FIFTH AMENDMENT TO AMENDED AND RESTATED BOVINE VACCINE DISTRIBUTION AGREEMENT
Exhibit 10.41
[***] — Certain information in this exhibit have been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested with respect to the
omitted portions.
This Fifth Amendment (“Fifth Amendment”) is entered into as of the 23rd day of
December, 2010 (“Effective Date”) by and between DIAMOND ANIMAL HEALTH, INC., an Iowa
corporation with offices at 0000 Xxxxxxxxx 00xx Xxxxxx, Xxx Xxxxxx, Xxxx 00000
(“Diamond”) and AGRI LABORATORIES, LTD., a Delaware corporation, with offices at 00000
Xxxxx Xxxxx X, Xx. Xxxxxx, Xxxxxxxx 00000 (“Distributor”) as an amendment to that certain
Amended and Restated Bovine Vaccine Distribution Agreement dated as of September 30, 2002 between
Diamond and Distributor (the “Original Agreement”), as amended by that certain First
Amendment dated as of September 20, 2004 (the “First Amendment”) that certain Second
Amendment dated as of December 10, 2004 (the “Second Amendment”) that certain Third
Amendment dated as of May 26, 2006 (the “Third Amendment”) and that certain Fourth
Amendment dated as of November 16, 2007 (the “Fourth Amendment”) (collectively, the
“Agreement”).
WHEREAS, Diamond and Distributor are parties to the Agreement providing for the distribution
of certain bovine antigens; and
WHEREAS,
as of the Effective Date, Diamond, Distributor [***];
WHEREAS, Diamond and Distributor desire to amend the Agreement to provide for the distribution
of [***] and to document certain other amendments agreed upon by the parties, all on the terms and
conditions of this Fifth Amendment.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. Capitalized terms used herein shall have the meaning ascribed to them
in the Agreement, unless otherwise defined herein. Capitalized terms defined in the Recitals to
this Fifth Amendment are hereby incorporated by reference in the Agreement.
2. Pricing, Payment and Term Amendments.
(i) Price List. As of the Effective Date, Exhibit A of the Agreement is
hereby deleted in its entirety and replaced with Exhibit A of this Fifth Amendment.
[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
(ii) Price Adjustments. Sections 3.02 and 3.03 of the Agreement are hereby deleted in
their entirety and replaced with the following paragraphs:
3.02 Annual Price Adjustment. Purchase Prices for each Product set
forth in Exhibit A shall be in effect for Products having specified
delivery dates on or after the Effective Date. Diamond may increase
Purchase Prices for each Product to be delivered in each subsequent Contract
Year by written notice to Distributor within ninety (90) days prior to the
end of the preceding Contract Year, taking into account factors including,
but not limited to, cost changes, volume changes and plant utilization;
provided that, such increase for any Contract Year, plus any increase in the
preceding Contract Year pursuant to Section 3.03, shall not exceed [***] of
the Purchase Price in effect at the beginning of the preceding Contract
Year; provided that, [***], Diamond’s right to increase Purchase Prices
under this Section 3.02 shall apply for every other Contract Year, beginning
for Contract Year 2014, and applying for every other Contract Year
thereafter. [***]
3.03 Cost Increases and Decreases. Diamond shall have the right,
but not the obligation, to increase or decrease Purchase Prices by notice to
Distributor in writing during any Contract Year by an amount equal to any
cost increases or decreases for raw materials and packaging components for
each Product to the extent such increases or decreases, individually or in
the aggregate, would cause total finished cost of goods of such Product to
increase or decrease by more than [***]. Upon Distributor’s request,
Diamond will furnish reasonable supporting documentation therefor.
(iii) Additional Prepayments; [***]. The Agreement is hereby amended as of the
Effective Date to add the following new Section 3.04(iv):
3.04(iv) (A) On or before the first day of each Contract Quarter beginning
with the first (1st) Contract Quarter during Contract Year 2011
and continuing during the term of this Agreement, Distributor shall pay to
Diamond an amount equal to the Minimum Prepayment, which amount shall be
credited, effective upon issuance of Diamond invoices, against the invoice
prices for all Products to be shipped in such Contract Year. For purposes
of this Agreement, the “Minimum Prepayment” shall be an amount equal
to [***]. Distributor shall not be required to make a Minimum Prepayment
during the pendency of a regulatory order issued by the USDA as a result of
Diamond’s negligent act or omission (a “USDA Shut Down Event”).
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[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
(B) If [***]; provided that, Distributor shall not be obligated to make
such payments for any Contract Year if: (1) a USDA Shut Down Event occurs
and continues for more than one hundred twenty (120) days during such
Contract Year or (2) Distributor has ordered Products for shipment in such
Contract Year in an amount equal to or greater than [***] and Diamond has
failed to fill such orders.
(C) If [***]. Distributor shall not be obligated to make such payments
for any Contract Year if: (1) a USDA Shut Down Event occurs and continues
for more than one hundred twenty (120) days during such Contract Year or (2)
Distributor has ordered Products for shipment in such Contract in an amount
equal to or greater than [***], and Diamond has failed to fill such orders.
