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EXHIBIT 10.48
DISTRIBUTION AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of April 1, 1997, by and
between Syncor International Corporation, a Delaware corporation with its
principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx
00000 ("Syncor"), and PerImmune, Inc. ("PerImmune"), a Delaware corporation with
its principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000-0000.
WHEREAS, PerImmune is a biotechnology development company specializing in
the use of immunology for the diagnosis and treatment of disease;
WHEREAS, PerImmune has developed HumaSPECT(R)/CR, a human monoclonal
antibody for the diagnosis and staging of colorectal cancer;
WHEREAS, Syncor is in the business of compounding and distributing
individual unit dose radiopharmaceutical prescriptions, as well as acting as
distributor for certain bulk form radiopharmaceutical products; and
WHEREAS, Syncor desires to act as the exclusive distributor of
HumaSPECT(R)/CR and other PerImmune invivo imaging and direct labeled (including
linker) antibody conjugated radiotherapeutic products throughout the world, and
PerImmune desires to appoint Syncor as the exclusive distributor of its invivo
imaging and direct labeled (including linker) antibody conjugated
radiotherapeutic products throughout the world, in accordance with the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants, rights,
and obligations set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
APPOINTMENT
1.01 Appointment of Distributor; Territory. Commencing as soon as
practicable following the execution hereof (the "Commencement Date") and
continuing until the expiration or sooner termination hereof, subject to the
terms and conditions hereof, PerImmune hereby appoints Syncor, and Syncor
accepts such appointment and agrees to act, as PerImmune's exclusive distributor
of the Products (as defined below in Section 2.01) to any pharmacy or other end
user who purchases the Products, for retail sale thereof or for their own
internal research use (a "Purchaser") located within the Territory. For purposes
of this Agreement, the Territory shall be the world.
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1.02 Risk of Loss. Title to the Products delivered to Syncor by
PerImmune hereunder will transfer upon acceptance of the Products by Syncor.
Syncor shall bear the risk of loss of the Products not yet delivered by Syncor
to a Purchaser, whether by fire, theft, or other casualty.
1.03 Right to Enter into Subdistributor Agreements. Syncor may enter
into one or more subdistributor agreements within the Territory to sell or
otherwise distribute the Products at a specified location or locations;
provided, however, that prior to entering into any such agreement, Syncor shall
submit the name of the proposed subdistributor to PerImmune for its approval,
which approval shall not be unreasonably withheld. Upon receipt by PerImmune of
the name of a proposed subdistributor, PerImmune shall have 15 calendar days to
notify Syncor in writing if it disapproves of such proposed subdistributor,
PerImmune shall have 15 calendar days to notify Syncor in writing if it
disapproves of such proposed subdistributor. Syncor shall provide PerImmune
with a copy of each such subdistributor agreement it enters into within 30 days
after execution thereof. For purposes herein, the term "Syncor" shall include
each subdistributor that has executed a subdistribution agreement with Syncor.
1.04 Exclusivity; Scope. The rights granted to Syncor hereunder are
intended to be exclusive to Syncor and, other than as expressly permitted
herein, (a) PerImmune shall not sell or offer for sale the Products, either
directly or indirectly, to any Purchaser other than exclusively through Syncor
and (b) PerImmune shall not, directly or indirectly, sell, offer for sale any
products similar to or competitive with the Products.
ARTICLE 2
PRODUCTS
2.01 Initial Products. Subject to the terms and conditions hereof,
Syncor shall be the exclusive distributor of HumaSPECT(R)/CR and other
PerImmune invivo imaging and direct labeled (including linker) antibody
conjugated radiotherapeutic products (collectively, the "Product Category")
throughout the world. For purposes herein, "Products" shall mean, initially,
the Products to be distributed pursuant to this Agreement that are listed on
Schedule 1 attached hereto, as may be amended from time to time.
