EXHIBIT 10.10
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
by and among
▇▇▇▇▇▇▇ RIVER BRF, INC.
a Delaware (US) corporation
and
▇▇▇▇▇▇▇ RIVER LABORATORIES, INC.
a Delaware (US) corporation,
and
BIOCULTURE MAURITIUS LTD.
A Mauritius corporation
December 23, 1997
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AMENDED AND RESTATED DISTRIBUTION AGREEMENT
This Amended and Restated Distribution Agreement (the "Agreement"), dated as
of the 23rd day of December, 1997, is made by and among ▇▇▇▇▇▇▇ River
Laboratories, Inc., a Delaware (US) corporation ("CRL"); ▇▇▇▇▇▇▇ River BRF,
Inc., a Delaware (US) corporation and a wholly-owned subsidiary of CRL; and
Bioculture Mauritius Ltd., a Mauritius corporation ("BCM"), and ▇▇▇▇ and ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ as related to Paragraph 12 only. For purposes of this Agreement,
references to "BRF" shall include all affiliates of BRF, including, without
limitation, CRL and Shamrock (Great Britain) Ltd.
WHEREAS, BCM, under the direction of the ▇▇▇▇▇▇▇▇▇, has been engaged for
several years in the capture, breeding and export for sale of Macaca
fascicularis, or cynomologus, primates and
WHEREAS, BRF is engaged in the breeding, import and sale of non-human primates
worldwide, as a wholly-owned subsidiary of CRL from 1978 to 1994, as an
independent not-for-profit corporation from 1994 to 1996, and again as a
wholly-owned subsidiary of CRL from 1996 to the present; and
WHEREAS, CRL and BCM entered into a Supply Agreement dated as of November 1,
1989, pursuant to which CRL acted as BCM's worldwide distributor of
Mauritius-source cynomologus primates; and
WHEREAS, CRL and BCM amended and restated the November 1989 Supply Agreement
as of June 1, 1994, in order to, among other things, extend its terms and add
BRF as a party; and
WHEREAS, BCM and CRL/BRF wish to amend and restate the June 1994 Distribution
Agreement in order to, among other things, further extend its term.
NOW, THEREFORE, for good and valuable consideration the parties intending to be
legally bound, hereby agree as follows:
1. Term
a. This Agreement will commence on the date hereof and shall continue
until December 31, 2005 (as such term may be extended pursuant to
Paragraph 1 (b) below, the "Term").
b. Unless BRF or BCM has been previously notified that it is in
material breach of this Agreement and such breach has not been cured
or waived, this Agreement as it relates to all areas of the world,
shall automatically renew for one additional five-year period, with
exception to the specific reference of clause 12. Should the parties
determine that the price adjustment mechanism set forth in Paragraph
5 below has not yielded prices which accurately reflect the market
price for Mauritian cynomologus primates at the time of renewal, then
BCM and BRF shall negotiate in good faith to
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establish an alternate pricing schedule for use in the renewal
period, which shall take into consideration then-current market
conditions. In establishing such an alternate pricing schedule, the
parties shall take into account the value of medical, conditioning,
quarantine, marketing and other services provided by BRF in
connection with BRF's worldwide distribution of primates sourced
from BCM and the value of breeding, medical, conditioning,
quarantine, export and other services provided by BCM, as well as
evidence of the then prevailing wholesale and retail world market
price for Macaca fascicularis.
c. In connection with any renewal of this Agreement, BCM and BRF
shall negotiate in good faith to establish annual minimum purchase
and supply requirements applicable to the renewal period, which will
be binding on the parties. The new minimums will be set on the basis
of: (a) BCM's ability to produce, (b) World demand, (c) BRF's market
share.
