Exhibit 10.20
-------------
DISTRIBUTION AGREEMENT
----------------------
THIS AGREEMENT, made as of this 8th day of April, 1998 by and between
Endogen Inc., a Massachusetts corporation having its principal place of
business at 00 Xxxxxxxx Xxx, Xxxxxx, XX 00000-0000 (hereinafter referred to as
"Endogen"), on one hand, and Yamanouchi Pharmaceutical Co., Ltd., a Japanese
corporation having its principal place of business at 0-00, Xxxxxxxxxx-Xxxxxx
0-xxxxx, Xxxx-xx, Xxxxx, Xxxxx (hereinafter referred to as "Yamanouchi"), on
the other hand,
WITNESSETH
WHEREAS, Yamanouchi is marketing and distributing various diagnostic
products in Japan and is desirous to market and distribute diagnostic of
Endogen;
WHEREAS, Endogen is desirous to expand the market of its products in
Japan through Yamanouchi's marketing and distributing channels;
WHEREAS, Endogen and Yamanouchi wish to cooperate each other for
further development of the products under the trademark "Cellfree" and other
products of Endogen in Japan;
NOW THEREFORE, in consideration of the foregoing premises and of the
covenants, terms and conditions set forth herein below, the parties hereto
agree as follows:
ARTICLE 1: DEFINITIONS
The following terms, when used with initial capital letters, shall
have the following respective meanings when used in this Agreement;
1.1 The term "Products" shall mean the products specified in Appendix I
attached hereto, which may be modified from time to time by written
agreement between the parties hereto.
1.2 The term "Koseisho" shall mean the Ministry of Health and Welfare in
Japan.
1.3 The term "Specification" shall mean the specification of each Product
and such Specification shall be described in the Appendix II attached
hereto.
1.4 The term "Territory" shall mean Japan.
1.5 The term "Trademark" shall mean CELLFREE, which is under application
in the Territory, or any other trademarks in the Territory to be
designated by Endogen for the Products.
ARTICLE 2: MARKETING AND DISTRIBUTION RIGHTS
- 2 -
2.1 Endogen hereby grants to Yamanouchi the exclusive rights to market,
sell and distribute the Products within the Territory under the
Trademark for the term of this Agreement.
ARTICLE 3: SUPPLY OF PRODUCTS
3.1 Endogen shall supply to Yamanouchi and Yamanouchi shall purchase from
Endogen all of Yamanouchi's requirements for the Products.
3.2 Yamanouchi shall submit to Endogen by the end of each calendar quarter
a written non-binding estimate forecast of the quantity of Products to
be purchased by Yamanouchi in each calendar quarter for the
immediately subsequent four calendar quarters. Such a forecast shall
be updated when it is provided to Endogen.
3.3 Yamanouchi shall place a firm order for the Products with Endogen by
the date to be separately agreed upon between both parties hereto for
each Product.
ARTICLE 4: SHIPMENT AND DELIVERY
4.1 Endogen shall supply Yamanouchi with the Products which are in
conformity with the Specification and having the minimum product life
to be separately agreed upon between both parties hereto for each
Product.
4.2 The terms for the shipment of the Products by Endogen to Yamanouchi
shall be F.O.B. Woburn, Massachusetts.
4.3 Yamanouchi shall examine the Products delivered by Endogen and shall
notify Endogen in writing of shortage in quantity or defects in
appearance within thirty (30) days after the delivery of such Products
to Yamanouchi and of failure to the Specification within ninety (90)
days after the delivery of such Products to Yamanouchi. Endogen shall
supply Yamanouchi with the shortage or replacement of the Products or
deduct the payment amount for such shortage, defects or failure to the
Specification by mutual agreement of the parties on such supply of the
shortage or replacement, or deduction of the payment.
ARTICLE 5: SUPPLY PRICE
5.1 The supply price of the Products from Endogen to Yamanouchi shall be
specified in the Appendix III hereto separately for respective
Products.
5.2 In the event of significant increases in the manufacturing costs of
the Products or significant changes in price reimbursement levels of
the Products under the national health insurance programs in Japan or
significant changes in the exchange rate between U.S. Dollars and
Japanese Yen, both parties hereto shall discuss the change of the
supply price of the Products from Endogen to
- 3 -
Yamanouchi.
ARTICLE 6: MARKETING
6.1 Yamanouchi shall file the application with Koseisho for the approval
of the Products in its own name and expenses.
6.2 Yamanouchi shall extend its best efforts to market, sell and
distribute the Products in the Territory.
6.3 Yamanouchi shall market, sell and distribute the Products in original
component packaging as provided by Endogen. Yamanouchi will provide
vial and box labels and a direction insert at its own expense.
Yamanouchi shall send samples of such labels and direction inserts to
Endogen.
6.4 Yamanouchi shall prepare promotional literature, brochures, and
catalogs to be used for the sales promotion of the Products and shall
send samples of such materials to Endogen.
6.5 Within thirty (30) days after the end of each calendar quarter,
Yamanouchi shall send Endogen a written report on the quantities of
the Products sold in the Territory during such calendar quarter and
the quantities of the Products in Yamanouchi's inventory at the end of
such calendar quarter.
