Exhibit 10.21
* Portions of this marked Exhibit have been omitted pursuant to a request for
confidential treatment and filed separately with the Commission.
DISTRIBUTION AGREEMENT
Distribution Agreement (this "Agreement") dated March 29, 2003 (the
"Effective Date") between AspenBio, Inc., a Colorado corporation ("AspenBio"),
and Merial Limited, a company limited by shares registered in England and Wales
(registered number 3332751), with a registered office at XX Xxx 000, Xxxxxxxxxxx
Xxxxx, Xxxxxxxxxxx Avenue, Harlow Business Park, Harlow, Essex CM19 5TG,
England, and domesticated in Delaware, USA as Merial LLC ("Merial").
RECITALS
WHEREAS, AspenBio wishes for Merial to market, distribute and sell a
lateral flow bovine early pregnancy test developed by AspenBio described in
Section 1.1 and Exhibit B attached hereto (the "Product"); and
WHEREAS, any transfer of Product from AspenBio to Merial hereunder will be
considered a "sale" of such Product, whether AspenBio receives the consideration
for such transfer directly from Merial or from any agent or distributor of
Merial or any other party receiving such Product from Merial.
NOW, THEREFORE, the parties hereby agree as follows:
1. Product Development.
1.1 Development.
----------------
In consideration of the payments described in Section 5, AspenBio will
complete the design and development of the Product and deliver the Product,
including all user and technical documentation associated therewith, in
accordance with the specifications, design and functionality set forth on
Exhibit A attached hereto (the "Design") in accordance with accepted standards
within the industry to the best of its ability. As used in this Agreement, the
term "Product" shall include all components set forth on Exhibit B attached
hereto, all improvements or derivative works thereof developed by AspenBio, if
and to the extent such improvements or derivative works relate to testing to
determine the pregnancy status of cattle prior to 32 days after insemination
("Early Bovine Pregnancy Testing"), and all intellectual property and
proprietary rights embodied therein, including, without limitation, any patents
that are issued with respect thereto. Prior to delivery of the Product in
accordance with Section 1.2, AspenBio will demonstrate the Product for Merial's
approval and transfer to Merial all quality control tests ("QC Tests") developed
by AspenBio to confirm the efficacy of the Product previously released from
AspenBio's facilities.
1.2 Delivery.
-------------
AspenBio shall deliver to Merial the finished Product, including packaging
in accordance with Section 2.4 and Exhibit B, ready for Launch (as defined
below) in accordance with the Design as soon as practicable, but in no event
later than October 1, 2003. In the event AspenBio fails to deliver the finished
Product to Merial in accordance with the Design by October 1, 2003, Merial may
terminate this Agreement and AspenBio shall reimburse Merial 50% of all payments
made to date by Merial under this Agreement, provided that AspenBio shall not be
required to reimburse Merial for any delay resulting from delay by Merial in
determining or approving the final form of packaging and instructions for the
Product or any other Xxxxxx xxxxx.
1.3 Reports.
------------
AspenBio shall meet with Merial when reasonably requested by Merial to
discuss and report on the progress of the Product. Upon reasonable request by
Merial, AspenBio shall deliver to Merial reports of AspenBio's progress on the
Product, including any performance and quality control tests. Merial shall
deliver to AspenBio any reports, data, or results of any performance or quality
control tests relating to the Product of which it becomes aware.
1.4 Customer Information.
-------------------------
AspenBio shall promptly provide Merial with the names, addresses, telephone
numbers and all other information and marketing data obtained for all customer
leads in its possession or under its control relating to the prospective or
potential sale of the Product, including, without limitation, customer inquiries
received by AspenBio for the Product (the "Customer Information").
1.5 Training.
-------------
If requested by Merial (and at Merial's cost), AspenBio shall train
Merial's employees with respect to the Product, the QC Tests and any other
matter reasonably requested by Merial related to Early Bovine Pregnancy Testing.
1.6 Due Diligence.
------------------
Up to 30 days following Merial's receipt of the final Trial (as defined
below) report, AspenBio shall provide to Merial and its agents and
representatives such information (including copies of documents) concerning the
Product as Merial may request, and reasonable access during normal business
hours and upon reasonable advance notice to the properties, books and records
relating to the Product, the proposed suppliers thereof and any other
information necessary to permit a full due diligence investigation thereof.
Notwithstanding the foregoing, proprietary information relating to the
purification of antibodies or antigens or to the making of colloidal gold (the
"Proprietary Information") shall be provided solely to Xxxxxxx Allibert and Xxxx
Xxxxxxx of Merial and any other Permitted Persons (defined below) upon their
execution of a confidentiality agreement substantially in the form of the
Confidential Disclosure Agreement between AspenBio and Merial dated October 21,
2002 (except that such agreement shall not permit disclosure to employees,
affiliates, in addition to other third parties, and shall not have an express
termination date). If Merial reasonably believes that additional individuals
should have access to the Proprietary Information, Merial shall request consent
from AspenBio for such individuals to receive the Proprietary Information, such
consent not to be unreasonably withheld (such consented to individuals are
"Permitted Persons").
1.7 Merial Property.
--------------------
All information received and property developed by Merial (other than
information and property received from AspenBio, including, without limitation,
the Products, the Licensed Property, as defined below, and any related patents)
as a result of this Agreement and the transactions contemplated hereby shall
remain the exclusive property of Merial. For the avoidance of doubt, Merial
Property shall include any tradenames, trademarks and tradedress other than
"Surbred" and related tradedress applied to the Products (the "Merial Product
Trademarks").
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1.8 AspenBio Property.
----------------------
The intellectual property related to the Product, including patents and
patent applications, the Licensed Property, as defined below, and any related
patents, and all information received and property developed by AspenBio (other
than information and property received from Merial) as a result of this
Agreement and the transactions contemplated hereby shall remain the exclusive
property of AspenBio (the "AspenBio Property").