d. Notwithstanding the provisions of Paragraph 1(a) and 1(b) hereof,
BCM agrees to provide sufficient quantities of Qualified Primates to
BRF in a period beyond the term hereof to allow BRF to meet all of
its obligations to its contract customers, and the terms and
conditions of this agreement shall govern the sale of such primates
until BRF's obligations to its contract customers are satisfied in
full. For purposes of this agreement "Contract Customers" refers to
those customers who enter into agreements with BRF or CRL for the
purchase of Mauritius source cynomo1gus primates on or before
December 31, 2005 and those additional customers who enter into
similar agreements with BRF after December 31, 2005 with the consent
of BCM. No contracts between BRF and its affiliates will be eligible
to be treated as agreements with Contract Customers under this
paragraph without the consent of BCM. Proof of the existence of any
agreements with Contract Customers shall be provided to BCM at BCM's
request. The contracts listed on Schedule 1(d) are hereby irrevocably
designated as Customer Contracts by BCM as of the date of this
Agreement and shall be treated as such throughout the Term,
2. Commitment to Purchase
a. Subject to Paragraph 2(b) and 2(c) below, BRF hereby commits to
purchase from BCM, and BCM hereby agrees to supply to BRF, during
each calendar year included in the initial Term, the number of
"Qualified Primates" specified on Exhibit A hereto (in each case, the
"Annual Minimum"). In the event (i) BRF elects, at its discretion, to
purchase Qualified Primates during any calendar year included in the
Term and to hold such Qualified Primates in inventory for sale in the
subsequent calendar year and (ii) such purchases are in excess of the
Annual Minimum, in the year of purchase from BCM, then the number of
Qualified Primates so purchased may be applied against BRF's Annual
Minimum for the subsequent year as if those purchases were made in
the subsequent year, provided that BRF gives BCM notice of the number
of animals so applied at the time of the order, and provided BCM is
in agreement, such agreement not to be unreasonably withheld. If BCM
withholds agreement, then such
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animals shall not count against the following years minimums. For
purposes of this Agreement, the term "Qualified Primates" refers to
purpose-bred cynomologus Primates, to be made available by BCM, which
meet the following health, age and weight requirements, which are
detailed more specifically in the standard operating procedures
referenced in Paragraph 9 below:
(i) Herpes B-virus free (by any and all available tests)
(ii) Good general health (as evidenced by a thorough physical
examination performed by a qualified veterinarian no more
than two weeks prior to shipment)
(iii) No tuberculosis
(iv) No Simian AIDS (SIV, STLV-1, or any SRV serotype)
(v) Screened for Shigella and salmonella.
(vi) No apparent sign of respiratory disease.
(vii) Currently vaccinated for tetanus and measles (unless a
specific request is made not to vaccinate).
(viii) Minimum weight of 2.0 kilograms and maximum weight of 5.0 kg.
(ix) No clinical signs of enteritis, hepatitis, malaria, or any
other disease.
(x) Screened and treated for internal and external parasites
(xi) No apparent physical deformities,
Health reports shall accompany each animal shipment documenting
specific examinations and testing procedures to meet the health
requirements as set forth herein. Such examinations shall include a
thorough pre-shipment examination during the time that primates are
housed in single cages involving, among other things, an oral
examination.
b. Subject to Paragraph 2(c) below, BRF hereby agrees to purchase no
less than 20 % of its Annual Minimum for a given calendar year during
the first three (3) months of such year, and sufficient quantity in
the second three (3) month period such that in the first six months
BRF will have purchased not less than 40% of its Annual Minimum. In
calculating whether or not this target has been reached in the first
two periods of three months each, the Dollar value of ferals
purchased may be taken into consideration. However on an annual basis
ferals may not be taken into consideration in terms of BRF's
commitment to purchase the Annual Minimums. If BRF fails to meet 80%
of it purchase requirement during any one of these periods or does
not purchase 80% of its Annual Minimum during the applicable calendar
year, then BCM shall be free to sell the number of Qualified Primates
not purchased in each case, (the "Released Amount"), but no more, to
third-party purchasers. In this event BCM shall thereafter have the
right to make available to third-party purchasers a number of
Qualified Primates equal to the Released Amount during each of the
successive calendar years included in the Term, so long as BCM is not
then in default under this Agreement and BRF's Annual Minimum shall be
correspondingly reduced by the Released Amount, provided however,
that in no event will BCM fail to keep in stock a
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number of Qualified Primates meeting the age, health, weight and
other specifications necessary for BRF to meet its on-going
obligations under all customer contracts with its Contract Customers
identified pursuant to Paragraph 1(d) throughout the Term. BCM shall
not have this right to do any of the foregoing in the event that
BRF's failure to meet its purchase requirements is due to BCM's
inability to fill orders for Qualified Primates or due to reasons
beyond BRF's control (e.g. air embargoes or government action).
