**Exhbit4.37**

 

**SUPPLYAND DISTRIBUTION AGREEMENT**

 

**THISAGREEMENT MADE AND ENTERED INTO** in the City**of Montreal, Province of Quebec, as ofthe 25 day of October, 1995.

 
| **BY AND BETWEEN:** | ** ** | **FROSST RADIOPHARMACEUTICALS/FROSST PRODUITS  PHARMACO-RADIOACTIFS, a division of MERCK FROSST CANADA INC.,**                                                                                                         |
|---------------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                |       | a  company organized and existing under the laws of the Province of Ontario,  having its principal place of business at 16711 Trans-Canada Highway West  Kirkland, Quebec H9H 3L1                                      |
|                |       |                                                                                                                                                                                                                   |
|                |       | (hereinafter  referred to as **“MFCI****”**)                                                                                                                                                                 |
|                |       |                                                                                                                                                                                                                   |
|                |       |                                                                                                                                                                                                                   | **PARTY OF THE FIRST PART** |
|                |       |                                                                                                                                                                                                                   |
| **AND:**            | ** ** | **SYNCOR INTERNATIONAL  CORPORATION**, a company organized and existing under the  laws of the State of Delaware, having its principal place of business at  20001 Prairie Street, Chatsworth, California U.S.A. 91311 |
|                |       |                                                                                                                                                                                                                   |
|                |       | (hereinafter referred  to as **“Syncor”**)                                                                                                                                                                   |
|                |       |                                                                                                                                                                                                                   |
|                |       |                                                                                                                                                                                                                   | **PARTY OF THE SECOND PART** |

 

**WITNESSETH:**

 

**WHEREAS MFCI**and/or certain of its Associates manufacture, process, finish, market,distribute, package and/or label, or cause to be manufactured, processed,finished, marketed, distributed, packaged and labelled pharmaceutical andradiopharmaceutical products including, without limitation, the Products;

 

**WHEREAS**Syncor owns and operates a chain of nuclear pharmacies in the Territory andprepares and sells radiopharmaceuticals and nuclear medicine products andservices including unit doses prepared from the Products; and

 

**WHEREAS**Syncor desires to sell and distribute, under the MFCI label, or unit doses forhospitals, the Products in the Territory and MFCI is prepared to grant Syncorsuch rights, the whole subject to the terms and conditions hereinafter setforth;

 

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**NOW, THEREFORE, THIS AGREEMENT WITNESSES THAT INCONSIDERATION OF THE RESPECTIVE COVENANTS AND AGREEMENTS OF THE PARTIESHEREINAFTER CONTAINED AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPTAND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY EACH PARTY, THE PARTIESHEREBY COVENANT AND AGREE AS FOLLOWS:**

 
| **ARTICLE 1** | **DEFINITIONS** |
|--------------------|-----------------|

 

1.01                                                                           Wherever used in tins Agreement, unless thereis something in the subject matter or context inconsistent therewith, thefollowing words and terms shall have the respective meanings ascribed to themas follows:

 

(a)                                                                                  **“Agreement”, “this Agreement”, “thesepresents”, “herein”, “hereby”, “hereunder”**, and similar expressions refer collectively to this Supply and DistributionAgreement and the accompanying Schedules;

 

(b)                                                                                 **“Approved Assignee”** shall have the meaning ascribed to such termin Section 3.06 hereof;

 

(c)                                                                                  **“Associate”** means any person who or which does not dealwith MFCI or Syncor, as the case may be, or is deemed not to deal with MFCI orSyncor, as the case may be, at “arm’s length” as that expression is construedand interpreted under the Income Tax Act (Canada);

 

(d)                                                                                 **“Effective Date”** means the 9**day of June, 1995;

 

(e)                                                                                  **“Intellectual Property”** means all inventions, patents, patentapplications and issued patents, designs, design applications and designregistrations, trade marks, trade mark applications, trade mark registrations,trade names (whether registered or unregistered) copyright, copyrightapplications and registrations, processes, know-how, technology, formulae,customer lists, trade secrets, proprietary information and all other rights andintellectual property owned, held or used by MFCI and/or its Associates with respectto any and all of the Products;

 

(f)                                                                                    **“Syncor PDI”** ***

 

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(g)                                                                                 **“Products”** means the radiopharmaceutical products knownas Frosstimage® DTPA + and MDP +, as same are processed,manufactured, formulated, and/or distributed by MFCI as at the Effective Date,for sale and distribution as radiopharmaceutical products and **“Product”** shall mean any one such product;

 

(h)                                                                                 **“Product Price”** means MFCI’s price to Syncor for theapplicable Product (net of any and all taxes, customs duties, excises, costsand charges relating to transportation, freight, handling and insurance as calculatedin accordance with Section 5.03 hereof and Schedule “B” annexedhereto; and

 

(i)                                                                                     **“Territoty”** means the United States of America, itsterritories and possessions.