2. Product Orders, Shipping and Delivery.
-----------------------------------------
2.1 Product Orders.
-------------------
Within 30 days of the date this Agreement is executed, Merial shall provide
AspenBio with sales projections for the Product for the initial six months of
sales (the "Order Schedule"). On or before the first of each calendar month
thereafter, Merial shall provide AspenBio with sales projections for an
additional month, which shall be added to the Order Schedule, such that AspenBio
shall be provided with a rolling six month Order Schedule. AspenBio shall ship
the Product to Merial in accordance with the Order Schedule. Merial may revise
the Order Schedule with at least 90 days' advance notice to AspenBio. In the
event that Merial is unable to provide 90 days advance notice, Merial may
increase or decrease the Order Schedule by up to 20% if 60 days' advance notice
is given to AspenBio. Regardless of the timing of such request, AspenBio shall
use commercially reasonable efforts to supply any request by Merial for delivery
of Products in excess of the amounts stated on the relevant Order Schedule,
provided, however, that the provisions of Section 2.2 shall not apply to any
changes to the Order Schedule made by Merial with less than 60 days' advance
notice. Merial shall not place any order for less than 40,000 units of the
Product in any particular shipment and in no event shall AspenBio have any
obligation to fill or ship any order for less than 40,000 units.
2.2 Late Delivery.
------------------
Subject to Section 17.9, in the event orders are not delivered by AspenBio
within five business days of their due date, the Purchase Price (as defined
below) shall be reduced by 10% for the first 30 days (or portion thereof)
thereafter that the Product is late and by 20% for each 30-day period (or
portion thereof) thereafter that the Product is late. Such reductions shall not
apply to (i) any delay in delivery of the Products resulting from changes in the
Product or packaging requested by Merial or (ii) if and to the extent that any
delay in delivery results from AspenBio previously supplying Product in excess
of the amounts provided on the Order Schedules in order to fill requests for
delivery of additional Products by Merial.
2.3 Shipping to Merial.
-----------------------
Unless otherwise requested by Merial and agreed to by AspenBio, all
Products ordered by Merial shall be shipped directly to Merial or its previously
designated agent or distributor by an appropriate means. All costs and expenses
of shipment shall be borne by AspenBio. AspenBio shall honor all reasonable
requests for other shipment methods at Merial's expense. Title and risk of loss
or damage with respect to Products to be delivered hereunder shall pass from
AspenBio to Merial on the date of delivery to Merial of such Product or its
agent. Unless otherwise requested by Merial and agreed to by AspenBio, all
Products ordered by Merial shall be shipped directly to Merial or its designated
agent, to one of the locations set forth below, as directed by Merial in its
purchase order:
(a) Merial Limited
000 Xxxxxxxxx Xxxxx, Xxxx. 0
Xxxxxx, XX 00000
(b) Merial Limited
c/x Xxxxxxxx Warehouse
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
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(c) Merial Limited
c/x Xxxxxxxx Warehouse
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
2.4 Packaging.
--------------
AspenBio and Merial will design the packaging for the Product (including
all inserts), provided that the packaging for the Product will ultimately be
determined by Merial, in its reasonable discretion, and Merial shall pay any
additional costs for any requests by Merial for changes or additions to the
packaging or components of the Product, from the costs for the basic design set
forth on Exhibit B, which is attached hereto and incorporated herein by this
reference. Notwithstanding the above, the parties hereby acknowledge and agree
that the packaging and instructions for the Product will include (i) customary
and appropriate notations to reflect intellectual property rights, including
trademark registrations, copyrights, and patent applications and letters patent
received, in accordance with applicable patent marking laws and other legal
requirements and (ii) the statement "[Product tradename] is manufactured by
AspenBio, Inc. and is distributed exclusively by Merial Limited" accompanied by
the logo of AspenBio or other corporate or `doing business as' name or a logo as
AspenBio shall designate in writing prior to any final proof edit deadline for
the printing of any such name or logo on the packaging and instructions for the
Product, which statement shall be distinct and conspicuous and which logo shall
be of the same size as the Merial logo, and shall be located on the side or back
label. AspenBio will work with Merial to ensure that packaging complies with
applicable regulatory requirements, if any. The parties acknowledge and agree
that the packaging of the Product may vary depending upon the country in which
the Product is intended to be marketed.
2.5 Obligations of Merial.
(a) Marketing.
---------------
Merial shall use commercially reasonable efforts to bring the
Product to market and to commercially exploit the Product in a manner
designed to maximize sales and revenues from the Product. Merial shall
prepare a marketing plan for each country in which it intends to
market the Product. Merial shall provide to AspenBio copies of its
marketing plans, sales forecasts and pricing policies for each
country.
(b) Transfers without Consideration.
------------------------------------
In the event that Merial transfers any Products without
consideration, Merial shall pay AspenBio for such Products an amount
equal to the average Purchase Price paid by Merial for the trailing
twelve month period (or portion thereof). Such payment shall be made
by Merial in two installments in accordance with the payment procedure
described in Section 5.2(a) hereof.
(c) Compliance with Laws and Standards.
---------------------------------------
Merial agrees that in performing its obligations hereunder, it
shall comply with all applicable United States and foreign laws,
including, without limitation, the International Traffic in Arms
Regulations (ITAR) and the Export Administration Regulations.
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(d) Foreign Government Approval or Registrations.
-------------------------------------------------
If this Agreement or any associated transaction is required by
the law of any nation to be either approved or registered with any
governmental agency, Merial shall assume all legal obligations to do
so and the costs in connection therewith. AspenBio will cooperate with
Merial in obtaining any such approval or registration, including
payment of reasonable expenses incurred by AspenBio.
2.6 Product Returns; Expired Stock.
-----------------------------------
Subject to Section 10, all Products that are returned by customers to
Merial or AspenBio for any reason shall be the responsibility of Merial. In the
event expired Products are returned, Merial may purchase replacement components
of the Product from AspenBio at AspenBio's Production Cost (as defined below) to
allow revalidation and sale of said Product.
3. Distribution Rights, Licenses and Patents.
---------------------------------------------
3.1 Product Distribution Rights.
--------------------------------
During the Term of this Agreement, AspenBio grants to Merial the right to
exclusively market, distribute and sell the Product worldwide, either directly
or through its affiliates or agents. Without the prior written consent of
Merial, AspenBio shall not market, advertise, distribute or sell the Product or
grant any other person or entity the right or license to market, advertise,
distribute or sell the Product during the Term of this Agreement; provided,
however, Merial's consent shall not be required if this Agreement becomes
non-exclusive as a result of Merial's failure to meet the sales targets in
accordance with Section 4.1 hereof or if Merial breaches this Agreement.
3.2 Licenses.
-------------
(a) Trademark License.
