DISTRIBUTION AGREEMENT EXHIBIT 10.53
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This Distribution Agreement (hereinafter called the "Agreement") is entered as
of January 16, 1996 (hereinafter called the "Effective Date") by and between
Synbiotics Corporation (hereinafter called "Synbiotics"), a California
corporation, with its principal office at 11011 Via Frontera, San Diego,
California, U.S.A. and Daiichi Pharmaceutical Co., Ltd. (hereinafter called
"Distributor"), a Japanese corporation, with its principal office at 14-10,
Nihonbashi 3-Chome, Chuo-Ku, Tokyo 103, Japan.
WITNESSETH
WHEREAS, Synbiotics is engaged in business activity relating to veterinary
vaccines and diagnostics including the "Products" (as hereinafter defined), and
WHEREAS, Distributor is engaged in business activity relating to manufacture,
sale and marketing of pharmaceutical products for human and veterinary use, and
WHEREAS, Synbiotics and Distributor entered into the Non-Disclosure Agreement
containing the Products on April 11, 1995 and Distributor evaluated the
commercialization of the Products, and
WHEREAS, Distributor has now expressed the desire to import the Products from
Synbiotics and sell the Products for veterinary use in the "Territory" (as
hereinafter defined) and Synbiotics is willing to accept such desire;
NOW THEREFORE, in consideration of the mutual covenants herein contained,
Synbiotics and Distributor agree as follows:
1. Definition. In this Agreement the following terms shall have the meanings
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respectively indicated in this Section 1.
(a) The "Products" shall mean the Synbiotics' unlabeled veterinary
vaccines and diag nostics which are expressly set forth in Attachment A.
(b) The "Territory" shall mean Japan.
(c) The "Trademarks" shall mean Synbiotics' trademarks (English and
Japanese) for the Products in the Territory applied or owned by Synbiotics.
(d) The "Preshipment Sample" shall mean the sample from each shipment of
the Products which Synbiotics provide to Distributor for quality testing
purpose and has the same lot number with such Products to be shipped.
2. Appointment. Synbiotics hereby appoints Distributor for the term of this
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Agreement as, and Distributor agrees to act as, Synbiotics' exclusive
distributor of the Products for the Territory, subject to all the terms and
conditions hereof. So long during the term of this Agreement as Distributor
remains in full compliance with this Agreement, Synbiotics will not appoint
another distributor for the Products in the Territory. Distributor shall
refrain from establishing or maintaining any branch, warehouse or distribution
depot for the Products outside the Territory, and shall not engage in any
advertising or promotional activities relating to the Products directed to
customers located
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outside the Territory. Distributor shall sell no units of the Products which it
believes are intended for end use outside the Territory.
Synbiotics reserves the right to change, modify or discontinue any Product or
add Product to Attachment A or remove any discontinued Product therefrom,
subject to Distributor's prior written consent.
3. Payment and Supply Terms.
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(a) The Products will be delivered to Distributor on F.O.B. basis. The
initial price and the minimum order of the Products shall be mutually agreed
upon by both parties hereto product by product basis, promptly after filing
the New Animal Drug Application ("NADA") by Distributor in Territory. If
the circumstances on which the initial price is based (i.e., market
situation, production costs, etc.) change substantially, the parties will
negotiate in order to fix a new price. New price will apply to all
shipments made after the date of the determination of such negotiation by
written. Distributor will pay all charges, including without limitation
freight, shipping, customs charges and expenses, cost of special packaging
or handling and insurance premiums, and shall be responsible for all taxes,
including but not limited to sales, value added and use taxes, duties and
other governmental assessments accrued in Japan, and Synbiotics will pay and
be responsible for those accrued in the U.S.A.
Payment shall be in U.S. dollars. Terms of payment will be net ninety (90)
days from airway bill of lading date, unless Synbiotics determines that
Distributor's credit is not satisfactory, in which case payment terms shall
be C.O.D., payment in advance or by letter of credit, at Synbiotics'
discretion. Late payment will be assessed at 1.5% per month service fee, to
the extent allowed by law.