Enforcement of this Paragraph 2(b) shall be BCM's sole remedy in the
event BRF elects not to purchase its annual minimums hereunder,
c. BCM understands and agrees that it is essential for BRF to be able
to supply its primate customers with Qualified Primates of various
age and weight ranges in order to meet their respective research
needs. Consequently, BCM agrees on a best-effort basis, that it will
make Qualified Primates available to BRF at ages and body weights
distributed throughout the weight range specified in Paragraph 2 (a).
BCM further guarantees a male-to-female ratio of approximately 50/50
among Qualified Primates. Furthermore, BRF agrees that in each
calendar year total orders of Qualified Primates will be in an equal
sex ratio.
d. Given BCM's requirement by the UK home office to develop breeding
with captive bred (Fl) breeding stock, additional excess male
primates may become available for sale. In the event such excess
animals become available, BCM shall give BRF written notice of its
intention to sell such animals and BRF shall have sixty (60) days to
commit to purchase all or a portion of such animals at a price to be
negotiated between BRF and BCM, which price shall not be higher than
the price for Qualified Primates hereunder. Any excess animals so
purchased shall be credited against the Annual Minimum for the
applicable year. In the event BRF does not commit to purchase all the
excess animals offered by BCM, BCM shall have the right to sell the
unpurchased portion of such animals to a Qualified Distributor (as
hereinafter defined) at a price equal to or greater than the price
offered to BRF. At BRF's request, BCM shall provide BRF with
documentation sufficient to establish, to BRF's satisfaction, the
purchase price paid by any Qualified Distributor for excess animals
offered pursuant to this Paragraph 2(d) and the identity of such
Qualified Distributor.
e. If at any time BRF desires to increase the number of Qualified
Primates BCM guarantees to supply hereunder, BRF shall so notify BCM,
and the parties agree to re-negotiate in good faith an increase in
the Annual Minimum for each calendar year remaining in the Term.
f. If BRF fails to purchase the minimums for three consecutive years,
for (i) reasons other than BCM's inability to deliver Qualified
Primates ordered by BRF or (ii) without the prior approval of BCM
then BCM has the right to cancel this agreement. BCM may exercise
this right at any time subsequent to these three years upon three
months prior written notice, and failure to exercise this right by
BCM in any one year is not to be construed as a waiver of this
right.
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g. BRF will promote BCM as a supplier in its marketing efforts,
including trade show exhibits referencing BCM. BRF will give BCM at
least as much prominence as it does to any other suppliers in its
marketing efforts. In order to permit BRF to undertake such marketing
efforts, BCM shall, at its own cost and expense, prepare a quality
brochure in sufficient quantities for use by BRF.
h. The parties agree that BRF may, under certain circumstances, find
it necessary for BCM to house Qualified Primates purchased by BRF at
BCM's facilities pending delivery. BCM and BRF agree to negotiate in
good-faith regarding the per-unit per diem charges to be applied
under such circumstances, and BCM agrees to use its best efforts to
accommodate such Qualified Primates if so requested by BRF.