 

 
| **ARTICLE 2** | **INTERPRETATION** |
|--------------------|--------------------|

 

2.01                                                                           The division of this Agreement into Articlesand Sections and the insertion of headings are for the convenience of referenceonly and shall not affect the construction or interpretation of this Agreement.

 

2.02                                                                           Words importing the singular number onlyshall include the plural and vice versa, words importing the masculine gendershall include the feminine and neuter genders and vice versa, and wordsimporting persons shall include individuals, partnerships, associations, trusts,unincorporated organizations and corporations.

 

2.03                                                                           This Agreement constitutes the entireagreement between the parties with respect to the subject matter hereof andthere are no other written or verbal agreements or representations with respectto the subject matter hereof.

 

2.04                                                                           Every provision of this Agreement is intendedto be severable. If any term or provision hereof is illegal or invalid for anyreason whatsoever, such illegality or invalidity shall not affect the validityof the remaining terms and conditions hereof.

 

2.05                                                                           This Agreement shall be binding upon andinure to the benefit of the respective heirs, executors, administrators andother legal representatives and, to the extent permitted hereunder, the respectivesuccessors and assigns of the parties.

 

2.06                                                                           This Agreement replaces and supersedes anyprior agreement pertaining to the subject matter hereof.

 

2.07                                                                           All amounts referred to in this Agreementshall be in the lawful money of the United States of America unless statedotherwise.

 

2.08                                                                           All Schedules annexed hereto are incorporatedherein fully by this reference.

 

® Trademark ofMerck *&*Co., Inc.,Merck Frostt Canada Inc.,licensed user

 

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| **ARTICLE 3** | **APPOINTMENT OF SYNCOR** |
|--------------------|---------------------------|

 

3.01                                                                           Subject to the terms and conditions set forthherein, MFCI hereby appoints Syncor as a non-exclusive distributor of theProducts within the Territory with the right and authority to sell and/ordistribute the Products, solely under MFCI’s brand name or unit doses tohospitals in the Territory. Nothing herein contained shall be deemed torestrict or otherwise impair or impede the right and/or ability of MFCI and/orits Associates, whether directly or through one or more Associates or one ormore third parties, in the Territory or elsewhere in the world, to manufacture,process, finish, market, distribute, package, label, appoint additional personsas distributors of any of the Products, sub-contract any such rights to, orotherwise enter into any arrangement whatsoever with, any person with respectto any of the Products and/or otherwise deal in or with any of the Products.

 

3.02                                                                           Syncor agrees to use its best efforts toconduct adequate sales activities in the Territory in order to expand the salesof the Products therein. Syncor shall keep MFCI advised ofgeneral market and economic developments that may affect the sale of theProducts in the Territory.

 

3.03                                                                           For greater certainty, butwithout limiting the generality of anything herein otherwise contained, it isexpressly understood and agreed that Syncor shall not sell and/or distributeany of the Products outside of the Territory or knowingly sell and/ordistribute any of the Products to any person(s) for resale and/or distributionoutside the Territory.

 

Syncor shall use its best efforts to refer to MFCI all inquiriesreceived by it in connection with the sale and/or distribution of the Productsoutside the Territory.

 

3.04                                                                           Save as otherwise expressly permittedhereunder, no packaging, marketing, labelling, promotion, advertising anddistribution materials or programs shall use or refer to MFCI’s trade names,trade marks, brand names or to the words “Merck”, “Frosst”, “Sharp” or “Dohme” or any acronyms and/or combinations thereof without theprior written consent of MFCI. Nothing herein shall confer upon Syncor or anyApproved Assignee any proprietary interest, without limitation, in thetrademarks, tradenames, patents, licenses or registrations of MFCI.

 

3.05                                                                           Syncor shall not, without the prior writtenconsent of MFCI, which consent shall not be subject to anystatutory provision or limitations whatsoever and may be withheld arbitrarilyat MFCI’s sole discretion:

 

(i)                                                                                     sell,transfer or assign any of the rights and authority granted Syncor pursuant to Section 3.01hereof to any person including, without limitation, any Associate; and/or

 

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(ii)                                                                                  sub-contract or otherwise enter into anyother arrangement whatsoever with any person including, without limitation, anyAssociate, with respect to any of the rights and authority granted Syncorpursuant to Section 3.01 hereof.

 

3.06                                                                           For the purposes of this Agreement, anyperson including, without limitation, any Associate, to whom Syncor has, uponobtaining MFCI’s prior written consent as set out in Section 3.05 hereofsold, transferred, assigned, sub-contracted or otherwise made any other arrangementwith respect to any of the rights and authority granted to it pursuant to Section 3.01,shall be referred to as an **“Approved Assignee”.**The initial Approved Assignee list is set forth as Schedule “D” annexedhereto.

