EXHIBIT 10.35
RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT (the "Agreement") is made and entered
into as of the 18th day of August 1998, by and between Heska Corporation, having
its principal place of business located at 0000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxxx 00000, XXX (hereinafter referred to as "Heska"), Novartis Animal Health
Inc., having its principal place of business located at X.X Xxx, XX-0000, Xxxxx,
Xxxxxxxxxxx (hereinafter referred to as "NAH"), and Novartis Agro K.K., having
its principal place of business located at World Trade Center Xxxxxxxx 0-0,
Xxxxxxxxx-xxx 0 xxxxx, Xxxxxx-xx, Xxxxx 000, Xxxxx (hereinafter referred to as
NAH-Japan and, collectively with NAH, "Novartis").
WHEREAS, simultaneously with the execution of this Agreement, NAH-Japan and
Heska are entering into an Exclusive Distribution Agreement pursuant to which
NAH-Japan will obtain rights to distribute certain of Heska's products in Japan
(the "Distribution Agreement"); and
WHEREAS, in consideration of and in connection with the Distribution
Agreement, Novartis has agreed to xxxxx Xxxxx a right of first refusal on
certain New Product Opportunities (as defined below), as described more fully
below.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1 - RIGHTS GRANTED
1.1 Subject to the other provisions of this Agreement, (i) prior to granting
any development or commercialization rights in any country (individually or
collectively "Licensing Rights") to any third party with respect to any New
Product Opportunities (as defined in Section 1.2 below) or (ii) at such
time as Novartis otherwise decides not to develop or commercialize New
Product Opportunities internally, Novartis shall first offer such rights to
Heska. Heska shall indicate within 30 days of such offer whether it is
interested in discussing a possible agreement with Novartis concerning such
New Product Opportunities. If Heska indicates it is interested, Novartis
and Heska shall discuss the possible opportunity and attempt to reach a
mutually satisfactory agreement. If Novartis and Heska are unable to reach
such an agreement within a 120 day period following Heska's indication of
interest, Novartis may thereafter grant Licensing Rights to such New
Product Opportunities to one or more third parties; provided that the terms
concluded with such third parties, considered as a whole, are not
materially more favorable to such third parties than the terms last offered
by Novartis to Heska. Novartis shall use best efforts to bring under the
terms of this Agreement New Product Opportunities belonging to its
Affiliates.
1.2 For purposes of this Agreement, (a) "New Product Opportunities" shall mean
any product, development compound or technology for companion or food
animal
applications that has been offered to NAH or NAH-Japan by any third party,
or by any NAH Affiliate (including those involved in the business of health
care, agribusiness or nutrition), and that, in the opinion of the
respective owner in principle, may be accessible to Heska, and (b) an
"Affiliate" or any party shall have the meaning ascribed to it in section 1
of the Distribution Agreement, which definition is incorporated herein by
this reference.
ARTICLE 2 - TERM
2.1 Novartis' obligations under Article 1 shall terminate on December 31, 2005.
ARTICLE 3 - MISCELLANEOUS
3.1 All notices and other communications required or permitted hereunder shall
be in writing and shall be personally delivered, mailed by certified or
registered mail, postage prepaid, or delivered by overnight delivery or
express courier, addressed to the parties at their addresses shown below,
or at such other address as a party shall hereafter furnish to the other in
writing. All notices that are mailed shall be deemed delivered five (5)
days after deposit in the United States mail.
3.2 This Agreement and all rights and obligations hereunder are personal to the
parties hereto and may not be assigned without the express prior written
consent of the other.
3.3 This Agreement shall be governed by and construed under the laws of
Switzerland.
3.4 If a dispute or disagreement (a "Dispute") arises between the parties in
connection with this Agreement, then the Dispute will be finally settled by
binding arbitration to be conducted in English in London, England (or at
such other location as the Parties may agree) under the International
Chamber of Commerce Rules of Conciliation and Arbitration then prevailing
by one arbitrator appointed in accordance with those rules. The arbitrator
shall be chosen from a panel of arbitrators knowledgeable in the companion
animal health care industry. The arbitrator will apply the law specified
in Section 3.3 to the merits of the Dispute. The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitrator may grant
permanent injunctions or other relief in such dispute or claim; provided
that the arbitrator may not grant licenses to any intellectual property
owned by any party nor may the arbitrator award punitive damages.
Notwithstanding the foregoing, without breach of this arbitration provision
either party may apply to any appropriate court for temporary injunctive
relief.
3.5 This Agreement may be executed in two counterparts, each of which shall be
deemed an original, but both of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
HESKA CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: Executive Vice President
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Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx XXX 00000
Attention: President, with copy to General Counsel
NOVARTIS ANIMAL HEALTH INC., an entity formed
under the laws of Switzerland
By: /s/ X.X. Xxxxxxx /s/ R. Muttenzer
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Title: CEO General Counsel
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Address: X.X Xxx
XX-0000 Xxxxx
Xxxxxxxxxxx
Attention: General Counsel
NOVARTIS AGRO K.K., an entity formed under the
laws of Japan
By: /s/ Xxxxxx Xxxxxx
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Title: Sector Head, Animal Health, Japan
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Address: World Trade Center Xxxxxxxx 0-0
Xxxxxxxxx-xxx 0 xxxxx
Xxxxxx-xx, Xxxxx 000
Xxxxx
Attn: General Counsel