(b) In consideration for the exclusive distribution rights granted
herein, Distributor shall pay to Synbiotics a licensing fee of [*] to be
paid as follows:
(1) The first payment
Amount : [*]
Payment accrual date : Upon the execution of this Agreement
Due date : Within thirty (30) days following the above payment
accrual date
(2) The second payment
Amount : [*]
Payment accrual date : Upon the first successful registration in the Territory
of diagnostics listed in Attachment A
Due date : Within thirty (30) days following the above payment
accrual date
__________________________
[*] Certain confidential portions of this exhibit have been omitted by means of
blacking out the text (the "Mark"). This exhibit has been filed separately with
the Secretary of the Commission without the Mark pursuant to the Company's
Application Requesting Confidential Treatment under Rule 24b-2 under the
Securities Exchange Act of 1934, as amended.
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(3) The third payment
Amount : [*]
Payment accrual date : Upon the first successful registration in the
Territory of SENTRYPAR DHP/L, SENTRYPAR DHP or
SENTRYVAC DHP/L listed in Attachment A as the
Product
Due date : Within thirty (30) days following the above payment
accrual date
(c) All taxes levied by any governmental authority in the Territory upon
the payments according to the Section 3(b) shall be borne by Synbiotics. If
so required by the applicable law, Distributor shall withhold the amounts of
such taxes due prior to payment to Synbiotics, and shall pay the amounts of
such taxes to the governmental authority in a timely manner and shall
promptly transmit to Synbiotics, an official tax certificate or other
suitable document.
(d) During the term of this Agreement:
(1) Synbiotics shall provide Distributor, at Synbiotics' expense,
with samples of any applicable printed marketing materials that
Synbiotics may in its discretion produce for the Products.
Distributor will prepare and produce similar and any additional
materials needed to promote the Products in the Territory.
(2) Subject to the terms and conditions of this Agreement,
Synbiotics shall supply Distributor with the Products and shall fill
Distributor's written purchase orders for the Products with a
request delivery date not less than ninety (90) days after the date
the purchase order is received by Synbiotics. Distributor shall be
responsible at its expense for the packaging, labeling or otherwise
required to sell the Products in the Territory.
(3) The specification and test method of the Products (herein
after called the "Specifications") shall be mutually agreed upon by
both parties separately.
(4) Synbiotics shall provide Distributor, free of charge, with the
Preshipment Sample. The quantity, the shipment schedule and other
conditions of the Preshipment Sample shall be mutually agreed upon
by both parties separately.
(5) Synbiotics will provide Distributor with, and Distributor will
accept, such training as Synbiotics deems appropriate at locations
specified by Synbiotics; each party will bear its own expenses in
connection with such training.
(e) The Products will be deemed accepted when it passes the national
assay by the competent authority in the Territory.
4. License, Trademarks.
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(a) Distributor shall sell the Products under the Trademarks in the
Territory.
(b) Synbiotics shall, at its sole expense, use its best effort to obtain
the registration all of the Trademarks in the Territory and shall grant to
Distributor a royalty free exclusive license to use the Trademarks, but only
with res pect to the sale of the Products in compliance with this Agreement.
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(c) In case the Trademark for a certain product in the Products cannot
be used in the Territory as a result of anteriority or for any other reason,
Distributor shall select a proper trademark for such product on condition
that Synbiotics will, at its sole expense, file the application for said
Trademarks.
(d) Distributor agrees that it will not use, without Synbiotics' prior
written consent, any mark which is likely to be similar to or confused with
Synbiotics' corporate mark.
(e) Distributor agrees that it has not registered and will not register
the name "Synbiotics" or any forms thereof for use in connection with any
business entity without the prior written approval of Synbiotics.
(f) Distributor agrees that its use of the Trademarks shall not create
in its favor any right, title or interest therein and acknowledges
Synbiotics' exclusiv e right, title and interest in the Trademarks.
(g) Distributor hereby acknowledges and agrees that any and all rights,
title and interest in any and all Trademarks and other proprietary rights
that are related in any way to the production, manufacture or sale of the
Products, or form the basis for the development of the Products are owned
wholly and exclusively by Synbiotics, and Synbiotics shall seek to secure
and maintain any such rights. In the event that Synbiotics seek to secure
or maintain or initiate any infringement action regarding such rights,
distributor agrees to cooperate with Synbiotics in any way reasonably
requested.
5. Marking. Distributor shall use in connection with all packaging,
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literature, labels and other printed matter, an expression to the effect that
the Products are manufactured by Synbiotics and are imported and distributed by
Distributor.
