFORM THE FOLLOWING SERVICES ON BEHALF OF TMC WITH
RESPECT TO THE PRODUCT IN THE TERRITORY (COLLECTIVELY, THE "SERVICES"):
(i)
Detailing and other direct selling activities performed by sales
representatives;
(ii)
sales management and key account manager services;
(iii)
product/marketing management and support activities;
(iv)
medical advisor services (the services described in clauses (i)
thru (iv), collectively, when performed with respect to any particular
country(ies) in the Territory, the "Country Services");
(v)
international marketing services; and
(vi)
the Pharmacovigilance QP Services (the services described in
clauses (v) through (vi), collectively, the "International Services").
(B)
SUBJECT TO SECTION 4.1 AND EXCEPT AS OTHERWISE DIRECTED BY TMC,
NYCOMED SHALL PERFORM (AND, FOR THE AVOIDANCE OF DOUBT, SHALL CAUSE NYCOMED
AFFILIATES TO PERFORM) THE
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Services in accordance with the then-current Marketing Plan, Nycomed's past
practices under the Former Distribution Agreement and the manner in which
Nycomed performs similar services for Nycomed's other pharmaceutical products
which are sold to hospitals; provided, however, that, notwithstanding any
direction by TMC to the contrary:
(i)
Nycomed shall have no obligation to provide Services beyond the
then-current Commitment;
(ii)
Nycomed shall have no obligation to act in accordance with TMC's
directions if doing so would violate any applicable provision of law, statute,
rule or regulation, as determined by Nycomed in good faith, or would cause
Nycomed to breach any obligation owed to a third party under an agreement
entered into by Nycomed in good faith; and
(iii)
Unless otherwise agreed by Nycomed and TMC, Nycomed shall (A)
perform the activities which Nycomed is required to perform, as specified in
Schedule 2.1(b), and (B) not perform the activities which Nycomed is required
not to perform, as specified in Schedule 2.1(b).
(C)
NYCOMED MAY AMEND THE MARKETING PLAN UPON [**] BUSINESS DAYS PRIOR
WRITTEN NOTICE TO TMC, PROVIDED THAT TMC DOES NOT OBJECT TO ANY SUCH PROPOSED
AMENDMENTS. FOR THE SAKE OF CLARITY, TMC MAY REQUIRE CHANGES TO THE MARKETING
PLAN AND NYCOMED SHALL COMPLY WITH SUCH CHANGES, SUBJECT TO THE PROVISIONS OF
SECTIONS 2.1(B)(I), (II) AND (III).
(D)
TO THE EXTENT THAT