CONFIDENTIAL TREATMENT REQUESTED FOR ALL BRACKETED ([ ]) INFORMATION. THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT, dated as of the 5th day of August, 1996, by and
between Merck & Co., Inc., a corporation duly organized and existing under the
laws of the state of New Jersey having an address at Xxx Xxxxx Xxxxx,
Xxxxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000 and operating through its Merck AgVet
Division, (hereinafter referred to as "MERCK")
AND
Koffolk, Inc., a business entity duly organized and existing under the laws of
the state of Delaware having an address at Xxx Xxxxxx Xxxxx, Xxxx Xxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "KOFFOLK").
WITNESSETH:
WHEREAS, MERCK is the inventor, developer and supplier of products
used for animal health purposes; and
WHEREAS, KOFFOLK desires to distribute, promote, advertise and sell
certain of such products for animal health purposes in the United States in
accordance with the Food and Drug Administration registration obtained by
MERCK; and
WHEREAS, KOFFOLK shall maintain the necessary sales force and
organization to properly service the territory;
NOW, THEREFORE, in consideration of the premises and of the
performance of the mutual covenants hereinafter set forth, the parties hereto
agree as follows:
1. DEFINITIONS
Each term defined below shall, for the purpose of this Agreement,
have the following meaning and shall include the singular and the plural:
(a) "Product" or "Products" shall mean the finished animal health
products containing amprolium as the active ingredient [
].
(b) "Territory" shall mean the United States of America, excluding
its territories and possessions.
(c) "Trademark(s)" shall mean the trademarks AMPROL, AMPROL Plus or
other appropriate trademarks designated by Merck AgVet, which are licensed to
KOFFOLK in the Territory by MERCK pursuant to the Trademark License Agreement
of even date.
(d) "Exclusive Distribution Period" shall mean that period of
[ ] from the Effective Date of the Agreement and any
applicable renewal periods.
(e)"Affiliate" shall mean with respect to a party to this Agreement
(i) any corporation or business entity, fifty percent (50%) or more of the
voting stock of which is owned directly or indirectly by a party; (ii) any
corporation or business entity which directly or indirectly owns fifty percent
(50%) or more of the voting stock of a party; or (iii) any corporation or
business entity under the direct or indirect control of a corporation or
business entity as described in clause (i) or (ii).
(f)"Promotional Literature" shall mean all Products-related or
disease-related material, or similar material with respect to competitive
Products, written, oral, graphic or other prepared for distribution to or use
with the veterinary or allied professions, sales representatives, the trade,
and/or consumers.
(g) "Calendar Year" shall mean that twelve (12) month period
commencing January 1st and ending December 31st of each year of the Agreement.
(h) "License Agreement" shall mean the Trademark License Agreement of
even date between MERCK and KOFFOLK.
(i) "Marketing Plan" shall mean that document prepared by KOFFOLK on
an annual basis and submitted to MERCK that contains sales forecasts and
promotional efforts of KOFFOLK for sale of the Product for the succeeding
Calendar Year.
(j) "Effective Date" shall mean August 5,1996.
(k) "Like Kind Exchange" shall mean an arrangement whereby MERCK
divests itself of Product via a non-cash exchange for a third party's
product(s) or rights to market and/or distribute a third party's product(s).
(l) "Promotional Efforts" shall mean the expense, not including
salaries and related overhead expenses, associated with the planning,
production, publication and distribution of Product support material, market
support trials, meetings, merchandising allowance funds, and market research
necessary to facilitate the marketing effort.
2. APPOINTMENT OF KOFFOLK
(a) Subject to [
], MERCK hereby appoints KOFFOLK as an exclusive
distributor in the Territory for the Products.
(b) KOFFOLK shall sell the Products for its own account. All orders
by KOFFOLK's customers shall be promptly filled by KOFFOLK and KOFFOLK shall
assume all credit risks.
3. PURCHASE OF PRODUCTS
(a) MERCK shall sell, and KOFFOLK shall purchase, the Products from
MERCK at the product supply price specified in Schedule B. Product supply
prices are [ ]. All orders shall be subject to
acceptance by MERCK or such Affiliate and all sales shall be subject to the then
current Terms and Conditions of Sale. To the extent there is any inconsistency
in the Terms and Conditions of Sale and this Agreement, this Agreement shall
govern.
(b) KOFFOLK shall make payment to MERCK for the Product within ninety
(90) days of the date of the invoice, in the currency stated on the invoice.
(c) KOFFOLK shall provide MERCK with a [ ] forecast of
its expected requirements of Products, updated on a monthly basis, divided into
[ ] of Products by pack size as of the beginning of each
[ ]. Purchase orders shall be in writing and submitted by
2
KOFFOLK to MERCK by January 15 of each Calendar Year and shall specify by
product the [ ]. [ ].
