Exhbit
4.37


 


SUPPLY
AND DISTRIBUTION AGREEMENT


 


THIS
AGREEMENT MADE AND ENTERED INTO in the City of Montreal, Province of Quebec, as of
the 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 and
radiopharmaceutical products including, without limitation, the Products;


 


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


 


WHEREAS
Syncor desires to sell and distribute, under the MFCI label, or unit doses for
hospitals, the Products in the Territory and MFCI is prepared to grant Syncor
such rights, the whole subject to the terms and conditions hereinafter set
forth;


 





















 


NOW, THEREFORE, THIS AGREEMENT WITNESSES THAT IN
CONSIDERATION OF THE RESPECTIVE COVENANTS AND AGREEMENTS OF THE PARTIES
HEREINAFTER CONTAINED AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT
AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY EACH PARTY, THE PARTIES
HEREBY COVENANT AND AGREE AS FOLLOWS:


 


	
  ARTICLE 1

  	
  DEFINITIONS

  



 


1.01                                                                           Wherever used in tins Agreement, unless there
is something in the subject matter or context inconsistent therewith, the
following words and terms shall have the respective meanings ascribed to them
as follows:


 


(a)                                                                                  “Agreement”, “this Agreement”, “these
presents”, “herein”, “hereby”, “hereunder”, and similar expressions refer collectively to this Supply and Distribution
Agreement and the accompanying Schedules;


 


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


 


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


 


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


 


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


 


(f)                                                                                    “Syncor PDI” ***


 


2





















 


(g)                                                                                 “Products” means the radiopharmaceutical products known
as 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 the
applicable Product (net of any and all taxes, customs duties, excises, costs
and charges relating to transportation, freight, handling and insurance as calculated
in accordance with Section 5.03 hereof and Schedule “B” annexed
hereto; and


 


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


 


 


	
  ARTICLE 2

  	
  INTERPRETATION

  



 


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


 


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


 


2.03                                                                           This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
there are no other written or verbal agreements or representations with respect
to the subject matter hereof.


 


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


 


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


 


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


 


2.07                                                                           All amounts referred to in this Agreement
shall be in the lawful money of the United States of America unless stated
otherwise.


 


2.08                                                                           All Schedules annexed hereto are incorporated
herein fully by this reference.


 


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


 


3





















 


	
  ARTICLE 3

  	
  APPOINTMENT OF SYNCOR

  



 


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


 


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


 


3.03                                                                           For greater certainty, but
without limiting the generality of anything herein otherwise contained, it is
expressly understood and agreed that Syncor shall not sell and/or distribute
any of the Products outside of the Territory or knowingly sell and/or
distribute any of the Products to any person(s) for resale and/or distribution
outside the Territory.


 


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


 


3.04                                                                           Save as otherwise expressly permitted
hereunder, no packaging, marketing, labelling, promotion, advertising and
distribution 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 the
prior written consent of MFCI. Nothing herein shall confer upon Syncor or any
Approved Assignee any proprietary interest, without limitation, in the
trademarks, tradenames, patents, licenses or registrations of MFCI.


 


3.05                                                                           Syncor shall not, without the prior written
consent of MFCI, which consent shall not be subject to any
statutory provision or limitations whatsoever and may be withheld arbitrarily
at MFCI’s sole discretion:


 


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


 


4





















 


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


 


3.06                                                                           For the purposes of this Agreement, any
person including, without limitation, any Associate, to whom Syncor has, upon
obtaining MFCI’s prior written consent as set out in Section 3.05 hereof
sold, transferred, assigned, sub-contracted or otherwise made any other arrangement
with 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” annexed
hereto.


 


3.07                                                                           As a pre-condition to the sale, transfer or
assignment to, and the sub-contracting or other arrangement with, an Approved
Assignee, the parties agree that, without limitation, all such persons shall
intervene 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 their
acceptance of, and their agreement to be bound by, all the terms and conditions
of this Agreement.