2.02 Additional Products. In the event that PerImmune proposes to sell a
product or service within the Product Category other than those set forth on
Schedule 1. PerImmune shall notify Syncor, which shall have a period of 45
calendar days from the date of receipt of such notice to accept or reject the
exclusive distribution of such new product or service pursuant to the terms
hereof, except for the price of such product, which shall be negotiated in good
faith by the parties hereto. In the event that Syncor rejects the distribution
of such new product or service, then PerImmune shall have the right to offer
such product or service to another distributor, provided, however, that prior
to executing an agreement with such other distributor, PerImmune shall once
again offer the exclusive distribution of such product or service to Syncor on
the same terms and conditions
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accepted by such other distributor. If, after 45 calendar days, Syncor fails to
accept such terms, PerImmune shall have the right to execute an agreement with
such other distributor on the terms presented to and rejected by Syncor. In the
event that Syncor elects to distribute such new product or service, the new
product or service shall be added to and become part of the definition of
Product and shall be distributed by Syncor in accordance with the terms and
conditions of this Agreement, as may be modified in writing from time to time.
ARTICLE 3
PRICES; PAYMENT; SHIPMENTS
3.01 Prices: Payment. Syncor shall fix the prices of individual Products
sold hereunder. On a monthly basis, Syncor shall pay to PerImmune, in United
States Dollars, fifty percent (50%) of the Net Sales, as defined below, received
by Syncor from the sale of the Products, less the Advances, as hereinafter
defined, paid by Syncor to PerImmune during such month. For purposes herein,
"Advances" shall mean an amount equal to the lesser of (i) 25% of the list price
or (ii) 50% of Net sales, per kit, paid by Syncor to PerImmune within 30 days of
Syncor's receipt of kits ordered by it. Unless Syncor and PerImmune otherwise
agree in a writing signed both of them, the payment and other provisions set
forth in this Agreement shall supersede those of any subsequent purchase order,
sales confirmation form or other document hereafter sent by either party hereto
to the other. For purposes hereof, Net Sales shall mean the gross invoiced price
for the sales of the Products to Purchasers by Syncor, its agents or affiliates
("Gross Sales") less (a) any credits and allowances granted by Syncor to
purchasers with respect to the Products, including, without limitation, credits
and allowances on account of price adjustments, returns, discounts, and
chargebacks, (b) any sales, exercise, value added, turnover or similar taxes,
and (c) transportation, insurance and handling expenses if separately invoiced
and directly chargeable to such sales.
3.02 Orders. Syncor's orders shall specify the type and quantity of
Product to be purchased or shipped and shall state the desired shipment date or
dates. Syncor shall be permitted to place orders by telephone or facsimile
transmission and orders shall be deemed to be accepted upon receipt by
PerImmune.
3.03 Packaging and Labeling: Shipment. All Products shall be packaged by
PerImmune and shall bear PerImmune's label plus the words "distributed by Syncor
International Corporation". PerImmune shall deliver, pursuant to applicable
transportation regulations, all Products ordered by Syncor to the distribution
point designated by the party placing such order. All costs, taxes, insurance
premiums and other expenses relating to the transportation and delivery of the
Products shall be at PerImmune's expense. All shipments shall be insured to the
limits of the carrier and properly packaged to ensure the integrity of the
Product, shall include a technical specification sheet (including a manufacture
and expiration date for the Product) for each Product, and shall
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be shipped in accordance with Syncor's instructions. All shipments shall be
marked clearly with a catalog number corresponding to the Product number listed
in Schedule 1 hereto, and a copy of the applicable technical specification
sheets shall be forwarded to Syncor simultaneously upon shipment.
3.04 Returns. In the event that PerImmune ships any Product to
Syncor with an expiration date less than one year following Syncor's receipt of
such Product, or in the event of termination of this Agreement pursuant to
Article 9 below, then any such Products that expire while in Syncor's
inventory, or are in Syncor's inventory at the time of termination, as the
case may be, shall be returned to PerImmune for full credit by contacting
PerImmune for a return authorization number, shipped pursuant to PerImmune's
instructions at PerImmune's cost.
ARTICLE 4
OBLIGATIONS OF PERIMMUNE
4.01 Regulatory Approvals. PerImmune shall obtain and maintain all
regulatory approvals required to market and distribute the products throughout
the Territory, including, without limitation, using all reasonable diligence in
pursuing the processing of (a) its existing filing with the FDA to obtain an
approved BLA for the Products and (b) any and all approvals required for
distribution in any country outside of the United States.
