Exhibit 10.69
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 1st day of May, 2000, by and between
Calypte Biomedical Corporation ("Calypte"), incorporated under the laws of
Delaware, and American Edge Medical ("DISTRIBUTOR"), incorporated under the
laws of Florida.
WHEREAS, Calypte is a developer and manufacturer of in vitro diagnostic kits
and kit components, and whereas DISTRIBUTOR wishes to commercially distribute
said kits and kit components in its Territory;
WHEREAS, in consideration of the mutual covenants and promises set forth
below, and with intent to be legally bound, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
(A) "Product" shall mean the products listed in Schedule 1 hereof.
(B) "Territory" shall mean South Africa.
(C) "Exclusive Distributor" shall mean that no other distributor,
regardless of location of principal offices shall have any rights
to commercially distribute the Products for sale in the Territory.
(D) "Trademarks" shall mean those commercial marks listed in Schedule
4 hereof.
ARTICLE 2 - APPOINTMENT OF DISTRIBUTOR
2.0 APPOINTMENT Calypte hereby designates and appoints DISTRIBUTOR as its
Exclusive Distributor in the Territory for the sale, promotion,
support, and distribution of the Products in the Territory, subject to
the terms and conditions of this Agreement.
2.1 INDEPENDENT CONTRACTOR Except for the limited purpose set forth
herein, nothing in this Agreement shall be deemed to constitute a
partnership between the parties hereto or be deemed to constitute
DISTRIBUTOR as agent or employee for Calypte for any purpose,
including the right to contract in the name of or for the account of
Calypte nor to assume or create any liability or obligation of any
kind, express or implied, on behalf of Calypte in any way or for any
purpose. This Agreement does not constitute a Trademark license or
grant of Trademark rights. The relationship between the parties is
that of independent contractors in which Calypte is the vendor and
DISTRIBUTOR is the vendee.
ARTICLE 3 - TERM
3.0 EFFECTIVE DATE This Agreement shall become effective as of the date
first shown in this Agreement.
3.1 TERM Unless sooner terminated or unless renewed as provided herein,
this Agreement shall terminate on April 31, 2001.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
1
3.2 EXTENSION Unless sooner terminated or otherwise renewed as provided
herein, DISTRIBUTOR shall have the right to renew this Agreement for
additional two (2) year periods provided: i) DISTRIBUTOR meets or
exceeds the sales minima detailed in Schedule 3, and as agreed upon
for subsequent periods, and ii) DISTRIBUTOR notifies Calypte in
writing of its intention to renew the Agreement no less than ninety
(90) days prior to the date the Agreement would otherwise terminate,
and iii) DISTRIBUTOR has not declined distribution rights for any new
Product which Calypte has offered to DISTRIBUTOR during the term of
the Agreement, provided the new Products offered to DISTRIBUTOR are
Products which DISTRIBUTOR could be reasonably expected to sell.
3.3 PERFORMANCE REVIEW. On or before ninety (90) days prior to March 1 of
each year during the term hereof and all renewals, DISTRIBUTOR shall
have the right to a review with Calypte of its performance under this
Agreement. Said review may take personally or by telephone between
representatives of the parties, upon arrangements mutually agreed upon
in advance.
ARTICLE 4 DISTRIBUTOR'S UNDERTAKINGS
DISTRIBUTOR agrees, at its sole expense (unless otherwise expressly
provided herein), during the term of this Agreement:
4.1.1 BEST EFFORTS At all times to use its best efforts to vigorously and
actively market, advertise, promote, and extend the sale of the
Products throughout the Territory. To this end, DISTRIBUTOR agrees to
maintain an adequate and competent staff of sales and technical
support personnel which can function in all languages of the
Territory. All advertisements, brochures, and other materials
distributed in connection with the sale of the Products shall be
submitted to Calypte for prior written approval, such approval not to
be unreasonably withheld.
4.1.2 TECHNICAL SUPPORT AND RECALL CAPABILITY To provide to Calypte's
Technical Services department a monthly report detailing any customer
complaint(s) related to performance of the Products, such report to be
issued even in the absence of complaints during the reporting period.
Complaint reports shall provide full particulars regarding the nature
of the complaint(s) and mechanism(s) of successful resolution.