6. Distributor Covenants and Responsibilities. Except as expressly and
-------------------------------------------
unambiguously provided herein, Distributor represents, warrants and agrees:
(a) to provide Synbiotics, within six (6) months after filing an
application for necessary regulatory approval for each Product to the
competent authority, a binding, non-cancelable Distributor purchase order
for the total quantity of such Products during the initial three (3) months.
Distributor shall provide Synbiotics, promptly after launch of each Product,
a purchase order for the period of three (3) months and the forecast for
succeeding nine (9) month period. Distributor shall, within ten (10) days
before the end of each three month period thereafter, send Synbiotics a
rolled-forward and revised nine (9) month forecast and a purchase order for
the quantities of the Products specified in the first three (3) month period
thereof.
(b) to use its best efforts to successfully market (including, without
limitation, conducting periodic promotions and market research, maintaining
a well-staffed sales force and adequate inventory, and prompt inclusion of
the Products, to the extent possible, in applicable trade shows and in
Distributor's catalogs and other promotional materials), to distribute and
support (including training and other support) the Products on a continuing
basis and to comply with good business practices and all laws and
regulations relevant to this Agreement or the subject matter hereof.
(c) to keep Synbiotics informed of relevant market trends, customer
needs, competitive activity, economic and regulatory conditions and
Distributor's sales and inventory by the Products. Distributor will also
provide Synbiotics with a written quarterly report with respect to these
matters.
(d) that it does not currently represent or promote any lines or products
that compete with the Products. Distributor will conduct its business in a
manner that reflects favorably on the Products and shall not represent,
promote or otherwise try to sell within the Territory any lines or products
that compete with the Products covered by this Agreement during the period
when such particular Product is covered by this
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Agreement, without Synbiotics' prior written consent which shall not be
unreasonably withheld by Synbiotics.
(e) to ascertain and comply, at Distributor's sole expense, with all
applicable laws and regulations and standards of industry or professional
conduct.
(f) to use best efforts, at its sole expense, to obtain and maintain any
applicable approvals, registrations, notifications or the like with regard
to marketing, using (for diagnostic, vaccine and/or therapeutic use, as may
be specified by Synbiotics), selling, labelling or otherwise promoting or
making claims regarding the Products or their uses in the Territory. This
includes, without limitation, conducting any necessary pre-clinical and
clinical studies and preparing and filing any necessary applications or
documents.
(g) to keep Synbiotics informed as to serious problems encountered with
the Products and any resolutions arrived at for those problems, and to
communicate promptly to Synbiotics any and all modifications, design changes
or improvements of the Products suggested by any customer, employee or
agent. Distributor further agrees that Synbiotics shall have any and all
right, title and interest in and to any such suggested modifications, design
changes or improvements of the Products, without the payment of any
additional consideration therefor either to Distributor, or its employees,
agents or customers. Distributor will also promptly notify Synbiotics of
any infringement of any Trademarks relating to the Products.
(h) to communicate to Synbiotics any referrals outside the Territory that
come to Distributor's attention relating to the Products.
(i) to properly handle, transport and store all shipments of the Products
after they have arrived at Japan.
7. Compliance with United States Laws.
-----------------------------------
(a) Distributor acknowledges that the export from the United States of
the Products may be subject to regulation by the U.S. Export Administration
Act of 1979, as amended, and the rules and regulations promulgated
thereunder, which restrict exports and re-exports of any products or direct
product thereof. Distributor agrees to comply with U.S. Export
Administration Regulations as in effect from time to time (including,
without limitation, all record-keeping requirements imposed thereunder), and
will not re-export the Products in violation of such Regulations.
(b) Without limitation of the foregoing, Distributor agrees to commit
no act which, directly or indirectly, would violate any United States law,
regulation, or treaty, or any other international treaty or agreement,
relating to or applicable to the export or re-export of the Products, to
which the United States adheres or with which the United States complies.
(c) Distributor agrees to indemnify and hold harmless Synbiotics from any
and all fines, damages, losses, costs and expenses (including reasonable
attorneys' fees) incurred by Synbiotics as a result of the breach of this
Section 7 by Distributor.