4.02 Clinical trials. PerImmune will actively support clinical
trials and other programs required by the FDA for approval of the Products for
specific clinical indications. PerImmune shall encourage clinical investigators
and researchers to publicly disseminate data at professional meetings, as well
as in peer-reviewed professional journals and other publications, to document
the safety and clinical value of products for current and new approved uses.
4.03 Competitiveness. PerImmune shall provide information to Syncor
on the nature of the Products in comparison with the various competing products
and technologies offered by other manufacturers. Such information may include
technical, regulatory or market information relevant to the commercial
competitiveness and clinical utility of the Products. PerImmune shall develop
and maintain relationships with clinical investigators and other physicians and
health care providers, and facilitate Syncor's relationships with such
individuals, to provide a source of advice regarding the Products and market
competition.
4.04 Promotional materials. PerImmune shall provide such quantities
of clinical and educational materials as requested by Syncor for use by Syncor
with physicians, technologists and other purchasers. Whenever possible,
PerImmune shall make such clinical and educational materials available to
Syncor in advance of their production and dissemination to third parties so
that Syncor will have sufficient opportunity to make
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comments and suggest modifications. To the extent that any such materials use
Syncor's name or otherwise refer to Syncor, PerImmune shall obtain the prior
written consent of Syncor.
4.05 Clinical and technical information. PerImmune shall provide
sufficient clinical and technical information to Syncor and its Purchasers as
may be required to assure the safe and effective use of the Products.
4.06 New Information. PerImmune shall provide prompt notification to
Syncor of any new information that would impact the marketability of the
Products or the manner in which the Products should be used in order to be safe
and effective.
4.07 Research and development. Annually, PerImmune shall spend an
amount equal to 15% of sales of the Products on research and development
activities related to the Products in an effort to improve upon and expand the
range of approved uses for the existing Products, and to develop new products
to be distributed hereunder.
4.08 Reimbursement for marketing expenses. In consideration for
Syncor's purchase of the Preferred Stock, as defined in Section 6.01 below,
PerImmune shall reimburse Syncor for (a) all expenses incurred by it in
connection with the marketing, advertising and promotion of the Products
hereunder, up to a maximum amount of $1,500,000 and (b) fifty percent (50%) of
all expenses incurred by it in excess of $1,500,000 (the "Additional Marketing
Expenses"); provided that such Additional Marketing Expenses were incurred by
Syncor in accordance with an annual marketing plan to be prepared by Syncor and
approved in advance by PerImmune.
ARTICLE 5
OBLIGATIONS OF SYNCOR
5.01 Distribution of the Products. Syncor shall act as PerImmune's
exclusive distributor of the Products to the Purchasers throughout the
Territory.
5.02 Promotional materials. Syncor shall produce such promotional
and educational materials it deems necessary to support the marketing, sales
and distribution of the Products. Whenever possible, Syncor shall make such
promotional and educational materials available to PerImmune in advance of
their production and dissemination to third parties so that PerImmune will have
sufficient opportunity to make comments and suggest modifications. To the
extent that any such materials use PerImmune's name or otherwise refer to
PerImmune, Syncor shall obtain the prior written consent of PerImmune.
5.03 Stimulate demand. Syncor shall develop and implement
educational, promotional, and sales programs to stimulate demand for the
Products among Purchasers,
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referring medical specialists, and health care financial intermediaries such as
HMOs, managed care organizations, and fee-for-service payors.
5.04 Training and education. Syncor shall provide training and education
to Purchasers, other health care providers and patients as needed to promote the
safe and effective use of the Products.
5.05 Compliance with laws. Syncor shall comply with any applicable laws,
regulations and other governmental requirements regarding the registration,
storage, distribution, labeling and sale of the Products within the Territory.
5.06 Market information. Develop and maintain relationships with clinical
investigators, and other physicians and health care providers, and facilitate
PerImmune relationships with such individuals, to provide a source of Purchaser
advice and feedback regarding the Products and market competition.
5.07 Market developments. Subject to any limitations stemming from
obligations to third parties to keep confidential certain information, Syncor
shall advise PerImmune of any significant business developments, market trends,
customer response, and competing products and technologies related to current
and potential new uses of the Products.