Delivery shall be made as close to such requested dates as possible. The terms
of such purchase order shall be consistent with the provisions of this
Agreement and where inconsistent, this Agreement shall govern.
(d) MERCK shall use reasonable efforts to fill orders that are in
excess of the quantity forecasts provided by KOFFOLK, giving consideration to
the quantity of the Products available at the time, the requirements of other
customers and the capacity of the production facility.
(e) KOFFOLK shall inspect the Products and shall inform MERCK in
writing of any complaints regarding the quantity or quality of the same within
three (3) days of receipt of the Products by KOFFOLK. In the event that a
quality defect is not discoverable by reasonable inspection, such claim for
the quality defect shall be made in writing within three (3) days of
discovery. No quantity of the Products shall be returned to MERCK without
MERCK's express written permission, which permission shall not be unreasonably
withheld. Once permission has been given, Product will be returned to MERCK
and, at MERCK's option, either subsequently replaced within ninety (90) days
at no charge to KOFFOLK or a credit for the amount of defective Product will
be provided to KOFFOLK within thirty (30) days of its return.
4. CERTAIN SPECIFIC RESPONSIBILITIES OF KOFFOLK
(a) KOFFOLK shall prepare and submit to MERCK on an annual basis, a
written marketing plan for the Products which shall include sales forecasts
and promotional efforts for the year. The marketing plan for Calendar Year
1997 shall be provided by December 1,1996. Thereafter, the marketing plan for
each succeeding Calendar Year shall be provided by KOFFOLK to MERCK by
September 1st of the preceding Calendar Year.
(b) KOFFOLK shall actively promote and distribute and use its best
efforts to expand the sales of the Products in the Territory by all
appropriate means available through the maintenance of its sales organization.
(c) KOFFOLK shall [
]
CONFIDENTIAL TREATMENT REQUESTED FOR ALL BRACKETED ([ ]) INFORMATION. THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
(d) If in any two (2) consecutive Calendar Years, KOFFOLK fails to
meet the Guaranteed Amounts, MERCK may terminate this Agreement upon sixty
(60) days notice to KOFFOLK.
(e) KOFFOLK shall keep MERCK informed on a quarterly basis, in
writing, of the Promotional Efforts it will be making in connection with the
Products. Thereafter, KOFFOLK's expenditure for Promotional Efforts for each
subsequent Calendar Year shall be contained in the Marketing Plan as developed
by KOFFOLK. MERCK reserves the right to request, and KOFFOLK shall provide,
documentation to substantiate the amount spent by KOFFOLK on Promotional
Efforts in each Calendar Year of the Agreement.
(f) KOFFOLK shall maintain sufficient stocks of the Products to
satisfy the demand for them in the Territory. Specifically, its inventory
shall, at any given time, not fall below the equivalent of the total estimated
sales for each Product in the upcoming two (2) months. The Products shall be
handled and stored in accordance with instructions provided by MERCK.
(g) KOFFOLK acknowledges that it is aware of the terms of MERCK's
Ethical Business Practices
3
Policy, a copy of which is attached hereto as Attachment I and made part of
this Agreement. KOFFOLK agrees to comply fully with the requirements of said
Policy and agrees to indemnify and hold MERCK harmless from and against any
and all liabilities resulting from the violation of said policy by KOFFOLK, or
any third party that KOFFOLK has instructed to act on its behalf.
(h) KOFFOLK agrees to develop at its own expense Promotional Literature
to be used in conjunction with the sale of the Products in the Territory. All
Promotional Literature must be consistent with the safety and efficacy data
supplied by MERCK and reviewed and approved by MERCK according to the
following provisions prior to its use:
(i) All Promotional Literature relating to the Products must
be submitted for approval to publish shall be addressed to:
Merck & Co., Inc.
Merck Ag Vet Division
Xx. Xxxxx Xxxxxxxxx
Associate Director, Marketing Communications
U.S. Operations
X.X. Xxx 0000, XXX-000
Xxxxxx, XX 00000-0000
(ii) Within twenty (20) working days of receipt, MERCK will
either approve or reject the submission. No Promotional Literature may be
printed, published or put into use until a signed approval is received from
MERCK by KOFFOLK. Facsimile transmission will be deemed acceptable.
(iii) Approval of each promotional text is valid for one (1)
year unless new Product information or new regulations affecting the Products
or text become available. In the absence of any such changes, approved
literature may be printed, reprinted, used and distributed during this period.
(iv) An approved text may not be changed for publication
without the written authority of MERCK. This applies to all Promotional
Literature covered by this procedure. If even the most minor change of an
approved literature piece is required, the revised text must be submitted for
MERCK's approval.
(v) KOFFOLK shall submit, within five (5) days of
production, ten (10) printed specimens of each approved literature piece for
after-the-fact review, accompanied by a confirmation from an authorized
representative of KOFFOLK that it is worded exactly as was approved by MERCK.