8. Confidentiality. Distributor agrees that all inventions, trade secrets,
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know-how and ideas it obtains from Synbiotics and all other business, marketing,
technical and financial information it obtains from Synbiotics are the
confidential property of Synbiotics ("Proprietary Information"). Distributor
will hold in confidence and not disclose any Proprietary Information, provided
however that this Distributor's nondisclosure obligation shall not apply to the
extent that it may be necessary to disclose, on a confidential basis,
Proprietary Information to the third party mutually agreed by both parties
hereto or Distributor's outside experts or the competent authorities for the
purpose of this
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Agreement and to information it can document has entered the public domain and
is generally available to the public through no fault of the Distributor.
Distributor will promptly report to Synbiotics any actual or suspected violation
of the terms of this Section 8, and will take all reasonable further steps
request by Synbiotics to prevent, control, or remedy any such violation.
Distributor shall, upon the termination of this Agreement, return to Synbiotics
all tangible manifestations of Proprietary Information received by Distributor
pursuant to this Agreement (and all extracts, summaries, analyses, copies and
reproductions thereof).
9. Warranty and Disclaimer. Synbiotics warrants only to Distributor as
------------------------
follows:
(a) Synbiotics warrants that the Products when shipped to Distributor by
Synbiotics will conform to the Specifications therefor. The Products
purchased from Synbiotics which do not comply with the warranty will be
replaced. If Synbiotics cannot, or determines that it is not practical to
replace the Product, the purchase price therefor will be refunded.
(b) Synbiotics represent that it is not aware of any actual or potential
violation, infringement or misappropriation of any third party's rights (or
any claim or potential claim thereof) by the Products. Synbiotics shall
hold Distributor and its officers, directors, agents and employees harmless
from liability resulting from infringement by the Product of any patent,
copyrights, trade secret or other proprietary rights of a third party,
provided Synbiotics is promptly notified of any and all threats, claims and
proceedings related thereto and given reasonable assistance and the
opportunity to assume sole control over the defense and all negotiations for
a settlement or compromise: Synbiotics will not be responsible for any
settlement it does not approve in writing.
SYNBIOTICS MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR ANY
SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT,
EXCEPT AS SET FORTH ABOVE. The above warranties do not extend to any
Product that is modified or altered, is not maintained to Synbiotics'
maintenance recommendations, is transported, handled or stored in a manner
other than that specified by Synbiotics, has its serial number removed or
altered or is treated with abuse, negligence or other improper treatment
(including, without limitation, use outside the recommended environment), or
is combined with other products, processes or materials where the alleged
infringement relates to such combination, or where Distributor continues
allegedly infringing activity after being notified thereof or after being
informed of combinations that would have avoided the alleged infringement.
Distributor's sole remedy with respect to any warranty or defect is as
stated above. Distributor will be responsible for all claims, damages,
settlements, expenses and attorneys fees incurred by Synbiotics with respect
to Distributor's customers or their claims beyond Synbiotics' above warranty
obligation to Distributor.
10. Returns.
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(a) Subject to Section 10(b), Distributor shall be entitled to replace
the Products which remain unsold on the expiration date for such Products as
specified on the Product label by returning such Products to Synbiotics
within sixty (60) days after the expiration date. All returned Products
must be in unopened original packaging, which shall conspicuously bear the
Material Return Authorization Number, Distributor obtains from Synbiotics
prior to return. Distributor shall receive a credit on all properly
refunded Products equal to fifty percent (50%) of the lower of (i) the
invoice price for such Product on the date it is returned or (ii) the
invoice price for such Product on the date it was ordered. The credit may
be applied by Distributor to future orders of the Products.
(b) Due to Federal regulations, "biological products" shipped out of the
continental United States cannot be returned. Therefore, any such
merchandise must be disposed of according to local laws and
6
regulations. Synbiotics accepts no responsibility or liability for improper
disposal of said merchandise. Authorization to destroy merchandise which
would, but for such Federal regulations, be returned for repair, replacement
or credit must be obtained in writing from Synbiotics' Customer Service
Department prior to destroying such merchandise, and Synbiotics reserves the
right to inspect and verify such merchandise before granting such
authorization to destroy.
11. Exchange of Adverse Information and Data. The parties shall promptly
-----------------------------------------
provide each other with any adverse or unexpected information and data on the
Product, received or reported form any source.
