[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT
HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION]
FIRST AMENDMENT TO
PRODUCT SUPPLY AGREEMENT
THIS FIRST AMENDMENT TO PRODUCT SUPPLY AGREEMENT (this "AMENDMENT") is
made and entered into as of March 15, 1999, by and between QUIDEL
CORPORATION, a Delaware corporation having a place of business at 00000
XxXxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("QUIDEL"), and HESKA
CORPORATION, a Colorado corporation having a place of business at 0000
Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx 00000 ("HESKA").
RECITALS
A. QUIDEL and HESKA entered into that certain Product Supply Agreement
dated July 3, 1997 (the "SUPPLY AGREEMENT").
B. QUIDEL and HESKA desire to amend the Supply Agreement to make more
clear certain mutual indemnification obligations of the parties as provided
herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 12 of the Supply Agreement is hereby deleted in its entirety
and replaced with the following:
12.1 QUIDEL Indemnity. QUIDEL will defend, indemnify and save wholly
harmless HESKA, its Affiliates, and their respective successors, assigns and
customers, from and against any and all losses, damages, costs and expenses,
including without limitation the actual reasonable legal fees, disbursements,
investigation costs, other out-of-pocket expenses, settlements, payment of any
third party royalties that may be due, and damages finally awarded in any claim,
suit or cause of action (collectively, "LOSSES"), arising out of or in any way
related to (a) any demand, claim, suit or cause of action (each a "CLAIM")
alleging that any Products furnished and used as provided in this Agreement
infringe a patent, trade secret or other intellectual property or proprietary
right of any third party (unless and to the extent such a Claim alleges that any
biological or other materials or technology supplied by HESKA infringes or
violates any patent, trade secret or other intellectual property or proprietary
right of any third part); (b) a beach of or default by QUIDEL of any of its
representations, warranties, covenants or obligations contained in this
Agreement with HESKA, including without limitation export and governmental
requirements; (c) any actions taken by QUIDEL or its employees or agents in
marketing any Products; or (d) any other act or omission of QUIDEL, its agents
or employees taken or omitted in connection with the subject matter of this
Agreement or any other written agreement with HESKA.
12.2 HESKA Indemnity. HESKA will defend, indemnify and save wholly
harmless QUIDEL, its Affiliates, and their respective successors, assigns
and customers, from and against any and all Losses arising out of or in any
way related to (a) any Claim alleging that any biological or other materials
or technology supplied by HESKA infringes or violates any patent, trade
secret or other intellectual property or proprietary right of any third
party; (b) a breach of or default by HESKA of any of its representations,
warranties, covenants or obligations contained in this Agreement with QUIDEL,
including without limitation export and governmental requirements; (c) any
actions taken by HESKA or its employees or agents in marketing any Products;
or (d) any other act or omission of HESKA, its agents or employees taken or
omitted in connection with the subject matter of this Agreement or any other
written agreement with QUIDEL. Without limiting the foregoing, HESKA
acknowledges and agrees that its indemnification obligations under this
Section 12.2 shall apply to any and all Claims by SYNBIOTICS CORPORATION
("SYNBIOTICS"), alleging that any Product infringes or violates any patent,
trade secret or other intellectual property or proprietary right owned
or licensed by Synbiotics if and to the extent that such Claim arises out of or
is related to biological or other materials or technology supplied by HESKA (a
"SYNBIOTICS CLAIM").
12.3 Indemnification Procedures. In the event that a Claim is filed by a
third party against a party hereto (the "INDEMNIFIED PARTY"), its Affiliates or
any of its customers, the Indemnified Party will notify the other party hereto
(the "INDEMNIFYING PARTY") in writing within five (5) business days of being
advised of the filing of such Claim. Within five (5) business days of being
advised of the filing of such Claim, the Indemnifying Party will elect whether
to defend the Claim itself or to transfer the defense to the Indemnified Party,
and will notify the Indemnified Party in writing of its election. The
Indemnifying Party will have the primary responsibility, at its cost and
expense, to defend the Indemnified Party and its Affiliates, assigns,
successors and customers against such Claim. If the Indemnifying Party elects
to defend the Claim itself, then (a) the Indemnified Party may be represented
by advisory counsel selected by the Indemnified Party, at the Indemnified
Party's cost and expense (including, without limitation, actual reasonable
legal fees and disbursements); (b) the Indemnified Party will provide all
reasonable assistance requested by the Indemnifying Party for the defense of
the Claim; and (c) all decisions regarding the settlement thereof will made by
the Indemnifying Party with the Indemnified Party's written consent, which
consent shall not by unreasonably withheld. Notwithstanding the foregoing,
the Indemnifying Party shall also reimburse the Indemnified Party for the
actual reasonable legal fees and disbursements of the Indemnified Party's
advisory counsel, if any, in the event that the Claim against the Indemnified
Party, its Affiliates or any of its customers is neither settled nor defeated
in litigation or arbitration. If the Indemnifying Party elects not to defend
the Claim itself, then (i) the Indemnified Party may undertake its own defense
or the defense of any of its Affiliates and customers, as the case may be:
(ii) the Indemnifying Party will provide all reasonable assistance requested
by the Indemnified Party for the defense of such Claim; (iii) all decisions
regarding any such defense and settlement will be at the sole discretion of
the Indemnified Party; (iv) the Indemnifying Party will reimburse the
Indemnified Party, within thirty calendar (30) days of the Indemnified
Party's written notification thereof, for any and all costs, actual
reasonable legal fees, disbursements and out-of-pocket expenses incurred by
the Indemnified Party in connection with such defense; and (v) the
Indemnifying Party will be liable in any judgment for damages levied against
the Indemnified Party or any of its Affiliates, assigns, successors and
customers, and the Indemnifying Party will be liable for any royalties,
fees and/or costs incurred by the Indemnified Party or any of its
Affiliates, assigns, successors, and customers as a result of any
settlement of such Claim.
