Exhibit 10.77
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LICENSE, DISTRIBUTION AND OEM AGREEMENT
This License, Distribution and OEM Agreement (this "Agreement") is made and
entered into as of October 29 , 2001 (the "Effective Date") by and between Agen
Biomedical Limited, an Australian company, having its principal place of
business at 00 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 0000, Xxxxxxxxx
("Agen"), and Synbiotics Corporation, a California corporation, having its
principal place of business at 00000 Xxx Xxxxxxxx, Xxx Xxxxx, XX 00000, Xxxxxx
Xxxxxx of America ("Synbiotics"). Agen and Synbiotics will be referred to herein
individually as a "Party" and collectively as the "Parties."
RECITALS
Whereas, Agen and Rhone Merieux, Inc. ("Rhone Merieux"), a company
organized under the laws of France, entered into that certain collaboration
agreement for development and distribution of certain diagnostic products as of
July 7, 1995 (as amended, the "Collaboration Agreement") and certain other
miscellaneous agreements herein collectively referred to as "Previous
Agreements" and attached herein as Exhibit J;
Whereas, Synbiotics assumed, and Rhone Merieux assigned to Synbiotics, all
of Rhone Merieux's rights, duties and obligations under the Previous Agreements
effective as of July 9, 1997 ;
Whereas Synbiotics asserts that certain Witness products are not covered by
the Collaboration Agreement, and such assertion is disputed by Agen;
Whereas, Agen sent Synbiotics a Notice of Termination of the Collaboration
Agreement effective as of July 12, 2001; and such termination has been disputed
by Synbiotics; and
Whereas, Agen and Synbiotics wish to redefine their business relationship
as set forth herein and to supersede all existing agreements previously referred
to as "Previous Agreements".
Now, Therefore, in consideration of the mutual covenants contained herein
and for other good and valuable consideration the receipt of which is hereby
acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. Definitions.
For purposes of this Agreement, capitalized terms shall have the meanings
assigned to them in this Section 1 or elsewhere in this Agreement.
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1.1. "Affiliate(s)" shall mean any person or entity which, at the
Effective Date or at any time thereafter, is Controlled by, Controls, or is
under common Control with a Party.
1.2. "Agen Territory" shall mean the countries set forth in Exhibit A
hereto.
1.3. "Synbiotics Biologicals" shall mean the antibodies, antigens and
other chemical or biological materials (including, without limitation, the cell
lines, hybridoma, virus strains and other biological materials) specified in
Exhibit B and owned or otherwise (directly or indirectly) controlled by
Synbiotics.
1.4. "Agen Biologicals" shall mean the antibodies, antigens and other
chemical or biological materials (including, without limitation, the cell lines,
hybridoma, virus strains and other biological materials) specified in Exhibit C
and owned or otherwise (directly or indirectly) controlled by Agen.
1.5. "Confidential Information" has the meaning set forth in Section 10.1.
1.6. "Control" (including "Controlled," "Controls" and other forms) as to
an entity shall mean (a) direct or indirect ownership of fifty percent (50%) or
more of the voting securities of, or other ownership interest in, such entity;
or (b) possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of the entity in question (whether through
ownership of securities or other ownership interest, by contract or otherwise).
1.7. "Distribute," including "Distribution" and other forms, with respect
to Products, shall mean to market, advertise and otherwise promote, use, sell,
offer to sell, import, distribute and otherwise commercialize or exploit such
Products.
1.8. "Equivalent Products" shall mean veterinary diagnostic products in
ICT Format that (i) are for the same analytes as Products, and (ii) do not
contain Synbiotics Biologicals.
1.9. "Exclusive Period" shall mean the period beginning on the Effective
Date and ending on December 31, 2002.
1.10. "ICT Format" shall mean Immunochromatography strip assay format.
1.11. "ICT Products" shall mean veterinary diagnostic products in ICT
Format that contain Synbiotics Biologicals.
1.12. "Insolvency Event" means, with respect to a Party, (a) the
appointment of a trustee, receiver or custodian for all or substantially all of
the property of the Party, or for any lesser portion of such property which
appointment is not dismissed within thirty (30) days; (b) the determination by a
court or tribunal of competent jurisdiction that the Party is insolvent such
that the Party's liabilities exceed the fair market value of its assets; (c) the
filing of a petition for relief in bankruptcy by the Party on its own behalf, or
the filing of any such petition against the Party if the proceeding is not
dismissed or withdrawn within sixty (60) days thereafter; (d) an assignment by
the Party for the benefit of creditors; or (e) the dissolution or liquidation
of, or cessation of business in the ordinary course by the Party.
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1.13. "Net Sales" means gross sales revenue received from the sale of
products less trade discounts (to the extent not already reflected by a reduced
gross sales revenue), shipping and handling (to the extent payments for customer
therefore were included in gross sales revenue), taxes (to the extent payments
from customer therefore were included in gross sales revenue) and other verified
bona fide trade deductions common to the veterinary industry.
1.14. "Products" means the veterinary diagnostics products set forth in
Exhibit D hereto. Products shall include all packaging variations of those set
forth in Exhibit D.
1.15. "Purchase Order" means the standard Agen purchase order to be used by
Synbiotics to order Products hereunder. Each Purchase Order shall be governed
by, and be deemed to incorporate by reference, the terms and conditions of this
Agreement.
1.16. "Synbiotics Territory" shall mean all countries of the world except
the Agen Territory.
1.17. "Term" shall mean the Initial Term together with any Additional Term
(as such terms are defined in Section 12.1).
1.18. "Trademarks" shall mean the registered or unregistered trademarks,
service marks, trade names, icons, logos, trade dress, and other indications
that are (i) set forth in Exhibit E hereto or (ii) associated with the
foregoing.
1.19. "Synbiotics Technology" shall mean any and all Synbiotics
Biologicals, technical information, invention disclosures, inventions,
discoveries, patents, copyright, know-how, trade secrets, processes, procedures,
methods, formulas, protocols, techniques, compositions, software, documents,
works of authorship, notebooks, data and other materials and information
(including any enhancements, modifications or revisions of any of the
foregoing), which are necessary or useful for the manufacture, practice,
commercialization and utilization of Products and/or ICT Products and are owned
or (directly or indirectly) controlled by Synbiotics (or to which Synbiotics
otherwise has rights). Technology does not include Synbiotics' U.S. canine
heartworm patents.
1.20. "Agen Technology" shall mean any and all Agen Biologicals, technical
information, invention disclosures, inventions, discoveries, patents, copyright,
know-how, trade secrets, processes, procedures, methods, formulas, protocols,
techniques, compositions, software, documents, works of authorship, notebooks,
data and other materials and information (including any enhancements,
modifications or revisions of any of the foregoing), which are necessary or
useful for the manufacture, practice, commercialization and utilization of
Products and/or ICT Products and are owned or (directly or indirectly)
controlled by Agen (or to which Agen otherwise has rights). Agen Technology does
not include Agen's FIV Patents.
1.21. "Technologies" shall mean Agen Technology and Synbiotics Technology.
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2. Distribution of Products During the Exclusive Period.
2.1. Distribution by Synbiotics. Subject to the terms and conditions of
this Agreement, Agen hereby appoints Synbiotics as the exclusive (subject to
Section 2.4.8) distributor, for the Exclusive Period, to Distribute Products in
the Synbiotics Territory.
2.2. Distribution by Agen. Subject to the terms and conditions of this
Agreement, Synbiotics hereby appoints Agen as the exclusive party, for the
Exclusive Period, to (i) Distribute Products in the Agen Territory, and (ii) to
make, have made and manufacture Products throughout the world.