12. Limited Liability. EXCEPT AS EXPRESSLY AND UNAMBIGUOUSLY PROVIDED HEREIN,
------------------
SYNBIOTICS WILL NOT BE LIABLE UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY
CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
(A) FOR NAY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO SYNBIOTICS
HEREUNDER DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION
AROSE, OR (B) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (C) FOR DAMAGES
ARISING FROM THE LOSS OF PROFITS OR LOSS OF BUSINESS, EXCEPT FOR ANY DAMAGES
CAUSED BY SYNBIOTICS' NEGLIGENCE OR WILLFULNESS. DISTRIBUTOR SHALL INDEMNIFY
SYNBIOTICS AGAINST ALL CLAIMS ASSERTED BY ITS CUSTOMERS OR OTHER THIRD PARTIES
AS A RESULT OF DISTRIBUTOR'S ACTS OR OMISSIONS.
13. Force Majeure. Neither party hereto shall be liable to the other party for
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any losses or damages attributable to a default in or breach of this Agreement
which is the result of war (whether declared or undeclared), acts of God,
revolution, strike, fire, earthquake, flood, pestilence, riot, enactment or
change of laws and regulations, accident(s), labor trouble, or shortage of or
inability or obtain material, equipment or transport or any other cause beyond
reasonable control of such party, and the performance of obligations hereunder
shall be suspended during, but not longer than, the existence of such cause.
14. Relationship of Parties. The parties hereto expressly understand and agree
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that Distributor is an independent contractor in the performance of each and
every part of this Agreement, is not an agent, partner or joint venturer of or
with Synbiotics, and is solely responsible for all of its employees and agents
and its labor costs and expenses arising in connection therewith and is
responsible for and will indemnify, defend and hold harmless Synbiotics from any
and all claims, liabilities, damages, debts, settlements, costs, attorney's
fees, expenses and liabilities of any type whatsoever that may arise on account
of Distributor's activities or omissions, or those of its employees or agents,
including without limitation, providing unauthorized representations or
warranties ( or failing to effectively disclaim all warranties and liabilities
on behalf of Synbiotics) to its customers or breaching any term, representation
or warranty of this Agreement. Synbiotics is in no manner associated with or
otherwise connected with the actual performance of this Agreement on the part of
Distributor, nor with Distributor's employment of other persons or incurring of
other expenses. Except as expressly provided herein, Synbiotics shall have no
right to exercise any control whatsoever over the activities or operations of
Distributor.
15. Assignment. This Agreement and the rights hereunder are not transferable or
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assignable by a party without the prior written consent of the other party,
except to a person or entity who acquires all or substantially all of the assets
or business of Synbiotics, whether by sale, merger or otherwise. This Agreement
shall be binding upon and inure to the benefit of any permitted assignee
hereunder of Synbiotics or Distributor. Any said permitted assignee of a
party's interest shall expressly assume in writing the performance of all the
terms and conditions of this Agreement to be performed by said party.
16. Term and Termination. Unless terminated earlier as provided herein, this
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Agreement shall ave a term extending ten (10) years from the Effective Date.
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This Agreement shall be automatically renewed for a three (3) year period after
the initial term, unless either party is otherwise notified by the other in
writing at least one hundred eighty (180) days prior to the termination of the
initial term or the renewed term.
Distributor understands that after the date specified above or earlier
termination, it shall have no right whatsoever to purchase the Products or
continue as a dealer or distributor or other wise regardless of any undocumented
continuation of the relationship with Synbiotics.
(a) This Agreement may be terminated by a party for cause immediately by
written notice upon the occurrence of any of the following events:
(1) If the other ceases to do business, or otherwise terminates its
business operations; or
(2) If the other breaches any provision of this Agreement and fails
to fully cure such breach within thirty (30) days of written notice
describing the breach; or
(3) If the other seeks protection under any bankruptcy, receivership,
creditors arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against the other.
(b) Each party understands that the rights of termination hereunder are
absolute.
Subject to Section 16(f), neither party shall incur any liability whatsoever
for any damage, loss or expenses of any kind suffered or incurred by the
other arising from or incident to any termination of this Agreement by such
party which complies with the terms of this Agreement whether or not such
party is aware of any such damage, loss or expenses.
(c) In the event of any termination, Synbiotics may elect to continue or
terminate any purchase order then pending.