Specimens and confirmations should be addressed to:
Merck & Co., Inc.
Merck AgVet Division
Xx. Xxxxx Xxxxxxxxx
Associate Director, Marketing Communications
U.S. Operations
X.X. Xxx 0000, XXX-000
Xxxxxx, XX 00000-0000
(vi) Pricing information or bulletins for KOFFOLK's
internal use only that contain no safety, efficacy or other Products-related
claims are excluded from review under this procedure.
(i) KOFFOLK shall provide MERCK with a quarterly report of (i) all
sales of Products by package size and (ii) and inventory status of the
Products which report shall be provided by the twentieth (20th) day of the
4
month immediately following the close of the quarterly period. Additionally,
KOFFOLK shall keep MERCK advised on a regular basis of general market,
economic and regulatory developments which may affect the promotion and sale
of the Products in the Territory.
(j) KOFFOLK shall not make any claim, either orally or in writing,
with respect to the safety or effectiveness of the Products that is
inconsistent with and/or goes beyond approved claims for the Products, nor
shall KOFFOLK recommend the combination of the Products with any other
products, without MERCK's prior written consent.
(k) KOFFOLK shall do nothing which will jeopardize the goodwill of
MERCK or any of its Affiliates or the reputation of the Products. The
appointment of KOFFOLK as a distributor hereunder shall not create a joint
venture, or principal-agency relationship, or franchise relationship and
nothing hereunder shall be deemed to authorize KOFFOLK to act for, represent,
or bind MERCK or any of its Affiliates, unless specific authority to act on
MERCK's behalf is granted to KOFFOLK in writing.
(l) Both parties agree to comply with all laws and regulations and
other requirements in the Territory governing the performance of their
activities under an agreement such as this.
(m) KOFFOLK shall be responsible for ensuring that its customers
obtain approval of form FDA 1900 with the FDA. In order to ensure that
existing customers of the Products have obtained such approvals, MERCK shall
provide KOFFOLK, within forty-five (45) days of the Effective Date, with
copies of all forms FDA 1900 (or Forms FDA 1800, if applicable) covering the
Products which it has in its possession.
(n) Except as required by law, neither party shall make any public
announcement in connection with the subject matter of this Agreement without
the prior approval of the other party.
5. PROMOTIONAL AND MARKETING EXPENSES
(a) KOFFOLK agrees to pay for all promotional, selling and marketing
costs of Products, including but not limited to customer feed assay costs,
advertising expenses, freight and distribution costs and carrying costs of
accounts receivable.
(b) MERCK agrees to provide customer feed assays to KOFFOLK in 1996 [
].
6. CONFIDENTIALITY
(a) For the term of this Agreement plus five (5) years thereafter all
information which is received by KOFFOLK or MERCK from the other party during
the term of this Agreement shall be maintained in strict confidence by the
receiving party. All information whether generated by KOFFOLK or MERCK shall
be disclosed only to MERCK or KOFFOLK employees and consultants who have been
instructed to treat such information in strict confidence and on a "need to
know" basis. This information shall be protected from disclosure to third
parties with at least the same degree of care used by such employees when
dealing with their employer's confidential information. Further, such
information shall not be disclosed to any other person, firm, or agency,
governmental or private, or used for purposes other than set forth herein
without the prior written consent of the disclosing party.
(b) With respect to tangible materials provided by MERCK to KOFFOLK
under this Agreement, including samples of Products, KOFFOLK agrees to (i) not
provide such materials to third parties, (ii) not conduct demonstration trials
or protocols for the promotional use of the product except with the prior
written permission of MERCK, and (iii) return unused portions of such
materials to MERCK.
5
(c) In the event KOFFOLK desires to disclose to MERCK any information
considered confidential and proprietary to KOFFOLK ("KOFFOLK Confidential
Information") during the course of this Agreement, KOFFOLK shall first provide
MERCK with notice of KOFFOLK's intent to disclose KOFFOLK Confidential
Information, then for the term of this Agreement plus three (3) years
thereafter, MERCK shall keep KOFFOLK Confidential Information confidential by
not disclosing to any third party, and shall not use for any purpose other
than pursuant to this Agreement.
(d) The foregoing obligations shall not apply when and to the extent
such information:(I)is or becomes a part of the public domain without the
breach of this Agreement;(ii)is already known to the receiving party prior to
its disclosure or development hereunder(iii)can be shown to have been
independently developed by or on behalf of MERCK without reference or access
to KOFFOLK Confidential Information as evidenced by MERCK's written records;
or(iv)is disclosed to the receiving party by an independent third party not
under an obligation of confidence to the disclosing party with respect
thereto.
(e) This Agreement shall not supersede any existing Confidentiality
Agreement between MERCK and KOFFOLK and/or its Affiliates with respect to any
information already or hereafter disclosed between the parties, and shall be
deemed additive to those confidentiality obligations that may have already
been assumed.
