1
EXHIBIT 10.75
AGREEMENT
This Agreement between Dagal, Inc., a California corporation
(hereinafter referred to as "Dagal") and Wilshire Technologies, Inc., a
California corporation (hereinafter referred to as "Wilshire") is made as of
April 15, 1996 with reference to the following
FACTS:
A. Wilshire Transdermal Products Limited and Dagal have heretofore
entered into the International Distribution Agreement (the "1993 Agreement")
dated August 11, 1993, the Agency Agreement (the "Agency Agreement") dated
April 19, 1994, and the International Distribution Agreement (the "1994
Agreement") dated as of September 20, 1994.
B. The 1993 Agreement and the Agency Agreement were superseded by the
1994 Agreement.
C. By entering into this Agreement, the parties wish to terminate the
1994 Agreement on the following terms and conditions.
1. TERMINATION OF AGREEMENTS.
Effective with the execution of this Agreement, the 1994 Agreement and,
to the extent not theretofore terminated, the 1993 Agreement and the
Agency Agreement, are terminated. Upon such termination, no party to
such agreements shall be liable to any other party thereto for any past,
present or future obligations thereunder.
2. AMOUNT OF CONSIDERATION FOR TERMINATIONS.
In full payment to Dagal by Wilshire Technologies, Inc. and Wilshire
Transdermal Products Ltd., Wilshire hereby agrees to pay Dagal U.S.
$0.10 for every transdermal patch for human weight loss manufactured by
or for Wilshire ("TrimPatch"), that is sold during the Royalty Period,
directly by Wilshire or indirectly through others (each a "Seller") to
purchasers in the following countries:
Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras,
Mexico, Nicaragua and Panama
The aforesaid nine countries are hereinafter in the aggregate referred
to as the "Territory".
The Royalty Period is the two-year period commencing on the date of the
first sale of TrimPatch in the Territory.
2
No amounts shall be due Dagal by Wilshire under this Agreement for
TrimPatch sales effected after the Royalty Period or for TrimPatch
Patches that are at any time returned to the Seller.
3. MANNER OF PAYMENT OF CONSIDERATION.
Wilshire is not obligated to make any payment to Dagal, and Dagal is
not entitled to any payment from Wilshire until thirty days after
Wilshire has received its part of the proceeds of the relevant sale.
Wilshire shall prepare and submit to Dagal periodically but not less
frequently than monthly reports showing the number of units sold in the
Territory, broken down by countries, the number of units for which
Wilshire has received payment and the amounts payable to Dagal under
this Agreement, based on such sales.
To enable Dagal to monitor compliance with Wilshire's obligations under
this Agreement, but for no other purposes, Wilshire hereby grants Dagal
or its authorized representative access, on reasonable notice, to
Wilshire's pertinent records concerning TrimPatch sales in the
Territory.
4. REPRESENTATIONS BY WILSHIRE.
Wilshire is presently seeking a distributor for the distribution of
TrimPatch in Mexico. There is no assurance that a distributorship
agreement will be concluded or that substantial sales of TrimPatch in
Mexico will be made thereunder.
Wilshire presently has no distributorship agreements or other
distribution arrangements for any of the other countries listed in
Section 2, and can not predict whether any will be entered into in the
foreseeable future.
5. DAGAL'S AGREEMENT NOT TO COMPETE.
Dagal hereby agrees that prior to the expiration of the Royalty Period,
it will not directly or indirectly engage in Product Business in any of
the nine countries mentioned in Section 2 where Wilshire, directly or
through distributors or agents is then conducting Product Business.
Without limiting the generality of the foregoing, "to engage in Product
Business" includes to be or become or agree to be or become, interested
in or associated with, in any capacity (whether as partner, shareholder,
owner, officer, director, employee, principal, agent, creditor, trustee,
consultant, co-venturer or otherwise), any Person engaged in the
manufacture, sale or servicing of Products; provided,
- 2 -
3
however, that Dagal may own, solely as an investment, not more than 1%
of any class of securities of any publicly held corporation traded on
any national securities exchange or on the automated quotation system in
the United States of America; and "Products" means transdermal patches,
whether or not TrimPatch patches, designed for human weight loss
purposes.
6. ENTIRE AGREEMENT AND AMENDMENTS.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements
between the parties, whether written or oral, relating to the same
subject matter. No modification, amendments or supplements to this
Agreement shall be effective for any purpose unless in writing, signed
by each party. Approvals or consents hereunder of a party shall also be
in writing.
7. ARBITRATION.
Any dispute, controversy or claim derived from this Agreement, or from
its interpretation, execution, compliance or termination, or with
regards to the respective rights and obligations of either party to this
Agreement shall be submitted to mandatory arbitration in accordance with
the regulations of Commercial Arbitration of the American Arbitration
Association and to its Supplemental International Commercial Arbitration
procedure in force on the date of this Agreement. Such Arbitration shall
take place in San Diego, California. The arbitration award may be
enforced by any competent authority.
8. OTHER MATTERS.
Applicable Law. This Agreement and the rights and obligations of the
parties shall be interpreted in accordance with and shall be governed by
the laws of the State of California, without giving effect to principles
of conflicts of laws.
Notices. All notices, demands, requests or other communications
provided for or permitted to be given pursuant to this Agreement shall
be in writing and shall be delivered by hand, by express courier, or
mailed by registered, certified or express mail, postage prepaid, return
receipt requested, and addressed as follows:
-3-
4
If to Dagal, Inc. Dagal, Inc.
11770 Bernardo Plaza Court
Suite 305
San Diego, CA 92128
Attn: Mr. Alex Lemus,
President
If to Wilshire: Wilshire Technologies, Inc.
5441 Avenida Encinas, Suite A
Carlsbad, CA 92008
Attn: Mr. Stephen P. Scibelli, Jr.,
President
By giving to the other parties at least ten days written notice thereof,
each party and its respective successors and permitted assigns shall
have the right, from time to time and at any time during the term of
this Agreement, to specify any other address within the United States of
America.
Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable
to any extent, the remainder of this Agreement and the application of
such provisions to any other person or circumstance shall not be
affected thereby and shall be enforced to the greatest extent permitted
by law.
Gender. All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural and vice versa. Titles of
Sections are for convenience only and neither limit nor amplify the
provisions of the Agreement itself.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which together shall comprise but a single instrument.
Attorneys' Fees. If any action is brought to enforce or interpret this
Agreement, including arbitration pursuant to Section 7, the prevailing
party shall be entitled to
-4-
5
recover its costs and reasonable attorneys' fees incurred in connection with
such action.
WILSHIRE TECHNOLOGIES, INC.
By /s/ STEPHEN P. SCIBELLI, JR.
-----------------------------------
Stephen P. Scibelli, Jr.
President
DAGAL, INC.
By /s/ ALEX LEMUS
-----------------------------------
Alex Lemus, President
-5-