(d) In addition to any provisions that survive termination or expirations
according to their terms and any restrictions on Distributor's distribution
of Products, the following sections shall survive termination or expiration
of this Agreement: Sections 8, 9, 12, 14 and Sections 16 through 18.
(e) Upon expiration or termination, if Distributor has any right, title or
interest in Trademarks or any registration related thereto or in anything
referred to in Section 4(e), it will immediately assign all such right title
and interest to Synbiotics and take all necessary action to ensure that
Synbiotics obtains the full benefit thereof or, if Synbiotics so requests in
writing with respect to any such item, take any necessary action to
surrender and cancel such item and the related rights, title and interest.
(f) Termination is not the sole remedy for breach under this Agreement
and, whether or not termination is effected, all other remedies for breach
will remain available.
17. Duties of Distributor Upon Expiration or Termination. Notwithstanding any
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other provision of this Agreement, upon the termination of this Agreement for
any reason whatsoever or expiration of this Agreement, Distributor shall:
(a) Pay to Synbiotics, in full within thirty (30) days of such
termination, any payment accrued prior to the effective date of expiration
or termination hereof. Synbiotics shall be entitled to offset and deduct
from any money due Distributor, whether or not arising under this Agreement,
any all amounts due Synbiotics from Distributor.
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It is expressly understood that upon expiration or termination for any
reason whatsoever, Distributor shall be relieved from the payment obligation
hereunder except any payment mentioned above.
(b) Promptly return to Synbiotics any documentation or data, including
without limitation all promotional material delivered to Distributor.
(c) Cooperate with Synbiotics in completing all outstanding obligations
to customers, including the fulfillment, at Distributor's expense, of each
warranty term and condition.
18. General.
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(a) Amendment and Waiver - Except as other wise expressly provided
herein, any provision of this Agreement may be amended and the observance of
any provision of this Agreement may be waived (either generally or in any
particular instance and either retroactively or prospectively) only with the
written consent of the parties. However, it is the intention of the parties
that this Agreement be controlling over additional or different terms of any
purchase order, confirmation, invoice or similar document, even if accepted
in writing by both parties, and that waivers and amendments shall be
effective only if made by non-pre-printed agreements clearly specified as
and und erstood by both parties to be an amendment or waiver.
(b) Governing Law - This Agreement shall be governed by and construed
under the law of the State of California without regard to conflicts of law
principles.
(c) Arbitration - In the event of any disputes,controversies or
differences which may arise between the parties hereto, out of or in
relation to or in connection with this Agreement, or for the breach thereof,
upon the request of either party, the parties agree to meet and discuss in
good faith a possible resolution thereof. If the matter is not resolved
within ninety (90) days following the request for discussions, then the
matter shall be settled by arbitration upon the initiation o arbitration by
either party. If the arbitration is initiated by Distributor, it shall be
held in San Francisco, U.S.A. in accordance with the rules of Conciliation
and Arbitration of the International Chamber of Commerce. If the arbitration
is initiated by Synbiotics, it shall be held in Tokyo, Japan in accordance
with the rules of the Japan Commercial Arbitration Association. The award
shall be final binding upon the parties hereto.
(d) Heading and Language - Heading and captions are for convenience only
and are not to be used in the interpretation of this Agreement. The official
text of this Agreement shall be the English language, and such English text
shall be controlling in all respects, notwithstanding any translation hereof
under the laws or regulations of any other country. The parties undertake to
use the English language in respect of all documents and communications
contemplated hereby, except where another language must be used under the
laws and regulations of another country. In any such case, a certified
English translation shall be supplied to the other party by the party using
such document or making such communication.
(e) Notice - For purposes of this Agreement, and for all notices and
correspondence hereunder, the addresses of the respective parties have been
set out at the beginning of this Agreement, and no change of address shall
be binding upon the other party hereto until written notice thereof is
received by such party at the address shown herein. all notices shall be
deemed received when personally delivered or one (1) business day after
being sent via telefax.
(f) Entire Agreement - This Agreement, together with all exhibits and
schedules hereto, constitutes the entire agreement among the parties
pertaining to the subject matter hereof and completely supersedes all prior
or contemporaneous agreements, understandings, arrangements, commitments,
negotiations, and discussions of the parties, whether oral or written (all
of which shall have no substantive significance or evidentiary effect).