The parties hereby acknowledge that QUIDEL has been advised
of a Synbiotics Claim and has timely notified HESKA thereof, and that
HESKA has elected to defend such Synbiotics Claim itself, all in
accordance with and pursuant to the provisions of this Section 12.3.
2. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Supply Agreement.
3. Except as specifically amended herein, the terms of the Supply
Agreement remain unmodified and in full force and effect. In the event of
a conflict between the terms of the Supply Agreement and this Amendment,
this Amendment will control.
4. This Amendment may be executed in any number of counterparts with
the same effect as if all parties hereto had signed the same document. All
counterparts will be construed together and will constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
QUIDEL CORPORATION HESKA CORPORATION
By: /S/ By: /S/ Xxxx Xxxxxx
Its: President and Chief Executive Its: Executive Vice
Officer President
AMENDMENT NO. 1 TO PRODUCT SUPPLY AGREEMENT
THIS AMENDMENT AGREEMENT is entered into effective as of November 17, 1997
by and between Quidel Corporation ("Quidel") and Heska Corporation ("Heska").
WHEREAS, Quidel and Heska entered into that certain Product Supply
Agreement effective as of July 3, 1997 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement with respect to the
specifications for the Feline Heartworm Antibody Test Kit and the Canine
Heartworm Antigen Test Kit;
NOW THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Amendment to Exhibits B-1 and B-2. Exhibits B-1 and B-2 to the
Agreement are hereby amended by deleting said Exhibits in their
entirety and substituting Exhibits B-1-2 and B-2-2 to this
Amendment Agreement therefor.
2 No Other Changes. Except for the changes expressly made by this
Amendment Agreement, the Agreement remains in full force and
effect without change.
IN WITNESS WHEREOF, the parties have executed this Amendment Agreement
as of the date first written above.
QUIDEL CORPORATION HESKA CORPORATION
By: /S/ By: /S/
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Vice President Title: President
EXHIBIT B-1-2
Specifications for Feline Heartworm Antibody Test Kit
NEW PRODUCT DESIGN SPECIFICATIONS
Feline Heartworm Antibody Test Kit
HESKA/QUIDEL TEST
SPECIFICATION SPECIFICATION
-------------------- ---------------------------------
1. MARKET/SEGMENT In-clinic
2. FORMAT One-step
3. TECHNOLOGY Lateral flow antibody detection
4. TYPE OF SPECIMEN [ *** ] anticoagulated whole blood,
serum or plasma, cat
5. STORAGE OF SPECIMEN Uncoagulated whole blood fresh or
stored at 2-7C [*** ]
[ *** ]
6. [ *** ] [ *** ]
7. [ *** ] [ *** ]
8. [ *** ] [ *** ]
9. [ *** ] [ *** ]
10. [ *** ] [ *** ]
11. END OF TEST INDICATOR No
12. [ *** ] [ *** ]
13. [ *** ] [ *** ]
14. [ *** ] [ *** ]
15. TOTAL ASSAY TIME 5 min or less
(RUN TIME)
16. [ *** ] [ *** ]
17. [ *** ] [ *** ]
18. [ *** ] [ *** ]
19. [ *** ] [ *** ]
20. KIT SIZE 25, 10 and 1
21. [ *** ] [ *** ]
*** Confidential Treatment Requested
EXHIBIT B-2-2
Specifications for Canine Heartworm Antigen Test Kit
NEW PRODUCT DESIGN SPECIFICATIONS
Canine Heartworm Antigen Test Kit
HESKA/QUIDEL TEST
SPECIFICATION SPECIFICATION
---------------------- --------------------------
1. MARKET/SEGMENT In-clinic
2. FORMAT One-step
3. TECHNOLOGY Lateral flow antigen detection
4. TYPE OF SPECIMEN [*** ] anticoagulated whole blood,
serum or plasma
5. STORAGE OF Uncoagulated whole blood fresh
SPECIMEN or stored at 2-7C [ ***]
[ *** ]
6. [ *** ] [ *** ]
7. [ *** ] [ *** ]
8. [ *** ] [ *** ]
9. [ *** ] [ *** ]
10. [ *** ] [ *** ]
11. END OF TEST No
INDICATOR
12. [ *** ] [ *** ]
13. [ *** ] [ *** ]
14. [ *** ] [ *** ]
15. TOTAL ASSAY TIME 5 min or less
(RUN TIME)
16. [ *** ] [ *** ]
17. [ *** ] [ *** ]
18. [ *** ] [ *** ]
19. [ *** ] [ *** ]
20. KIT SIZE 25, 10 and 1
21. [ *** ] [ *** ]
*** Confidential Treatment Requested