 

3.07                                                                           As a pre-condition to the sale, transfer orassignment to, and the sub-contracting or other arrangement with, an ApprovedAssignee, the parties agree that, without limitation, all such persons shallintervene into this Agreement so as to bind themselves on a solidary basis,both among themselves and with Syncor, to the fulfilment of all obligations, undertakings,commitments and covenants of Syncor hereunder and to furthermore confirm theiracceptance of, and their agreement to be bound by, all the terms and conditionsof this Agreement.

 
| **ARTICLE 4** | **TERM  OF AGREEMENT** |
|--------------------|------------------------|

 

4.01                                                                           The term of this Agreement shall commence onthe Effective Date and shall terminate on the fifth (5th) anniversary thereofunless terminated earlier pursuant to the provisions herein contained.

 

4.02                                                                           The term of the Agreement shall beautomatically extended for successive additional periods of two (2) years,unless either party hereto shall have notified the other in writing at leastone year (1) prior to the expiration of the initial term, or any extended termof the Agreement, as the case may be, of its intention to terminate theAgreement.

 

4.03                                                                          Notwithstanding any term or other provisionherein to the contrary, MFCI shall have the right to terminate this Agreementwith respect to any Affected Product(s) (as hereinafter defined), withoutpayment of any penalty, indemnity, damages or costs whatsoever to Syncor and/orany Approved Assignee, at any time and without any prior notice, in the eventMFCI ceases manufacturing and/or processing any of the Products by reasons ofany law, statute, ordinance, ruling or judgment of any governmental authority,or of any court, tribunal, administrative, or regulatory board or agency,domestic or foreign, (such governmental authority, court, tribunal,administrative or regulatory board or agency, domestic or foreign, ishereinafter sometimes referred to collectively as **“CompetentAuthority”**), if, in the reasonable opinion of MFCI, such law,statute, ordinance, ruling or judgment restricts and/or impairs MFCI’s ability tomanufacture, process, sell, market, distribute, package, label

 

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or otherwise deal in or with any of the Products (any such Productbeing herein referred to as an **“AffectedProduct”**);

 

4.04                                                                           In the event that this Agreement isterminated pursuant to Section 15.01(i), 15.01(ii), 15.01(iv) or 15.02,Syncor agrees and undertakes that it shall, in the Territory, immediately ceaseto sell and/or distribute the Products, whether manufactured by**MFCI or any Associate, and this withoutprejudice to any other of MFCI’s or such Associate’s rights and/or recourseswhether at law or pursuant to this Agreement.

 

4.05                                                                           Upon the termination of this Agreement by theefflux of time or for any other reason whatsoever including, withoutlimitation, any default of MFCI hereunder, Syncor shall, at its sole cost andexpense, immediately surrender, cancel and rescind or cause to be surrendered,cancelled and rescinded all government registrations and/or authorizations relatingto the Products which Syncor may have obtained pursuant to this Agreement (itbeing understood, however, that in the event MFCI terminates this Agreementpursuant to Section 4.03 hereof, Syncor’s obligations under this Section 4.05shall extend only to an Affected Product(s). In addition, Syncor shall voluntarily file with the appropriateCompetent Authority all documents that may be required in connection with suchsurrender, cancellation or rescission, and if requested by MFCI, Syncor shallcooperate with MFCI in effecting the cancellation of any identification ofSyncor with any governmental records or approvals applicable to the Products.

 
| **ARTICLE 5** | **SALE OF PRODUCT TO SYNCOR** |
|--------------------|-------------------------------|

 

5.01                                                                           During the term of this Agreement, MFCI shallsell to Syncor, or otherwise arrange for one or more of its Associates to sellto Syncor, the Products in such form, shape, size and colour and in such standardcase or carton quantities as is offered by MFCI.  MFCI agrees to deliver to Syncor the Productspackaged in accordance with laws and regulations relating to the shipping andhandling of the Products.

 

5.02                                                                           All orders for the Products shall be subjectto acceptance by MFCI or its supplying Associates, and all sales shall besubject to the terms and conditions of sale established in this Agreement.Except as otherwise agreed to in writing by the parties, the terms andconditions of sale shall be as set forth in Schedule “A” annexed hereto. No provisions onSyncor’s purchase order forms which may impose different conditions upon MFCIor any Associates of MFCI shall be of any force or effect unless expresslyagreed to in writing by MFCI or its supplying Associate(s).

 

5.03                                                                           Notwithstanding anything to the contraryherein otherwise contained, the price charged Syncor by MFCI for the Productsshall be the applicable Product Price set forth in Schedule “B” annexedhereto.