----------------------
During the Term of this Agreement, AspenBio grants to Merial an
exclusive license to use the name "SURBRED" (the "Trademark") and a
non-exclusive license to use the other names and marks set forth on
Exhibit E for the marketing, distribution and sale of the Product as
expressly provided herein, including, without limitation, in
advertising the Product and for use on the Website (as defined below).
Merial may use the Trademark or any other name to market the Product,
in its sole discretion. Merial will be responsible for registering the
tradenames it uses to market the Product wherever such registration is
required. Regardless of the tradename used by Merial to market the
Product, Merial will distinctly and conspicuously label the Product
with the statement "[Product tradename] is manufactured by AspenBio,
Inc. and is distributed exclusively by Merial Limited" and the logo of
AspenBio, or other corporate or `doing business as' name or a logo as
AspenBio shall designate in writing prior to any final proof edit
deadline for the printing of the Product label. AspenBio reserves the
right to conduct quality control for any Product handled by Merial
where the Product is used in conjunction with the Trademark or any
other trademark of AspenBio.
(b) URL License.
----------------
During the Term of this Agreement, Merial shall also have the
right to the exclusive use and control of the URL
xxxx://xxx.xxxxxxx.xxx (the "Surbred URL," and with the Trademark,
collectively, the "Licensed Property"). In the event Merial elects to
utilize the Surbred URL, it may modify the website associated with the
Surbred URL (the "Website") and all content thereon, at its expense.
In such event, the Website shall be hosted and served by Merial, at
5
its expense; provided, however, that Merial will include on the
Website (or any other website describing the Product) the statement:
"[Product tradename] is manufactured by AspenBio, Inc. and is
distributed exclusively by Merial Limited" and the AspenBio logo or
other corporate or `doing business as' name or a logo as AspenBio
shall designate, in a distinct and conspicuous manner and shall
include a link to AspenBio's website. In addition, the parties agree
to provide a link from the home page of their respective corporate
websites to the home page of the other. Upon termination of this
Agreement, Merial shall take whatever action is reasonably necessary,
at its expense, to transfer control and maintenance of the Website
back to AspenBio or its designee.
3.3 Patents.
------------
(a) Application.
----------------
AspenBio and Merial shall jointly determine the appropriate
patent strategy for the Product, provided that the ultimate patent
strategy for the Product shall be the decision of AspenBio in its sole
discretion. Notwithstanding the foregoing, AspenBio agrees to pursue
the development and the implementation of its patent strategy,
including the filing of applications and other related filings as
applicable, with reasonable diligence and timeliness (the "Diligence
Requirement"). All costs and expenses associated with the patent
application process, including application, filing, prosecution and
maintenance shall be borne by AspenBio. Merial shall cooperate with
AspenBio, as reasonably requested by AspenBio, in the patent
application process. Merial shall provide reasonable notice of
countries in which it anticipates marketing the Product so that
AspenBio may apply for such registrations or patent protection as it
deems appropriate, subject to the Diligence Requirement, in such
countries.
(b) Ownership.
--------------
Full and exclusive rights and ownership in the Licensed Property
and in any and all related letters patent, trademarks, copyrights,
trade secrets, processes, domain names, and any other proprietary
rights associated with the Product or the Licensed Property (other
than those independently developed by Merial or co-developed by Merial
pursuant to the agreement provided for in Section 3.3(c) hereof and
the Merial Product Trademarks) shall remain the sole and exclusive
property of AspenBio.
(c) Other Patent Rights.
------------------------
Each party acknowledges that Merial may be a co-inventor of
patents linked to further developments and improvements to the
Product. The parties shall address ownership of such patent rights in
a separate agreement which they will negotiate in good faith. A
schedule of existing patents and patent applications is detailed on
Exhibit D.
3.4 Enforcement.
----------------
AspenBio shall have the sole right and authority to initiate any suit or
legal proceeding, or to take any other action it may consider reasonable or
necessary, in its sole and absolute discretion to enforce and defend AspenBio's
rights to the Product, the Licensed Property or the related patents. AspenBio
shall be entitled to retain all amounts awarded in connection with any such suit
or legal proceeding. Merial shall promptly notify AspenBio of any potential or
actual infringement or other unlawful use of the Product, the Licensed Property,
or any related patent. Merial shall have the sole right and authority to
initiate any suit or legal proceeding, or take any other action it may consider
reasonable or necessary, in its sole and absolute discretion to defend and
enforce Merial's rights to the Merial Product Trademarks. Merial shall be
entitled to retain all amounts awarded in connection with any such suit or legal
proceeding.
6
3.5 Right of First Negotiation.
-------------------------------
During the first two years of the Term of this Agreement, AspenBio grants
to Merial a right of first negotiation to distribute, market and sell all future
animal health products developed by AspenBio ("Right of First Negotiation").
AspenBio shall notify Merial of future animal health products it intends to
develop, distribute, market, and sell ("Product Notice"). Within ten business
days of a request by AspenBio, and prior to disclosure of any information
regarding such future animal health products, Merial shall sign a
confidentiality agreement whereby Merial agrees to maintain in confidence and
not to use any information relating to such animal health products disclosed by
AspenBio. To exercise the Right of First Negotiation, Merial shall provide
AspenBio with notice of its interest in pursuing negotiations ("Notice of
Interest") within 60 days of receipt of any Product Notice from AspenBio. In the
event that Merial does not enter into a confidentiality agreement in such time
period, the Right of First Negotiation shall terminate immediately. The Notice
of Interest shall be accompanied by a non-refundable payment of $50,000 to
AspenBio to exercise the Right of First Negotiation granted under this Section
3.5 for 30 days from the Notice of Interest. Upon the expiration of such 30-day
period, Merial may extend the Right of First Negotiation granted under this
Section 3.5 for up to two additional 30-day periods by making an additional
non-refundable payment of $50,000 for each such 30-day extension prior to the
expiration of the Right of First Negotiation. After timely receipt of a Notice
of Interest and the non-refundable payment or payments described above, AspenBio
shall not enter into negotiations with any third parties while the Right of
First Negotiation is in effect, provided, that the Right of First Negotiation
may not be extended for more than 90 days following the date of receipt of a
Notice of Interest (the "Negotiation Period") and during such Negotiation Period
AspenBio and Merial each shall negotiate in good faith. In the event that Merial
does not deliver a timely Notice of Interest or no final agreement is
consummated prior to the expiration of the Negotiation Period, AspenBio shall be
free to negotiate and enter into agreements with third parties to distribute or
market such animal health product. Nothing in this Section 3.5 shall prevent
AspenBio from conducting additional research and testing and market research and
analysis (alone or in conjunction with third parties) prior to the termination
of the Right of First Negotiation described above. This Section 3.5 shall not
apply to animal health products for which AspenBio receives a proposal to
develop for, or co-develop with, independent third parties.