DISTRIBUTOR also certifies that it has, and shall maintain, the
capability of tracking Product shipments by lot number in order to
facilitate a Product recall should such a recall be required.
4.1.3 MINIMA [*]
4.2 EXCLUSIVE TERRITORY Not to solicit customers for any of the Products
outside the Territory, either directly or through any third party,
without Calypte's prior written approval. Furthermore, should it
become evident that Product sold by DISTRIBUTOR within the Territory
is being resold outside the Territory by any customer of DISTRIBUTOR,
to take such action as may be necessary to discontinue that practice.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
2
4.3.1 REGISTRATION AND PERMITS At no charge to Calypte, to provide
reasonable assistance to Calypte in the registration of the Products
with the regulatory authorities in the Territory, and to provide
reasonable assistance in securing such licenses and registrations
which may be required in connection with the importation and sale of
the Products in the Territory. Such assistance may include among
others DISTRIBUTOR providing to Calypte, or directly to authorities,
such information as may be necessary to permit the importation of
Product or components, occasional communication with regulatory
authorities, and the coordination of Product regulatory trials. Such
trials may require DISTRIBUTOR to provide instrumentation, laboratory
disposables, and the training and monitoring of trial sites. Calypte
shall offer such guidance and test kits as may be required and
commercially reasonable in Calypte's opinion, plus payment of trial
site fees directly associated with local registration of the
Products. Registration of the urine HIV-1 EIA and Western Blot must
be successfully completed no later than August 30, 2000.
4.3.2 If permitted by prevailing law within the Territory, to register the
Products in the name of Calypte. In the event that local law demands
that Product registrations be held and administered by a local entity,
then Calypte, at its option, shall appoint either DISTRIBUTOR or an
independent party for this purpose. In any event, the party
administering the registration shall at all times administer the
registration(s) in accordance with Calypte's instruction.
4.3.3 To hereby certify that local law permits multiple parties, either
consecutively or concurrently, to distribute the Products in the
Territory, either by transfer of pre-existing registrations or through
re-registration. Furthermore, DISTRIBUTOR hereby certifies that in
the event that this agreement is terminated for any reason by either
party, DISTRIBUTOR shall not obstruct or challenge in any manner
whatsoever the prompt and orderly transfer of Product registration(s)
to another distributor, nor shall DISTRIBUTOR obstruct or challenge
in any manner the re-registration of the Products by another
distributor as the case may be.
4.4.1 ROLLING DEMAND PURCHASE FORECAST On a monthly basis, and no later than
the first Monday of the month, to provide to Calypte a six-month
rolling purchase forecast. The first three months of the forecast
shall constitute an irrevocable commitment to purchase. In this
fashion, DISTRIBUTOR commits monthly to one new month of purchases
three months in the future.
4.4.2 SALES REPORTS To submit to Calypte within thirty days of January 1 and
July 1of each year a written summary as to the prevailing market
conditions, the attitudes of customers, the activities of competitors,
or any other market conditions which may significantly impact the
sales of the Products in the Territory.
4.5.1 HANDLING OF PRODUCTS To ensure that the Products are handled, stored,
and shipped in accordance with Calypte's instructions.
4.5.2 To order, and to maintain a representative selection of Calypte's
up-to-date sales literature or other promotional material in good
condition.
4.5.3 To maintain such stock of the Products as is reasonably necessary to
enable DISTRIBUTOR to comply with its obligations hereunder.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
3
4.6 SALES LEADS To exercise its best judgement to follow up on sales leads
supplied by Calypte.
4.7 CONFIDENTIALITY Not at any time to divulge to any third party any
Confidential Information relating to the Products or to Calypte's
affairs or business or method of carrying on business, except so far
as is necessary, to those authorized to have access to such
information within DISTRIBUTOR's organization.
DISTRIBUTOR may receive information from Calypte, its personnel, or
through DISTRIBUTOR's activities under this Agreement, either by
direct or indirect communication or observation; more specifically,
Calypte will make available to DISTRIBUTOR, after execution of this
Agreement, such marketing and quality control data, and other
proprietary, secret, and confidential information owned by Calypte
which, in the opinion of Calypte, are necessary for DISTRIBUTOR to
sell the Products (herein collectively referred to as "Confidential
Information").
