AMENDMENT to DISTRIBUTORSHIP AGREEMENT
This Amendment Agreement (this "Amendment") is made and entered into
this day of November 1996, by and among INVITRO INTERNATIONAL, a California
corporation ("INVITRO"), and MIRAGEN INC., a California corporation
("MIRAGEN"), with reference to that certain Distributorship Agreement between
the parties dated March 11, 1996 (the "Distributorship Agreement").
A. The parties agree that the definition of "Institutional Markets"
contained in paragraph B of the recitals to the Distributorship
Agreement is hereby amended as follows:
For the purposes of this Agreement, the term "Institutional
Markets" shall mean (i) hospitals, birthing facilities and all
similar obstetric facilities providing for the delivery of newborn
infants; (ii) neonatologists, gynecologists, pediatricians, child
birth educators, lactation consultants and other health care
professionals providing for the professional care and education of
pregnant women, new mothers and/or newborn infants; and (iii) any
dissemination of sales and/or advertising materials through the
facilities or channels of distribution represented by any of the
above-referenced institutional markets and acceptance of orders so
solicited.
B. The parties agree that Section 4.1(b) of the Distributorship Agreement
is hereby amended to extend the minimum secure storage period from 16 to
18 years, as follows:
"(b) During the term of this Agreement and after the
expiration of this Agreement, MIRAGEN further covenants and agrees
to maintain and preserve in its secure freezer, or similar
designated storage facility, all samples mailed or otherwise
delivered to MIRAGEN resulting from the sale and use of Guardian
DNA Products sold by INVITRO for a period of at least 18 years
from and after the date each such sample was first received by
MIRAGEN."
C. The parties agree that Section 8.1 of the Distributorship Agreement is
hereby amended to provide that minimum quantities of Guardian DNA
Products required to be purchased by INVITRO during years one through
three of the Distributorship Agreement, in order for INVITRO to maintain
exclusive distribution rights to the Institutional Markets, shall be as
follows:
Period Number of Units
-------------- --------------------
Year 1 >(Symbol for greater than) 20,000
Year 2 >(Symbol for greater than) 36,000
Year 3 >(Symbol for greater than) 36,000*
*Year 3 unit minimums will be negotiated between INVITRO and MIRAGEN at
least 120 days prior to the end of Year 2 of this Agreement. Should the
parties fail to agree on the number of units to be purchased in order to
maintain INVITRO's exclusive distribution rights in
Institutional Markets, and provided INVITRO has purchased at least
36,000 units in Year 2, MIRAGEN will not grant any other third party
marketing and distribution rights to Guardian DNA for Institutional
Markets unless MIRAGEN has notified INVITRO and has offered INVITRO a
right of first refusal to such rights on terms not less favorable to
INVITRO than offered to any proposed third party distributor. If
MIRAGEN extends a right of first refusal to INVITRO, INVITRO is
obligated to accept such an offer within 10 business days after receipt
of the same, failing which INVITRO shall be deemed to have waived such
rights.
D. The address for notifications to MIRAGEN and the zip code for
notifications to INVITRO under Section 14.7 of the Distributorship
Agreement are amended as follows:
To MIRAGEN: MIRAGEN INC.
Attention: Chief Financial Xxxxxxx
0 Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
To INVITRO: INVITRO INTERNATIONAL
Attention: President
00000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Except as expressly amended above, no other amendments to the
Distributorship Agreement are contemplated by this Amendment.
MIRAGEN INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx, President
INVITRO INTERNATIONAL
By: /s/ W. Xxxxxxx Xxxxx
------------------------------
W. Xxxxxxx Xxxxx, President
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