4. Sales Targets.
-----------------
4.1 Target Sales.
-----------------
Merial shall sell at least 1.5 million Products in calendar year 2004, at
least 4 million Products in calendar year 2005 and at least 5 million Products
in each calendar year thereafter during the Term of this Agreement; provided,
however, that in the event the Launch does not occur on or before October 1,
2003, the minimum sales targets shall be reduced, on a pro rata basis, for each
calendar quarter (or portion thereof) thereafter that the Product is Launched.
In the event Merial fails to achieve such minimum sales target in any calendar
year during the Term of this Agreement and such default is not due in any part
to AspenBio's failure to supply Merial with Products as ordered by Merial or any
other material breach of this Agreement by AspenBio, AspenBio shall have the
right to convert, after written notice to Merial, the exclusive distribution
rights and licenses granted to Merial hereunder to non-exclusive distribution
rights and licenses. Merial shall have 30 days after notice of failure to
achieve sales targets to cure the default without the distribution rights and
licenses granted herein becoming non-exclusive.
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4.2 Expiration.
---------------
The minimum sales requirements described above shall expire and no longer
be applicable in the event a Competing Technology (as defined below) becomes
available on the market. "Competing Technology" means any bovine early pregnancy
test of (i) equivalent or greater accuracy than the Product or (ii) equivalent
or earlier determination following insemination than the Product, as determined
by Merial, in its reasonable discretion, with the specific exception of
currently marketed Early Conception Factor (ECF) tests and any technology
developed by AspenBio and included in the Product or the Licensed Property under
this Agreement.
5. Payments.
------------
5.1 Development Payments.
-------------------------
Merial shall make the following payments to AspenBio for the services to be
provided by AspenBio under this Agreement:
(a) immediately upon execution of this Agreement, Merial shall
pay to AspenBio USD 200,000;
(b) within 30 days of the execution of this Agreement, Merial and
AspenBio shall mutually agree in writing to the procedures and
standards of performance to be applied in a field trial of at least
500 cows to be initiated on or before April 30, 2003 (the "Trial").
AspenBio shall provide the parties conducting the Trial with all
Surbred 15 test strips and other components of the Product reasonably
required to complete the Trial on or before July 15, 2003. Within 30
days of receipt of a final report confirming to Merial's reasonable
satisfaction that the Product conforms to the Design, Merial shall pay
to AspenBio USD 700,000 (the "Second Installment"); provided, however,
that in the event the final Trial report is not complete on or before
July 15, 2003 and there is no unreasonable delay by Merial in the
performance of its obligations hereunder (which delay AspenBio
reported to Merial by written notice within 10 days of its occurrence)
that are a condition to AspenBio's completion of a satisfactory final
Trial report, the amount of the Second Installment shall be reduced by
USD 100,000 for each month or portion of a month following July 15,
2003 that the final Trial report is not presented (the "Discounted
Second Installment"). If there is a reasonable delay in Merial's
performance of its obligations hereunder, then the date for delivery
by AspenBio of the final Trial report to Merial shall be extended for
an equivalent period of time beyond July 15, 2003 to allow for such
delay. In the event that the final Trial report does not confirm to
Merial's reasonable satisfaction that the Product conforms to the
Design, the parties will meet and attempt to modify the Product or the
Trial in a mutually agreeable manner. If no such agreement is reached
within 30 days of the delivery of the final Trial report, this
Agreement shall terminate and 50% of all amounts paid by Merial to
AspenBio hereunder prior to such date shall be returned to Merial;
and.
(c) Upon the Launch (as defined below) of the Product in the
first country, Merial shall pay to AspenBio USD 1,000,000 (the "Final
Installment"). "Launch" means AspenBio's ability to ship to Merial at
least 250,000 Products, AspenBio's reaching an inventory level
sufficient to supply Merial for the next calendar quarter (based on
the Order Schedules provided by Merial) and following the satisfaction
of the QC Tests for the Product.
8
5.2 Purchase Price.
-------------------
Merial shall pay to AspenBio an amount equal to 33% of Invoiced Sales
Price, which, for purposes of this Agreement, shall mean, as applicable, either
(a) for Product sold by Merial distributors, the gross price listed on the
invoice, before rebates, credits, discounts or other deductions, or (b) for
direct sales by Merial (meaning sales using distribution channels other than a
third party distributor) to veterinary clinic customers, the net invoice price
on which Merial bills and seeks collection from such customers ("Purchase
Price"). The minimum Purchase Price in the United States shall be [*] per unit
of Product and outside of the United States shall be [*] per unit of
Product; provided, however, if a Competing Technology is introduced in the
United States, then from that date through the end of the Term the minimum
Purchase Price will no longer be applicable (the "Fluctuating Minimum Purchase
Price Period"). During the Fluctuating Minimum Purchase Price Period, Merial
shall provide to AspenBio within 45 days after the close of each quarter a
report of the average Purchase Price (calculated under this Section 5.2 from
sales in all countries using foreign currency conversion rates as of the time
such conversions are determined for Merial's internal accounting purposes) for
the most recently completed quarter (the "Trailing Average Purchase Price")
covered by the report. If after the beginning of the Fluctuating Minimum
Purchase Price Period the Trailing Average Purchase Price is less than [*] per
unit of Product (a "Low Purchase Price") for any two successive calendar
quarters, then AspenBio may, at its option, terminate this Agreement by written
notice within 45 days of receiving any report referenced in the preceding
sentence that discloses the second successive calendar quarter of a Low Purchase
Price. If AspenBio elects to terminate this Agreement pursuant to this Section
5.2 within 3 years after the Launch Date, then AspenBio shall pay to Merial all
monies paid by Merial to AspenBio under Section 5.1 on a prorata basis according
to the following formula:
(The amounts paid by Merial under Section 5.1) times the following ratio:
(number of months remaining until 36 months after the initial Launch Date)
divided by 36 months.