5.08 Trademarks. Syncor shall use such Product trademarks as directed by
PerImmune and shall ensure that such trademarks are displayed, with an
indication that they are the registered trademarks of PerImmune, in all price
lists and promotional materials prepared and used by Syncor in connection with
the distribution of the Products.
5.09 Consultation with PerImmune. On a regular basis, Syncor shall
consult with PerImmune with respect to market conditions and penetration goals.
ARTICLE 6
EQUITY PARTICIPATION
6.01 Equity participation. The obligations of the parties to perform
hereunder are subject to the execution by Syncor and PerImmune Holdings, Inc.,
on or before April 11, 1997, of a Stock Purchase Agreement, pursuant to which
Syncor shall purchase one hundred (100) shares of PerImmune's Series A
Convertible Preferred Stock, par value $0.01 per share (the "Preferred Stock")
with an aggregate liquidation preference of Four Million Five Hundred Thousand
Dollars ($4,500,000).
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ARTICLE 7
COMPLAINTS/RECALLS/REGULATORY CHANGES
7.01 Complaints. Copies of all complaints concerning the Products
received or originated by Syncor or otherwise coming to the attention of Syncor
shall be forwarded immediately to PerImmune to the attention of Manager of
Regulatory Affairs. All Product complaints shall be forwarded in a timely
manner by Syncor to PerImmune for action and PerImmune shall act promptly
thereon.
7.02 Recalls. In the event that either party has reason to believe
that one or more lots of Products should be recalled or withdrawn from
distribution, such party shall immediately notify the other party in writing
and verbally. To the extent permitted by the circumstances, the parties will
confer before initiating any recall, but the decision as to whether or not to
initiate recall of Products in the Territory shall be PerImmune's alone. SYNCOR
shall maintain adequate sales and service records to enable it to carry out any
product recall and to conduct such recall. If the recall is required for any
reason other than a negligent act or omission of SYNCOR in handling, storage or
distribution of the Products, PerImmune shall reimburse SYNCOR for the costs
and expenses of such recall and shall replace such recalled Products. If the
recall is required because of a negligent act or omission of SYNCOR in
handling, storage or distribution of the Products, then such recall shall be
conducted by SYNCOR at its sole cost and expense and SYNCOR shall not be
entitled to any such refunds or replacements from PerImmune. If such recall is
required because of a joint act or omission, SYNCOR shall conduct the recall
and the parties shall negotiate in good faith an appropriate allocation of the
costs and expense of such recall.
7.03 Regulatory Records; Adverse Reactions. Each party shall be
responsible for maintaining such records and making such reports as may be
required by the FDA and any other applicable regulatory agency. Each party
shall promptly inform the other of all adverse drug experience reports and
other information relating to the safety or effectiveness of the Products which
come to its attention, in a form and within time periods necessary to permit
compliance with all applicable regulatory requirements under FDA rules and
regulations.
7.04 Regulatory Changes. Each party shall promptly advise the other
party of any known new instructions or specifications relating to the Products
required by the FDA and other applicable authorities, and the parties shall
confer with respect to the best mode of compliance with such new requirements.
Compliance with such new requirements shall be the sole responsibility of
PerImmune.
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ARTICLE 8
WARRANTIES AND INDEMNIFICATION
8.01 Product Warranties. PerImmune shall and hereby does warrant to
Syncor that (a) the Products when shipped will not be adulterated or misbranded
within the meaning of the United States Food, Drug and Cosmetic Act, nor be
articles which may not, under the provisions of Section 505 of that Act, be
introduced into interstate commerce and (b) the Products will be manufactured,
packaged and labeled in compliance with all applicable laws and regulations
throughout the Territory related to distribution of the Products. PerImmune
guarantees all Products to be delivered by it to Syncor as to quality and
identity and shall be laboratory controlled to conform to the quality control
standards contained in the appropriate BLAs, NDAs or any other approvals
required for such Products. The guarantee, together with Product batch numbers,
shall appear on all packing slips included by PerImmune in connection with sales
of products to Syncor. PerImmune shall and hereby does guarantee to Syncor that
the Products when shipped will conform to PerImmune's printed specifications
therefor.