 

The parties agree that, for the first year of the term of thisAgreement, the applicable Product Price for Products sold by MFCI to Syncorduring such first year shall

 

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remain as set forth in Schedule “B” annexed hereto. However, foreach subsequent year of the term of this Agreement, including any renewal orextension thereof, the Product Price for each of the Products shall beincreased annually by a percentage equal to ***

 

For greater certainty, the following example will serve to illustratethe principle set out above:

 

(a)                                  ***

 

***

 

5.04                                                                           Payment by Syncor for the Products purchasedby it pursuant to this Agreement shall be in United States dollars upon theterms set forth in Schedule “A” hereinabove referred to.

 

5.05                                                                           Notwithstanding anything to the contraryherein otherwise contained, title to and risk of loss of any Products purchasedby Syncor pursuant to this Agreement shall pass to Syncor ***.

 

5.06                                                                           Subject to Section 11.03 hereof andprovided that, from the date of delivery by MFCI of the Product(s) in questionto the common carrier designated by MFCI for the purpose of shipping same toSyncor’s Toledo, Ohio warehouse, the Frosstimage® DTPA, No. 4 200and 4 201 and MDP No. 4 198 and 4 199 have a minimum expiry date of twelve andten months, respectively, the sale of Products to Syncor by MFCI shall befinal.

 

® Trademark ofMerck *&*Co., Inc.,Merck Frosst Canada Inc.,licensed user

 

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In the event any Frosstimage® DTPA No. 4 200 and 4 201 orMDP no. 4 198 and 4 199 are delivered by MFCI to Syncor with shorter expirydates than the applicable ones mentioned in the preceding paragraph, MFCIagrees that, within thirty (30) days of a written request from Syncor followingthe expiration of the applicable date, it will replace all unsold units of theapplicable Product at no additional cost to Syncor.

 

5.7*                                                                                *Syncor shall ensure that sufficient stocks ofthe Products are carried by it to satisfy the demand for each Product in theTerritory.

 

5.8                                                                                 In order to assist MFCI in planning itsproduction requirements of Products, Syncor shall, submit to MFCI firm purchaseorders for, as well as estimates of, its requirements of Products in accordancewith the following:

 

(i)                                     As soon as practicable following theexecution of this Agreement, Syncor will issue firm purchase orders for**itsrequirement of Products for *** referred to as an **“ApplicablePeriod”**) immediately following the Effective Date and an estimate ofits requirement of Products for each of the *** with a statement of the dateson which delivery of the Products is required. This initial estimate ofrequirements of Products, as well as all other estimates thereafter shall beupdated *** and within a timely manner so as to ensure that estimated requirementsfor each Applicable Period are provided in advance during the term of thisAgreement; and

 

(ii)                                  Syncor further agrees that not less than ***prior to the beginning of the second and each succeeding Applicable Periodthereafter following the Effective Date of this Agreement, firm purchase ordersfor its requirement of Products for the Applicable Period shall be furnished toMFCI.

 

5.09                                                                           The parties agree that *** Notwithstandingthe foregoing, the parties acknowledge and confirm that the provisions of this Section 5.09shall not apply ***

 

In the event ***

 
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®Trademark ofMerck *&*Co., Inc.,Merck Frosst Canada Inc.,licensed user

 

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| **ARTICLE 6** | **PRODUCT IMPROVEMENTS** |
|--------------------|--------------------------|

 

6.01                                                                           Syncor and all Associates shall within areasonable time disclose to MFCI, and to no other person, any and allimprovements, methods, patents, formulae and processes discovered, conceived ordeveloped by it, either alone or jointly, or in common with others, eitherduring the present Agreement or within a period of two (2) years from itstermination which relate, in any way, to any of the Products. Syncor and allAssociates shall, without any further compensation whatsoever, give MFCI theright of first refusal to obtain right, title and interest to any and all suchimprovements, methods, patents, formulae and processes. In the event MFCIshall, at its sole discretion, choose to exercise such right, Syncor and allAssociates shall assign, transfer and set over to MFCI its entire right, titleand interest in and to any and all such improvements, methods, patents,formulae and processes, domestic and foreign and will sign any and alldocuments and undertake any and all other steps relating thereto, which MFCI mayconsider necessary to vest or protect such title, the whole without any furthercompensation whatsoever.

 
| **ARTICLE 7** | **COMPLIANCE WITH  REQUIREMENTS****OF COMPETENT AUTHORITIES** |
|--------------------|---------------------------------------------------------------|

 

7.01                                                                           Syncor shall, at its sole cost and expense,take all necessary steps to comply with the requirements of all CompetentAuthority relating to the sale and distribution of the Products in theTerritory.

