Exhibit 10.38
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— Certain information in this document have been omitted and
filed separately with the Securities and Exchange Commission.
Confidential treatment has been requested with respect to the
omitted portions.
FOURTH
AMENDMENT
TO
AMENDED AND
RESTATED
BOVINE
VACCINE DISTRIBUTION AGREEMENT
This Fourth Amendment (the “ Fourth Amendment ”)
is entered into as of the 16 th day of November,
2007 (“ Effective Date ”) by and between
DIAMOND ANIMAL HEALTH, INC. , an Iowa corporation with
offices at 2538 Southeast 43 rd Street, Des Moines, Iowa
50317 (“ Diamond ”) and AGRI LABORATORIES,
LTD. , a Delaware corporation, with offices at 20927 State
Route K, St. Joseph, Missouri 64505 (“ Distributor
”) as an amendment to that certain Amended and Restated
Bovine Vaccine Distribution Agreement dated as of
September 30, 2002 between Diamond and Distributor (the
“ Original Agreement ”), as amended by that
certain First Amendment dated as of September 20, 2004 (the
“ First Amendment ”), that certain Second
Amendment dated as of December 10, 2004 (the “ Second
Amendment ”) and that certain Third Amendment dated as of
May 26, 2006 (the “ Third Amendment ”)
(collectively, the “ Agreement ”).
WHEREAS, Diamond and Distributor are parties to the Agreement
providing for the distribution of certain bovine antigens;
and
WHEREAS, Diamond and Distributor desire to amend the Agreement on
the terms and conditions of this Fourth Amendment.
NOW, THEREFORE, the parties agree as follows:
1.
Definitions . Capitalized terms used herein shall have
the meaning ascribed to them in the Agreement, unless otherwise
defined herein.
2.
Exclusivity . Section 1.02 of the Agreement is
hereby deleted in its entirety and replaced with the following
paragraphs:
Distributor’s
distribution rights under the Agreement shall be exclusive in the
United States, Africa and Mexico for all products identified on
Exhibit A attached to the Agreement and Additional
Products added pursuant to Section 2 through Contract Year
2009, except as set forth in this paragraph, and unless terminated
earlier in accordance with the provisions of the Agreement.
Distributor’s distribution rights under the Agreement shall
be non-exclusive during the remaining term of the Agreement
following Contract Year 2009. In addition,
Distributor’s rights under this Agreement shall be
non-exclusive in Canada for all Products through Contract Year 2008
and Distributor shall have no distribution rights in Canada after
Contract Year 2008. Notwithstanding the foregoing,
(i) Distributor shall have no distribution rights for any
Products
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containing [***]
antigens listed on Exhibit C without the prior written
consent and agreement of [***]; (ii) Distributor acknowledges
that [***] has exclusive rights to distribute in Canada the product
combinations (and lesser fallout products containing [***]
antigens) described in Exhibit C ; (iii) Diamond
and its Affiliates may sell, have sold and otherwise distribute to
[***] without restriction the individual [***] antigens listed in
Exhibit C ; (iv) Diamond and its Affiliates may
sell, have sold and otherwise distribute to [***] without
restriction the individual antigens and monovalent vaccines (i.e.,
a vaccine containing a single bovine antigen) listed in
Exhibit B ; and (v) Diamond and its Affiliates may
sell, have sold, and otherwise distribute to [***] without any
restriction biological veterinary products containing antigens
specified in Exhibit D to be used in solid dose
configurations or using [***] technologies.
It is further
recognized by the parties hereto that the parties will make good
faith efforts to hereafter negotiate fair and equitable agreements
as between them for the sale of bulk antigens to other vaccine
companies which sales should be included in the Qualified Revenue
requirements as set forth in Section 1.04(ii). If the
parties hereto cannot agree for the sale of Bulk Antigens to other
vaccine companies in territories in which Distributor has
exclusivity, then Diamond shall be prohibited from making any Bulk
Sales, except as set forth in Section 1.02.
3.
Appendices . Exhibit A, AA, B, C and D of the Agreement
are hereby deleted each in its entirety and replaced with
Exhibit A, AA, B, C and D of this Fourth Amendment,
respectively.
4.
Territory . Section 1.03 of the Agreement is
hereby deleted in its entirety and replaced with the following
paragraph:
Subject to the terms
and conditions of this Agreement, Distributor is authorized to
sell, have sold and otherwise distribute Products and Additional
Products added pursuant to Section 2 (hereafter collectively
referred to as (“All Products”)) in the United States,
Africa, Mexico and Canada, limited only as provided in
Section 1.02; provided, that notwithstanding any provision of
this Agreement to the contrary, Distributor shall have no
distribution rights in Canada after Contract Year 2008.
5.
Remaining R&D Agreement . On September 20,
2004, Distributor and Diamond entered into a research, development
and licensing agreement (the “Remaining R&D
Agreement”). The parties agree that the remaining
activities required to be performed by Diamond under the current
Research and Development Program of the Remaining R&D Agreement
are attached hereto as point 3 in Exhibit E and shall
be performed subject to the terms and conditions of the Remaining
R&D Agreement. The parties agree, furthermore, that
upon
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completion of each
activity in Exhibit E, all payments due Diamond from
Distributor corresponding to such activity will be paid. In
addition the parties agree that at a logically reasonable time with
respect to [***], Diamond shall use its reasonable best efforts to
perform [***] solely at Diamond’s cost. The parties agree
that Diamond will pursue [***] for [***] regardless of the
regulatory issues with [***]. For the purposes of this Amendment,
“ [***] ” means [***].
6.
Confidentiality of Agreement . Notwithstanding any
provision of the Agreement to the contrary, this Fourth Amendment
shall be publicly available information for SEC filing, press
release and other discussion purposes; provided, the parties shall
agree to a draft of this Fourth Amendment (the “Redacted
Version”) including highlighted items which shall be redacted
from any initial SEC filings and shall be deemed Confidential
Information under Section 13.05 of the Agreement. The
parties also agree to a press release to announce this Fourth
Amendment, attached hereto in Exhibit F, which shall be
issued after the parties have agreed on the Redacted Version.
If the parties do not mutuall
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