6.6 On or before the fifteenth day in February in each year,
Yamanouchi shall send Endogen a written summary on activities in
marketing, sales promotion, clinical trials and application for
Koseisho's approval performed by Yamanouchi for the Products in the
Territory during the previous calendar year.
6.7 In order to support Yamanouchi's activities for the application for
Koseisho's approval and sales promotion for the Products in the
Territory, Endogen shall use best efforts to provide Yamanouchi with
information and other cooperation necessary for such activities.
6.8 All data used by Yamanouchi for the application for Koseisho's
approval of the Products shall be made available to both parties
hereto.
ARTICLE 7: PAYMENTS
7.1 Endogen shall invoice Yamanouchi for the Products to be purchased by
- 4 -
Yamanouchi when such Products are shipped to Yamanouchi. Yamanouchi
shall make the payment for such Products to the bank account
designated by Endogen within thirty (30) days after the date of such
invoice.
ARTICLE 8: INSPECTION
8.1 Yamanouchi may send its employees or designated persons to Endogen at
its own expense to inspect Endogen's manufacturing facilities for the
Products with a previous written notice to Endogen, provided that such
inspection shall be made within the normal business hour of Endogen
and shall not exceed once a calendar year.
ARTICLE 9: TERM AND TERMINATION
9.1 This Agreement shall become effective as of the date first above
written and continue in effect for [CONFIDENTIAL TREATMENT
REQUESTED]*. Thereafter this Agreement shall be extended automatically
in [CONFIDENTIAL TREATMENT REQUESTED]* increments unless either party
hereto notifies the other party in writing of its intention to
terminate this Agreement at least six (6) months in advance of such
intended termination.
9.2 Either party hereto shall have the right to terminate this Agreement
immediately by notice in writing (i) in the event that the other party
defaults on or breaches any of its material covenants or obligations
on its part to be performed hereunder, and such default or breach is
not cured within sixty (60) days after written notice thereof has been
given by the non-defaulting party; or (ii) in the event that either
party hereto shall enter into any arrangement or composition with its
creditors, or enter or be put into voluntary or compulsory liquidation
(except for the purpose of any reorganization reasonably acceptable to
the other party), or have its business enjoined or ordered into
receivership by executive or judicial authorities.
ARTICLE 10: CONFIDENTIALITY
10.1 Each party hereto shall keep all information received from the other
party under this Agreement strictly in confidence and shall not
disclose such confidential information to any third party without
first obtaining the disclosing party's written consent.
10.2 The provisions of the above Section l0.1 shall not apply to the
following information;
--------
*
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
- 5 -
(a) which, at the time of receipt from the other party, is in the
public domain; or
(b) which, after receipt from the other party, become part of
public domain through no fault of the receiving party; or
(c) which, at the time of receipt from the other party, is
already in the receiving party's possession; or
(d) which is lawfully obtained from any third party having a
right of such disclosure; or
(e) which is independently discovered by the receiving party
without using the confidential information received from the
disclosing party and such independent discovery can be
properly demonstrated by the receiving party.
ARTICLE 11: FORCE MAJEURE
11.1 The failure by either party to meet its material covenants and
obligations under this Agreement shall not be considered a breach of
this Agreement if and to the extent caused by occurrences beyond the
reasonable control of the party affected, including, but not limited
to acts of God, governmental restrictions, strikes or other concerned
acts of workers, fire, flood, earthquake, explosion, riots or wars.
ARTICLE 12: NOTICE
12.1 Any notice required to be given hereunder shall be sent in writing by
registered or certified airmail, postage prepaid, or by air courier,
or facsimile, addressed to the party to whom it is to be given as
follows;
If to Endogen: Endogen, Inc.
00 Xxxxxxxx Xxx
Xxxxxx, XX 00000-0000
X.X.X.
Facsimile: 000-000-0000
Attention: President & CEO
If to Yamanouchi: Yamanouchi Pharmaceutical Co., Ltd.
00-0, Xxxxxx 0-xxxxx
Xxxxxxxx-xx, Xxxxx 000-0000
Xxxxx
Facsimile: 0-0000-0000
Attention: Director of Diagnostics Division
- 6 -
or to such other address or addresses as may from time to time be
given in writing by either party to the other party.
ARTICLE 13: ASSIGNMENT
13.1 This Agreement shall not be assigned by either party without the prior
written consent of the other party, except to a successor of the party
hereto or an assignee of substantially all of the assets of a party
relating to this Agreement. This Agreement shall be binding upon and
inure to the benefit of a successor or an assignee of the parties
hereto.
ARTICLE 14: WAIVER
14.1 No waiver by either party hereto of any terms or conditions of this
Agreement shall be construed as a further waiver of such terms or
conditions.
ARTICLE 15: ENTIRE AGREEMENT
15.1 This Agreement constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understanding, writings and
discussions between the parties hereto relating to said subject
matter.