3. Sales of Feral Primates
a. Throughout the term of this Agreement BRF shall have the right,
but not the obligation, to purchase feral cynomologus primates
("Feral Primates") from BCM at the per-unit purchase prices specified
in Paragraph 5 below. All such Feral Primates shall meet each of the
health and testing requirements outlined in Paragraph 2(a) above and
shall be accompanied by documentation in the same manner as Qualified
Primates, except that the upper weight range will be restricted to 6
kilograms. Animals in excess of 6 kilograms will be accepted only
with the prior consent of BRF.
b. In addition. to whatever rights BRF may have pursuant to Paragraph
3(a) above, BCM shall, prior to the sale by it from time to time of
any Feral Primates to a Qualified Distributor (as hereinafter
defined), offer to BRF by written notice (the "Offer") the right, for
a period of sixty (60) days, to purchase all or a portion of the
Feral Primates then offered, at the purchase price specified in
Paragraph 5 below.
c. The offer shall describe the characteristics of the Feral Primates
being offered, and shall specify the number of Feral Primates to be
made available for sale. BRF may accept BCM's offer for all or any
portion of the Feral Primates offered by written notice of acceptance
(the "Acceptance"), given to BCM prior to the expiration of the
sixty-day notice period, in which case BCM shall sell, and BRF shall
purchase that number of Feral Primates agreed to be purchased by BRF
in the Acceptance.
BCM shall be free at any time after the sixty-day notice period to
offer and sell to any Qualified Distributor the number of Feral
Primates not agreed to be purchased by BRF in the Acceptance, but
only at a price which is not less than the price available to BRF. At
BRF's request, BCM shall provide BRF with documentation sufficient to
establish, to BRF's satisfaction, the purchase price paid by any
Qualified Distributor for Feral Primates offered pursuant to this
Paragraph 3(b) and the identity of such Qualified Distributor. For
the purpose of this agreement, Qualified Distributor shall be those
distributors of primates which BRF and BCM mutually agree in writing
have the qualifications and reputation that will serve to enhance the
reputation of Mauritian cynomolgus primates around the world.
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d. Throughout the term, BCM agrees, on behalf of itself and its
joint-venture partners, to sell feral Primates only to Qualified
Distributors and that the price charged by BCM for any Feral Primates
which may be sold during the Tenn of this Agreement shall in no event
be less than the price available to BRF.
e. If BCM is dissatisfied with the level of sales of Feral Primates
in Belgium and France, then BCM shall provide BRF with written
notice of its dissatisfaction. BRF shall have thirty days to satisfy
BCM that it has taken all reasonable actions to service the French
and Belgium markets with Feral Primates. If BRF fails to so satisfy
BCM within this thirty-day period, BCM shall have the right to sell
Feral Primates into France and Belgium without providing BRF with a
right of first refusal.
4. Dedicated Primate Production: Guaranteed fSupply
a. BCM on behalf of itself and its joint-venture partners, hereby
agrees to make available annually, out of those primates expected to
be produced by BCM and its joint-venture partners during the Term a
minimum of 5,000 primates (the "Dedicated Production Amount"). Such
Dedicated Production Amount shall at all times be reserved
exclusively for purchase by BRF and shall not be made available to
third parties without the express written consent of BRF unless BRF
has not taken minimums as per clause 2.
b. The parties agree that the Dedication Production Amount shall
consist of both Qualified Primates and other purpose-bred cynomologus
primates which are available for purchase from BCM, but which do not
meet the criteria set forth in Paragraph 2(a) above ("Non-Qualified
Primates"). BRF may, in its sole discretion, purchase Non-Qualified
Primates from BCM, in which event purchase of such Non-Qualified
Primates shall be counted against CRL's Annual Minimum.
5. Pricing
a. BRF shall pay to BCM the following firm and fixed US Dollar prices
(in each case, the "Prices") during 1998 (i.e., January 1, 1998
through December 31, 1998): (i) all Feral Primates (regardless of
weight), $546 each, and (ii) Qualified Primates, up to 2.9 kilograms
in weight, $1308 for BRF/Houston (US) and $1283 for Shamrock/UK, with
said Price for Qualified Primates increasing in equal increments of
$55 above the aforementioned US and UK base prices for each 250 gram
increase in weight above 3.0 kilograms (for example, the 1998 prices
for Qualified Primates in the US and UK weighing between 3.0 and 3.25
kilograms shall be $1363 and $1338, respectively). BRF shall pay to
BCM US $620 each for feral primates purchased during calendar year
1999.