 

7.02                                                                           In order to enable Syncor to exercise itsrights under the Agreement and to comply with the requirements of all CompetentAuthority, MFCI and/or its Associates will, upon receiving a written requestfrom Syncor, furnish to all Competent Authority all formulae, specifications,particulars, analyses, reports and literature (referred to collectively as the “Documents”)in its possession or under its control, that are required by the said CompetentAuthority in connection with statutory requirements relating to the sale anddistribution of the

 

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Productsin the Territory. The parties shall take all reasonable steps to maintain theconfidentiality of the Documents.

 
| **ARTICLE 8** | **INTELLECTUAL PROPERTY** |
|--------------------|---------------------------|

 

8.01                                                                           Syncor acknowledges the validity of theIntellectual Property relating to each of the Products and that MFCI and/or itsAssociates possess the proprietary rights to, or is(are) the licensee(s) of,the Intellectual Property relating to each of the Products in Canada, theTerritory and elsewhere in the world and that the said Intellectual Property isand shall remain the sole property of MFCI, and/or its Associates and/orits(their) licensor(s), as the case may be. Syncor shall not use theIntellectual Property in any manner whatsoever calculated to represent thatSyncor is the owner or licensee thereof. This Agreement does not constitute agrant to Syncor of any property right or interest in all or any part of theIntellectual Property. Syncor expressly agrees not to contest before anyCompetent Authority, the validity of the title of MFCI or its Associates or its(their) licensors, as the case may be, to the Intellectual Property in anycountry, whether or not registered.

 
| **ARTICLE 9** | **COVENANTS OF MFCI** |
|--------------------|-----------------------|

 

9.01                                                                           MFCI shall, through the term of thisAgreement carry and keep in force product liability insurance (through selfinsurance or a combination of self insurance and commercially placed insurancecoverage) in such form, amount and effect so as to fulfil its obligationshereunder to Syncor’s reasonable satisfaction.

 
| **ARTICLE 10** | **COVENANTS OF SYNCOR** |
|---------------------|-------------------------|

 

10.01                                                                     Syncor shall, through the term of thisAgreement carry and keep in force product liability insurance (through selfinsurance or a combination of self insurance and commercially placed insurancecoverage) in such form, amount and effect so as to fulfil their obligationshereunder to MFCI’s reasonable satisfaction.

 

10.02                                                                     Syncorshall not do anything in connection with the sale and/or distribution of theProducts which would adversely affect the reputation and goodwill of MFCI andits Associates or adversely affect the high quality standards and reputation ofany of the Products including, without limitation, the misbranding,adulteration of the Products and/or non-compliance with any CompetentAuthority.

 

10.03                                                                     During the term of this Agreement andfollowing its termination whether by the efflux of time, cancellation orotherwise, each party shall report to the other, immediately upon receipt, anyinformation concerning any side-effect, injury, toxicity or sensitivityreaction, or any other unexpected incidence and the severity thereof, associatedwith any of the Products whether or not determined to be attributable to anysuch Product.

 

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Syncor shall furthermore notify MFCI immediately of any informationwhich it receives regarding any threatened or pending action by any CompetentAuthority which may affect the safety or efficacy claims of the Products or thecontinued marketing of same. Upon receipt of any such information divulgedpursuant to this Section 10.03, MFCI shall consult with Syncor in aneffort to arrive at a mutually acceptable procedure for taking appropriateaction; provided, however, that nothing contained herein shall be construed asrestricting MFCI’s right to make a timely report of such matter to anyCompetent Authority, or to take any further action that MFCI deems appropriateor required by applicable law or regulation.

 

10.04                                                                     In addition to the obligations set out in Section 12.01hereof, Syncor shall promptly attend to all inquiries received concerning theuse or administration of the Products and shall furthermore advise MFCI ofsame. Syncor also agrees to keep accurate sales records in sufficient detail toenable a rapid Product Recall (as hereinafter defined) if necessary.

 
| **ARTICLE 11** | **WARRANTY AND INDEMNIFICATION** |
|---------------------|----------------------------------|

 

11.01                                                                     Each party warrants and represents to theother that it has the full right and authority to enter into this Agreement,and that it is not aware of any impediment that would inhibit its ability toperform its obligations under this Agreement.

 

11.02                                                                     MFCI warrants that the Products to besupplied to Syncor under this Agreement will, at the time of delivery, conformto the standards and specifications of MFCI and the Food and DrugAdministration, Division of Medical Imaging as set forth in Schedule “C”hereto; MFCI makes no other warranty of any kind with respect to the Products, eitherexpress or implied.