 


	
  ARTICLE 4

  	
  TERM
  OF AGREEMENT

  



 


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


 


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


 


4.03                                                                          Notwithstanding any term or other provision
herein to the contrary, MFCI shall have the right to terminate this Agreement
with respect to any Affected Product(s) (as hereinafter defined), without
payment of any penalty, indemnity, damages or costs whatsoever to Syncor and/or
any Approved Assignee, at any time and without any prior notice, in the event
MFCI ceases manufacturing and/or processing any of the Products by reasons of
any 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, is
hereinafter sometimes referred to collectively as “Competent
Authority”), if, in the reasonable opinion of MFCI, such law,
statute, ordinance, ruling or judgment restricts and/or impairs MFCI’s ability to
manufacture, process, sell, market, distribute, package, label


 


5





















 


or otherwise deal in or with any of the Products (any such Product
being herein referred to as an “Affected
Product”);


 


4.04                                                                           In the event that this Agreement is
terminated 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 cease
to sell and/or distribute the Products, whether manufactured by MFCI or any Associate, and this without
prejudice to any other of MFCI’s or such Associate’s rights and/or recourses
whether at law or pursuant to this Agreement.


 


4.05                                                                           Upon the termination of this Agreement by the
efflux of time or for any other reason whatsoever including, without
limitation, any default of MFCI hereunder, Syncor shall, at its sole cost and
expense, immediately surrender, cancel and rescind or cause to be surrendered,
cancelled and rescinded all government registrations and/or authorizations relating
to the Products which Syncor may have obtained pursuant to this Agreement (it
being understood, however, that in the event MFCI terminates this Agreement
pursuant to Section 4.03 hereof, Syncor’s obligations under this Section 4.05
shall extend only to an Affected Product(s). 
In addition, Syncor shall voluntarily file with the appropriate
Competent Authority all documents that may be required in connection with such
surrender, cancellation or rescission, and if requested by MFCI, Syncor shall
cooperate with MFCI in effecting the cancellation of any identification of
Syncor 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 shall
sell to Syncor, or otherwise arrange for one or more of its Associates to sell
to Syncor, the Products in such form, shape, size and colour and in such standard
case or carton quantities as is offered by MFCI.  MFCI agrees to deliver to Syncor the Products
packaged in accordance with laws and regulations relating to the shipping and
handling of the Products.


 


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


 


5.03                                                                           Notwithstanding anything to the contrary
herein otherwise contained, the price charged Syncor by MFCI for the Products
shall be the applicable Product Price set forth in Schedule “B” annexed
hereto.


 


The parties agree that, for the first year of the term of this
Agreement, the applicable Product Price for Products sold by MFCI to Syncor
during such first year shall


 


6





















 


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


 


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


 


(a)                                  ***


 


***


 


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


 


5.05                                                                           Notwithstanding anything to the contrary
herein otherwise contained, title to and risk of loss of any Products purchased
by Syncor pursuant to this Agreement shall pass to Syncor ***.


 


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


 


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


 


7





















 


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


 


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


 


5.8                                                                                 In order to assist MFCI in planning its
production requirements of Products, Syncor shall, submit to MFCI firm purchase
orders for, as well as estimates of, its requirements of Products in accordance
with the following:


 


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


 


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


 


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


 


In the event ***


 


	
  ***

  	
   

  	
   

  



 


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


 


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  ***

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


	
  ARTICLE 6

  	
  PRODUCT IMPROVEMENTS

  



 


6.01                                                                           Syncor and all Associates shall within a
reasonable time disclose to MFCI, and to no other person, any and all
improvements, methods, patents, formulae and processes discovered, conceived or
developed by it, either alone or jointly, or in common with others, either
during the present Agreement or within a period of two (2) years from its
termination which relate, in any way, to any of the Products. Syncor and all
Associates shall, without any further compensation whatsoever, give MFCI the
right of first refusal to obtain right, title and interest to any and all such
improvements, methods, patents, formulae and processes. In the event MFCI
shall, at its sole discretion, choose to exercise such right, Syncor and all
Associates shall assign, transfer and set over to MFCI its entire right, title
and interest in and to any and all such improvements, methods, patents,
formulae and processes, domestic and foreign and will sign any and all
documents and undertake any and all other steps relating thereto, which MFCI may
consider necessary to vest or protect such title, the whole without any further
compensation 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 Competent
Authority relating to the sale and distribution of the Products in the
Territory.


 


7.02                                                                           In order to enable Syncor to exercise its
rights under the Agreement and to comply with the requirements of all Competent
Authority, MFCI and/or its Associates will, upon receiving a written request
from 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 Competent
Authority in connection with statutory requirements relating to the sale and
distribution of the


 


9





















 


Products
in the Territory. The parties shall take all reasonable steps to maintain the
confidentiality of the Documents.


