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EXHIBIT 10.6
RIGHT OF FIRST REFUSAL AGREEMENT
THIS AGREEMENT is made and entered into as of the 12th day of April 1996, by
and between HESKA CORPORATION, 0000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx
00000, XXX (hereinafter referred to as "Heska") and CIBA-GEIGY LIMITED, 0000
Xxxxx, Xxxxxxxxxxx (hereinafter referred to as "Ciba").
WHEREAS, simultaneously with the execution of this Agreement, (i) Ciba is
purchasing an aggregate of 3,000,000 shares of the Series F Preferred Stock of
Heska, (ii) Ciba and Heska are entering into Marketing Agreements pursuant to
which Ciba will obtain certain rights to market certain of Heska's products,
and (iii) Ciba and Heska are entering into a Screening and Development
Agreement pursuant to which Ciba will have certain rights to use molecular
targets and tools discovered by Heska for screening purposes and to develop
certain products resulting from such screening.
WHEREAS, in addition to the foregoing agreements, Heska has agreed to grant
Ciba a right of first refusal on certain corporate partnerships as described
more fully below.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1 - RIGHTS GRANTED
1.1 Subject to the other provisions of this Agreement and to the
obligations of Heska pursuant to its current agreements with Xxxxx XX
and Eisai Corp., Ltd., prior to licensing to any third party any
products or technology developed or acquired by Heska for companion
animal or food animal applications, Heska shall first offer such
rights to Ciba. Ciba shall indicate within 30 days of such offer
whether it is interested in discussing a possible agreement with Heska
concerning such products or technology. If Ciba indicates it is not
interested, Heska may thereafter license such products or technology
to one or more third parties on terms acceptable to Heska. If Ciba
indicates it is interested, Ciba and Heska shall discuss the possible
opportunity and attempt to reach a mutually satisfactory agreement.
If Ciba and Heska are unable to reach such an agreement within a 1 20
day period following Ciba's indication of interest, Heska may
thereafter license such products or technology to one or more third
parties, provided that the terms concluded with such third parties,
considered as a whole, are not materially more favorable to such third
parties than the terms last offered by Heska to Ciba.
1.2 Notwithstanding Section 1.1, Heska shall not be restricted from
entering into agreements with Third Party Distributors to distribute
products under Heska's trademark or trade name without compliance with
Section 1.1. "Third Party Distributors" shall mean entities engaged
primarily in the
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business of distributing finished products without performing
substantial development or manufacturing thereon.
1.3 Ciba has previously indicated to Heska that it is not interested in
the bovine vaccine products and technology under development at
Diamond Animal Health, Inc., and accordingly Heska may license any
such products or technology (in their present state or as they may be
further developed) without compliance with Section 1.1.
1.4 To the extent that the rights of Xxxxx XX under its current agreements
with Heska with respect to the canine heartworm vaccine are terminated
for any reason, and provided that USDA prelicensing serials with
respect to such vaccine are completed on or before December 31, 2005,
then to the extent of such termination such product shall be added as
a "Product" under Section 1.1 of each of the Marketing Agreements
dated the date hereof between Heska and Ciba (collectively, the
"Marketing Agreements") concerning distribution of flea control
vaccine and feline heartworm control vaccines both within the U.S. and
outside the U.S.
ARTICLE 2 - TERM
2.1 Heska's obligations under Article 1 (other than Section 1.4) shall
terminate as to licenses granted by Heska after December 31, 2005.
2.2 Heska's obligations under Section 1.4 shall terminate as to each
Marketing Agreement upon termination of such Marketing Agreement.
ARTICLE 3 - MISCELLANEOUS
3.1 All notices and other communications required or permitted hereunder
shall be in writing and shall be personally delivered, mailed by
certified or registered mail, postage prepaid, or delivered by
overnight delivery or express courier, addressed to the parties at
their addresses shown below, or at such other address as a party shall
hereafter furnish to the other in writing. All notices that are
mailed shall be deemed delivered five (5) days after deposit in the
United States mail.
3.2 This Agreement and all rights and obligations hereunder are personal
to the parties hereto and may not be assigned without the express
prior written consent of the other; provided, however, that Ciba may
assign all of its rights and obligations hereunder, without the prior
consent of Heska, in connection with the merger of Ciba-Geigy Limited
and Sandoz Limited, and the formation of a new entity, Novartis.
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3.3 This Agreement shall be governed by and construed under the laws of
the State of California, without regard to the conflict of laws
provisions thereof.
3.4 This Agreement may be executed in two counterparts, each of which
shall be deemed an original, but both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
HESKA CORPORATION
By: /s/ XXXX X. XXXXXXXXX
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Title: President
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Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: President
ClBA-GElGY, LIMITED, a Swiss corporation
By: /s/ X.X. XXXXXXX
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Title: President Animal Health Division
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By: /s/ XX. X. XXXXXXXXX
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Title: Division Counsel
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Address: 0000 Xxxxx, Xxxxxxxxxxx
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