8.02 Corporate Authority. Each party warrants and represents to the other
that it has the full right and authority to enter into this Agreement, that all
corporate action necessary to authorize the execution and delivery of this
Agreement by such party has been duly and properly taken, and that it is not
aware of any impediment that would inhibit its ability to perform its
obligations under this Agreement.
8.03 Patents and Trademarks. PerImmune hereby represents and warrants
that it has no knowledge of the existence of any patent in the Territory owned
or controlled by anyone which covers the Products or would prevent Syncor from
promoting or distributing or PerImmune from making, promoting or distributing,
the Products in the Territory. PerImmune further represents and warrants that
Syncor's promotion and distribution of the Products in the Territory will not
infringe the trademarks of any third party.
8.04 Indemnification. PerImmune agrees to indemnify and hold Syncor, its
officers, directors, agents, successors, and assigns, collectively and
severally, from and against, any and all loss, liability, expense, damages,
claims, suits, proceedings, actions, judgments, assessments, penalties, orders
for specific performance or otherwise, whatsoever and howsoever caused or
incurred, including, without limitation, reasonable attorneys' fees and costs,
arising out of or in connection with (a) any breach by PerImmune of any
provision of this Agreement, (b) any product liability claim, or (c) any patent
violations. If Syncor has actual notice that such a product liability claim is
likely to be asserted against it, Syncor shall promptly notify PerImmune and
give PerImmune or its insurance carrier the opportunity to undertake the defense
of such claim, including any negotiations relating to its settlement.
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8.05 Insurance. PerImmune shall place in effect and maintain products
liability insurance, including vendor's endorsement, providing protection to
Syncor against any period with respect to any Product. Such coverage shall be in
an amount of not less than $1,000,000 for injury or death of one person in any
one accident or occurrence and in an amount not less than $3,000,000 for injury
or death of more than one person in any one accident or occurrence and in an
amount not less than $1,000,000 for property damage. The monetary limits of such
policies shall not limit the liability of PerImmune hereunder. PerImmune shall
supply to Syncor certificates evidencing the existence and amounts of such
insurance.
ARTICLE 9
TERM AND TERMINATION
9.01 Term; Termination. This Agreement shall commence on the Commencement
Date and shall expire upon the fifth anniversary of the Commencement Date;
provided, however, that unless Syncor notifies PerImmune in writing not later
than 90 days prior to the date this Agreement otherwise would expire of its
election to allow this Agreement to expire at the end of the original or any
subsequent term, this Agreement shall be deemed to have been renewed, without
any further action on the part of either party hereto, for successive two-year
terms.
9.02 Early Termination of Agreement.
(a) Breach. If either party should breach this Agreement and
fail to correct the breach to the reasonable satisfaction of the other party
within 30 days following a written notice specifying the breach, the
non-breaching party, in addition to any other rights available to it under law
or equity, may terminate this Agreement any obligations undertaken or any
licenses granted hereunder by written notice to the defaulting party. Remedies
shall be cumulative and there shall be no obligation to exercise a particular
remedy.
(b) Bankruptcy. Either party's insolvency, the appointment of a
custodian for the assets of either party, any assignment of either party's
assets for the benefit of creditors, any filing by either party of a voluntary
petition in bankruptcy or the filing of an involuntary petition in bankruptcy
against either party which is not resolved in that party's favor within 60 days
after filing, any other action for the protection of either party's creditors,
or either party's dissolution or ceasing to conduct business in the normal
course, shall give the other party the right to terminate this Agreement
immediately.
(c) FDA Approval. Without limiting its right to termination for
material breach as contemplated by subsection (a) above, Syncor shall have the
right to terminate this Agreement upon sixty (60) days' prior notice to
PerImmune given at any time the FDA refuses to allow PerImmune to continue
producing the Products for sale in the Territory.
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9.03 Effect of Termination.