 

11.03                                                                     Claims concerning any failure to meet thestandards or specifications of MFCI on account of quality, loss or damage toany of the Products shall be made by Syncor in writing within twenty-one (21)days following Syncor’s receipt of the applicable Products. The Products shallnot be returned to MFCI or to its Associates without prior written permission,it being further understood that in such circumstances, MFCI shall have theoption of advising Syncor to destroy such Product(s) on spot. The liability ofMFCI or any of its Associates for any Products proved not to meet saidstandards and specifications shall be limited to a replacement with a newProduct meeting the required standards and specifications. Such replacementshall constitute MFCI’s sole and exclusive liability for such claims.

 

11.04                                                                     MFCI shall not be responsible for any damagesor losses suffered by Syncor and/or any Approved Assignee or other Associatearising out of the storage, handling, distribution, sale or use of the Productsby any of them, except for those claims which are occasioned by the wilful ornegligent acts of MFCI, its agents, servants and employees.

 

Notwithstanding the foregoing, MFCI shall indemnify Syncor and hold itharmless from any and all claims, lawsuits and liability, including liabilityfor death or personal

 

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injury,costs, losses, or expenses, including reasonable attorneys’ fees, which stemfrom any Products that were damaged or defective at the time of delivery toSyncor unless such liability is attributable, to the negligent, reckless orintentional malfeasance of Syncor, any of its Approved Assignees or other Associates,and/or of any of their respective officers, agents or employees MFCI shallconfer with Syncor prior to settlement of any claims relating to the subjectmatter of this Agreement or against MFCI for which MFCI shall provide a defenceand indemnity to Syncor.

 

11.05                                                                     Syncor shall defend and indemnify MFCI andits Associates and hold each of them harmless against all damages, costs,claims, expenses, proceedings and demands suffered by each of them hereunder,including reasonable attorneys’ fees, whether in respect of death, personalinjury or otherwise, which arise out of the storage, handling, distribution,sale, or the use or administration of the Products by Syncor, any ApprovedAssignee and/or any other Associate, or which arise out of damage to propertyor injury to or death of persons occasioned by or in connection with any wilfulor negligent acts of Syncor, any Approved Assignee and/or any other Associate,its officers, agents and employees. Syncor shall confer with MFCI prior tosettlement of any claims relating to the subject matter of this Agreementagainst Syncor or for which Syncor shall provide a defence and indemnity toMFCI.

 
| **ARTICLE 12** | **COMPLAINTS AND PRODUCT RECALLS** |
|---------------------|------------------------------------|

 

12.01                                                                     All complaints relating, directly orindirectly, to the sale or actual distribution of Products shall be theresponsibility of Syncor, which undertakes to diligently handle such complaints.When Syncor becomes aware of such complaints, it shall notify MFCI of said complaintsand MFCI shall render reasonable assistance to Syncor in connection therewith.

 

12.02                                                                     MFCI shall have the right at any time torecall a Product (a **“Product Recall”**)by promptly giving notice to Syncor by telephone (to be immediately confirmedin writing, telex or telecopier) and Syncor shall upon receipt of such notice,immediately cease and desist from further distributing the Product(s) in theTerritory and will undertake to dispose of such Product(s) in accordance withMFCI’s instructions.

 

12.03                                                                     In the event of any Product Recall, MFCIshall save harmless and indemnify Syncor from and against any and allliability, damages, costs and expenses (including reasonable attorneys’ fees)which Syncor may suffer or incur as a result of such Product Recall, except tothe extent that such Product Recall is attributable to a wilful act or omissionby Syncor and/or any of its Associates. Any products recalled shall be disposedin accordance with MFCI’s instructions.

 

12.04                                                                     In the event of a Product Recall, any minimumquantity provisions in this Agreement for the recalled Products shall notapply.

 

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| **ARTICLE 13** | **FORCE MAJEURE** |
|---------------------|-------------------|

 

13.01                                                                     No party shall be liable for failure toperform or delay in performing any obligations under this Agreement, except theobligation to make payments when due, if such failure or delay is due to forcemajeure, including, but not limited to, war, embargo, riot, insurrection,sabotage or other civil unrest; fire, explosion, flood or other naturaldisaster; accident or breakdown of machinery; availability of fuel, labour,containers or transportation facilities; strike or other labour disturbances;government restraints; or any other cause beyond the control of the affectedparty; provided, however, that the party so failing to**perform shall(a) as soon as possible, inform the other party of the occurrence of thecircumstances preventing or delaying the performance of its obligations; and(b) exert its best efforts to eliminate, cure or overcome any of such causesand to resume performance of its covenants with all possible speed.

 
| **ARTICLE 14** | **CONFIDENTIALITY** |
|---------------------|---------------------|

 