AspenBio shall pay such monies pursuant to a promissory note (to be
negotiated by the parties in good faith) at the prevailing interest rate on a
monthly basis in equal installments over the time remaining of the 3 year period
after the Launch Date. During the Fluctuating Minimum Purchase Price Period, the
minimum Purchase Price shall be no less than [*].
(a) Installments.
-----------------
The Purchase Price will be payable by Merial in two installments. The
initial payment will be [*] per Product delivered to Merial and shall
be due 30 days after receipt of the Product by Merial; provided, however,
that Merial shall pre-pay for its first 1,000,000 Product orders, on an as
ordered basis, (in an aggregate amount not to exceed [*]). The
final payment will comprise the balance of the Purchase Price (calculated
in accordance with Section 5.2) and shall be due 30 days after the end of
each calendar quarter during which such Product is sold by Merial.
(b) Review of Production Cost.
------------------------------
AspenBio shall use its best efforts to minimize the Production Cost
(which, for purposes of this Agreement, means AspenBio's costs to produce
or purchase the Product (including shipping expenses, duties, printing
expenses, and packaging expenses)) of the Product ("Production Cost"). If
AspenBio's Production Cost exceeds [*] per Product, AspenBio may provide
written notice to Merial ("Cost Overage Notice"). Upon receipt of a Cost
Overage Notice, Merial may elect to perform an audit of AspenBio to confirm
that AspenBio's Production Cost exceeds [*] per Product. Merial shall
provide written notice of its intent to perform any such audit within 10
9
days of receipt of the Cost Overage Notice and any such audit shall be
completed by Merial within 30 days of the Cost Overage Notice. If Merial
does not make a timely election to conduct such an audit or if the audit
confirms that AspenBio's Production Cost exceeds [*], AspenBio and Merial
shall review the Purchase Price amount and attempt to agree on a revised
amount. If the parties are unable to agree on a revised Purchase Price
amount within 30 days of the Cost Overage Notice, Merial or AspenBio may
terminate this Agreement upon written notice to the other party; provided,
however, that neither party may terminate this Agreement pursuant to this
Section during the first three full years of the Term of this Agreement. If
this Agreement is not terminated pursuant to this Section or in accordance
with Section 6, the Agreement shall remain in full force and effect.
(c) Records and Audit Rights.
-----------------------------
Each of AspenBio and Merial shall keep, maintain and preserve for at
least five years following the termination or expiration of the Term of
this Agreement, accurate records relating to the Purchase Price and the
Production Cost. During the Term of this Agreement and the five-year period
thereafter, AspenBio shall have the right, at its sole cost and expense, to
audit the records of Merial for the purpose of verifying the Purchase Price
and Merial shall have the right, at its sole cost and expense, to audit the
records of AspenBio following receipt of a Cost Overage Notice in
accordance with Section 5.2(c) for the purpose of verifying the Production
Cost. Should any audit reveal a greater than two percent discrepancy in the
amount of the Purchase Price or the Production Cost for the period being
audited, the party that misreported such amount shall reimburse the other
party for all costs and expenses associated with such audit in addition to
all other amounts due as a result of the incorrect reported amount. Audits
shall be made upon not less than ten days' prior written notice and during
regular business hours. Any parties performing such audit may be required
to execute a standard confidentiality agreement restricting their
disclosure and use of any confidential information obtained in connection
with the audit.
5.3 Taxes.
----------
Each party shall pay its own federal, state, and local taxes or other
charges (including import taxes and fees, if any) assessed, designated, levied,
imposed or arising under this Agreement.
6. Term and Termination.
------------------------
6.1 Term.
---------
With respect to each market in which Merial markets the Product, the term
of this Agreement shall be the greater of (a) five years from the Effective Date
or (b) the term of the last to expire of any patent for the Product in the
United States or applicable foreign country (the "Term"). This Agreement shall
automatically be extended for successive one-year terms unless AspenBio or
Merial gives the other party written notice of its intent to not renew the
Agreement not less than 90 days prior to the end of the Term or any successive
one-year term.
6.2 Effect of Termination.
--------------------------
Upon the expiration or termination of this Agreement for any reason, the
distribution rights and licenses granted hereunder and other provisions of this
Agreement shall immediately terminate and be of no further force or effect,
except as otherwise provided herein. Nothing herein shall be construed to
release Merial of the obligation to pay the Purchase Price for any Products
delivered prior to the date of such termination or to release either party from
any other obligation that matured prior to the effective date of such
termination. Upon the expiration or termination of this Agreement for any
10
reason, Merial shall return to AspenBio all AspenBio Property and any books,
records, files, forms, reports, memoranda, or other documents, writings, and
similar materials containing information or other intellectual property received
from AspenBio or relating to the Licensed Property and the Products (whether
received from AspenBio or developed solely or partially by Merial during the
Term hereof except if such materials relate to a Merial Product Trademark or to
an improvement or development for which Merial is a co-inventor pursuant to the
agreement described in Section 3.3(c)) and AspenBio shall return to Merial all
Merial Property. Notwithstanding anything to the contrary set forth herein,
however, Merial shall have the right for 12 months to dispose of all Products
then in its inventory and shall pay the Purchase Price thereon in accordance
with the terms hereof.
6.3 Termination by Merial.
--------------------------
Merial may terminate this Agreement:
(a) within 30 days of Merial's receipt of the final Trial report in
the event the results of such report concludes that the Product does not
meet the standards mutually agreed to by the parties in accordance with
Exhibit A;
(b) immediately, if AspenBio is unable to provide Merial with the
finished Product that is ready for Launch in the United States in
accordance with the Design by October 1, 2003 (in which case Merial shall
be reimbursed 50% of all payments made as of such date by Merial in
accordance with Section 1.2);
(c) upon 30 days' written notice to AspenBio in the event AspenBio
breaches any material agreement, covenant, representation or warranty of
this Agreement after notice from Merial and such condition or act has not
been fully remedied within such 30-day period; or
(d) pursuant to Section 5.2(b).
6.4 Termination by AspenBio.
----------------------------
AspenBio may terminate this Agreement:
(a) upon 15 days' written notice to Merial in the event that Merial
breaches any obligation to make any payment to AspenBio hereunder, or upon
30 days' written notice to Merial in the event Merial breaches any other
material agreement, covenant, representation or warranty of this Agreement
and such condition or act has not been fully remedied within such 15 or 30
day period, as applicable; or
(b) pursuant to Sections 5.2 and 5.2(b).