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b. The prices set forth above shall remain in effect through the
period specified. Thereafter, revised Prices will be established for
each subsequent calendar year thirty (30) days prior to the
commencement of such year based on BRF's annual percentage price
increase for Feral Primates and Qualified Primates of various weights
and ages, as reflected in BRF's most recent price list (whether
publicly circulated or used internally) (in each case, the 'Annual
Percentage Price Increase'), such that the price paid to BCM
hereunder, shall in each case, be increased by a percentage which
equals the Annual Percentage Price increase. BRF shall make available
to BCM at the beginning of each year its annual price list for
primates. For the purpose of this clause, the 'BRF Price List' will
be the generally released BRF price list minus any trade or quantity
discounts. That is the actual price payable by BRF's customers which
is to be taken to be the price of Mauritian Qualified Primates, for
the purpose of this clause. BRF is to make available to BCM details
of quantities sold at various prices during the year so the average
selling price for the year can be established.
c. In the event BRF's or BCM's cost of doing business is
substantially increased, (for example as a result of airline
embargoes, government action or legislation or dramatically changed
exchange rates) which increase cost is also being incurred generally
by commercial primate distributors, in the case of BRF and by
commercial primate suppliers, in the case of BCM, the parties agree
to renegotiate in good faith the prices hereunder to adequately
reflect such increased costs.
d. The prices set forth above are inclusive of all tests and
conditioning carried out in Mauritius, including Salmonella and
Shigella tests.
e. BRF shall pay to BCM per diems for all Feral and Qualified
Primates held by BCM at BRF's direction and for BRF's (or BRF's
customers') account. The per diem rate for 1998 shall be $1.10 per
animal boarded, regardless of weight, age or feral/bred origin. The
maximum number of animals for which BRF may request boarding at any
one time BCM shall be 600. While title and risk of loss of animals
boarded by BCM shall remain with BCM, BRF shall otherwise assure BCM
that BRF will take ownership at some later date of all animals placed
on boarding. At BRF's option, either BRF or BCM shall obtain
insurance on the animals held on per them at BCM, in an amount equal
to BRF's selling price therefor. In the event that BRF requests BCM
to obtain insurance, said insurance shall be with a reputable and
financially secure Mauritian insurance company approved by BRF, in
the name of both BRF and BCM, with the proceeds from any loss claim
payable to BRF. The cost of insurance of animals held on per diem for
BRF's (or BRF's customers' account) shall in any case be borne
entirely by BRF.
6. Forecasts and Orders
a. Within ten (10) business days of the date hereof, and on the
10th day following the close of each calendar quarter included in the
Term, BRF shall provide BCM with a
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rolling twelve-month forecast of its anticipated purchase
requirements, with information provided on a quarterly basis. Such
forecasts are intended to assist BCM in its planning process and
shall not obligate BRF to purchase any primate from BCM in excess of
the applicable Annual Minimum. However, BCM shall use its best
efforts to make available those Qualified Primates necessary to meet
BRF's forecast supply requirements. BCM shall on at least a monthly
basis, inform BRF in writing of its primate stock on hand (with
reference to age, sex, weight, and health status), and shall
otherwise use its best efforts to assist BRF in preparing its
forecasts.
b. BRF shall order primates from BCM by submitting standard purchase
orders ('Orders') to BCM, Orders are to be executed by BRF and
acknowledged in a signed writing by BCM, and such Orders and
acknowledgments will become an integral pan of this Agreement.
Shipment terms, including delivery dates, will be specified by BRF in
each Order.
c. This Agreement and the terms of BRF's Orders shall exclusively
govern the purchase and sale of any Primates from BCM. In no event
shall BCM's standard terms and conditions of sale as set forth in its
acknowledgment or other sales documentation be applicable to the
Purchase and sale of primates, unless and to the extent such terms
and conditions are fully consistent with or in furtherance of the
terms and conditions set forth in this Agreement and BRF's Orders.