14.01                                                                     All confidential information which isreceived by MFCI or Syncor from the other party during the term of thisAgreement shall be maintained in strict confidence by the receiving party. Allconfidential information whether generated by MFCI or Syncor shall be disclosedonly to employees and consultants of MFCI and/or Syncor who have beeninstructed to treat such information in strict confidence and on a “need toknow” basis. This information shall be protected from disclosure to thirdparties with at least the same degree of care used by such employees whendealing with their employer’s confidential information. Such information shallfurthermore not be disclosed to any other person, firm, or agency, governmentalor private, or used for purposes other than set forth herein, without the priorwritten consent of the disclosing party except to the extent that theinformation:

 
| i)     |   | is  known at the time of its receipt by the receiving party and is documented in its* *written  records, or |
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|   |   |                                                                                                             |
| ii)    |   | is  properly in the public domain, or                                                                            |
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| iii)   |   | is  subsequently disclosed to the receiving party by a third party who may  lawfully do so, or                   |
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| iv)    |   | is  independently developed by the receiving party, or                                                           |
|   |   |                                                                                                             |
| v)     |   | is  required to be disclosed to governmental agencies.                                                           |

 

14.02                                                                     Upon termination of this Agreement and uponthe request of the disclosing party, the receiving party shall return all suchinformation and copies thereof in its possession, except that the receivingparty may keep one copy of such information in its Law Department confidentialfiles solely for archival purposes. Such archival copy will be deemed to be the

 

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propertyof the disclosing party and will not be copied or distributed in any mannerwithout the express prior written permission of the disclosing party.

 
| **ARTICLE 15** | **EVENTS****OF DEFAULT** |
|---------------------|--------------------------|

 

15.01                                                                     In the event:

 

(i)                                     Syncor fails to pay any money due by it hereunder, as and when same becomes due andpayable, and such default is not cured within thirty (30) days of receipt by itof written notification from MFCI setting forth the details of the default, or

 

(ii)                                  Syncor becomes bankrupt or insolvent or takesthe benefit of any act now or hereafter in force for bankrupt or insolventdebtors or files a proposal or takes any action or proceeding before any courtor governmental body of competent jurisdiction for dissolution, winding-up orliquidation or for the liquidation of its assets, or

 

(iii)                               MFCI becomes bankrupt or insolvent or takesthe benefit of any act now or hereafter in force for bankrupt or insolventdebtors or files a proposal or takes any action or proceeding before any courtor governmental body of competent jurisdiction for dissolution, winding-up orliquidation or for the liquidation of its assets, or

 

(iv)                              Syncor shall not observe, perform or keep anyof the other covenants, agreements, provisions, stipulations and conditionsherein contained to be kept, observed or performed by it and such default isnot remedied within thirty (30) days (or within such longer period as may bereasonably necessary in the circumstances to diligently remedy the default) ofreceipt by it of written notification from MFCI setting forth the details ofthe default in question, or

 

(v)                                 MFCI shall not observe, perform or keep anyof the covenants, agreements, provisions, stipulations and conditions hereincontained to be kept, observed or performed by it and such default is notremedied within thirty (30) days (or within such longer period as may bereasonably necessary in the circumstances to diligently remedy the default) ofreceipt by it of written notification from Syncor setting forth the details ofthe default in question,

 

thenthe party not in default hereunder, in addition to any other rights or remediesit has pursuant to this Agreement or by law, shall have the immediate right tocancel and terminate this Agreement upon giving to the other party notice oftermination.

 

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15.02                                                                     This Agreement may also be cancelled uponthirty (30) days prior written notice by one party upon a change of fiftypercent (50%) of the direct or indirect ownership and control of the shares ofthe other party (the**“Affected Party”**).This provision is only intended to apply to changes involving unrelated thirdparties. The Affected Party shall provide prompt written notice of any suchchange to the other party.

 
| **ARTICLE 16** | **NOTICE PROVISIONS** |
|---------------------|-----------------------|

 

16.01                                                                     Any notices required or permitted to be givenhereunder shall be in writing and shall be effectively given if deliveredpersonally, sent by prepaid courier service or certified mail, return receiptrequested, or sent by telecopier, telex or other similar means of electroniccommunication (confirmed on the same or following day by prepaid mail)addressed as follows:

 

(a)                                  in the case of MFCI to:

 

Merck Frosst Canada Inc*.*

16711 Trans-Canada Highway West

Kirkland, Quebec

H9H 3L1

Attention:  Director,Radiopharmaceutical Division

Telecopier No.: 514-428-2646

 

(b)                                 in the case of Syncor to:

 

Syncor International Corporation

20001 Prairie Street

Chatsworth, California

U.S.A. 91311

Attention:    Mr. Haig Bagerdjian. General Counsel

Telecopier No.: 818-717-4606

 

anynotice so given shall be deemed conclusively to have been given and receivedwhen so personally delivered or sent by telecopier or telex or on the secondday following the sending thereof by private courier and on the sixth dayfollowing the sending thereof by prepaid mail, certified, return receiptrequested. If the day on which any notice is deemed to have been received isnot a business day, then the notice shall be deemed to have been received onthe business day next following such day.