7. PRODUCT REGISTRATION
Registrations for the Products with the Food and Drug Administration
shall be maintained by MERCK. All fees and other expenses in connection with
the registration of the Products shall be for the account of MERCK. Product
registrations shall be in the name of MERCK or a designated Affiliate under
the separate Trademarks as owned by MERCK as set forth in Paragraph 8 and
listed in Schedule A. All product registrations so obtained shall be and
remain the property of MERCK or such Affiliate. Any registrations required
pursuant to state law to allow for distribution of the Products by KOFFOLK in
each state in the Territory, including distribution licenses, shall be applied
for, maintained by, be the property of, and for the account of KOFFOLK only.
8. PACKAGING AND LABELING
KOFFOLK will promote and market the Products under labeling
and package design approved by MERCK. All packages will bear the name and logo
of MERCK, and shall identify that the Products are manufactured by MERCK.
9. TRADEMARKS
(a) [
], KOFFOLK shall have the exclusive right to use the
Trademarks in the Territory pursuant to the terms of this Agreement and the
Trademark License Agreement of even date annexed as Attachment 2.
(b) Except as provided by this Agreement and/or the Trademark License
Agreement, nothing in this Agreement shall be construed as granting to KOFFOLK
any right, title, interest, or license under or to any intellectual property
of MERCK relating to the Product.
10. REGULATORY MATTERS
(a) The Product covered by this Agreement is registered with the
Center for Veterinary Medicine of the Food and Drug Administration (FDA).
(b) (i) KOFFOLK agrees that it shall undertake in accordance with
applicable FDA regulations, and any other applicable laws or regulations, the
submitting of periodic drug experience reports to MERCK.
6
(ii) KOFFOLK further agrees to report to MERCK in writing
all adverse experience and adverse physical occurrence information of which it
becomes aware associated with the Products relating to hazards,
contraindications, side effects, injuries, toxicity, sensitivity reactions,
Product defects and mix-ups, whether or not the adverse experience or physical
occurrence is determined to be causally related to the Products. This
reporting obligation shall be in full compliance with the MERCK Policy and
Procedure No. 4, "Reporting Adverse Experiences and Adverse Physical
Occurrences for Animal Health Products," a copy of which is attached as
Attachment 3 and incorporated herein by reference. KOFFOLK shall submit a copy
of such report to MERCK within five (5) working days after learning of the
adverse experience or physical occurrence using the required RA 1932 Form, a
blank copy of which is attached as Attachment 4.
(iii) When complete information is not available within the
five-day period, KOFFOLK shall submit any available information within the
five-day period, and also submit a supplement as soon as further details
become available. MERCK shall be authorized to submit such adverse experience
or physical occurrence information to government authorities as it considers
appropriate. KOFFOLK agrees to permit MERCK to audit KOFFOLK's files for
adverse drug experience or physical occurrence on a routine basis as
determined necessary by MERCK. If MERCK becomes aware of adverse experiences
or physical occurrences which in its opinion may require a change in label
content, MERCK shall provide KOFFOLK with all information relating to such
adverse experiences or physical occurrences.
(iv) KOFFOLK agrees to provide a signed statement
identifying the category of its operation (i.e., wholesaler, retailer) and
stating that it will distribute the Products only under labeling provided for
in the new animal drug application for Product and approved by MERCK; that any
other labeling or advertising for the drug will prescribe, recommend and/or
suggest its use only under the conditions stated in the labeling provided for
in the application; and that it is regularly and lawfully engaged in the
distribution of Product.
(v) KOFFOLK will advise MERCK immediately concerning any FDA
inspections, notices, or enforcement action with respect to the Product.
11. FORCE MAJEURE
Neither of the parties hereto shall be liable or be in breach of any
provision hereof for any failure or delay on its part to perform any
obligation (other than the obligation to make payments when due) under any
provision of this Agreement because of force majeure, including, but not
limited to, war, riot, fire, explosion, flood, sabotage, accident or breakdown
of machinery; unavailability of fuel, labor, containers, or transportation
facilities; accidents of navigation or breakdown or damage of vessels, or
other conveyances for air, land or sea; other impediments or hindrances to
transportation; strike or other labor disturbances; government restraints or
any other cause beyond the control of the party thus failing to perform or
whose performance is thus delayed.
12. TERM AND TERMINATION
(a) This Agreement shall have an Effective Date as defined herein,
and unless sooner terminated as provided herein, shall remain in full force
and effect for a period of [ ] from the Effective Date subject
to the terms and conditions set forth herein. Thereafter the Agreement shall
be renewed for successive one (1) year periods upon mutual agreement of the
parties expressed in writing at least ninety (90) days prior to expiration of
this Agreement and each successive renewal term.