 


	
  ARTICLE 8

  	
  INTELLECTUAL PROPERTY

  



 


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


 


	
  ARTICLE 9

  	
  COVENANTS OF MFCI

  



 


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


 


	
  ARTICLE 10

  	
  COVENANTS OF SYNCOR

  



 


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


 


10.02                                                                     Syncor
shall not do anything in connection with the sale and/or distribution of the
Products which would adversely affect the reputation and goodwill of MFCI and
its Associates or adversely affect the high quality standards and reputation of
any of the Products including, without limitation, the misbranding,
adulteration of the Products and/or non-compliance with any Competent
Authority.


 


10.03                                                                     During the term of this Agreement and
following its termination whether by the efflux of time, cancellation or
otherwise, each party shall report to the other, immediately upon receipt, any
information concerning any side-effect, injury, toxicity or sensitivity
reaction, or any other unexpected incidence and the severity thereof, associated
with any of the Products whether or not determined to be attributable to any
such Product.


 


10





















 


Syncor shall furthermore notify MFCI immediately of any information
which it receives regarding any threatened or pending action by any Competent
Authority which may affect the safety or efficacy claims of the Products or the
continued marketing of same. Upon receipt of any such information divulged
pursuant to this Section 10.03, MFCI shall consult with Syncor in an
effort to arrive at a mutually acceptable procedure for taking appropriate
action; provided, however, that nothing contained herein shall be construed as
restricting MFCI’s right to make a timely report of such matter to any
Competent Authority, or to take any further action that MFCI deems appropriate
or required by applicable law or regulation.


 


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


 


	
  ARTICLE 11

  	
  WARRANTY AND INDEMNIFICATION

  



 


11.01                                                                     Each party warrants and represents to the
other 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 to
perform its obligations under this Agreement.


 


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


 


11.03                                                                     Claims concerning any failure to meet the
standards or specifications of MFCI on account of quality, loss or damage to
any 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 shall
not be returned to MFCI or to its Associates without prior written permission,
it being further understood that in such circumstances, MFCI shall have the
option of advising Syncor to destroy such Product(s) on spot. The liability of
MFCI or any of its Associates for any Products proved not to meet said
standards and specifications shall be limited to a replacement with a new
Product meeting the required standards and specifications. Such replacement
shall constitute MFCI’s sole and exclusive liability for such claims.


 


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


 


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


 


11





















 


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


 


11.05                                                                     Syncor shall defend and indemnify MFCI and
its 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, personal
injury or otherwise, which arise out of the storage, handling, distribution,
sale, or the use or administration of the Products by Syncor, any Approved
Assignee and/or any other Associate, or which arise out of damage to property
or injury to or death of persons occasioned by or in connection with any wilful
or negligent acts of Syncor, any Approved Assignee and/or any other Associate,
its officers, agents and employees. Syncor shall confer with MFCI prior to
settlement of any claims relating to the subject matter of this Agreement
against Syncor or for which Syncor shall provide a defence and indemnity to
MFCI.


 


	
  ARTICLE 12

  	
  COMPLAINTS AND PRODUCT RECALLS

  



 


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


 


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


 


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


 


12.04                                                                     In the event of a Product Recall, any minimum
quantity provisions in this Agreement for the recalled Products shall not
apply.


 


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  ARTICLE 13

  	
  FORCE MAJEURE

  



 


13.01                                                                     No party shall be liable for failure to
perform or delay in performing any obligations under this Agreement, except the
obligation to make payments when due, if such failure or delay is due to force
majeure, including, but not limited to, war, embargo, riot, insurrection,
sabotage or other civil unrest; fire, explosion, flood or other natural
disaster; 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 affected
party; provided, however, that the party so failing to perform shall
(a) as soon as possible, inform the other party of the occurrence of the
circumstances preventing or delaying the performance of its obligations; and
(b) exert its best efforts to eliminate, cure or overcome any of such causes
and to resume performance of its covenants with all possible speed.