6.5 Termination by Either Party.
--------------------------------
Either party may terminate this Agreement immediately upon notice to the
other in the event of (a) the filing of an application for the appointment of a
receiver or custodian for such party or such party's property, (b) the entry of
an order for relief or the filing of a petition by or against such party under
the provisions of any bankruptcy or insolvency law, (c) any assignment for the
benefit of creditors by or against such party, or (d) such party becomes
insolvent.
7. Indemnity; Liquidated Damages; Limit of Liability.
-----------------------------------------------------
11
7.1 Indemnification of Merial.
------------------------------
AspenBio shall indemnify, defend and hold harmless Merial, and its
respective affiliates, officers, directors, stockholders, employees, agents,
successors and assigns, against any and all claims, demands, losses, damages,
judgments, actions, proceedings, liabilities, settlements or any other costs or
liabilities whatsoever, including all reasonable attorneys' fees, resulting
from, arising out of or otherwise attributable to (a) any act or omission under
this Agreement, including any breach of any representation, warranty, covenant
or agreement of this Agreement by AspenBio, (b) any claim or action based upon
the claim that the Product or Licensed Property infringes the patent, copyright,
trademark, trade secret or other intellectual property or proprietary rights of
another person or entity, (c) any product liability claim or action with respect
to the Product, except to the extent such claim or action results from a use of
the Product in a manner other than its intended use, (d) any violation by
AspenBio of any applicable law, ordinance or regulation in connection with this
Agreement, and (e) the informational contents of the packaging for the Product
or any information posted on the Website and provided to Merial by AspenBio.
7.2 Indemnification of AspenBio.
--------------------------------
Merial shall indemnify, defend and hold harmless AspenBio, and its
respective affiliates, officers, directors, stockholders, employees, agents,
successors and assigns, against any and all claims, demands, losses, damages,
judgments, actions, proceedings, liabilities, settlements or any other costs or
liabilities whatsoever, including all reasonable attorneys' fees, resulting
from, arising out of or otherwise attributable to (a) any act or omission under
this Agreement, including any breach of any representation, warranty, covenant
or agreement of this Agreement by Merial (b) any violation by Merial of any
applicable law, ordinance or regulation in connection with this Agreement, (c)
any claim or action based upon the claim that the Merial Property infringes the
patent, copyright, trademark, trade secret or other intellectual property or
proprietary rights of another person or entity, and (d) the informational
contents of the packaging for the Product or any information posted on the
Website, provided such contents or information were not provided to Merial by
AspenBio or its suppliers.
7.3 Liquidated Damages.
-----------------------
In the event Merial's ability to distribute, market and sell the Product is
impaired as a result of AspenBio's breach of Sections 8.2(d) and 9 and such
breach is not subject to a cure, AspenBio shall pay to Merial liquidated damages
in an amount equal to all monies paid by Merial to AspenBio under Section 5.1 of
this Agreement and all lost profits of Merial due to the loss of sales of any
unsold Product held in Merial's inventory at the time of such breach; provided,
that such lost profits shall not exceed the total profits of Merial from sales
of the Product for the previous six month period. This remedy is in addition to
any other remedies granted to Merial under this Agreement.
7.4 Limit of Liability.
-----------------------
EXCLUDING ASPENBIO'S OBLIGATIONS UNDER SECTIONS 7.1 AND 7.3, ASPENBIO SHALL
HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE AGGREGATE
LIABILITY OF ASPENBIO FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM,
INCLUDING, WITHOUT LIMITATION, ASPENBIO'S OBLIGATION TO INDEMNIFY AND HOLD
HARMLESS UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNTS PAID TO ASPENBIO
BY MERIAL HEREUNDER. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS
IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF
WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER
TORTS.
12
8. Representations & Warranties, Product Warranties, Disclaimer of Other
-------------------------------------------------------------------------------
Warranties.
--------------
8.1 Mutual.
-----------
Each of AspenBio and Merial represents and warrants to the other on a
continuing basis throughout the Term of this Agreement that:
(a) it has all necessary capacity, power and authority to enter into
and perform this Agreement and has obtained all approvals and consents
required for the execution and performance of this Agreement;
(b) the execution and delivery of this Agreement will not violate or
contravene any agreement, obligation, commitment, law, statute or
regulation to which it may be subject or any provision of its charter or
bylaws;
(c) this Agreement represents the binding and enforceable obligation
of such party, enforceable in accordance with its terms; and
(d) the persons executing this Agreement are duly authorized by the
respective parties to sign and deliver this Agreement on their behalf.
8.2 AspenBio's Representations and Warranties.
----------------------------------------------
AspenBio represents and warrants to Merial on a continuing basis throughout
the Term of this Agreement that:
(a) to the best knowledge of AspenBio, except as set forth in Section
8.2(e), in connection with performing the services contemplated by this
Agreement and developing the Product, AspenBio is not infringing, and will
not infringe, upon any patent, copyright, trademark, trade secret or other
proprietary right of any person or entity;
(b) except for the rights of the licensors under the licenses attached
hereto as Exhibit C (the "University Licenses"), AspenBio is not under any
obligation to assign or give any work performed under this Agreement to any
third party (provided, however, that this representation shall not be
construed as a restriction against AspenBio subcontracting all or any
portion of the work to be performed hereunder);
(c) except for the University Licenses and the rights described in
Section 8.2(e), AspenBio owns the rights to the intellectual property
comprising the Product and the Licensed Property outright without any claim
or encumbrance thereon and has the unilateral right and ability to
consummate the transactions contemplated hereby with respect to the Product
and the Licensed Property; and
13
(d) to the best knowledge of AspenBio, except as set forth in Section
8.2(e), the University Licenses constitute all the licenses necessary for
the development of the Product by AspenBio, the exclusive distribution,
marketing and sale of the Product by Merial and the license of the Licensed
Property to Merial (the "Licenses"), and there are no other licenses
necessary for the development of the Product by AspenBio, the exclusive
distribution, marketing and sale of the Product by Merial or the license of
the Licensed Property to Merial. In the event any other license becomes
necessary for the development of the Product by AspenBio, the exclusive
distribution, marketing and sale of the Product by Merial and the license
of the Licensed Property to Merial, AspenBio shall promptly use
commercially reasonable efforts to obtain such license at its own cost and
expense. During the Term of this Agreement, AspenBio shall be responsible
for using commercially reasonable efforts to obtain and maintain reasonably
necessary Licenses, including the costs associated therewith, and AspenBio
shall comply with the terms of all such Licenses. In the event Merial's
ability to distribute, market and sell the Product is materially impaired
as a result of AspenBio's breach of this Section, AspenBio shall promptly
cure, at AspenBio's own cost and expense, such breach (including, without
limitation, procuring another license or developing the technology
necessary to develop, distribute, maintain, support, sublicense or sell the
Product) or Merial may cure AspenBio's breach (including, without
limitation, procuring another license or developing the technology
necessary to develop, distribute, maintain, support, sublicense or sell the
Product), in which case AspenBio shall promptly reimburse Merial for all
reasonable fees, costs and expenses incurred by Merial to cure AspenBio's
breach.