2.3. Subdistributors. The Parties may exercise their rights under Section
2.1 or 2.2, respectively, through subdistributors, provided that such
subdistributors agree in writing to be bound by terms and conditions that are no
less protective of the other Party's rights and interests than those contained
in this Agreement.
2.4. Other Obligations.
2.4.1. No Compete.
2.4.1.1. During the Exclusive Period, Synbiotics shall not
(directly or indirectly), and shall not (directly or indirectly) cause, assist
or otherwise induce any party other than Agen to Distribute ICT Products in the
Agen Territory.
2.4.1.2. During the Exclusive Period, Agen shall not (directly
or indirectly), and shall not (directly or indirectly) cause, assist or
otherwise induce any party other than Synbiotics to Distribute ICT Products in
the Synbiotics Territory.
2.4.2. Marketing Obligations. Synbiotics and Agen shall use
commercially reasonable efforts to Distribute Products in the Synbiotics
Territory or the Agen Territory, as applicable, in accordance with the terms and
conditions of this Agreement. Synbiotics shall not modify the Products and shall
Distribute the Products only as such Products have been provided to Synbiotics
by Agen.
2.4.3. Personnel. The Parties shall maintain an active, well-trained
sales and technical staff capable of performing their respective obligations
hereunder.
2.4.4. General Conduct. The Parties shall: (i) conduct business in a
manner that reflects favorably at all times on the Products and the good name,
goodwill and reputation of the Parties; (ii) avoid deceptive, misleading or
unethical practices that are or might be detrimental to the other Party, the
Products or the public; (iii) make no false or misleading representations with
regard to the other Party or the Products; (iv) not publish or employ, or
cooperate in the publication or employment of, any misleading or deceptive
advertising material with regard to the other Party or the Products; (v)
represent to customers only such facts about the Products as stated in its
published product and service descriptions, advertising and promotional
materials or as may be stated in other nonconfidential written material; and
(vi) in no event make any representations, warranties, guarantees or other
statements on the other Party's behalf.
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2.4.5. Compliance with Law. The Parties will comply with all
applicable international, national, state, regional and local laws and
regulations, including without limitation any import or export control
regulations, in performing their obligations hereunder and in any of their
dealings with respect to the Products.
2.4.6. Governmental Approval. Synbiotics shall, with respect to the
Synbiotics Territory, and Agen shall, with respect to the Agen Territory, make
any government filings and obtain any licenses or other approvals that are
required in connection with this Agreement or the subject matter hereof,
including without limitation any import licenses, approvals and certifications.
The Parties agree to provide to the other Party copies of any such filings and
other related information as may reasonably be necessary for such other Party to
exercise its rights or perform its obligations under this Agreement.
2.4.7. Costs and Expenses. Except as expressly provided herein or
agreed to in writing by Agen and Synbiotics, each Party will pay its costs and
expenses incurred in the performance of its rights and obligations under this
Agreement.
2.4.8. Minimums. If Synbiotics fails to purchase the number of
Products specified in Exhibit F hereto by the milestone dates set forth therein,
the rights granted to Synbiotics in Section 2.1 shall immediately become
non-exclusive without further notice and Section 2.4.1.2 shall immediately
terminate and be of no force or effect.
3. Technology Licenses.
3.1. Pre 2003 License.
3.1.1. Technology. Synbiotics hereby grants to Agen the exclusive,
non-transferable (subject to Section 13.2), royalty-bearing (as set forth in
Section 6.4) sublicensable right, for the Exclusive Period, under all Synbiotics
Technology owned or (directly or indirectly) controlled by Synbiotics (or to
which Synbiotics otherwise has rights), (i) to Distribute Products in the Agen
Territory, and (ii) to make and manufacture Products throughout the world.
3.1.2. Trademarks. Synbiotics hereby grants to Agen the exclusive,
non-transferable (subject to Section 13.2), royalty-free, sublicensable right,
for the Exclusive Period, to use and display the Trademarks in the Agen
Territory in connection with the Distribution of Products.
3.2. Post 2002 License.
3.2.1. Technology. Synbiotics and Agen hereby grant to each other
(provided that, without prejudice to any rights the Parties otherwise have under
this Agreement, the Parties shall forebear to exercise any of the following
rights until (i) January 1, 2003, (ii) the occurrence of any of the events set
forth in Section 2.4.8, or (iii) the termination of this Agreement, whichever
occurs earlier) the worldwide, non-exclusive, perpetual, irrevocable,
transferable, royalty-bearing (as set forth in Section 6.4) right, with full
rights to sublicense, under all Technologies, owned or (directly or indirectly)
controlled by the Parties (or to which the Parties otherwise have rights) to (i)
make, use (including without limitation in connection with any research and
development activities), sell, offer to sell, import, access, reproduce, adapt,
alter,
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modify, combine and otherwise prepare derivatives based upon, distribute, and
otherwise commercialize and exploit Products and ICT Products and any
Technologies in connection therewith, (ii) practice any method in connection
with any of the foregoing, and (iii) have any of the foregoing rights exercised
by any third party.
3.2.2. Trademarks. Synbiotics hereby grants to Agen (provided that,
without prejudice to any rights Agen otherwise has under this Agreement) Agen
shall forebear to exercise any of the following rights until (i) January 1,
2003, (ii) the occurrence of any of the events set forth in Section 2.4.8, or
(iii) the termination of this Agreement, whichever occurs earlier) the
exclusive, perpetual, irrevocable, transferable, royalty-bearing (as set forth
in Section 6.4) right, with full rights to sublicense, to use and display the
Trademarks in Japan in connection with distribution of the Products or
Equivalent Products. Synbiotics retains the exclusive rights to the Trademarks
in Japan for all other analytes.
3.2.3. Moulds. Both Parties agree that the moulds used to make the
plastic housings, as set forth in Exhibit G, are jointly owned and that both
Parties will have continued use of the moulds.
3.2.4. Return of Property. Both Parties agree to return any property
or assets belonging to the other party, as set forth in Exhibit G, (other than
moulds) as soon as practicable but in any event within 30 days of termination
under Section 12. Four(4) vials of viable Master Cell Banks for FeLV clone
1111B10A5 will be transferred to Synbiotics within 60 days of the Effective
Date.
3.2.5. FIV License. Agen grants to Synbiotics a non-exclusive license
for the territory of Europe (European countries from the Atlantic to Russia) for
Agen's FIV patents , patent application number 92912386.7, ("FIV Patents").
3.3. Regulatory Filings. Synbiotics hereby grants to Agen all rights and
other benefits (including without limitation any rights of reference) conferred
by or otherwise resulting from any government or regulatory filings, licenses or
approvals with respect to Products ("Filings") exclusively and perpetually, with
respect to Filings in or for Japan. Synbiotics shall, upon Agen's request,
deliver to Agen such records, data or other documents or information, execute
and deliver or cause to be delivered, all such consents, documents or further
instruments, take or cause to be taken all such other actions, and otherwise
cooperate with and assist Agen as reasonably deemed necessary by Agen to obtain
the full benefits of the rights granted to it herein. If a Party ("Terminating
Party") terminates the Agreement as provided for Section 12, provided however
that such termination is only as a result of an event described in 1.12 (e),
then the other Party ("Terminated Party") shall grant to the Terminating Party
all rights and other benefits (including without limitation any rights of
reference) conferred by or otherwise resulting from any government or regulatory
filings, licenses or approvals with respect to Products ("Filings") exclusively
and perpetually, with respect to Filings in or for the Synbiotics Territory or
the Agen Territory as the case may be. The Terminated Party shall, upon the
Terminating Party's request, deliver to the Terminating Party such records, data
or other documents or information, execute and deliver or cause to be delivered,
all such consents, documents or further instruments, take or cause to be taken
all such other actions, and otherwise cooperate with and assist the Terminating
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Party as reasonably deemed necessary by the Terminating Party to obtain the full
benefits of the rights granted to it herein
4. Orders.
4.1. Products. During the term of this Agreement, Agen agrees to
manufacture and sell Products to Synbiotics in accordance with the terms and
conditions set forth herein. All orders for Products submitted by Synbiotics
shall be initiated by a written Purchase Order. The Synbiotics Forecast shall be
deemed a written Purchase Order (subject to Section 4.4). No Purchase Order
shall be binding on Agen unless and until accepted by Agen in writing. However,
Agen agrees not to unreasonably decline to accept Synbiotics' Purchase Orders.