7. Terms of Sale
BRF will pay the prices for any primates purchased from BCM net
thirty days. BRF will be responsible for the costs of transporting
primates purchased to their ultimate destination, as well as any
sales, use, excise or similar taxes imposed by the government of
Mauritius (but excluding any conservation tax (currently US $50 per
primate exported).
8. Delivery and Acceptance
a. Delivery shall be FOB Mauritius with all freight expenses being
paid by BRF upon delivery. Title to and general risk of loss of
primates purchased by BRF shall pass to BRF at the time of delivery
to the initial customs airport in the country of destination.
Promptly following delivery, BCM shall invoice for all of the
primates tendered.
b. Each primate shipped under this Agreement shall be deemed accepted
by BRF within thirty (30) days following delivery to the initial
customs airport in the country of destination. Acceptance shall
not be deemed to occur, however, if prior to the expiration of such
period BRF informs BCM in accordance with Paragraph 9 that the BCM
product warranty (as described in Paragraph 9) has not been fully
satisfied for any such primate.
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9. Product Warranty
a. BCM warrants that each delivered Qualified Primate will meet all
of the health, age and weight requirements set forth in Paragraph 2,
or in any Order from BRF if the parties agree the requirements in the
Order shall apply.
b. BCM warrants that each delivered Feral or Non-Qualified Primate
will meet only those health, age and weight requirements set forth in
the applicable offer.
c. The foregoing warranties shall be subject to BRF's handling and
maintaining any primates received from BCM in accordance with
generally accepted procedures for the handling of non-human primates.
d. Upon notification of a defect by BRF within the respective
acceptance periods set forth in Paragraph 8(b) resulting in a severe
illness/mortality (naturally or by action of a BRF veterinarian in
accordance with BRF's standard veterinary protocols) of the defective
primate, BRF shall be entitled to deduct from its invoice the unit
price of said defective primate, and the cost of its transport.
However, BCM shall have the right to have an independent mutually
acceptable veterinarian verify any such defect notification by BRF at
BCM's sole expense.
e. Except for the remedy set forth in Paragraph 8(b) and 9(d), BCM
shall not otherwise be liable for damages to BRF or to BRF's
customers, following on from the supply of such a defective primate.
10. Management of BCM Primate Operation,
BCM's primate operations, and the operations of its joint-venture
partners, shall be conducted in accordance with the standard operating
procedures attached as Appendix 1 hereto (the "SOPs"), which have
been amended as of this date by mutual agreement of the parties. The
SOPs have been mutually developed by BRF and BCM and the parties
agree am implementation of and continuing conformance to the SOPs by
BCM and its joint-venture partners is an important part of this
Agreement.
In particular, the obligation to physically separate feral and bred
primate colonies in the manner specified in the SOPs is a critical
component of the SOPs and BCM must use its best endeavors to meet
this obligation during the Term. Appendix I may be further amended
from time to time during the Term upon mutual written agreement of
the parties,
11. Inspection and Audit
a. BRF shall have the right, during normal business hours, to inspect
BCM's facilities for the purpose of observing production and
maintenance activities, and auditing BCM's production records to
ensure compliance with this Agreement, in each
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case upon at least seventy-two (72) hours advance notice. For
purposes of this Paragraph 11, "production records" shall include all
operational documents (other than financial statements) relating to
the day-to-day business of BCM (including, without limitation,
inventory, veterinary and health records and worldwide export
figures), where such records relate directly to BCM's distribution
arrangement with BRF
b. In addition to the inspection rights granted in Paragraph 11(a),
throughout the Term, should BRF so request, BCM shall provide BRF
with a half-yearly report, prepared by BCM's qualified independent
auditor, which report shall be limited to stating whether BCM, as a
corporation, is a viable on-going concern, and in good or other
financial situation.