(a) Cessation of Marketing. Should this Agreement expire or be
terminated for any reason, all rights granted in this Agreement respecting
marketing, promotion, distribution and sublicensing of the Products shall
cease, and each party shall return to the other within 90 days of the
termination date all written materials provided by such other party relating to
the Products, including the Confidential Information or the destruction of all
such materials shall be certified to the receiving party by an officer of the
returning party; provided, however, that the returning party shall be allowed
to retain one copy of all such materials for archival purposes.
(b) Limit of Liability on account of Termination; No
Consequential Damages. Should this Agreement or any portion thereof expire or
be terminated for any reason, neither party will be liable to the other because
of such expiration or termination for compensation, reimbursement or damages on
account of the loss of prospective profits, anticipated sales, goodwill or on
account of expenditures, investments, leases or commitments in connection with
the business of PerImmune or Syncor, or for any other reason whatsoever flowing
from such termination. Termination of this Agreement shall not release the
parties from liability to pay any fees owing under the terms of this Agreement.
In any event, and whether or not this Agreement or any portion thereof expires
or is terminated for any reason, neither party will be liable to the other for
any lost profits, incidental, consequential or indirect damages of any kind,
even if the party has been advised of the possibility of such damages.
(c) In the event of termination, PerImmune shall refund all
Advances paid by Syncor for Products remaining in Syncor's inventory on the
termination date.
ARTICLE 10
CONFIDENTIALITY
10.01 Confidential Information Defined. For purposes herein,
Confidential Information shall mean written information, marked as
confidential, relating to the business, products or services of a party to this
Agreement which is either non-public, confidential or proprietary in nature;
provided, however, that Confidential Information shall not include (i)
information which has come within the public domain through no fault or action
of the other party; (ii) information that was known to the other party prior to
its disclosure in connection with the negotiation of this Agreement; or (iii)
information which becomes rightfully available to the other party on a
non-confidential basis from any third party, the disclosure of which to such
other party does not violate any contractual or legal obligation the third
party has to the first party with respect to such Confidential Information.
10.02 Nondisclosure. For a period of three (3) years from the
expiration or termination hereof, whichever occurs later.
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(a) each party shall refrain from the use of Confidential
Information furnished by the other party for any purpose inconsistent with this
Agreement; and
(b) each party shall treat Confidential Information furnished by
the other party as if it were its own proprietary information and shall not
disclose it to any third party other than its affiliates, employees, consultants
or agents without the prior written consent of the other party who furnished
such information; provided, however, that such Confidential Information may be
disclosed if in the reasonable opinion of the recipient's counsel, such
disclosure is necessary to comply with the requirements of any law, governmental
order (including a court order), regulation or Internal Revenue Service request.
The recipient shall notify and consult with the disclosing party prior to such
disclosure of information.
10.03 Disclosure Required by Law. In the event that PerImmune or SYNCOR
shall be required to make disclosure of the other's Confidential Information as
a result of the issuance of a court order or other government process, the party
subject to such requirement promptly, but in no event more than forty-eight (48)
hours after learning of such court order or other government process, shall
notify the other party and, at the other party's expense, the party subject to
such requirements shall: (a) take all reasonably necessary steps requested by
the other party to defend against the enforcement of such court order or other
government process and (b) permit the other party to intervene and participate
with counsel of its choice in any proceeding relating to the enforcement
thereof.
ARTICLE II
MISCELLANEOUS
11.01 Notices. All notices and other communications provided for or
permitted to be given under this Agreement shall be in writing and shall be
given by depositing the notice in the United States mail, addressed to the party
to be notified, postage paid, and registered or certified with return receipt
requested, or by such notice being delivered in person or by facsimile
communication to such party. Notices or other communications given or served
pursuant hereto shall be effective upon receipt by the party to be notified. All
notices or other communications to be sent to a party hereto shall be sent to or
made at the address given for that party in the preamble to this Agreement or
such other address as that party may specify by notice to the other party.
11.02 Entire Agreement. This Agreement, together with the Stock Purchase
Agreement referred to in Section 6.01 above, constitute the entire agreement of
the parties relating to the subject matter hereof and supersede any and all
prior written or oral contracts, understandings, negotiations, and agreements
with respect to the subject matter hereof.
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11.03 No Waiver. No delay or failure on the part of any party in
exercising any rights hereunder, and no partial or single exercise thereof,
shall constitute a waiver of such rights or of any other rights hereunder.