(e) Merial acknowledges that in the current form of the Product, one
of the components is a lateral flow test strip, the intellectual property
rights to which are or may be owned by a third party. AspenBio has
historically obtained these components from a supplier that pays the
royalties thereon. In the event that AspenBio is unable to obtain such
lateral flow test strips without payment of additional royalties, fees, or
equivalent expenses, the cost of such expenses shall be included in the
calculation of AspenBio's Production Cost pursuant to Section 2.5(b).
(f) AspenBio represents and warrants that AspenBio has not received a
notice of deficiency under Section 6.5 of the License Agreement for
Determination of Pregnancy Status of Ungulates between AspenBio, Inc. and
The Idaho Research Foundation, Inc. dated September 26, 2001 and that
AspenBio will provide an executed copy of this Agreement to the Idaho
Research Foundation, Inc. in accordance with its obligations under Section
3.2 of that agreement.
9. Sale of Product.
-------------------
AspenBio and Merial acknowledge and agree that any transfer of the Product
from AspenBio to Merial under this Agreement is a "sale" of the Product. If a
court or arbitration panel of competent jurisdiction determines otherwise, then
effective as of the Effective Date, AspenBio agrees that it shall be deemed to
have granted to Merial such patent licenses and sublicenses as may be necessary
to allow Merial to market and distribute the Product in accord with this
Agreement.
10. Warranty; Insurance.
------------------------
10.1 Warranty.
--------------
AspenBio warrants that it will use its commercially best efforts to perform
the services to be provided by it hereunder and that, during the period that the
Products are viable and not expired (according to the expiration date indicated
on each such Product's packaging), such Products will perform according to the
requirements of the Design and their intended use, provided that the Products
are stored, handled, and used in the manner prescribed by AspenBio. In the event
of any breach of the foregoing warranty, AspenBio shall, within 30 days of
14
Merial's notice to AspenBio that a Product is not performing according to the
requirements of the Design or its intended use, replace the Product at
AspenBio's sole cost and expense. In the event a Product does not perform
according to the requirements of the Design or its intended use within such
30-day period, at Merial's option, AspenBio shall promptly refund to Merial all
fees, costs and expenses paid by Merial that are attributable to the
non-conforming Product.
10.2 Insurance.
---------------
During the term of this Agreement, AspenBio shall at all times at its own
expense, keep and maintain commercial general liability insurance including
contractual liability for duties assumed by AspenBio under this Agreement, with
limits of no less than USD 500,000, subject to a USD 1,000,000 general aggregate
limit.
11. Relationship of Parties.
----------------------------
Merial is and shall be considered an independent contractor with entire
control and direction of its business and operations, subject only to the
conditions and obligations established by this Agreement. No agency, employment,
partnership or joint venture is created by this Agreement. Neither party to this
Agreement shall make any representations tending to create apparent agency,
employment, partnership or joint venture. Neither party will have authority to
act for the other in any manner or to create obligations or debts binding on the
other, and neither party will be responsible for any obligations or expenses
whatsoever of the other.
12. Governing Law.
------------------
This Agreement shall be governed, enforced, performed and construed in
accordance with the laws of the State of Georgia, excepting those conflicts of
law provisions that would serve to defeat application of Georgia substantive
law.
13. Arbitration.
----------------
The parties agree that any controversy, claim, or damages arising out of or
relating in any manner to this Agreement, its formation, or any breach thereof,
will be resolved by binding arbitration in Denver, Colorado. The arbitration
shall be before a single neutral arbitrator and, unless otherwise agreed by the
parties, shall be conducted pursuant to the JAMS Comprehensive Arbitration Rules
and Procedures ("Rules") as in effect at the time of the arbitration; provided,
however, that the arbitration will not be administered by JAMS or conducted by a
JAMS arbitrator if both parties agree otherwise. If either party objects to the
administration by JAMS, then the arbitration shall be administered by an entity
or person mutually agreed upon by the parties or, absent such an agreement, by
the arbitrator himself or herself. If the arbitration is not administered by
JAMS, then, where reasonably practical, the provisions in the Rules applicable
to the JAMS administrator shall be read to apply to the administrator appointed
by the parties. If it is not reasonably practical to apply a provision relating
to the JAMS administrator to the administrator appointed by the parties, then
that provision of the Rules shall not apply to this arbitration. If a conflict
exists between the Rules and this Section, then this Section shall govern.
The arbitration shall be commenced by one party submitting an arbitration
demand to the other. The parties shall have 20 days following the commencement
of the arbitration to select a mutually agreeable arbitrator. If the parties
fail to mutually select an arbitrator within this 20-day period, then each party
shall, within 10 days from such failure, submit to the other party a list of
five neutral arbitrators who such party has contacted and confirmed are free of
any conflicts and are available to conduct the arbitration. Within three days
15
after these lists are exchanged, each party shall peremptorily strike up to
three of the proposed arbitrators on the other party's list and shall submit a
list of such strikes to the other party. Within three days after the peremptory
strikes are exchanged, each party shall rank in order of preference the
remaining proposed arbitrators, with "1" being the most preferred. The person
with the lowest total combined ranking ("1" being the lowest ranking) shall be
appointed as the arbitrator. In the case of a tie, the proposed arbitrator(s)
who have or has the highest ranking of any single numeric ranking by either
party (i.e., the least preferred by one party of those that are tied), will be
struck and the remaining person shall be selected as the arbitrator. If the tie
continues after those with the single highest numeric ranking are struck, then
the arbitrator shall be selected from those remaining in the tie by a single
toss of a coin. If an arbitrator for any reason withdraws from serving as the
arbitrator after being appointed, then the replacement arbitrator shall be the
next lowest ranking person from the original arbitration selection process. If a
tie exists, then it shall be resolved by a single toss of a coin. If none of the
ranked arbitrators from the original selection process can serve as the
replacement arbitrator, then the parties shall re-start the entire arbitration
selection process with new lists of proposed arbitrators.