ARTICLE 16: ARBITRATION
16.1 In the event of any controversy or dispute arising out of or relating
to this Agreement, the parties hereto shall use best efforts to settle
those conflicts amicably between themselves. Should the parties hereto
fail to settle the conflict, the matter in dispute shall be settled
under the rules of conciliation and arbitration of the Japan-American
Trade Arbitration Agreement. The arbitration will be held in English
in Tokyo, Japan if the arbitration is initiated by Endogen and will be
held in Boston, Massachusetts if the arbitration is initiated by
Yamanouchi.
ARTICLE 17: GOVERNING LAW
17.1 This Agreement shall be governed and construed in accordance with the
laws of the Commonwealth of Massachusetts.
- 7 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers on the date and year first above
written.
ENDOGEN, INC.
/s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Vice President Sales
April 8, 1998
YAMANOUCHI PHARMACEUTICAL CO., LTD.
/s/ X. Xxxx
-----------------------------------
Managing Director
July 31, 1998
Distribution Agreement
Appendix I For Bead Kit, Page 1
Appendix I"
"Product Listing"
1.0 CELLFREE(R) IL-2R Assay Kit
*CELLFREE(R) IL-2R Assay Kit is the bead kit for the determination of
soluble interleukin-2 receptor (IL-2R) levels in human serum.
Japanese name: "CELLFREE IL-2R" and "CELLFREE IL-2R in Japanese
letters".
Distribution Agreement
Appendix I For Plate Kit, Page 1
Appendix I
"Product Listing"
2.0 CELLFREE(R) IL-2R Test Kit
*CELLFREE(R) IL-2R Test Kit is the plate kit for the determination of
soluble interleukin-2 receptor (IL-2R) levels in human serum.
Japanese name: "CELLFREE IL-2R Yamanouchi" and "CELLFREE IL-2R
Yamanouchi in Japanese letters".
Distribution Agreement
Appendix II For Bead Kit, Page 1
Appendix II
"Product Specifications"
1.0 CELLFREE(R) IL-2R Assay Kit (Japanese name: CELLFREE(R) IL-2R)
1.1 The specifications for the ENDOGEN's releasing test
1.1.1 Kit Composition
Component Vial Cap Color
[CONFIDENTIAL TREATMENT REQUESTED]*
Component Specification
[CONFIDENTIAL TREATMENT REQUESTED]*
1.1.2 Assay Characteristic
Parameter Specification
[CONFIDENTIAL TREATMENT REQUESTED]*
--------
*
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Distribution Agreement
Appendix II For Bead Kit, Page 2
1.1.2 Assay Characteristic (continued)
[CONFIDENTIAL TREATMENT REQUESTED]*
1.2 The specifications for the Yamanouchi's accepting test
1.2.1 Kit Composition
Component Specification
[CONFIDENTIAL TREATMENT REQUESTED]*
1.2.2 Assay Characteristic
[CONFIDENTIAL TREATMENT REQUESTED]*
Specificity test
[CONFIDENTIAL TREATMENT REQUESTED]*
Reproducibility test
[CONFIDENTIAL TREATMENT REQUESTED]*
Sensitivity test
[CONFIDENTIAL TREATMENT REQUESTED]*
--------
*
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Distribution Agreement
Appendix II For Plate Kit, Page 1
Appendix II
"Product Specifications"
2.0 CELLFREE(R) IL-2R Test Kit (Japanese name: CELLFREE(R) IL-2R Yamanouchi)
2.1 The specifications for the ENDOGEN's releasing and Yamanouchi's
accepting test
2.1.1 Kit Composition
Component Vial Cap Color
[CONFIDENTIAL TREATMENT REQUESTED]*
Component Specification
[CONFIDENTIAL TREATMENT REQUESTED]*
--------
*
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Distribution Agreement
Appendix II For Plate Kit, Page 2
[CONFIDENTIAL TREATMENT REQUESTED]*
Standard Specification
[CONFIDENTIAL TREATMENT REQUESTED]*
2.2.2 Assay Characteristic
Parameter Specification
[CONFIDENTIAL TREATMENT REQUESTED]*
[CONFIDENTIAL TREATMENT REQUESTED]*
--------
*
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Specificity test [CONFIDENTIAL TREATMENT REQUESTED]*
[CONFIDENTIAL TREATMENT REQUESTED]*
Reproducibility test
[CONFIDENTIAL TREATMENT REQUESTED]*
Distribution Agreement
Appendix III For Bead Kit, Page 1
Appendix III
"Supply Price"
1.0 The supply price of CELLFREE(R) IL-2R Assay Kit from ENDOGEN
to Yamanouchi is [CONFIDENTIAL TREATMENT REQUESTED]* F.O.B. Woburn,
Massachusetts.
--------
*
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
Distribution Agreement
Appendix III For Plate Kit, Page 1
Appendix III
"Supply Price"
2.0 The supply price of CELLFREE(R) IL-2R Test Kit from
ENDOGEN to Yamanouchi is [CONFIDENTIAL TREATMENT REQUESTED]*
F.O.B. Woburn, Massachusetts.
In case of the 10 pack configuration, the price is
[CONFIDENTIAL TREATMENT REQUESTED]* F.O.B. Woburn,
Massachusetts.
--------
*
[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED AND
FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL
HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