Such reports shall be prepared on the basis of six-month periods and
each shall be delivered to BRF as soon as possible after the auditors
have examined the books of BCM. BRF hereby agrees to treat all such
reports as confidential information, BRF will provide BCM with a copy
each year of a Report by its qualified independent auditor, which
report shall be limited to stating whether BRF, as a corporation is a
viable on-going concern, and in good or other financial situation.
c. In order to permit the parties of this agreement to be continually
updated on each other's on-going operations, BCM and BRF agree to
meet and conduct biennial reviews of their respective primate
operations throughout the Term. Such biennial business reviews will
be scheduled on dates which are mutually convenient for the parties
attending, with reviews being scheduled such that one review takes
place in Mauritius and the other in either the United States or
London. Each of the parties shall bear the costs and expenses
associated with its representatives attending any business review.
12. Employment and Non-Competition
BCM agrees to continue to employ the ▇▇▇▇▇▇▇▇▇ throughout the Term
(unless they become unfit to carry out their job). During the Term
and for a period of three (3) years thereafter, each of the ▇▇▇▇▇▇▇▇▇
further agrees not to engage, directly or indirectly, as a supplier
or consultant to, or an employee, officer, director, stockholder,
partner or other owner or participant in, or lend his or her name to
any business entity in activities anywhere in the world which utilize
or involve Mauritius primates in competition with the primate
business then conducted by BCM or BRF with the specific exception of
BFC Ltd in Israel, provided BRF is not in material breach of the
agreement at the time, or fails to renew the agreement. However this
clause is not to be included in the automatic renewal period except
if ▇▇▇▇ ▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ are still associated with or employed
by BCM at that time.
13. Breeding and Competition by BRF
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a. BCM expressly acknowledges and agrees that BRF or any subsidiary
or related company may, but only with approval of BCM, use all or any
portion of the Primates purchased from BCM as breeding stock for the
establishment of one or more breeding colonies in the United States
or elsewhere in the world.
b. In the event BRF obtains approval from BCM during the Term to
establish an independent venture dedicated to breeding and
distribution of purpose-bred B-virus free cynomologus primates
sourced from BCM, BRF agrees to offer BCM and/or the Mauritian
shareholders of BCM the opportunity to participate as a joint-venture
partner or equity holder in such venture, an reasonable business
terms, provided that BCM is not in material breach of this agreement
at the time such venture is proposed.
c. BRF or any subsidiary or related company agrees not to
competitively engage in the trapping, breeding or exporting of
primates in Mauritius during the Term. However, should BCM be unable
to meet the minimums (of captive bred monkeys) for any given year,
BRF may purchase from other Mauritian suppliers an amount equal to
the shortfall for that year. In addition, BRF agrees not to so
compete in such activities with BCM in Mauritius for three (3) years
after the end of the Term, but if and only if the failure to not
renew or extend this Agreement shall have been solely at BRF's
election for business reasons not covered by or resulting from the
unreasonable actions of BCM hereunder.
14. Restrictions on Use
BCM is required to inform BRF that the Government of Mauritius
prohibits the use of feral or bred primates for certain purposes.
Accordingly, BCM has advised BRF that use of Mauritian primates for
any of the following purposes is prohibited by Mauritian law; (i)
munitions testing for military research; (ii) radiation (other than
routine diagnostic x-rays); (iii) unmanned space flights; and (iv)
vivisection that sets the animal under heavy stress or torture.
15. Termination
a. Either party shall have the right to terminate this Agreement
during the Term if:
(i) the other party fails to remedy or to commence reasonable
corrective action to remedy any default in the performance of any
material condition or obligation under this Agreement within thirty
(30) days of written notice thereof; or
(ii) the other party files a petition in bankruptcy, or enters into
any arrangement with its creditors, or applies for and consents to
the appointment of a receiver or trustee, or makes an assignment for
the benefit of creditors, or suffers or permits the entry of an order
adjudicating it to be bankrupt or insolvent.
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b. The failure of either party to terminate this Agreement by reason
of the breach of any of its material provisions by the other party
shall not be construed as a waiver of the rights or remedies
available for any subsequent breach of the terms and provisions of
this Agreement.