11.04 Enforceability. In the event that any provision of this Agreement,
and the application of such provision to any person or circumstance, is
determined by a court, arbitrator or other adjudicator to be invalid or
unenforceable to any extent, the remainder of this Agreement, or the application
of such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and such provision and
each other provision of this Agreement shall be valid and enforceable to the
greatest extent permitted by law.
11.05 Amendments. This Agreement may be amended or modified from time to
time only by a written instrument executed by the parties hereto.
11.06 Assignment. This Agreement and the obligations created hereunder
shall not be assigned or delegated by the parties hereto without the prior
written consent of the other party.
11.07 Governing Law. This Agreement is governed by and shall be construed
in accordance with the laws of the State of California, excluding any
conflicts-of-law rule or principle that might refer the governance or
construction of this Agreement to the law of another jurisdiction.
11.08 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, the parties shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and said transactions.
11.09 Counterparts; Facsimile Transmissions. This Agreement may be
executed in multiple counterparts with the same effect as if the signing parties
had signed the same document. All counterparts shall be construed together and
constitute the same instrument. Delivery of an executed counterpart of this
Agreement by facsimile shall be equally as effective a delivery of a manually
executed counterpart of this Agreement. Upon the request of any party, any party
who shall have delivered an executed counterpart of this Agreement by facsimile
also shall deliver a manually executed counterpart, but the failure to so
deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Agreement.
11.10 Attorney's Fees. In the event of any arbitration, litigation, or
other legal proceeding involving the interpretation of this Agreement or
enforcement of the rights or obligations of the parties hereto, the prevailing
party or parties shall be entitled to recover reasonable attorney's fees and
expenses as determined by the court, arbitrator or other
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adjudicator. In the event that the arbitration, litigation or other legal
proceeding is successful only in part, the court, arbitrator or other
adjudicator shall be entitled to prorate and allocate said fees and expenses
between the parties.
11.11 Taxes. Each party shall bear and pay all federal and state income
taxes on income earned by such party in connection with the sale or other
distribution of Products hereunder. Each party shall be responsible for and
shall prepare and file all returns and pay any and all excise, sales, use or
other similar taxes which may be levied on each party as a result of the
distribution transactions contemplated hereby.
11.12 Headings. The headings in this Agreement are included for
convenience of reference only and shall not in any way affect the meaning or
interpretation of this Agreement.
11.13 Arbitration. Any controversy or dispute arising under this
Agreement shall be settled by arbitration in Los Angeles, California in
accordance with the rules and procedures of the American Arbitration
Association and judgment upon the award rendered by the arbitrator or
arbitrators may be entered in any Court having jurisdiction thereof. The
arbitration decision shall be final and binding. Written notice of the demand
for arbitration shall be made within a reasonable time after claim, dispute or
other matter in question has arisen, but in no event shall it be made more than
one year after the claim, dispute or matter arose.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PERIMMUNE, INC.
By: /s/ X. X. XXXXX, XX.
------------------------------------
Name: X.X. Xxxxx, Xx.
Its: President & CEO
SYNCOR INTERNATIONAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Its: President & CEO
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SCHEDULE 1
PRICE LIST
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EXTENSION AGREEMENT
In consideration of the terms, covenants and conditions set forth in that
certain Distribution Agreement, dated as of April 1, 1997, by and between
PerImmune Holdings, Inc., a Delaware corporation ("PerImmune"), and Syncor
International Corporation, a Delaware corporation ("Syncor"), and the terms,
covenants and conditions set forth herein, PerImmune and Syncor hereby agree
that the time for execution of a Stock Purchase Agreement, pursuant to which
Syncor shall purchase one hundred (100) shares of PerImmune's Series A
Convertible Preferred Stock, par value $0.01 per share with an aggregate
liquidation preference of Four Million Five Hundred Thousand Dollars
($4,500,000) be, and hereby is, extended through and including Tuesday,
April 25, 1997.
This 11 day of April, 1997.
PERIMMUNE HOLDINGS, INC.
By: [SIG ILLEGIBLE]
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SYNCOR INTERNATIONAL CORPORATION
By:
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