Each Purchase Order shall specify the quantity, requested shipment method, and
requested schedule and delivery destination for each ordered Product. Each
Purchase Order shall be governed by and subject to the terms and conditions of
this Agreement (regardless of whether such Purchase Order references this
Agreement). Any terms, conditions or provisions contained in any Purchase Order
or other Synbiotics document that are different from or in addition to those
contained in this Agreement are hereby expressly rejected and will not apply to
any order for, or shipment of, Products by Agen. Synbiotics acknowledges that
Agen is unwilling to enter into an agreement relating to the Products that
contains any such different or additional terms, conditions or provisions. No
conduct by Agen, including, without limitation, shipment of Products, shall
constitute, or be construed to constitute, Agen's consent to or recognition of a
contract containing terms, conditions or provisions that are different from or
are not contained in this Agreement.
4.2. Biologicals.
4.2.1 Synbiotics. Synbiotics shall supply to Agen , upon a
respective order by Agen ("Agen Order"), Agen's
requirements of Synbiotics Biologicals of a quantity
and quality as necessary for Agen to manufacture ICT
Products consistent with Agen's requirements and quality
standards. Each Agen Order shall specify the quantity,
requested shipment method, and requested schedule and
delivery destination for ordered Synbiotics Biologicals
` and Synbiotics shall promptly confirm each such Agen
Order in writing. Synbiotics shall pay all costs of
insurance, packaging, transportation and shipment of
Synbiotics Biologicals. Each Agen Order shall be governed
by and subject to the terms and conditions of this
Agreement (regardless of whether such Agen Order
references this Agreement). Any terms, conditions or
provisions contained in any Agen Order or other Agen
document that are different from or in addition to those
contained in this Agreement are hereby expressly rejected
and will not apply to any order for, or shipment of,
Synbiotics Biologicals by Synbiotics. Agen acknowledges
that Synbiotics is unwilling to supply Synbiotics
Biologicals under any such different or additional terms,
conditions or provisions. No conduct by Synbiotics,
including, without limitation, shipment of Synbiotics
Biologicals, shall constitute, or be construed to
constitute, Synbiotics' consent to or recognition of a
contract
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containing terms, conditions or provisions that are
different from or are not contained in this Agreement.
4.2.2 Agen. Agen shall supply to Synbiotics , upon a respective
order by Synbiotics ("Synbiotics Order"), Synbiotics'
requirements of Agen's Biologicals of a quantity and
quality as necessary for Synbiotics to manufacture ICT
Products consistent with Synbiotics' requirements and
quality standards. Each Synbiotics Order shall specify
the quantity, requested shipment method, and requested
schedule and delivery destination for ordered Agen
Biologicals and Agen shall promptly confirm each such
Synbiotics Order in writing. Agen shall pay all costs of
insurance, packaging, transportation and shipment of Agen
Biologicals. Each Synbiotics Order shall be governed by
and subject to the terms and conditions of this Agreement
(regardless of whether such Synbiotics Order references
this Agreement). Any terms, conditions or provisions
contained in any Synbiotics Order or other Synbiotics
document that are different from or in addition to those
contained in this Agreement are hereby expressly rejected
and will not apply to any order for, or shipment of, Agen
Biologicals by Agen. Synbiotics acknowledges that Agen is
unwilling to supply Agen Biologicals under any such
different or additional terms, conditions or provisions.
No conduct by Agen, including, without limitation,
shipment of Agen Biologicals, shall constitute, or be
construed to constitute, Xxxxx consent to or recognition
of a contract containing terms, conditions or provisions
that are different from or are not contained in this
Agreement.
4.3. Forecast. No later than fifteen (15) days from the Effective
Date, Synbiotics shall provide Agen a twelve (12) month rolling forecast of
Synbiotics' requirements of Products ("Synbiotics Forecast") and Synbiotics'
requirements of Agen Biologicals. Such Synbiotics Forecast shall be updated by
the first day of each subsequent month. No later than fifteen (15) days from the
receipt of the Synbiotics Forecast, Agen shall provide Synbiotics a twelve (12)
month rolling forecast of Agen's requirements of Synbiotics Biologicals ("Agen
Forecast"). Such Agen Forecast shall subsequently be updated on a monthly basis
within fifteen (15) days from receipt of the respective updated Synbiotics
Forecast. The quantity of Product or Synbiotics Biologicals listed for the first
ninety (90) days of each forecast shall be a firm order, which is a guarantee of
minimum orders to be placed during the first ninety (90) days of each forecast
and the remainder of the forecast shall be used for planning purposes only.
4.4. Change Orders and Cancellation. Purchase Orders and Agen Orders
shall be deemed firm offers. To be effective, any change to a Purchase Order or
an Agen Order, as applicable, shall be mutually agreed upon in writing by the
Parties, and may require a change in fees reflecting the inclusion, deletion or
substitution of Products, as well as Synbiotics' or Agen's, as applicable,
direct costs of processing such change. Notwithstanding the foregoing,
Synbiotics and Agen may change Purchase Orders or Agen Orders, respectively, in
accordance with the following schedule:
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---------------------------------------- -------------------------------------- --------------------------------------
Number of days prior to scheduled Allowable decrease Allowable increase
shipment date (% of Purchase Order quantity) (% of Purchase Order quantity)
---------------------------------------- -------------------------------------- --------------------------------------
0-90 0% 0%
---------------------------------------- -------------------------------------- --------------------------------------
91-180 30% 30%
---------------------------------------- -------------------------------------- --------------------------------------
181-270 50% 50%
---------------------------------------- -------------------------------------- --------------------------------------
271-360 60% 60%
---------------------------------------- -------------------------------------- --------------------------------------
5. Shipment and Delivery.
5.1. Delivery. Shipment method and requested schedules for Products shall
be specified in each Purchase Order and confirmed in Agen's acceptance of such
order. Shipped Products shall be packed for shipment and storage in accordance
with Agen's standard commercial practices. Each shipment shall be made C.I.F.
destination point of shipment. Title and risk of loss shall pass to Synbiotics
on delivery of Products. Agen reserves the right to make selections of common
carrier and method of shipment. Shipping dates shall be approximate only, and
Agen shall not be liable for any damage, loss or expense incurred by Synbiotics
if Agen fails to meet any specified shipping date. Further, Agen shall not be
liable for any breach or delay or other failure caused by Synbiotics' delay or
failure to supply Synbiotics Biologicals within the delivery schedule set forth
in the Agen Order or that do not meet Agen's requirements and quality standards.
Notwithstanding anything in this Agreement, all deliveries and shipping dates
are subject to Sections 5.3 and 7.1.2 below.