16. Termination of Current Agreement
a. Upon execution of this Agreement, the Distribution Agreement dated
as of June 1, 1994, among CRL, BRF, BCM and the ▇▇▇▇▇▇▇▇▇ shall
terminate and shall have no further force or effect.
17. Supply to Israel
BCM hereby agrees not to supply more than a total of five hundred
(500) female primates to Israel through delivery of animals prior to
or during the terms of this agreement provided, however, BCM may
contribute up to 50 additional animals per year to replace animals
culled or dead. If not applied in one year this quantity may be
carried forward to the subsequent year. In the event of a
catastrophic loss of more than one hundred (100) animals, the number
lost may be replaced in that year, such that the total of Mauritian
source animals does not exceed 500 females.
18. Force Majeure
Neither party shall be responsible for any failure to comply with the
terms of this Agreement, except for failure to make timely payments
hereunder, where such failure is due to force majeure, which shall
include, without limitation, cyclones, fire, flood, explosion,
strike, labor dispute, labor shortages, picketing, lockout,
transportation embargo or failures or delays in transportation,
strikes or labor disputes affecting supplies, or other governments or
any agency thereof, or judicial action, and all Government actions
preventing the export of monkeys. The time for performance where
delay is excusable hereunder shall be extended by a period of time
equal to the time lost by reason of the excused delay.
19. Expenses
Each of the parties to this Agreement shall bear its own expenses
(including, without limitation, all compensation and expenses of
counsel, financial advisors, consultants and independent accountants)
incurred in connection with the preparation and execution of this
Agreement and consummation of the transactions contemplated herein.
20. public Disclosure
Each of the parties to this Agreement hereby agrees with the other
parties that, except as may be required to comply with the
requirements of applicable law, no press release or similar public
announcement or communication will be made or caused to be made
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at any time whatsoever concerning the execution or performance of
this Agreement unless specifically approved in advance by BRF and
BCM.
21. Notices
Any notice or other communications required under this Agreement
shall be in writing (including telecopy communications), and shall be
sent by registered mail, telecopier or courier as follows:
(a) if to BRF, addressed to:
▇▇▇▇▇▇▇ River BRF, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
(b) ▇▇▇▇▇▇▇ River Laboratories, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to BCM, addressed to:
Bioculture Mauritius Ltd,
Senneville
Riviere des Anguilles
Mauritius
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇
Any party hereto shall be entitled to specify a different address by
giving written notice as aforesaid to the other parties. All notices
shall be deemed to have been duly given or made when delivered
personally, or by facsimile or upon appropriate telex confirmation or
upon fifteen (15) business days after being deposited in the mail,
postage prepaid.
22. Section Headings
The paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or
interpretation of this Agreement,
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23. Counterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
24. Amendment: Waiver
This Agreement may not be amended or modified except by a written
document duly executed by BRF and BCM. Waiver of any term of
condition of this Agreement shall only be effective if in writing and
shall not be construed as a waiver of any subsequent breach or waiver
of the same term or condition, or a waiver of any other term or
condition of this Agreement.
25. Entire Agreement
This Agreement (i) constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, both
written and oral, among the parties, with respect to the subject
matter hereof and (ii) is not intended to confer upon any other
persons any rights Or remedies hereunder.
26. Saving Clause
Should any clause or part of any clause of this Agreement be declared
null and void, it shall not affect the validity of this Agreement or
any other clauses contained herein, and the said other clauses will
remain in full force and effect between the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or caused
this Agreement to be duly executed by their authorized representatives as of
the date first above written.
▇▇▇▇▇▇▇ RIVER BRF, INC.
By: /s/ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ RIVER LABORATORIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
BIOCULTURE MAURITIUS LTD.
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, Director, and
individually as applies to
Paragraph 12 only
BIOCULTURE MAURITIUS LTD.
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, Director, and
individually as applies to
Paragraph 12 only
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Director
16