(b) Should either MERCK or KOFFOLK cease to do business or be
adjudicated as bankrupt or make an assignment for the benefit of creditors or
become involved in any insolvency proceeding or receivership proceeding, this
Agreement shall terminate immediately.
(c) This Agreement may also be terminated by MERCK on one hundred and
eighty (180) days prior
7
written notice to KOFFOLK in the event that maintenance of the Product
registration or manufacture of the Product becomes infeasible as reasonably
determined by MERCK or MERCK divests Product via a Like Kind Exchange
arrangement with a third party.
(d) Either party may terminate the Agreement in case of material
breach by the other party, such termination to be effected by sixty (60) days
prior written notice which specifically identifies the breach and provides the
opportunity for the breach to be cured within that sixty (60) day period. By
way of example without limitation, failure by KOFFOLK to follow and comply
with Paragraph 4(h) (promotional material) and Paragraph 10 (regulatory
matters) shall be considered a material breach.
(e) MERCK may terminate this Agreement upon thirty (30) days written
notice upon a change in management or in the event that a majority of the
stock, assets or control of KOFFOLK is acquired by any other party(s) which
MERCK determines, in its sole judgment, is prejudicial to its interests. In
the event of such-change in management or control, notwithstanding the
provisions of Paragraph 13, MERCK shall have the right in its sole discretion
to purchase back any and all remaining inventory of Products at KOFFOLK's full
purchase price.
(f) Upon termination of this Agreement in accordance with its terms,
KOFFOLK shall make no claim or request compensation of any kind because of
such termination. KOFFOLK agrees to waive any statutory amount which may be
allowable or imposed for such termination such as liquidated damages or other
such statutory payments, if any.
(g) Termination shall not extinguish obligations and liabilities of
the parties accrued prior to termination or non-renewal.
13. TRANSITION PERIOD
At the conclusion of the Exclusive Distribution Period, or in the
event of earlier termination under Paragraph 12 with the exception of
Paragraph 12 (e), KOFFOLK shall have the right to sell any remaining MERCK
product bearing the Product label in its inventory for a period not to exceed
three (3) months from the conclusion of the Exclusive Distribution Period or
the date of termination. KOFFOLK shall notify MERCK in writing of its existing
inventory of Products at the beginning of that three (3) month period. KOFFOLK
shall exercise its best efforts to sell existing inventory of Products during
this three (3) month period. KOFFOLK further agrees to take all reasonable
steps necessary to minimize the amount of product inventory bearing the
Product label remaining on the first day immediately following conclusion of
the Exclusive Distribution Period. The parties' respective rights and
obligations under the Agreement shall remain in full force and effect during
the Transition Period.
14. RECALL
(a) In the event MERCK shall be required or shall voluntarily decide
to recall any Product distributed by KOFFOLK pursuant to this Agreement, then
KOFFOLK shall fully cooperate with MERCK in connection with the recall. If
such recall is initiated because of the negligence or failure of MERCK to
comply with the terms of this Agreement, then MERCK will credit KOFFOLK for
the price it invoiced KOFFOLK for all Product returned and, in addition, MERCK
will reimburse KOFFOLK for all reasonable recall expenses in connection
therewith. If such recall is initiated because of the negligence or failure of
KOFFOLK to comply with the terms of this Agreement, then KOFFOLK will
reimburse MERCK for all reasonable recall expenses in connection therewith.
(b) KOFFOLK agrees to abide by all decisions of MERCK to recall
Product and both parties shall fully cooperate with each other in the event of
any recall of Product under this Agreement.
15. JURISDICTION/CHOICE OF LAW
8
This Agreement shall be governed by, interpreted and construed, and
all claims and disputes, whether in tort, contract or otherwise be resolved in
accordance with the substantive laws of the State of New York, United States
of America, without reference to any rules of conflict of laws or renvois. In
the event of any controversy or claim arising out of or relating to this
Agreement, performance hereunder, termination hereof, or relationship created
hereby, each party irrevocably submits to the exclusive jurisdiction of the
courts of the Supreme Court of the State of New York and the U.S. District
Court for the Southern District of New York for the purposes of any suit,
action or other proceeding arising out of this Agreement or transactions
contemplated hereby. Each party irrevocably and unconditionally waives any
objection to the laying of venue in the courts of New York as stated above and
that any such action was brought in an inconvenient forum. Notwithstanding the
foregoing, in the event of a threatened disclosure in violation of this
Agreement, MERCK shall have the right to seek injunctive relief from any
competent court in the jurisdiction where the disclosure is threatened to
prevent such disclosure pending resolution of the merits of the dispute.
16. PRODUCT WARRANTIES AND INDEMNIFICATION
(a) MERCK warrants that the Products shall meet the ingredient
specifications contained on the label and conform to MERCK's specifications
for the Products when it leaves MERCK's control. MERCK makes no other
warranties, either express or implied, including warranties of merchantability
or of fitness for a particular use.