5.2. Additional Supplies. Both Parties shall make commercially reasonable
efforts to fulfill orders exceeding the amounts reflected in the 0-90 days
portion of the Synbiotics Forecast or the Agen Forecast, as applicable
("Additional Supplies"), provided, however, that Synbiotics Biologicals related
to Products to be delivered to Synbiotics shall never be deemed Additional
Supplies. In no event shall a failure to deliver Additional Supplies constitute
a Failure to Supply pursuant to Section 5.3.
5.3. Failure to Supply. Should either Party fail to meet the delivery
schedule (subject to Sections 5.1 and 13.9) in the applicable Agen Order or
Purchase Order, as the case may be, with respect to any Synbiotics Biologicals,
Agen Biologicals or products, as applicable, ("Failure to Supply") the other
Party shall notify such Party of such failure in writing. Upon receipt of such
notice such Party shall have thirty (30) days to cure such Failure to Supply.
Upon expiration of such thirty (30) day cure period such Party shall be deemed
in material breach of this Agreement unless the Parties agree otherwise in
writing prior to the expiration of said period.
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6. Payments.
6.1. Fees for Products. Products shall be provided at Agen's then-current
standard pricing, which standard pricing as of the Effective Date is set forth
in Exhibit H hereto.
6.2. Open Accounts. Synbiotics hereby acknowledges that it owes to Agen
under the Collaboration Agreement, and hereby agrees to pay to Agen pursuant to
the terms and conditions set forth herein, an amount of five hundred thousand
six hundred and eighty one dollars ninety seven cents (USD $500,681.97) (the
"Open Accounts"). Interest will accrue, from the Effective Date, in accordance
with section 7.3 and shall be due and payable on January 15, 2002.
6.3. Fees for Biologicals. The prices for Biologicals shall be as set
forth in Exhibit H hereto. Price increases shall be limited to 150% of actual
increases in manufacturing costs for the Biologicals, as documented in writing
and provided to the other party, and shall not occur more than once in any
twelve-month period. In no event shall a price increase exceed 150% of the
increase in the "Consumer Price Index for all Urban Consumers" as published by
the U.S. Department of Labor ("CPI") for the twelve-month period preceding the
price increase.
6.4. Agen Royalties. Agen shall pay to Synbiotics a seven percent (7%)
royalty of the Net Sales of Products, Equivalent Products and ICT Products in
the Agen Territory during the Exclusive Period. Beginning January 1, 2003, Agen
shall pay Synbiotics a seven percent (7%) royalty of the Net Sales of any
product sold that includes the Synbiotics Biologicals, that were supplied by
Synbiotics pursuant to Section 4.2.1, and/or any Product sold under the
"Witness" Trademark in or for Japan. Notwithstanding the above, beginning
January 1, 2003, if Agen obtains the Synbiotics Biologicals from a third party
under a valid license agreement then such Net Sales will not be subject to
Section 6.4. Agen agrees to furnish Synbiotics with a copy of such license
agreement.
6.5. Synbiotics Royalties. Beginning January 1, 2003, Synbiotics shall pay
Agen a seven percent (7%) royalty of the Net Sales of any product manufactured
and sold by Synbiotics that (i) use any Agen Biologicals, that were supplied by
Agen pursuant to Section 4.2.2 or (ii) except for the license granted herein
would infringe Agen's FIV Patents. Products manufactured by Agen and sold by
Synbiotics after January 1, 2003, are not subject to a royalty. Notwithstanding
the above, beginning January 1, 2003, if Synbiotics obtains the Agen Biologicals
from a third party under a valid license agreement then such Net Sales will not
be subject to Section 6.5. Synbiotics agrees to furnish Agen with a copy of such
license agreement.
6.6. Fees for Distribution in Japan. In consideration of the exclusive
right to Distribute Products in Japan Agen shall pay to Synbiotics an amount of
USD $350,000, such amount to be paid in eleven monthly installments of USD
$30,000 (beginning thirty days after the first shipment of Products to Japan
after the Effective Date) and a one-time payment of USD $20,000 to be paid upon
the first shipment of Products to Japan after the Effective Date. Synbiotics
hereby agrees that Agen, at it's sole discretion, has full right of offset of
such monthly installments to, but not limited to, the Open Accounts.
6.7. Synbiotics hereby agrees to reimburse Agen for the 8% royalties paid
to Becton Xxxxxxxxx on sales of ICT Products from Agen to Synbiotics.
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7. Payment Terms. All payments hereunder shall be made in United States dollars.
7.1. Payments to be Made by Synbiotics.
7.1.1. Synbiotics shall pay the Open Accounts to Agen in monthly
installments of two hundred thousand dollars (USD $200,000), or the full amount,
if less, which amounts shall be due and payable on the last day of each month
beginning in November 2001. Notwithstanding the foregoing, all Open Accounts
shall be paid in full by December 31, 2001.
7.1.2. All other payments to be made by Synbiotics hereunder shall be
due and payable within sixty (60) days from shipment, if accrued before January
1, 2002, and within thirty (30) days from shipment, if accrued on or after
January 1, 2002.
7.1.3. All royalty payments to be made by Synbiotics to Agen
hereunder shall be due and payable on a quarterly basis within sixty (60) days
after the end of each calendar quarter.
7.1.4. All payments to be made by Synbiotics to Agen as described in
6.7 hereunder shall be due and payable on a quarterly basis within sixty (60)
days from invoice.
7.2. Payments to be Made by Agen.
7.2.1. All fees for Synbiotics Biologicals to be made by Agen to
Synbiotics hereunder shall be due and payable within sixty (60) days from
shipment, if accrued before January 1, 2002, and within thirty (30) days from
shipment, if accrued on or after January 1, 2002.
7.2.2 All royalty payments to be made by Agen to Synbiotics hereunder
shall be due and payable on a quarterly basis within sixty (60) days after the
end of each calendar quarter, and the fees to be paid by Agen to Synbiotics
pursuant to Section 6.6 hereof shall be due and payable in accordance with the
Schedule in Section 6.6.
7.3. Interest. Interest on any late payments shall accrue at the rate of
one and one-half percent (1.5%) per month or the maximum rate permitted by
applicable law, whichever is less, from the due date until such amount is paid.
8. Warranties
8.1. Warranties by Agen. Agen represents, warrants and covenants that (a)
Agen has all rights and the full power and authority to enter into this
Agreement and to perform its obligations hereunder; (b) as of the date of
delivery to Synbiotics, the Products supplied by Agen hereunder shall
substantially conform to the accompanying specifications; (c) Agen has the right
to accept the rights and licenses contemplated by this Agreement, without the
need for any consents, approvals or immunities not yet obtained; and (d) the
Agen Technology and the reproduction, distribution and other use thereof as
contemplated by this Agreement do not and shall not infringe or misappropriate
any patent, trade secret, copyright or other rights of any third party. If any
Product does not conform substantially to the accompanying specifications as of
the date of delivery to Synbiotics, Agen's sole liability, and Synbiotics'
exclusive remedy with
11
respect thereto, is for Agen to repair or replace such non-conforming Product,
and if such repair or replacement is not possible, to refund the purchase price
for such non-conforming Product.
8.2. Warranties by Synbiotics. Synbiotics represents, warrants and
covenants that (a) Synbiotics has the all rights and the full power and
authority to enter into this Agreement and to perform its obligations hereunder;
(b) Synbiotics has the sole and exclusive right to grant the rights and licenses
set forth in this Agreement, without the need for any licenses, releases,
consents, approvals or immunities not yet granted; (c) the Synbiotics Technology
and the reproduction, distribution and other use thereof as contemplated by this
Agreement do not and shall not infringe or misappropriate any patent, trade
secret, copyright or other rights of any third party; (d) Synbiotics has not
made and shall not make any commitments inconsistent with Agen's rights under
this Agreement; (e) its entering into this Agreement and its performance of its
obligations hereunder does not conflict with or breach any commitment, agreement
or obligation with or towards any third party.