Each party acknowledges, represents and warrants that it has not relied on
any
9
representation, agreement, understanding, arrangement or commitment which
has not been expressly set forth in this Agreement. Each party
acknowledges, represents and warrants that this Agreement is fully
integrated and not in need of parol evidence in order to reflect the
intentions of the parties. The parties specifically intend that the literal
words of this Agreement shall, alone, conclusively determine all questions
concerning the parties' intent. This Agreement does not contain or
constitute any express or impled license to make, have made or modify any
Product under any circumstances.
(g) Equitable Remedies - Distributor acknowledges and agrees that the
legal remedies available to Synbiotics in the event Distributor violates the
covenants and agreements made in this Agreement would be inadequate and that
Synbiotics shall be entitled, without posting any bond or other security, to
temporary, preliminary and permanent injunctive relief, specific performance
and other equitable remedies in the event of such a violation, in addition
to any other remedies which Synbiotics may have at law or in equity.
(h) Severability - If any provision of this Agreement is held to be
illegal or unenforceable, that provision shall be limited or eliminated to
the minimum extent necessary so that this Agreement shall otherwise remain
in full force and effect and enforceable.
SYNBIOTICS DISTRIBUTOR
SYNBIOTICS CORPORATION DAIICHI PHARMACEUTICAL CO., LTD.
a California corporation a Japanese corporation
By: /s/ Robert L. Widerkehr By: /s/ Tadashi Suzuki
_______________________ __________________
Name: Robert L. Widerkehr Name: Tadashi Suzuki
Title: President and CEO Title: President and CEO
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Attachment A
PRODUCTS
CANINE VACCINES
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SENTRYPAR DHP/L
SENTRYPAR DHP
SENTRYVAC DHP/L
SENTRYPAR
FELINE VACCINES
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PANAVAC RC
VACSYN/FeLV
DIAGNOSTICS
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ICT GOLD HW
ICT GOLD FeLV
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MEMORANDUM
This Memorandum dated and effective as of January 16, 1996 by and between
Synbiotics Corporation ("Synbiotics") a California corporation, and Daiichi
Pharmaceutical Co., Ltd. ("Distributor"), a Japanese corporation.
WITNESSETH
WHEREAS, Synbiotics and Distributor have entered into a Distribution Agreement
(the "Agreement") of on even date herewith, and
WHEREAS, Distributor has expressed its desire to confirm the non-restriction of
the research by The Kitasato Institute, a Japanese corporation, with its
principal office at 9-1, Shirogane 5-Chome, Minato-Ku, Tokyo 108, Japan, with
respect to the competitive product of the Products (as defined in the
Agreement), and any other third party who will support Distributor's performance
of the Agreement and is agreed upon by the parties (the "Third Party"), and
WHEREAS, Synbiotics is willing to accept such desire;
NOW THEREFORE, for and in consideration of the premises and covenants contained
herein and in the Agreement, Synbiotics and Distributor agree as follows:
1. Distributor shall have the obligation to have the Third Party observe the
provision of the nondisclosure obligation specified in Section 8 of the
Agreement, and Distributor shall remain the responsibility for the Third Party's
activity concerned; provided, however, that it is expressly understood that
Distributor shall no have any obligation to have the Third Party observe any
other terms and conditions of the Agreement, including, but not limited to, the
same or similar obligation to observe the provision of Section 6(d) of the
Agreement.
2. The provisions of this Memorandum shall in no way alter the obligations and
duties of Distributor under the Agreement except as expressly set forth herein.
Distributor shall indemnify and hold Synbiotics and its affiliates harmless
against claims, losses, liabilities, damages, deficiencies, costs and expenses,
including reasonable attorneys' fees and expenses of investigation incurred by
Synbiotics or any of its affiliates as a result of any failure by Third Party to
perform or comply with Section 8 of the Agreement.
Subject to above confirmation, the Agreement shall continue in full force and
effect.
SYNBIOTICS DISTRIBUTOR
SYNBIOTICS CORPORATION DAIICHI PHARMACEUTICAL CO., LTD.
a California corporation a Japanese corporation
By: /s/ Robert L. Widerkehr By: /s/ Tadashi Suzuki
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Name: Robert L. Widerkehr Name: Tadashi Suzuki
Title: President and CEO Title: President and CEO
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