(b) MERCK shall defend and indemnify KOFFOLK against all expenses,
claims, demands, liabilities or money judgments, including recall, incurred by
KOFFOLK arising from the negligence or fault of MERCK or from MERCK's failure
to comply with the terms of this Agreement, except to the extent that said
expenses, claims, demands, liability or money judgments are caused by the
negligence or fault on the part of KOFFOLK or KOFFOLK's failure to comply with
the terms of this Agreement.
(c) KOFFOLK shall defend and indemnify MERCK against all expenses,
claims, demands, liabilities or money judgments, including recall, incurred by
MERCK arising from the negligence or fault of KOFFOLK or from KOFFOLK's
failure to comply with the terms of this Agreement, except to the extent that
said expenses, claims, demands, liability or money judgments are caused by the
negligence or fault on the part of MERCK or MERCK's failure to comply with the
terms of this Agreement.
17. ENTIRE AGREEMENT
This Agreement and Trademark License Agreement of even date comprises
the entire Agreement between the parties and merges all prior agreements
between them relative to the Products hereunder. This Agreement may not be
amended except in writing, signed by both parties referencing this Agreement.
18. NOTICES
All notices hereunder required to be in writing shall be sufficient
if sent by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to MERCK: Merck & Co., Inc.
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: President
Merck AgVet Division
If to KOFFOLK: Koffolk, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
9
Attn: President
19. SEVERABILITY
In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions contained in this Agreement. If any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to time, duration, geographical scope, activity or
subject, it shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with applicable law.
20. TITLES
The titles to each paragraph of this Agreement are for reference only
and shall not be used to interpret said paragraph. All interpretations of the
meaning of each paragraph to this Agreement shall rely solely upon the wording
of the Agreement and shall not incorporate the paragraph titles for its
interpretation.
21. AMENDMENT
Except as otherwise expressly stated herein, this Agreement cannot be
amended or modified except by a written instrument which shall state that it
is an amendment or modification of this Agreement and which shall be signed
and dated by the parties hereto.
22. WAIVER
Failure by MERCK or KOFFOLK at any time to enforce any of the terms
or conditions of this Agreement shall not be deemed a continuing waiver as to
such terms or conditions, and shall not affect the right of MERCK or KOFFOLK
to later avail itself of such remedies as it may have for any subsequent
breach of such terms or conditions under the provisions of this Agreement in
equity or at law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers or representatives as of the day
and year first above written.
KOFFOLK, INC.
By: /s/ X.X. Xxxxxxxx
-----------------
Name: X. X. Xxxxxxxx
Title: Pres.
MERCK & CO, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: President
10
SCHEDULE A
CONFIDENTIAL TREATMENT REQUESTED FOR ALL BRACKETED ([ ]) INFORMATION. THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
[ ]
[ ]
[ ]
[ ]
[ ]
SCHEDULE B
MINIMUM SUPPLY PRICES
CONFIDENTIAL TREATMENT REQUESTED FOR ALL BRACKETED ([ ]) INFORMATION. THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
[ ]
[ ]
[ ]
[ ]
[ ]
SCHEDULE C
GUARANTEED PURCHASES
CONFIDENTIAL TREATMENT REQUESTED FOR ALL BRACKETED ([ ]) INFORMATION. THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
[ ]
ATTACHMENT 1
ETHICAL BUSINESS PRACTICES
KOFFOLK agrees to comply with Merck & Co., Inc.'s Ethical Business Practices
policy which reflects the highest standard of corporate and individual
behavior. KOFFOLK shall adhere to business practices which are in accordance
with the letter and spirit of applicable laws and ethical principles. KOFFOLK
agrees that all transactions in connection with MERCK's business will be
accurately reflected in its books and records, and that no funds or other
assets shall be paid directly or indirectly to government officials or persons
acting on their behalf for the purpose of influencing government decisions or
actions with respect to MERCK's business. Violation of this policy on the part
of KOFFOLK, its employees, or representatives, shall result in the immediate
termination of this Agreement.
ATTACHMENT 2
TRADEMARK LICENSE AGREEMENT
AGREEMENT, effective as of August 5, 1 996 by and between MERCK &
CO., INC., a corporation organized and existing under the laws of the State of
New Jersey, U.S.A., with an office at Whitehouse Station, New Jersey, U.S.A.
(hereinafter "Licensor"), and KOFFOLK, INC. (including its affiliates and
subsidiaries), a business entity duly organized and existing under the laws of
Delaware (hereinafter "Licensee").