8.3. Disclaimer of Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, NEITHER PARTY MAKES (AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS)
ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES
THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
9. Indemnification
9.1. Indemnity Obligations. Each Party shall defend the other Party from
and against any third-party claim, suit or proceeding resulting from any breach
(or any claim that, if true, would constitute a breach) of such Party's
representations, warranties or covenants set forth in Section 8, and shall
indemnify and hold harmless such other Party from any damages, costs, losses or
liability (including attorneys' fees and related costs) arising out of or
relating to such claim, suit or proceeding.
9.2. Conditions. Neither Party shall be obligated to indemnify, hold
harmless or defend the other Party pursuant to Section 9.1 unless (and only to
the extent) the other Party (a) provides prompt notice of the commencement of
the claim, suit or proceeding for which indemnification is sought, (b) provides
reasonable cooperation to such Party, and (c) allows such Party to control the
defense and settlement thereof, provided that (i) the other Party may, at its
option and expense, participate and appear on an equal footing with such Party
in the claim, suit or proceeding and (ii) neither Party may settle a claim, suit
or proceeding without approval of the other Party, which approval shall not be
unreasonably withheld or delayed.
10. Confidential Information and Disclosure
10.1. Confidential Information. Each Party agrees to maintain all
Confidential Information of the other Party in confidence to the same extent
that it protects its own similar Confidential Information (but in no event shall
such Party use less than reasonable care in
12
protecting such Confidential Information) and to use such Confidential
Information of the other Party only for the purposes of exercising its rights
and performing its obligations under this Agreement. "Confidential Information"
means any information (whether in writing, or in oral, graphic, electronic or
any other form) that is marked or confirmed in writing as confidential or
proprietary. Each Party agrees to take all reasonable precautions to prevent any
unauthorized disclosure or use of Confidential Information of the other Party,
including, without limitation, disclosing such Confidential Information only to
its employees or agents (a) with a need to know such information, (b) who are
parties to appropriate agreements or confidentiality obligations sufficient to
comply with this Section 10, and (c) who are informed of the
nondisclosure/non-use obligations imposed by this Section 10, and the receiving
Party shall take appropriate steps to implement and enforce such
non-disclosure/non-use obligations. The foregoing restrictions on disclosure and
use shall survive for four (4) years following termination or expiration of this
Agreement.
10.2. Exclusions. The foregoing restrictions on disclosure and use
shall not apply with respect to any Confidential Information that (a) was or
becomes publicly known through no fault of the receiving Party; (b) was
rightfully known or becomes rightfully known to the receiving Party without
confidential or proprietary restriction from a source other than the disclosing
Party; (c) is documented by the receiving Party as having been independently
developed by the receiving Party without the participation of individuals who
have had access to or use of the Confidential Information; (d) is approved by
the disclosing Party for disclosure without restriction in a written document
signed by a duly authorized officer of such disclosing Party; or (e) the
receiving Party is legally compelled to disclose, provided, however, that prior
to any such compelled disclosure, the receiving Party shall (i) assert the
privileged and confidential nature of the Confidential Information against the
third party seeking disclosure and (ii) cooperate fully with the disclosing
Party in protecting against any such disclosure and/or obtaining a protective
order narrowing the scope of such disclosure and/or use of the Confidential
Information. With respect to (e) above, in the event that such protection
against disclosure is not obtained, the receiving Party shall be entitled to
disclose the Confidential Information, but only as and to the extent necessary
to legally comply with such compelled disclosure.
11. Limitation of Liability. TO THE EXTENT ALLOWED BY APPLICABLE LAW AND EXCEPT
FOR LIABILITY UNDER SECTIONS 9 OR 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
(INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, AND
INTERRUPTION OF BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
12. Term and Termination
12.1. Term. The term of this Agreement shall commence as of the
Effective Date and, unless earlier terminated in accordance with the provisions
of this Section 12, continue for a period of three (3) years (the "Initial
Term"), and thereafter shall automatically be renewed for additional one (1)
year periods (each, an "Additional Term"), unless either Party terminates this
Agreement by giving at least three hundred sixty (360) days prior written notice
before the expiration of the Initial Term or any Additional Term.
13
12.2. Termination for Material Breach. If either Party materially breaches
any of its obligations under this Agreement, the non-breaching Party, at its
option, shall have the right to terminate this Agreement by written notice to
the other Party, if such other Party does not cure such breach within thirty
(30) days after being notified of such breach by the non-breaching Party. If the
breach consists of a Failure to Supply which has not been cured pursuant to
Section 5.3 of this Agreement, or if the breaching party has previously cured a
similar breach (e.g., a breach of the same provision of or obligation under this
Agreement) within the preceding rolling twelve-month period, the non-breaching
Party may terminate this Agreement immediately and the breaching Party shall not
have an opportunity to cure such breach under this Section 12.2. Notwithstanding
the generality of the foregoing, the Parties acknowledge and agree that failure
to pay any amounts owed according to the terms and conditions hereof by any
Party shall constitute a material breach of this Agreement.
12.3. Insolvency Event. Either Party may immediately terminate this
Agreement by giving written notice to the other Party if the other Party becomes
subject of an Insolvency Event.
12.4. Effect of Termination; Survival. Sections 1, (2.4.4, 2.4.6), 3.2,
3.3, 4.2, 4.3 (as to Agen), 4.4 (as to Agen), 6.4 (as provided therein), 6.5,
7.1, 7.2, 7.3, 8.3, 9, 10 (as provided therein), and 13 shall survive any
termination of this Agreement. In addition, and notwithstanding anything to the
contrary in this Agreement, all fees and other payments (except for royalty
payments pursuant to Section 6.4 and 6.5) accrued before any expiration or
termination of this Agreement shall be due and payable immediately upon such
expiration or termination.
13. General Provisions
13.1. Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and shall be deemed to be properly
given upon the earlier of (a) actual receipt by the addressee or (b) five (5)
business days after being sent via private industry courier to the respective
Parties at the addresses first set forth above or to such other person or
address as the Parties may from time to time designate in a writing delivered
pursuant to this Section 13.1.
13.2. Assignment. Neither Party shall assign, sell, transfer, delegate or
otherwise dispose of, whether voluntarily or involuntarily, by operation of law
or otherwise, this Agreement or any or its rights or obligations under this
Agreement. Notwithstanding the foregoing, either Party may assign or transfer
this Agreement, or any of its rights and obligations hereunder, to a third Party
as part of a merger, consolidation, corporate reorganization, sale of all or
substantially all of such Party's assets or like event ("Permissible
Assignment"), provided that the Party shall, as a condition to such Permissible
Assignment, cause the third party to agree to, accept and assume the obligations
of this Agreement to the same extent as the Party engaging in such transaction.
Any purported assignment, sale, transfer, delegation or other disposition,
except as permitted herein, shall be null and void. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
Parties and their respective successors and permitted assigns, any permitted
assign of Synbiotics shall be deemed to be Synbiotics for
14
purposes of this Agreement and any permitted assign of Agen shall be deemed to
be Agen for purposes of this Agreement.