 


	
  ARTICLE 14

  	
  CONFIDENTIALITY

  



 


14.01                                                                     All confidential information which is
received by MFCI or Syncor from the other party during the term of this
Agreement shall be maintained in strict confidence by the receiving party. All
confidential information whether generated by MFCI or Syncor shall be disclosed
only to employees and consultants of MFCI and/or Syncor who have been
instructed to treat such information in strict confidence and on a “need to
know” basis. This information shall be protected from disclosure to third
parties with at least the same degree of care used by such employees when
dealing with their employer’s confidential information. Such information shall
furthermore not be disclosed to any other person, firm, or agency, governmental
or private, or used for purposes other than set forth herein, without the prior
written consent of the disclosing party except to the extent that the
information:


 


	
  i)

  	
   

  	
  is
  known at the time of its receipt by the receiving party and is documented in its written
  records, or

  
	
   

  	
   

  	
   

  
	
  ii)

  	
   

  	
  is
  properly in the public domain, or

  
	
   

  	
   

  	
   

  
	
  iii)

  	
   

  	
  is
  subsequently disclosed to the receiving party by a third party who may
  lawfully do so, or

  
	
   

  	
   

  	
   

  
	
  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 upon
the request of the disclosing party, the receiving party shall return all such
information and copies thereof in its possession, except that the receiving
party may keep one copy of such information in its Law Department confidential
files solely for archival purposes. Such archival copy will be deemed to be the


 


13





















 


property
of the disclosing party and will not be copied or distributed in any manner
without 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 and
payable, and such default is not cured within thirty (30) days of receipt by it
of written notification from MFCI setting forth the details of the default, or


 


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


 


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


 


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


 


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


 


then
the party not in default hereunder, in addition to any other rights or remedies
it has pursuant to this Agreement or by law, shall have the immediate right to
cancel and terminate this Agreement upon giving to the other party notice of
termination.


 


14





















 


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


 


	
  ARTICLE 16

  	
  NOTICE PROVISIONS

  



 


16.01                                                                     Any notices required or permitted to be given
hereunder shall be in writing and shall be effectively given if delivered
personally, sent by prepaid courier service or certified mail, return receipt
requested, or sent by telecopier, telex or other similar means of electronic
communication (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


 


any
notice so given shall be deemed conclusively to have been given and received
when so personally delivered or sent by telecopier or telex or on the second
day following the sending thereof by private courier and on the sixth day
following the sending thereof by prepaid mail, certified, return receipt
requested. If the day on which any notice is deemed to have been received is
not a business day, then the notice shall be deemed to have been received on
the business day next following such day.


 


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


 


15





















 


	
  ARTICLE 17

  	
  MISCELLANEOUS

  



 


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


 


17.02                                                                     Except as expressly permitted
herein, Syncor shall not sell, transfer or assign any of its rights, titles and
interests in and under this Agreement to, or sub-contract or otherwise make any
other arrangement regarding such rights, titles and interests with, any person
including, 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 as
if recited at length herein.


 


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


 


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


 


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


 


Notwithstanding anything herein contained to the contrary, it is
understood that the arbitrators shall be precluded from including punitive
damages in any arbitration award.


 


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


 


17.08                                                                     The parties hereto agree to execute such
further papers, agreements, documents, instruments and the like as may be
necessary or desirable from time to time in order to effect the purposes of
this Agreement and to carry out its provisions.


 


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


 


16





















 


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


 


17.10                                                                     The parties acknowledge that each of the
terms hereof was negotiated in good
faith and not imposed by one on the other, understood and, for good and
valuable consideration, agreed to by each of them and that the present
Agreement does not constitute an adhesion contract for either of them but
rather a contract by mutual agreement.


 


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


 


IN WITNESS WHEREOF, the parties hereto by their duly authorized
representatives have executed this Agreement as of the day and at the place
first 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





















 


SCHEDULE “A”


 


Terms
and conditions of sales of the Products by MFCI to Syncor.


 


•                              ***


 





















 


SCHEDULE “B”


 


•                              Product Frosstimage® DTPA+
#900-288


 


•                              Product Frosstimage® MDP+ #900-301


 


	
  Packaged in five (5)-vial kit

  	
  –

  	
  ***

  
	
   

  	
   

  	
   

  
	
  Packaged in thirty (30)-vial kit

  	
  –

  	
  ***

  



 





















 


SCHEDULE “C”


 


Product Specifications


 


***


 





















 


SCHEDULE “D”


 


Approved Assignees


 


***