DISTRIBUTION
AGREEMENT
THIS AGREEMENT is made this 30
th day of June, 2009, by and between Symbollon
Pharmaceuticals, Inc., a Delaware corporation, with its principal
place of business located at 37 Loring Drive, Framingham,
Massachusetts 01702 (the "Company") and Integra Labs, Inc., a
Florida corporation, with its principal place of business located
at 3065 Porter Street Suite 103 Soquel, CA 95073 (the
"Distributor").
WHEREAS, the Company is in the business of
developing, marketing, selling and promoting certain iodine-based
products, including the Product (defined hereinbelow);
WHEREAS, the Distributor is in the business of
distributing nutritional supplements and assures the Company that
it has the financial resources, facilities, personnel and expertise
necessary to successfully market the Product in the Territory
(defined hereinbelow); and
WHEREAS, the Distributor wishes to obtain, and
the Company is willing to grant the Distributor, an exclusive right
to distribute the Product in the Territory.
NOW, THEREFORE, in consideration of the
foregoing premises and the promises hereinafter made by the parties
hereto, it is agreed as follows:
ARTICLE I
DEFINITIONS
As used in this
Agreement, each of the following terms has the meaning set forth
thereafter, such meaning to be equally applicable both to the
singular and plural forms of the terms herein defined.
“Additional Term” has the meaning
set forth in Section 7.1.
"Affiliate" means any individual, corporation,
partnership, proprietorship or other entity controlled by,
controlling, or under common control with a party through equity
ownership, ability to elect directors or direct management and
policies, or by virtue of a majority of overlapping directors, and
shall include (a) any individual, corporation, partnership,
proprietorship or other entity directly or indirectly owning, owned
by or under common ownership with such party to the extent of fifty
percent (50%) or more of the equity or voting shares, including
shares owned beneficially by such party, (b) each officer, director
or partner of such party and (c) for the Distributor, Integra Labs,
Inc.
“Agreement” means this agreement,
together with all schedules, exhibits and other attachments hereto,
now or hereafter appended, as the same may be modified, amended or
supplemented from time to time.
“Company” shall mean Symbollon
Pharmaceuticals, Inc.
“Confidential Information” means all
technical information, data, techniques, knowledge, skill,
know-how, experience, trade secrets, developments, formulae,
processes, materials and other information of a party which is
disclosed or transferred from one party to the other or developed
in the course of performance under, or during the term of, this
Agreement. Confidential Information shall not include
any of the foregoing that are (i) in the possession of
the receiving party at the time of disclosure as shown by the
receiving party’s files and records immediately prior to the
time of disclosures; (ii) prior to or after the time of disclosure
becomes part of the public knowledge or literature, not as a result
of any improper inaction or action of a party under an obligation
of confidentiality; or (iii) lawfully obtained by the receiving
party from sources independent of the disclosing party, which
sources have a lawful right to disclose such
information.
“Contract
Year” shall mean each twelve-month period following the
Effective Date.
“Dietary
Supplement” means a product isolated or purified from foods
that is generally sold in medicinal forms not usually associated
with food and is demonstrated to have a physiological benefit to
maintain healthy physiological systems.
“Distributor” shall mean Integra
Laboratories, Inc.
“Effective Date” shall the date
first written above.
“Existing
Inventory” shall mean the existing inventory of the Product
held by the Company which consists of not less than 10,000
60-tablet bottles and 5,000 120-tablet bottles of the
Product.
“Initial Term” has the meaning set
forth in Section 7.1.
“IoGen Information” shall mean all
patents, studies, articles, testimonials and other information
which are not considered Confidential Information owned by the
Company that relate to the Product.
“Net Sales” means the
Distributor’s net sales of the Product upon which the Company
is entitled to receive a Royalty in accordance with this
Agreement.
“Over-the-Counter (OTC)” means sales
which do not require a prescription from a medical doctor or other
authorized medical professional.
“Parties” shall refer to the Company
and the Distributor.
“Product” means IoGen™,
the Company’s Dietary Supplement for breast
health.
“Regulatory Approval” shall refer to
any regulatory approval necessary to market a product in a
country.
“Royalty” has the meaning set forth
in Section 2.4.
“Term” means the Initial Term and
any Additional Terms.
“Territory” means all countries that
allow OTC sale of the Product without Regulatory Approval as a
pharmaceutical product, provided, however, that the Company shall
have the right to exclude any country from the Territory for which
the Distributor does not have either the ability or the desire to
market the Product. Such right of exclusion may only be
exercised in conjunction with Distributor’s written consent
that it is not able or does not desire to distribute the Product in
such countries.
ARTICLE II
APPOINTMENT OF
DISTRIBUTORSHIP
2.1
Distribution Right . The Company hereby appoints and grants
Distributor the exclusive and non-assignable right to distribute
the Product in the Territory. To the extent there are
countries within the Territory that the Distributor does not have
the ability or desire to market the Product, the Company shall have
the right to exclude such countries from the
Territory. Such right of exclusion may only be exercised
in conjunction with Distributor’s written consent that it is
not able or does not desire to distribute the Product in such
countries.
2.2
Existing Inventory . The Distributor shall purchase the
Existing Inventory from the Company for $30,000. The Distributor
shall pay the Company for the Existing Inventory in two
installments of $15,000 each, the first payment due within 10
business days of the Effective Date and the second payment within
30 days of the Effective Date. The Company shall deliver
the Existing Inventory to a delivery site specified by the
Distributor with such delivery to take place within 5 business days
of the tender of the first payment. The cost of shipping
the Existing Inventory shall be paid by the
Distributor. The Distributor shall repackage the
Existing Inventory at its own cost. The Company retains
the right to review the label, inserts and other packaging of the
Product prior to any public sale of the Product and to restrict any
such content which the Company believes is unlawful, discloses
Confidential Information or is potentially damaging to the Company
or its assets. Within one week of submission to the
Company, the Company will approve a “proof” of the
proposed packaging and upon such approval, the Company shall be
deemed to have waived any claim hereafter stemming from the
approved packaging.
2.3
Manufacturing . The Distributor will assume all
manufacturing cost and responsibilities for the Product for sale in
the Territory after delivery of the existing
inventory. The Company shall transfer to the Distributor
its manufacturing formula and processes which the Company considers
Confidential Information. The Distributor shall use its
best efforts to ensure that the Product is manufactured in
accordance with all applicable laws governing its intended use and
that the Product meets all relevant release testing
specifications. The Company agrees not to manufacture
the Product, or a competitive product, for sale in the Territory,
but the Company shall be free to manufacture the Product for sale
in countries outside the Territory.
2.4
Royalty . The Distributor shall pay the Company a royalty as
specified on Exhibit 2.4 for all Net Sales whether sold directly to
the ultimate end user by the Distributor or sold to an intermediate
party for further sale to the ultimate end user. The
royalty shall be paid on the Net Sales from the Existing
Inventory.
2.5.
Competitive Products . The Distributor agrees not to
represent or sell other products which are reasonably deemed to be
competitive with the Product unless agreed to in writing by the
Company.
2.6
Mileston