13.3. Governing Law. This Agreement is to be construed in accordance with
and governed by the internal laws of the State of California (as permitted by
Section 1646.5 of the California Civil Code or any similar successor provision)
without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the Parties, and, to the extent federal
law is applicable, the laws of the United States of America without giving
effect to any choice of law rule that would cause the application of the laws of
any other country. The United Nations Convention on the International Sale of
Goods (CISG) shall not apply.
13.4. Dispute Resolution. The Parties agree to be bound by the terms and
conditions of the Dispute Resolution process as described in Exhibit K.
Notwithstanding the foregoing either party may seek and file an application for
injunctive relief or other equitable or provisional remedies in a court of
competent jurisdiction.
13.5. Use of Third Parties. Each Party may use consultants and other
contractors in connection with the performance of obligations and exercise of
rights under this Agreement, provided that such consultants and contractors
shall be subject to the same obligations as the Party that engages them and such
Party shall be responsible for their actions .
13.6. Waiver. The waiver by either Party of a breach of or a default under
any provision of this Agreement shall be in writing and shall not be construed
as a waiver of any subsequent breach of or default under the same or any other
provision of the Agreement, nor shall any delay or omission on the part of
either Party to exercise or avail itself of any right or remedy that it has or
may have hereunder operate as a waiver of any right or remedy.
13.7. Severability. If any term, clause or provision of this Agreement
shall be determined to be invalid, the validity of any other term, clause or
provision shall not be affected, and such invalid term, clause or provision
shall be deemed deleted from this Agreement.
13.8. Relationship of the Parties. This Agreement shall not be construed
as creating an agency, partnership, joint venture or any other form of
association, for tax purposes or otherwise, between the Parties; the Parties
shall at all times be and remain independent contractors and neither Party nor
its agents have any authority of any kind to bind the other Party in any respect
whatsoever.
13.9. Force Majeure. Each Party shall be excused for any failure or delay
in performing any of its obligations, except for any obligations to make
payments, under this Agreement to the extent on a day-for-day basis that such
failure or delay is caused by any act of God, accident, explosion, fire, storm,
earthquake, flood, drought, riot, embargo, civil commotion, war, or any
circumstances or event beyond the reasonable control of such Party; provided,
however, that such Party notifies the other Party reasonably promptly of the
reason for such failure or delay. Notwithstanding the foregoing, in the event
such Party does not resume its performance within forty-five (45) days after
such failure or delay, the other Party may terminate this Agreement.
15
13.10. Equitable Relief. Each Party recognizes that the covenants contained
in Sections 3, 4.1, 4.2, and 10 hereof and their continued performance as set
forth in this Agreement are necessary and critical to protect the legitimate
interests of the other Party, that the other Party would not have entered into
this Agreement in the absence of such covenants and the assurance of their
continued performance as set forth in this Agreement, and that the other Party's
breach or threatened breach of such covenants shall cause the first Party
irreparable harm and significant injury, the amount of which shall be extremely
difficult to estimate and ascertain, thus, making any remedy at law or in
damages inadequate. Therefore, each Party agrees that the other Party shall be
entitled to specific performance, an order restraining any breach or threatened
breach of such sections of this Agreement, and any other equitable relief the
first Party deems appropriate, without the necessity of posting of any bond or
security. This right shall be in addition to any other remedy available to the
first Party at law or in equity.
Entire Agreement. This Agreement, including the Exhibits hereto, constitutes the
entire agreement between the Parties concerning the subject matter hereof and
supersedes all prior or contemporaneous representations, discussions, proposals,
negotiations, conditions and agreements (including, without limitation, the
Collaboration Agreement, but not including any previous non-disclosure/non-use
provisions or agreements) relating to the subject matter of this Agreement. No
amendment or modification of any provision of this Agreement shall be effective
unless in writing and signed by the duly authorized representatives of Agen and
Synbiotics.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
duly authorized representatives of the Parties as of the Effective Date.
AGEN BIOMEDICAL LTD. SYNBIOTICS CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx X. Rosinack
----------------------------- ----------------------------------
Signature Signature
Name: Xxxxxxx Xxxxxxxx Name: Xxxx X. Rosinack
Title: General Manager Title: President and CEO
16
EXHIBIT A
Agen Territory
ASIA AUSTRALIA AND OCEANIA
Bangladesh America Samoa
Bhutan Australia
Borneo Christmas Island
Brunei Xxxx Islands
Cambodia Federated States of Micronesia
China Fiji
Hong Kong French Polynesia
Burma (Myanmar) Guam
India Xxxxxx
Indonesia Kiribati
Japan Xxxxxxxx Islands
Korea, North Nauru
Korea, South New Caledonia
Laos New Zealand
Macau Niue Island
Malaysia Northern Mariana Islands
Maldives Palau
Mongolia Papua New Guinea
Nepal Pitcairn Islands
Pakistan Solomon Islands
Paracel Islands Tonga
Philippines Tuvalu
Singapore Vanuatu
Sri Lanka Wallis and Futuna
Taiwan Western Samoa
Thailand
Vietnam
17
EXHIBIT B
Synbiotics Biologicals
Supplied by Synbiotics:
1. Canine Heartworm Antigen Test Kit Biologicals:
Canine Heartworm antiserum (Polyclonal) - USDA registered product code
E019.00
Canine Heartworm monoclonal antibody, clone key DI 16 872.5 - USDA
registered product code E118.00
2. Feline Leukemia Virus Antigen Test Kit Biologicals :
Anti-Feline Leukemia Virus monoclonal antibody, clone key
1111B10A5 (currently being supplied by Agen from Synbiotics'
clones) Anti-Feline Leukemia Virus monoclonal antibody, clone key
24-1A2 (currently being supplied by Agen from UC Xxxxx clones
licensed by Synbiotics)
3. Canine Parvo Virus Antigen Test Kit Biologicals:
Anti-Parvo Virus antiserum (Polyclonal) - USDA registered product
code E024.01 Anti-Parvo Virus monoclonal antibody, clone key A1C2.32
4. Feline Heartworm Antibody Test Kit Biologicals:
DiT33 Recombinant Heartworm antigen
18
EXHIBIT C
Agen Biologicals
Supplied by Agen:
1. Feline Leukemia Virus Antigen Test Kit Biologicals:
Non-specific blocker monoclonal antibody, clone key B56.1.3A1/48
2. Canine Parvo Virus Antigen Test Kit
Non-specific blocker monoclonal antibody, clone key B56.1.3A1/48
3. Feline Immunodeficiency Virus Test Kit Biologicals:
Biotinylated FIV Peptide
Anti-Cat IgG monoclonal antibody, clone key 3B5/21
4. VetRED Canine Heartworm Test Kit Biologicals:
Anti - RBC monoclonal antibody H79.48A.3C3/99
Anti - HW monoclonal antibody D46.8.4D4/23
Non-specific blocker monoclonal antibody B56.1.3A1/48
19
EXHIBIT D
Products
1. Canine Heartworm Antigen Test Kit containing typically:
10 or 25 Pouches, each containing 1 test device and a packet of
desiccant
10 or 25 Pipettes
1 Buffer Dropper Bottle, labeled
1 Directions for Use Leaflet
Biologicals used in manufacture of the test device include:
Canine Heartworm antiserum (Polyclonal) - USDA registered product code
E019.00
Canine Heartworm monoclonal antibody, clone key DI 16 872-5,
USDA registered product code E118-00
2. Feline Leukemia Virus Antigen Test Kit containing typically:
10 Pouches, each containing 1 test device, and a packet of desiccant
10 Pipettes
1 Buffer Dropper Bottle, labeled
1 Directions For Use Leaflet
Biologicals used in manufacture of the test device include:
Anti-Feline Leukemia Virus monoclonal antibody, clone key 24-1A2
Anti-Feline Leukemia Virus monoclonal antibody, clone key 1111B10A5
Non Specific Blocker monoclonal antibody, clone key B56.1.3A1/48
3. Canine Parvo Virus Antigen Test Kit containing typically:
5 Pouches, each containing 1 test device, and a packet of desiccant
5 Pipettes
1 Buffer Dropper Bottle, labeled
1 Directions For Use Leaflet
Biologicals used in the manufacture of the test kit include:
Anti-Parvo Virus monoclonal antibody, clone key A1C2.32
Anti-Parvo Virus antiserum (Polyclonal) with USDA registered product
code E024.01
Non Specific Blocker monoclonal antibody, clone key B56.1.3A1/48
20
EXHIBIT D (continued)
Products
4. Feline Heartworm Antibody Test Kit containing typically:
5 or 25 Pouches, each containing 1 test device and a packet of desiccant
5 or 25 Pipettes
1 Buffer Dropper Bottle, labeled
1 Directions for Use Leaflet
Biologicals used in manufacture of the test device include:
DiT33 recombinant heartworm antigen
5. Feline Immunodeficiency Virus Test Kit containing typically:
10 Pouches, each containing 1 test device, and a packet of desiccant
10 Pipettes
1 Buffer Dropper Bottle, labeled
1 Directions For Use Leaflet
Biologicals used in manufacture of the test device include:
Streptavidin
Biotinylated FIV Peptide
Anti-Cat IgG monoclonal antibody, clone key 3B5/21
6. Feline Leukemia Virus Antigen and Feline Immunodeficiency Virus Combination
Test Kit containing typically:
10 Pouches, each containing 1 test device, and a packet of desiccant
10 Pipettes
1 Buffer Dropper Bottle, labeled
1 Directions For Use Leaflet
Biologicals used in manufacture of the test device include:
Anti-Feline Leukemia Virus monoclonal antibody, clone key 24-1A2
Anti-Feline Leukemia Virus monoclonal antibody, clone key 1111B10A5
Non Specific Blocker monoclonal antibody, clone key B56.1.3A1/48
Streptavidin
Biotinylated FIV Peptide
Anti-Cat IgG monoclonal antibody,
clone key 3B5/21
21
EXHIBIT D (continued)
Products
7. VetRED Canine Heartworm Test Kit containing typically:
25 plastic agglutination trays
25 plastic stirrer sticks
1 dropper bottle Test Reagent
1 dropper bottle Negative Control
1 dropper bottle Positive Control
22
EXHIBIT E
Trademarks
"Witness" is a registered trademark of Synbiotics Corporation.
23
EXHIBIT F
Minimums and Milestone Dates
Minimum number of test units of all products combined purchased by
Synbiotics from AGEN in the first twelve (12) months from the effective date and
each twelve (12) month period thereafter, is 1,000,000 tests.
For purposes of Exhibit F "purchased" shall mean shipped in accordance with
Section 5.
If Agen fails to ship in accordance with the delivery schedule, then the
units that should have shipped will count toward the minimum.
24
EXHIBIT G
Listing of Property
FeLV Cell Lines
The cell lines and clones for the anti-feline leukemia virus monoclonal
antibody, clone key 1111B10A5 used in the feline leukemia virus antigen test kit
are the property of Synbiotics.
Moulds
One 4 cavity mould and associated inserts for the manufacture of WITNESS top
plates and WITNESS bottom plates for CHW and FeLV supplied by Poly Industries
Pty Ltd,
0 Xxxxxxxx Xxxxxx, Xxxxxxxx, XXX 0000.
One 4 cavity mould and associated inserts for the manufacture of WITNESS top
plates and WITNESS bottom plates for FeLV and FIV combination test supplied by
Poly Industries Pty Ltd,
0 Xxxxxxxx Xxxxxx, Xxxxxxxx, XXX 0000.
25
EXHIBIT H
Product Prices and Biologicals Prices
Transfer prices for veterinary test kits and components
Canine Heartworm Antigen Test Kit
USD 1.625 per test for the first 900,000 tests ordered and/or shipped
in each twelve (12) month period starting from the Effective Date.
and
USD 1.45 per test for all tests ordered and/or shipped above the
900,000 test number threshold for the remainder of such twelve (12)
month period.
Feline Leukemia Virus Antigen Test Kit
USD 1.625 per test
Canine Parvo Virus Antigen Test Kit
USD 2.65 per test
Canine Parvo Virus Antigen Tests - Bulk format
USD 1.20 per test
Feline Heartworm Antibody Test Kit
USD 2.0 per test
Feline Immunodeficiency Virus
USD 1.80
Feline Leukemia Virus Antigen and Feline Immunodeficiency Virus
Combination Test Kit
USD 2.55 per test
VetRED Canine Heartworm Test Kit
USD 2.00 per test
26
EXHIBIT H (continued)
Product Prices and Biologicals Prices
Prices of Synbiotics Biologicals
Canine Heartworm Antigen Test Kit Biologicals:
Canine Heartworm antiserum (Polyclonal) with USDA registered product,
Code E019.00
Price USD 2.21 per mg
Canine Heartworm monoclonal antibody, clone key DI 16 872-5,
USDA registered product, Code E118-00
Price USD 13.14 per mg
Feline Leukemia Virus Antigen Test Kit Biologicals:
Anti-Feline Leukemia Virus monoclonal antibody, clone key 1111B10A5
Price - Not applicable
Anti-Feline Leukemia Virus monoclonal antibody, clone key 24-1A2
Price - Not applicable
Canine Parvo Virus Antigen Test Kit Biologicals:
Anti-Parvo Virus antiserum (Polyclonal) - USDA registered product
code E024.01
Price USD 2.63 per mg
Anti-Parvo Virus monoclonal antibody, clone key A162.32
Price USD 3.98 per mg
Feline Heartworm Antibody Test Kit Biologicals:
DiT33 Recombinant Heartworm antigen
Price 400 USD per mg
27
Prices of Agen Biologicals
1. Feline Leukemia Virus Antigen Test Kit Biologicals:
Non-specific blocker monoclonal antibody, clone key B56.1.3A/48
Price USD 9.45 per mg
2. Canine Parvo Virus Antigen Test Kit
Non-specific blocker monoclonal antibody, clone key B56.1.3A1/48
Price USD 9.45 per mg
3. Feline Immunodeficiency Virus Test Kit Biologicals:
Biotinylated FIV Peptide1
Price USD 322.00 per mg
Anti-cat IgG monoclonal antibody N208.53B.3B5/21
Price USD 7.98 per mg
4. VetRED Canine Heartworm Test Kit:
Prices not applicable
28
EXHIBIT I
Disclosure Pursuant to Sections 8.1 and 8.2
29
EXHIBIT J
Previous Agreements
Collaboration Agreement July 7, 1995
Distributor Agreement March 9, 1992
Amendment to the Distribution Agreement July 9, 1997
Distributor Agreement March 24, 1992
Exclusive License July 1996
Amendment to the Exclusive License May 16, 1997
Amendment to the Collaboration Agreement July 9, 1997
Letter Agreement August 8, 1997
Letter Agreement April 27, 1998
30
EXHIBIT K
Dispute Resolution
The Parties recognize that a bona fide dispute as to certain matters may arise
from time to time during the term of this Agreement which relates to either
Party's rights and/or obligations. The terms of this Section 13.4 set forth the
procedures to be used in the alternative dispute resolution ("ADR") process for
resolving disputes between the Parties. A Party initiating the ADR must first
send written notice of the dispute to the other Party for attempted resolution
by good faith negotiation between their respective presidents (or their
equivalents) of the affected subsidiaries, divisions, or business units within
twenty-eight (28) days after such notice is received (all references to "days"
in this ADR provision are to calendar days). If the matter is not resolved
within such twenty-eight (28) day period, or if the Parties fail to meet within
such twenty-eight (28) day period, either Party may initiate an ADR proceeding
as provided herein. The Parties shall have the right to be represented by
counsel in such a proceeding.
