EXHIBIT 10.38.1
---------------
ADDENDUM
To
DISTRIBUTION AGREEMENT
The Distribution Agreement between RHONE MERIEUX, France ("RM") SYNBIOTICS
CORPORATION ("SYNBIOTICS"), dated July 10, 1990 "Agreement"), is amended as
follows:
1. The scheduled expiration date of the Agreement is amended to be December 31,
1999 with the understanding that both parties are willing in good faith to
discuss extending this agreement through December 31, 2004.
2. RM shall have the non-exclusive right to distribute SYNBIOTICS' VacSYN/FeLV
vaccine in South Africa.
3. SYNBIOTICS is guaranteed the purchase of minimum doses, pursuant to (S)7.2
of the Agreement (as hereunder amended) only in markets exclusive to RM.
Current markets exclusive to RM are (i) France (for the duration of the
Agreement) and (ii) the United Kingdom (for three (3) years post-licensure
of VacSYN/FeLV/TM/. All other markets are non-exclusive.
For non exclusive markets, SYNBIOTICS and RM will, three months before the
beginning of each year, after significant consultation, set sales goals
(quantities, average transfer price, ...), on a global basis.
If RM reaches these global sales goals, a [*] rebate on net sales occurring
in each country will be due to RM within sixty (60) days of the end of each
calendar year in which the Agreement is in effect.
4. The second paragraph of (S)1.2 of the Agreement shall be amended in its
entirety to read as follows:
"Under the condition that SYNBIOTICS is unsuccessful in developing an FIV
and/or FIP combination vaccine, RM rejects its right of first refusal as
identified above, RM may combine these antigens with VacSYN/FeLV/TM/. If RM
chooses to market these combination antigens with other than SYNBIOTICS' FIV
and/or FIP antigen, then SYNBIOTICS would be free to market its combination
product with other marketing partners in the Territory. RM has the right to
develop its own FeLV products to be used in a RM combination product for the
Territory subject to Section 6.3 of this Agreement. RM has the right at its
option to combine any of its feline antigens with the VacSYN/FeLV/TM/
product for the Territory."
5. Section 6.3 of the Agreement shall be amended in its entirety to read as
follows:
"6.3 RM has the right to develop its own FeLV products to be used in a RM
combination product in each exclusive Territory and in a RM monovalent
or combination product in each non-exclusive Territory. RM will
provide SYNBIOTICS three (3) year's notice of its intent to use its
own FeLV. Regardless of development of its own product RM will
continue to promote and sell the SYNBIOTICS's VacSYN/FeLV/TM/ product
in the Territory. If and when RM use a combination product, RM's
rights in any Territory then considered exclusive shall become non-
exclusive upon the date of the relevant product registration."
-------------------
[*] Certain confidential portions of this Exhibit were omitted by means of
blackout of the text (the "Xxxx"). This Exhibit has been filed
separately with the Secretary of the Commission without the Xxxx
pursuant to the Company's Application Requesting Confidential Treatment
under Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
-1-
6. Section 6.5 of the Agreement shall be amended in its entirety to read as
follows:
"6.5 At the termination of the Agreement or when RM withdraws from a
market, SYNBIOTICS will own all the regulatory licensure rights and RM
will assist SYNBIOTICS to the extent required to have these regulation
licenses issued in SYNBIOTICS' name. However, RM shall in no case be
obliged to conduct any additional works in order to complete or amend
the available registration dossiers."
7. a) The first paragraph of section 7.2 of the Agreement is amended as
follows:
"7.2. For the exclusive markets, RM will guarantee the purchase from
SYNBIOTICS of the following minimum doses of the Product:
Sales Period Nr of Doses Transfer Price
------------ ----------- --------------
For November 1996
to 31 December 1997: [*] [*] per dose
For each following
calendar year: [*] to be discussed and
agreed 3 months before
the beginning of the
relevant year.
The agreed prices could be renegotiated at any time in case of
important changes in the economical conditions and competition
situation in the markets."
b) The second paragraph of Section 7.2 of the Agreement (from "The third
twelve months ... to ... doses from year two") is deleted and replaced
by:
"The hereabove minimum guaranteed quantities will be renegotiated
in good faith to reflect lost sales due to a competitive
combination product entering the market and RM does not have a
combination product provided internally, or by SYNBIOTICS. In
addition, if due to no fault of RM, the product has not received
United Kingdom approval, and/or if any registration or approval
is cancelled or suspended in any exclusive market, the guaranteed
minimum purchases, and/or the whole Agreement if necessary, will
be renegotiated in good faith to reflect the new situation so
created."
8. All capitalized terms shall have the same meaning as set forth in the
Agreement, unless otherwise defined herein.
9. All the section of this addendum shall become effective upon the end of the
present contractual term, on October 24, 1996, except section 2 hereabove
which is effective immediately upon the date of signature of this Addendum.
10. Except as expressly amended by this Addendum, the Agreement remains
unchanged and in full force and effect. This Addendum may be executed in any
number of counterparts, each of which when so delivered shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument.
-2-
IN WITNESS WHEREOF, the parties have executed and delivered this Addendum in San
Diego, California on April 11, 1996.
RHONE MERIEUX, FRANCE
By: /s/ XXX XXXXXX
------------------------
Title:
SYNBIOTICS CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
------------------------
Title: President and Chief Executive Officer
-3-