(D) Diamond shall be entitled to retain any portion of the [***] shall
not apply in any Contract Year in which a USDA Shut Down Event occurs and
continues for more than one hundred twenty (120) days during such Contract
Year. In any Contract Year in which [***].
(E) Notwithstanding any provision of the Agreement to the contrary, no [***] as those terms
are defined and calculated in the Agreement.
(iv) Term Amendments. Section 6.01 of the Agreement is hereby deleted in its entirety
and replaced with the following paragraph:
6.01 Term. The initial Term of this Agreement with respect to all
Products shall be for a period commencing on the [***] and ending on December 15,
2015. This Agreement shall automatically renew after the initial Term with respect
to all Products for additional renewal terms of one (1) year each, unless either
party gives at least twelve (12) months written notice to the other prior to the
expiration of the initial Term or any renewal Term that it does not wish to renew
this Agreement with respect to such Products; provided that, the initial Term or any
renewal Term shall be extended beyond the date it would otherwise be scheduled to
expire as provided above by a number of days equal to the number of days, if any,
that any stop sale order issued by Diamond was in effect prior to such scheduled
expiration date.
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[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
(v) Private Label Authority. Effective on the Effective Date, the Agreement
shall be amended to add the following new Section 3.08:
3.08 Private Label. [***].
(vi) Pricing, Payment and Term Amendments. Without limiting the generality of the
foregoing, the amendments set forth in this Section 2 shall become effective as set forth herein
and remain in effect without regard to [***].
3. Contingent Provisions [***]. Effective on [***], the provisions of this
Section 3 shall come into force and effect; provided that, [***], this Section 3 shall be
void and of no force and effect whatsoever, but the remainder of this Fifth Amendment shall
remain in full force and effect.
(i) [***] to Agreement. [***].
(ii) Term. Effective on [***], Section 6.01 of the Agreement shall be deleted
in its entirety hereby and replaced with the following paragraph:
6.01 Term. The initial Term of this Agreement with respect to all
Products other than [***] shall be for a period commencing on the [***] and
ending on the seventh (7th) anniversary of [***]. This Agreement
shall automatically renew after the initial Term with respect to all
Products other than [***] for additional renewal terms of one (1) year each,
unless either party gives at least twelve (12) months written notice to the
other prior to the expiration of the initial Term or any renewal Term that
it does not wish to renew this Agreement with respect to such Products;
provided that, the initial Term or any renewal Term shall be extended beyond
the date it would otherwise be scheduled to expire as provided above by a
number of days equal to the number of days, if any, that any stop sale order
issued by Diamond was in effect prior to such scheduled expiration date.
The initial term of this Agreement with respect to [***] shall be for a
period commencing on [***] and ending on the seventh (7th)
anniversary of [***]. This Agreement shall automatically renew after the
initial Term with respect to [***] for additional renewal terms of one (1)
year each, unless either party gives at least twelve (12) months written
notice to the other prior to the expiration of the initial Term or any
renewal Term that it does not wish to renew this Agreement with respect to
[***]; provided that, the initial Term or any renewal Term shall be extended
beyond the date it would otherwise be scheduled to expire as provided above
by a number of days equal to the number of days, if any, that any stop sale
order issued by Diamond was in effect prior to such scheduled expiration
date.
(iii) [***]. Effective on [***], Section 1.02 of the Agreement shall be
amended hereby to add the following new paragraphs at the end of such Section:
For the period beginning on [***].
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[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
(iv) Adjustment to Prepayments [***]. Effective on [***], Section 3.04 of the
Agreement shall be amended hereby to add the following new Section 3.04(iv)(F):
3.04(iv)(F) Notwithstanding any provision of the Agreement to the contrary,
if Diamond elects not to renew this Agreement with respect to [***] pursuant
to Section 6.01 (a “Non-renewal”), then, unless and until either
party elects not to renew this Agreement with respect to [***], the Minimum
Prepayment for each Contract Year following such Non-renewal and any
applicable extension shall be in an amount equal to [***].
(v) USDA Shut Down Event. Effective on [***], the Agreement shall be
amended hereby to add the following new Section 3.09:
3.09 USDA Shut Down Event Reimbursements. If at any time following
[***], Diamond’s manufacturing facility is shut down and Diamond is unable to supply
[***] to Distributor for a period exceeding one hundred twenty (120) consecutive
days as a result of a USDA Shut Down Event, then Diamond shall reimburse to
Distributor [***]
[***]
Any such refund shall be made in twenty-four (24) equal monthly installments
beginning on the first day of the calendar month following the six (6)-month
anniversary of the Shut Down Event and continuing on the first day of each calendar
month thereafter until the applicable amount is paid in full. However, Distributor
may elect by written notice to Diamond within one hundred fifty (150) days after the
Shut Down Event, in its sole discretion, to have any such applicable refund credited
to [***].