To begin the ADR proceeding, a Party shall provide written notice (the "ADR
Notice") to the other Party of the issues to be resolved by ADR. Within fourteen
(14) days after its receipt of the ADR Notice, the other Party may, by written
notice to the Party providing the ADR Notice, add additional issues to be
resolved within the same ADR proceeding. Within twenty-one (21) days following
receipt of the ADR Notice, the Parties shall select a mutually acceptable
neutral individual to preside in the resolution of any disputes in the ADR
proceeding. If the Parties are unable to agree on a mutually acceptable neutral
within such period, either Party may request the President of the CPR Institute
for Dispute Resolution ("CPR"), 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, to select a neutral pursuant to the following procedures:
(a) The CPR shall submit to the Parties a list of not less than five
(5) candidates within fourteen (14) days after receipt of the request,
along with a Curriculum Vitae for each candidate. Each candidate shall
be independent and shall not be an employee, director or holder of
outstanding equity securities of either Party or any of their
subsidiaries or affiliates or of any entity with which either Party
has a contractual or business relationship.
(b) Such list shall include a statement of disclosure by each
candidate of any circumstances likely to affect his or her
impartiality.
(c) Each Party shall number the candidates in order of preference
(with the number one (1) signifying the greatest preference and shall
deliver the list to the CPR within seven (7) days following receipt of
the list of candidates. If a Party believes a conflict of interest
exists regarding any of the candidates, that Party shall provide a
written explanation of the conflict to the CPR along with its list
showing its order of preference for the candidates. Any Party failing
to return a list of preferences on time shall be deemed to have no
order of preference.
(d) If the Parties collectively have identified fewer than three (3)
candidates deemed to have conflicts, the CPR immediately shall
designate as the neutral the candidate for whom the Parties
collectively have indicated the greatest preference. If a tie should
result between two candidates, the CPR may designate either candidate.
If the Parties
31
collectively have identified three (3) or more candidates deemed to
have conflicts, the CPR shall review the explanations regarding the
conflicts and, it its sole discretion, may either
(i) immediately designate as the neutral the candidate for whom
the Parties collectively have indicated the greatest
preference, or
(ii) issue a new list of not less than five (5) candidates, in
which case the procedures set forth in subparagraphs
2(a)-2(d) shall be repeated until the neutral is selected.
No earlier than twenty-eight (28) days or later than fifty-six (56) days after
selection, the neutral shall hold a hearing to resolve each of the issues
identified by the Parties. The ADR proceeding shall take place at a location
agreed upon by the Parties. If the Parties cannot agree, the neutral shall
designate a location other than the principal place of business of either Party
or any of their subsidiaries or affiliates.
At least seven (7) days prior to the hearing, each Party shall submit, in
written form, the following to the other Party and the neutral:
(a) a copy of all exhibits on which such Party intends to rely in any
oral or written presentation to the neutral;
(b) a list of any witnesses such Party intends to call at the
hearing, and a short summary of the anticipated testimony of each
witness;
(c) a proposed ruling on each issue to be resolved, together with a
request for a specific damage award or other remedy for each
issue. The proposed rulings and remedies shall not contain any
recitation of the facts or any legal arguments and shall not
exceed one (1) page per issue.
(d) a brief in support of such Party's proposed rulings and remedies,
provided that the brief shall not exceed twenty (20) pages. This
page limitation shall apply regardless of the number of issues
raised in the ADR proceeding.
No discovery shall be required or permitted by any means, including depositions,
interrogatories, requests for admissions, or production of documents. The
hearing shall be conducted on two (2) consecutive days and shall be governed by
the following rules:
(a) The hearing may be attended by two representatives of each Party,
each Party's expert witnesses, if any, counsel and the neutral.
(b) Video conferencing shall be permissible at the discretion of the
neutral.
(c) Each Party shall be entitled to five (5) hours of hearing time to
present its case. The neutral shall determine whether each Party
has had the five (5) hours to which it is entitled.
32
(d) Each Party shall be entitled, but not required, to make an
opening statement, to present regular and rebuttal testimony,
documents or other evidence, to cross-examine witnesses, and to
make a closing argument. Cross-examination of witnesses shall
occur immediately after their direct testimony, and
cross-examination time shall be charged against the Party
conducting the cross-examination.
(e) The Party initiating the ADR shall begin the hearing and, if it
chooses to make an opening statement, shall address not only
issues it raised but also any issues raised by the responding
Party. The responding Party, if it chooses to make an opening
statement, also shall address all issues raised in the ADR.
Thereafter, the presentation of regular and rebuttal testimony
and documents, other evidence, and closing arguments shall
proceed in the same sequence.
(f) Except when testifying, witnesses, other than the Party
representatives and any expert witnesses, shall be excluded from
the hearing until closing arguments.
(g) Settlement negotiations, including any statements made therein,
shall not be admissible under any circumstances. Affidavits
prepared for purposes of the ADR hearing shall be admissible at
the discretion of the neutral, provided the affiant is available
for purposes of cross-examination. As to all other matters, the
neutral shall have sole discretion regarding the admissibility of
any evidence.
Within seven (7) days following completion of the hearing, each Party may submit
to the other Party and the neutral a post-hearing brief in support of its
proposed rulings and remedies, provided that such brief shall not contain or
discuss any new evidence and shall not exceed ten (10) pages. This page
limitation shall apply regardless of the number of issues raised in the ADR
proceeding.
The neutral shall rule on each disputed issue within fourteen (14) days
following completion of the hearing. Such ruling shall adopt in its entirety the
proposed ruling and remedy of one of the parties on each disputed issue but may
adopt one party's proposed rulings and remedies on some issues and the other
party's proposed rulings and remedies on other issues. The neutral shall not
issue any written opinion or otherwise explain the basis of the ruling.
The neutral shall be paid a reasonable fee plus expenses. These fees and
expenses, along with the reasonable legal fees and expenses of the prevailing
Party (including all expert witness fees and expenses), the fees and expenses of
a court reporter, and any expenses for a hearing room, shall be paid as follows:
(a) If the neutral rules in favor of one Party on all disputed issues
in the ADR, the losing Party shall pay 100% of such fees and
expenses.
(b) If the neutral rules in favor of one Party on some issues and in
favor of the other Party on other issues, the neutral shall issue
with the rulings a written determination as to how such fees and
expenses shall be allocated between the Parties. The neutral
shall allocate fees and expenses in a way that bears a reasonable
relationship to the
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outcome of the ADR, with the Party prevailing on more issues, or on
issues of greater value or gravity, recovering a relatively larger
share of its legal fees and expenses.
The rulings of the neutral and the allocation of fees and expenses shall be
binding, non-reviewable, and non-appealable, and may be entered as a final
judgment in any court having jurisdiction. Except as provided in paragraph 9 or
as required by law, the existence of the dispute, any settlement negotiations,
the ADR hearing, any submissions (including exhibits, testimony, proposed
rulings, and briefs), and the rulings shall be deemed Confidential Information,
although the rulings may be introduced in any subsequent ADR hearing relating to
this Agreement. The neutral shall have the authority to impose sanctions for
unauthorized disclosure of Confidential Information.
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