 

Any party hereto may change any particulars of its address for noticeby notice to the other party in the manner aforesaid.

 

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| **ARTICLE 17** | **MISCELLANEOUS** |
|---------------------|-------------------|

 

17.01                                                                     Nothing in this Agreement shall be construedto create a joint venture, principal-agent or employer-employee relationship, andnothing herein shall be deemed to authorize either party to act for, representor bind the other party.

 

17.02                                                                     Except as expressly permittedherein, Syncor shall not sell, transfer or assign any of its rights, titles andinterests in and under this Agreement to, or sub-contract or otherwise make anyother arrangement regarding such rights, titles and interests with, any personincluding, without limitation, an Associate. MFCI may freely sell, transfer,assign, sub-contract and/or make any other arrangement regarding its rights,titles and interests in and under this Agreement.

 

17.03                                                                     The preamble hereto shall form part hereof asif recited at length herein.

 

17.04                                                                     Neither Syncor nor MFCI shall issue any pressrelease or make any other public disclosure regarding the existence of thisAgreement or the subject matter thereof without the prior consent of the otherparty as to the form, effect and substance of the said release and/or disclosure.

 

17.05                                                                     This Agreement shall be interpreted by andconstrued in accordance with the domestic law of the Province of Quebec and thelaws of Canada applicable therein.

 

17.06                                                                     Any disputes which arise between the partiesunder this Agreement, and which cannot be resolved by their respective staffs,shall be referred to the President of MFCI and the Chief Operating Officer ofSyncor, who shall meet and make a good faith effort to resolve the matter. Inthe event that the parties fail to resolve such dispute or claim pursuant tothis Section, then such dispute or claim shall be determined by arbitration.Such arbitration shall be conducted in accordance with the Quebec Code of CivilProcedure. The costs of arbitration shall be divided equally between theparties unless determined otherwise by the arbitrators.

 

Notwithstanding anything herein contained to the contrary, it isunderstood that the arbitrators shall be precluded from including punitivedamages in any arbitration award.

 

17.07                                                                     No failure of any party hereto to pursue anyremedy resulting from a breach of this Agreement by the other party shall beconstrued as a waiver of any breach of any term, obligation or condition hereincontained or of any subsequent breach of the same or any other term, obligationor condition herein contained.

 

17.08                                                                     The parties hereto agree to execute suchfurther papers, agreements, documents, instruments and the like as may benecessary or desirable from time to time in order to effect the purposes ofthis Agreement and to carry out its provisions.

 

17.09                                                                     The parties declare that they have requiredthat this Agreement and any documents relating thereto be drawn up in theEnglish language.

 

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Les parties aux présentes déclarent qu’elles ont exigé que cetteentente et tous les documents y afférant soient rédigés en langue anglaise.

 

17.10                                                                     The parties acknowledge that each of theterms hereof was negotiated in**goodfaith and not imposed by one on the other, understood and, for good andvaluable consideration, agreed to by each of them and that the presentAgreement does not constitute an adhesion contract for either of them butrather a contract by mutual agreement.

 

17.11                                                                     This Agreement may be executed in any numberof counterparts, each of which when executed and delivered is an original butall of which taken together constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties hereto by their duly authorizedrepresentatives have executed this Agreement as of the day and at the placefirst hereinabove set forth.

 

 
| **SYNCOR INTERNATIONAL  CORPORATION**            | **MERCK FROSST CANADA INC** |
|--------------------------------------------------|-----------------------------|
|                                             |                        |
|                                             |                        |
| /s/ Robert G. Funari                             |                        | /s/ Paul G. Howes |   |
| Name                                             |                        | Name |   |
|   Robert G. Funari                          |                        |   Paul G. Howes |   |
| Signature                                        |                        | Signature |   |
|   Executive  VP and Chief Executive Officer |                        |   President, Merck Frosst Canada, Inc. |   |
| Title                                            |                        | Title |   |
|   October 25,1995                      |                        |   November 28,1995 |   |
| Date                                             |                        | Date |   |

 

17

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**SCHEDULE “A”**

 

Termsand conditions of sales of the Products by MFCI to Syncor.

 

**•****                              *****

 

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**SCHEDULE “B”**

 

**•****                             **Product Frosstimage® DTPA+#900-288

 

**•****                             **Product Frosstimage® MDP+ #900-301

 
| Packaged in five (5)-vial kit    | – | ***    |
|----------------------------------|--------|--------|
|                             |   |   |
| Packaged in thirty (30)-vial kit | – | ***    |

 

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**SCHEDULE “C”**

 

**Product Specifications**

** **

*******

 

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**SCHEDULE****“D****”**

 

**Approved Assignees**

 

*******

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