WHEREAS, Licensor is the owner in the United States of America and
its territories (hereinafter the "Territory") of the right, title and interest
in and to the trademarks, AMPROL(R) (amprolium) and AMPROL(R) Plus and the
applications for registration and registrations thereof (hereinafter
"Trademarks'); and
WHEREAS, Licensee desires the right and license to use the
Trademarks, in the Territory on and in association with the sale of certain
pharmaceutical preparations containing amprolium as an active ingredient [ ]
(hereinafter "Products") pursuant to the Distributorship Agreement dated
August 5, 1996 between Merck AgVet, a division of Merck & Co., Inc. and
KOFFOLK, USA (hereinafter "Distributorship Agreement");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties herein agree as
follows:
1. Licensor hereby grants to Licensee, for the term of the
Distributorship Agreement, and Licensee accepts, an exclusive,
royalty-free, non-sublicensable, non-assignable license to use the
Trademarks in the Territory solely in connection with the packaging,
promotion, and sale of the Products.
2. Licensee shall use the Trademarks only for the Products supplied by
Licensor. From time to time, upon request of Licensor, Licensee shall
submit samples of any of the Products to Licensor or its duly appointed
agent to insure compliance with Licensor's storage and handling
specifications. Licensor, or its duly appointed agent, shall have the
right to inspect the premises of Licensee, and Licensee shall permit
such inspection, at any reasonable time, to confirm that Licensee is
adhering to Licensor's standards and specifications used in the
repackaging, storage and sale of the Products, pursuant to the
Distributorship Agreement under which Licensee is licensed herein to
use the Trademarks. Licensee shall not sell or otherwise dispose of,
any of the Products under the Trademarks that fail to comply with the
standards and specifications of Licensor as determined by Licensor.
Any economic loss resulting from the failure of Product to conform to
Licensor's quality control standards and requirements, caused by an
action or failure to act by Licensee pursuant to the terms of the
Distributorship Agreement, shall be borne by Licensee.
3. Licensee shall use the Trademarks only in such form and manner as shall
be approved in writing from time to time by Licensor. Licensee
undertakes to comply with all laws pertaining to the Trademarks in
force at any time in the Territory including, but not limited to,
compliance with marking requirements. Use of the Trademarks by
Licensee on labels and packaging or on other printed material shall
be presented as AMPROL and AMPROL(R)Plus accompanied by an
appropriate statement that such trademarks are "Licensed Trademarks",
or such other appropriate legend as Licensor shall direct. The
Trademarks shall always be given distinctive typographical treatment
when used by Licensee. Copies of all labels, packaging and other
printed material on which the Trademarks is used shall be submitted
to Licensor for approval prior to use in accordance with the terms of
the Distributorship Agreement. Licensee shall not use the Trademarks
in any manner whatsoever which may jeopardize the significance,
distinctiveness or validity thereof.
4. The Trademarks shall at all times remain the exclusive property of
Licensor and all use of the Trademarks
hereunder shall inure to the benefit of Licensor. Nothing in this
Agreement shall be construed as granting or transferring to Licensee
any right, title or interest in and to the Trademarks either by
operation of law or otherwise except the right to use the same during
the term of this Agreement, as provided in this Agreement and in the
Distributorship Agreement.
5. Licensee agrees that it shall not use the Trademarks in combination
with any other trademark or trade name of its own or any third party
or as a component of its business name or to characterize its
business in any other way; and that it will use the Trademarks only
on, or in connection with, the Products, and will not use or permit
use of the Trademarks in connection with goods other than the
Products; and that the Trademarks and the goodwill associated
therewith, are and shall continue to be the exclusive property of
Licensor.
6. Licensor agrees to maintain the trademark registrations for the
Trademarks. However, if the Trademarks are not in use in a particular
jurisdiction of the Territory, Licensor may allow the registration to
expire. Licensee agrees to cooperate with Licensor in providing
information, specimens, and documentation that may be useful or
required in order to effect trademark registrations, or for
maintenance and renewal of trademark registrations for the
Trademarks.
7. Licensee shall, at all times, execute any documents reasonably
required by Licensor to record Licensee as a registered user or
licensee of the Trademarks. Licensee agrees to cooperate as requested
by Licensor in arranging for such recordings and/or entries, or in
maintaining, varying or canceling such recordings and/or entries in
the event of amendment to, or termination of, this Agreement for any
reason.
8. In the event that Licensee learns of any infringement or threatened
infringement of the Trademarks, or any passing-off, Licensee shall
immediately notify Licensor or its authorized representative in
writing giving particulars thereof and Licensee shall provide
necessary information and assistance to Licensor or its authorized
representatives in the event that Licensor decides that proceedings
should be commenced or defended. The commencement, strategies,
termination and settlement of any action relating to the validity
and/or infringement of the Trademarks shall be decided. by Licensor.
Any such proceedings shall be at the expense of Licensor, and any
recoveries shall be to the benefit of Licensor. Nothing herein,
however, shall be deemed to require Licensor to enforce the
Trademarks against others.