Discovery shall be permitted pursuant to the Rules, and the arbitration
hearing shall occur within 90 days following the appointment of the arbitrator.
Any provisional or injunctive remedy that would be available in a court of law
will be available from the arbitrator pending the arbitration of the dispute.
Each party shall pay its own attorneys' fees, and each party shall pay 50% of
the fees and expenses of the arbitrators and the costs of the arbitration.
Within 30 days following the completion of the hearing, the arbitrator will
issue a written ruling with an explanation of the reasons for the award and a
full statement of the facts as found and the rules of law applied in reaching
his decision.
14. Survival; Consultation of Counsel.
-----------------------------------------
The provisions of Sections 1.7, 1.8, 5.2(c), 6.2, 7, 9, 10.1, 12 and 15
hereof shall survive the termination of this Agreement and remain in full force
and effect thereafter. Each of the parties represents that it has read this
Agreement, that it understands fully all of its terms, that it has been afforded
the opportunity to discuss this Agreement with legal counsel of its choice and
that it enters into this Agreement voluntarily and of its own free will and
fully and completely accepts the terms of this Agreement.
15. Assignment.
---------------
Except as otherwise provided herein, neither AspenBio nor Merial may
assign, subcontract, transfer or otherwise delegate any of its rights, interests
or duties whatsoever under this Agreement without the prior written consent of
the other party; provided, however, that upon 14 days' prior written notice to
Merial, AspenBio may assign or transfer this Agreement in connection with a sale
of substantially all of the stock or assets of AspenBio. Merial shall provide
AspenBio with notice of any change in the equity ownership or voting rights of
Merial constituting 10% or more of such equity ownership or voting rights within
10 days of such change.
16. Public Announcement.
-------------------------
Except as otherwise required by law, the parties will submit to each other,
prior to publication or release, any press release relating to this Agreement.
The parties will promptly review proposed press releases and provide the other
party with any comments regarding the press release. Merial also will provide
the same opportunity to AspenBio regarding any initial press release Merial
16
intends to publish relating to this Agreement. Merial acknowledges that AspenBio
will file this Agreement in AspenBio's reports with the Securities and Exchange
Commission. AspenBio will request confidential treatment of the market sensitive
information contained in this Agreement as identified by Merial and agreed to by
AspenBio prior to execution of this Agreement.
In addition to the initial press release described above, AspenBio and
Merial agree that they will issue press releases to announce the successful
completion of each of the following milestones: (i) the successful completion of
the Trial; (ii) the United States launch of the Product, and (iii) the launch of
the Product in each country outside of the United States. The text of all such
press releases shall be agreed to by both AspenBio and Merial in their
reasonable discretion except as otherwise required by law.
17. Miscellaneous.
------------------
17.1 Amendment.
---------------
This Agreement may be amended or modified only in a writing executed by
both parties.
17.2 Headings.
--------------
Captions are inserted only for convenience and are in no way to be
construed as part of this Agreement.
17.3 Waiver.
------------
The waiver or failure of any party to exercise any rights under this
Agreement shall not be deemed a waiver or other limitation of any other right or
any future right.
17.4 Successors and Assigns.
----------------------------
Subject to Section 15, this Agreement shall inure to the benefit of, and
shall be binding upon, the parties, their respective successors and permitted
assigns.
17.5 Counterparts.
------------------
This Agreement may be executed in two or more counterparts, including with
facsimile signatures, each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
17.6 Notices.
-------------
All notices required or permitted by this Agreement shall be in writing and
shall be hand delivered, sent by facsimile (with transmission confirmed) or sent
by overnight courier, and shall be effective when received or, if sent by
overnight courier, on the next business day after delivery to the courier
service. Notices shall be sent to the address set forth on Exhibit A or at such
address as a party notifies the other party.
17.7 Costs and Expenses.
------------------------
Except as expressly set forth herein, each party shall bear its own costs,
expenses, taxes and other charges whatsoever incurred in connection with the
execution and performance of this Agreement.
17.8 Attorneys' Fees.
---------------------
In the event that any action (including an arbitration action) is filed in
relation to this Agreement, the party which does not prevail in such action
shall pay the reasonable attorneys' fees and other costs and expenses, including
investigation costs, incurred by the prevailing party in such proceedings.
17
17.9 Force Majeure.
-------------------
Should either of the parties be delayed in its performance (other than
payments of amounts due hereunder) for reasons which are beyond its control,
including but not limited to labor disputes, fire, flood, civil strife, military
action, accidents, terrorism, sabotage, riots, or other casualty or acts of God
or any similar cause, the date of performance by such party shall be extended a
reasonable time to allow for such delay. In no event shall either party be
liable for any loss or damage to the other occasioned by any such delay.
17.10 Severability.
-------------------
If for any reason any provision of this Agreement shall be deemed by a
court of competent jurisdiction to be legally invalid or unenforceable, the
validity, legality and enforceability of the remainder of this Agreement shall
not be affected and such provision shall be deemed modified to the minimum
extent necessary to make such provision consistent with applicable law and, in
its modified form, such provision shall then be enforceable and enforced.
17.11 Further Assurances.
-------------------------
The parties agree to conduct such further acts and to execute and deliver
such additional agreements and instruments from time to time as the other may at
any time reasonably request in order to assure and confirm unto it its rights,
powers and remedies under this Agreement.
17.12 Entire Agreement.
-----------------------
This Agreement, including any exhibits and schedules attached hereto, and
the Confidential Disclosure Agreement between AspenBio and Merial dated October
21, 2002, contain the entire agreement and understanding of the parties with
respect to the subject matter hereof, and supersedes all prior agreements,
negotiations, representations and proposals, written and oral, relating thereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
ASPENBIO, INC.
By:
--------------------------------------
Name:
-------------------------
Title:
-------------------------
Address:
-------------------------
Facsimile:
-------------------------
MERIAL LIMITED
By:
--------------------------------------
Name:
-------------------------
Title:
-------------------------
Address:
-------------------------
Facsimile:
-------------------------
19
