INDUCEMENT AGREEMENT EXHIBIT 10.57
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THIS INDUCEMENT AGREEMENT ("Agreement") is entered into as of March 6, 1996, by
and between Engene Biotechnologies, Inc., a California corporation ("Engene")
and Synbiotics Corporation, a California corporation ("Synbiotics").
Engene and Synbiotics agree as follows:
1. Inducement Services. Engene hereby agrees to cause Dr. J. Kevin Steele
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("Steele") to enter into a certain License Agreement between Engene and
Synbiotics, a certain Research and Development Agreement between Engene and
Synbiotics and a certain Scientific Advisor Agreement between Steele and
Synbiotics, all of even date herewith.
2. Obligations of Synbiotics. In consideration therefor, Synbiotics shall
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issue [*] shares of Synbiotics Common Stock, no par value, to Engene.
Synbiotics shall cause Engene to be provided with a stock certificate therefor
within thirty (30) days following the execution of the Investment
Representation, a copy of which is attached hereto as Exhibit A, by Engene.
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Engene acknowledges that such stock is not registered under the Securities Act
and that Engene is acquiring such stock for investment rather than for
distribution.
3. Relationship of Parties. The relationship of the parties to this Agreement
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is that of independent contractors. The parties are not, by virtue of this
Agreement or otherwise, in an employer-employee, principal-agent, joint venture
or partnership relationship with each other. Each party agrees not to represent
to any other person, or to assert in any form or forum, that the parties'
relationship is an employer-employee, principal-agent, joint venture or
partnership relationship. Each party acknowledges that it has no authority to
make representations on behalf of or to bind or commit the other party, and each
party covenants and agrees not to purport to make any representation on behalf
of the other party or to purport to bind or commit the other party in any way.
Each party acknowledges that it is responsible for its own tax withholding and
other obligations with regard to its own employees, and that the other party has
no responsibility whatsoever for withholding tax and other employment
obligations of the first party.
4. Indemnification. Engene agrees to and shall defend, indemnify and hold
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Synbiotics, its officers, directors, employees, agents and shareholders harmless
(including attorneys fees to defend, and any damages, penalties, settlements,
costs or expenses awarded or incurred) from and against any claim, liability,
suit or proceeding initiated by or on behalf of a third party arising from or
occurring as a result of Engene's performance of services hereunder.
5. Amendments and Waivers. This Agreement may be modified, amended or
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supplemented only by a written instrument duly executed by Engene and
Synbiotics. No term or condition or the breach thereof shall be deemed waived,
unless it is waived in writing and signed by the party against whom the waiver
is claimed. Any waiver or breach of any term or condition shall not be deemed
to be a waiver of any preceding or succeeding breach of the same or any other
term or condition. The failure of any party to insist upon strict performance
of any term or condition hereunder shall not constitute a waiver of such party's
right to demand strict compliance therewith in the future.
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[*] 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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6. Attorneys' Fees. If any action at law or in equity is necessary to enforce
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or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and disbursements, in addition to any other
relief to which such party may be entitled.
7. Counterparts. This Agreement may be executed in multiple copies, each of
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which shall be deemed an original and all of which shall constitute a single
agreement binding on the parties.
8. Entire Agreement. This Agreement constitutes the entire agreement between
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the parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings. The parties agree that
the License Agreement, the Research and Development Agreement and the Scientific
Advisor Agreement are not superseded. Each party to this Agreement acknowledges
that no representations, inducements, promises or agreements have been made by
any party, or any one acting on behalf of any party, that are not embodied in
this Agreement with respect to the subject matter hereof.
9. Representation. By executing this Agreement, Engene acknowledges that it
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understands and agrees that Brobeck, Phleger & Harrison LLP represents the
interests of Synbiotics solely and that it has had the opportunity to consult
with its own attorney in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ENGENE BIOTECHNOLOGIES, INC. SYNBIOTICS CORPORATION
By: /s/ J. Kevin Steele By: Robert L. Widerkehr
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Title: President Title: President and CEO
Date: March 6, 1996 Date: March 6, 1996
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EXHIBIT A
INVESTMENT REPRESENTATION
Synbiotics Corporation,
a California corporation
Engene Biotechnologies, Inc., a California corporation ("Engene") is acquiring
the number of shares of common stock of Synbiotics Corporation, a California
corporation, indicated below (the "Securities") in its own name and for its own
account, and no other person has any interest in or right with respect to the
Securities, nor has Engene agreed to give any person any such interest or right
in the future.
Engene is acquiring the Securities for investment and not with a view to or for
sale in connection with any distribution of the Securities. Engene recognizes
that the Securities have not been registered under the Federal Securities Act of
1933 or qualified under the California Corporate Securities Law of 1968, or the
securities laws of any other state, that any disposition of the Securities is
subject to restrictions imposed by federal and state law, and that the
certificates representing the Securities will bear a restrictive legend. Engene
also recognizes that it cannot dispose of the Securities absent registration and
qualification, or an available exemption from registration and qualification,
and that no undertaking has been made with regard to registering or qualifying
the Securities in the future. Engene understands that the availability of any
exemption in the future will depend in part on circumstances outside its control
and that Engene may be required to hold the Securities for a substantial period.
Engene recognizes that no public market exists with respect to the Securities
and no representation has been made to it that such a public market will exist
at a future date. Engene understands that neither the California Commissioner
of Corporations nor any other state commissioner of corporations has made any
finding or determination relating to the fairness for investment of the
Securities offered by Synbiotics Corporation and that no commissioner of
corporations of any state has recommended or endorsed or will recommend or
endorse the Securities.
ENGENE BIOTECHNOLOGIES, INC.
By: /s/ J. Kevin Steele
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Title: President
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Taxpayer Identification or
Social Security Number
Address: 16236 San Dieguito Road
Suite 4-21
Rancho Santa Fe, CA 92067
Date: March 6, 1996
Number of Shares purchased: [*]
A-1