4. Confidentiality of Fifth Amendment. Notwithstanding any provision of the Agreement
to the contrary, this Fifth Amendment shall be publicly available information for SEC filing, press
release and other discussion purposes; provided, the parties shall agree to a draft of this Fifth
Amendment (the “Redacted Version”) including highlighted items which shall be redacted from
any initial SEC filings and shall be deemed Confidential Information under Section 13.05 of the
Agreement. If the parties do not mutually agree on the Redacted Version within thirty (30) days
after the Effective Date, this Fifth Amendment shall be null and void.
5. Captions. The captions set forth in this Fifth Amendment are for convenience only
and shall not be used in any way to construe or interpret this Fifth Amendment, the Agreement, or
the Research and Development Agreement.
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6. Effect of Amendment. This Fifth Amendment is hereby incorporated by reference into
the Agreement as if fully set forth therein, the Agreement as amended by this Fifth Amendment shall
continue in full force and effect following execution and delivery hereof, and
references to the term “Agreement” shall include this Fifth Amendment. In the event of any
conflict between the terms and conditions of the Original Agreement, First Amendment, Second
Amendment, Third Amendment or Fourth Amendment and this Fifth Amendment, the terms and conditions
of this Fifth Amendment shall control.
IN WITNESS WHEREOF, the parties have caused this Fifth Amendment be executed by their duly
authorized representatives as of the date first written above.
| DIAMOND ANIMAL HEALTH, INC. |
||||
| By: | /s/ Xxxxxxx X. XxXxxxxx | |||
| Its: Vice President | ||||
| AGRI LABORATORIES, LTD. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Its: CEO/President | ||||
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[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
Schedule I
[***]
[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
Schedule II
Agri Distributors
AGRILABS Distributors
Company
Animal Medic, Inc.
Xxxxxx Supply Co., Inc.
IVESCO, LLC.
Xxxxxxx Inc.
Lextron
[***]
Michigan Veterinary Farm Supply
MWI Veterinary Supply Co
[***]
Northwest Vet Supply, Inc.
Professional Vet Products
Xxxxxx X. Xxxxxxxx Co.
Southern Livestock Supply Co., Inc.
United Pharmacal Co., Inc.
Valley Vet Supply
Veterinary & Poultry Supply, Inc.
Walco International, Inc.
[***]
West Plains Vet Supply of Springfield
West Plains Vet Supply
Xxxxxx Animal Health
Veterinary Services, Inc.
Micro Beef Technologies
Universal
[***]
[***]
Company
Animal Medic, Inc.
Xxxxxx Supply Co., Inc.
IVESCO, LLC.
Xxxxxxx Inc.
Lextron
[***]
Michigan Veterinary Farm Supply
MWI Veterinary Supply Co
[***]
Northwest Vet Supply, Inc.
Professional Vet Products
Xxxxxx X. Xxxxxxxx Co.
Southern Livestock Supply Co., Inc.
United Pharmacal Co., Inc.
Valley Vet Supply
Veterinary & Poultry Supply, Inc.
Walco International, Inc.
[***]
West Plains Vet Supply of Springfield
West Plains Vet Supply
Xxxxxx Animal Health
Veterinary Services, Inc.
Micro Beef Technologies
Universal
[***]
[***]
[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
Exhibit A
| HESKA - DIAMOND | ||||
| ANIMAL HEALTH [***] | ||||
| LEAD TIME | ||||
| Product/Size | DAH Item Number | [***] PRICE LIST | ||
Titanium 3 (50ds) |
[***] | [***] | ||
Titanium 3 (10ds) |
[***] | [***] | ||
Titanium 5 (50ds) |
[***] | [***] | ||
Titanium 5 (10ds) |
[***] | [***] | ||
Titanium 5 L5 (5ds) |
[***] | [***] | ||
Titanium 5 L5 (10ds) |
[***] | [***] | ||
Titanium 5 L5 (50ds) |
[***] | [***] | ||
Titanium BRSV 3 (50ds) |
[***] | [***] | ||
Titanium IBR (50ds) |
[***] | [***] | ||
Titanium IBR (10ds) |
[***] | [***] | ||
[***] |
[***] | [***] | ||
[***] |
[***] | [***] | ||
[***] |
[***] | [***] | ||
Master Guard 10 (10ds) |
[***] | [***] | ||
MasterGuard 10 (25ds) |
[***] | [***] | ||
MasterGuard 5 (25ds) |
[***] | [***] | ||
MasterGuard Preg 5 (25ds)1 |
[***] | [***] | ||
[***] |
[***] | [***] |
| 1 | The MasterGuard Preg 5 (25ds) [***], DAH Item Numbers [***]. |
Batch Size — Minimum Order Qty
[***]
[***]
[***]
NOTE: DATING
[***]
[***]
[***] — Certain information on this page has been omitted and filed separately with the Securities
and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions.
Exhibit B
[***]