9. Licensee shall promptly notify Licensor of any claims arising out of
the use of the Trademarks, and Licensor will provide for the defense
thereof with counsel of its own selection and will pay all costs and
expenses incurred in so defending against such claims, provided such
use of the Trademarks by Licensee was in accordance with the terms of
this Agreement and the Distributorship Agreement. Licensee shall also
have the right to participate in the defense of any such claim with
attorneys of its own selection, at its own expense, however, the
extent to which any such claim shall be prosecuted, defended or
settled, will be solely within the discretion of Licensor. Licensor
hereby indemnifies and shall hold harmless Licensee from and against
the cost and expenses of any claims, demands, causes of action,
judgments, damages or liabilities, arising out of the use by Licensee
of the Trademarks in accordance with the terms of this Agreement,
provided that written notice of such claim, demand or cause of action
is promptly given to Licensor and Licensee cooperates fully with
Licensor in the defense of such claim, demand or cause of action.
10. Licensee agrees to indemnify and hold Licensor harmless from and
against any and all claims and agrees to reimburse Licensor for any
and all losses, damages, costs, fees, expenses, liabilities and
obligations of any kind (including reasonable attorney's fees and
other reasonable legal costs and expenses) that Licensor may at any
time suffer or incur, or become subject to as a result of or arising
from the unauthorized use of the Trademarks by Licensee. Licensee
shall have the right to defend any such action or proceeding with
attorneys of its own selection, and Licensor shall have the right to
be represented by attorneys of its
selection.
11. This Agreement shall be effective as of the date first written above
and shall continue in force for as long as the Distributorship
Agreement remains in effect, and shall terminate upon termination of
the Distributorship Agreement.
12. This Agreement shall terminate immediately and automatically in the
event that Licensee makes any assignment for the benefit of creditors
or shall file for, or have filed against it, a petition for
bankruptcy; or if Licensee is dissolved or loses its charter by
forfeit or otherwise or if a trustee or receiver is appointed for
Licensee or for any of its property in any proceeding, or if any
court takes jurisdiction of the property of Licensee by foreclosure
or otherwise.
13. In the event that Licensee defaults or breaches any of the provisions
of this Agreement, Licensor shall have the right to terminate this
Agreement upon thirty(30) days written notice to Licensee, provided,
however, that if Licensee, within the said thirty (30) day period,
cures the default or breach to the satisfaction of Licensor, the
Agreement shall continue in full force and effect.
14. Upon termination of this Agreement for whatever reason, Licensee
shall promptly discontinue any further use of the Trademarks, and
shall not use any trademark which, in the reasonable opinion of
Licensor, is confusingly similar to the Trademarks, except that after
termination of this Agreement, Licensee may for a period of twelve
(12) months immediately following termination, sell existing stocks
of the Products bearing the Trademarks without removing the
Trademarks provided that such Products comply with the standards and
specifications of Licensor, in force at the time of termination.
15. The failure of a party to require the performance of any term of this
Agreement or the waiver by a party of any breach of this Agreement
shall not prevent a subsequent enforcement of such term nor be deemed
a waiver of any subsequent breach.
16. Should Licensee be or become aware of any applicable laws or
regulations which are inconsistent with the provisions of this
Agreement, Licensee shall promptly notify Licensor of such
inconsistency.
17. The remedies provided for in this Agreement are not exclusive of other
remedies available to the parties.
18. This Agreement may be assigned by Licensor to an affiliate without
approval, otherwise it may be assigned by either party only with the
written approval of the other party.
19. This Agreement shall be binding upon and inure to the benefit of any
successors in interest of each party.
20. All notices provided for herein shall be deemed sufficient if in
writing and delivered or sent by pre-paid registered or certified
mail, facsimile, cablegram or telex to the party hereto at its
address specified in Paragraph 18 of the Distributorship Agreement or
to such other business address as may have been furnished in writing
by the intended recipient to the sender. The date of mailing, faxing,
cabling or telexing shall be deemed to be the date on which such
notice or request has been given.
21. This Agreement, and its construction, interpretation, performance and
breach shall be governed according to the laws of the State of New
Jersey.
22. This Agreement and the Distributorship Agreement constitute the
entire agreement and understanding between the parties and supersedes
all previous agreements between them concerning the matters covered
herein, whether written, oral or implied. This Agreement may only be
changed or modified by written agreement signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives.
KOFFOLK, INC.
By: /s/ X.X. Xxxxxxxx
-----------------
Name: X. X. Xxxxxxxx
Title: Pres.
MERCK & CO, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: President
MERCK AGVET DIVISION POLICY AND PROCEDURE
REPORTING ADVERSE EXPERIENCES AND ADVERSE PHYSICAL OCCURRENCES FOR ANIMAL
HEALTH PRODUCTS
Date: 03/01/94
Supercedes: 10/30/92
CONFIDENTIAL TREATMENT REQUESTED FOR ALL BRACKETED ([ ]) INFORMATION. THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
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