DISTRIBUTOR shall not make use of the Confidential Information other
than in connection with the marketing and sale of the Products under
this Agreement and shall under no circumstances disclose the
Confidential Information to any third party. Except for such of the
Confidential Information that becomes publicly available through
Calypte or independent third parties, DISTRIBUTOR shall not use,
employ or exploit the Confidential Information, except for the direct
benefit of Calypte, without Calypte's written consent for the term of
this Agreement and seven (7) years thereafter.
4.8 SUB-DISTRIBUTORS Not to appoint or subcontract, without the prior
written approval of Calypte, any subdistributors or sales
representatives in the Territory in connection with the performance of
this Agreement. In the event that Calypte grants such approval, such
appointment shall be made only in the name and for the account of
DISTRIBUTOR, shall be for a term no longer than the term of this
Agreement, and shall not confer upon such subdistributors and/or
independent sales representatives any rights greater than those which
are granted by Calypte to DISTRIBUTOR under this Agreement.
DISTRIBUTOR shall also impose on any such subdistributors and/or
independent sales representatives the same obligations that Calypte
has imposed on DISTRIBUTOR under this Agreement for the purpose of
protecting the goodwill of Calypte and the Products.
4.9 LEGAL STANDARDS To advise Calypte in writing of any changes which
DISTRIBUTOR becomes aware of in legal standards within the Territory
pertaining to the Products during the term of this Agreement,
including but not limited to packaging, labeling and ingredient
standards, sufficiently in advance of the imposition of such legal
standards as to permit Calypte's orderly scheduling and delivery of
Product within DISTRIBUTOR's requested time of shipment.
4.10.1 LABELING To ensure that the Products are sold and promoted in the form
and with the labeling or markings designated by Calypte, and not to
alter, remove, or interfere therewith without the prior written
consent of Calypte.
4.10.2 DISTRIBUTOR LABELS Notwithstanding the generality of the foregoing,
Calypte hereby authorizes DISTRIBUTOR to affix a small label which
denotes DISTRIBUTOR as the authorized distributor in the Territory,
such label to be applied in a manner which does not obscure Calypte's
tradenames or other marks.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
4
4.11.1 TRADEMARKS To respect Calypte's rights in connection with the Products
(including but not limited to Calypte's patents, trademarks, and
copyrights), to comply with all local laws and regulations with
respect thereof, and to assist Calypte in taking any steps necessary
to defend such rights. Any reasonable expenses incurred under this
paragraph by DISTRIBUTOR, and which are preapproved by Calypte, shall
be reimbursed by Calypte.
4.11.2 To acknowledge at all times Calypte's exclusive right, title, and
interest in and to the trademarks associated with the Products listed
in Schedule 1 and registered by Calypte in the United States of
America or the Terrritory; and not at any time to do or cause to be
done any act or any thing contesting or in any way impairing or
tending to impair any part of such right, title and interest. In
connection with any reference to the trademarks, DISTRIBUTOR shall
not in any manner represent that it has ownership interest in the
trademarks or registration thereof, but shall clearly indicate
Calypte's ownership of the trademarks.
4.11.3 To use no trademarks, trade names, corporate names, or trade styles
employing the trademarks, whether in advertising or otherwise, without
the prior written consent of Calypte, such consent not to be
unreasonably withheld, and generally not to produce any advertising or
promotional material or activity without Calypte's written consent.
Except as provided in Article 9.2, any and all use by DISTRIBUTOR of
said trademarks, trade names, corporate names or trade styles within
the Territory shall cease upon the expiration or termination of this
Agreement.
4.12 PRESS To make no statements to the press concerning Calypte's
personnel, business practices, Product development efforts, or alleged
Product performance problems without the prior written consent of
Calypte.
4.13 MANAGEMENT CHANGE To provide to Calypte prompt notice, in writing, of
any change of key management or ownership and any change in the mode
of operation of DISTRIBUTOR.
4.14 PROOF OF SALE To expressly represent that any Products purchased are
for the purpose of sale in the Territory and will furnish upon
Calypte's requests, documents which certify that the Products have
been sold in that Territory. DISTRIBUTOR further represents that it
will undertake all appropriate steps to ensure that the Products are
sold exclusively to customers which are permitted under the laws of
the Territory to purchase and use the Products.
4.15 AUDIT To permit Calypte staff or a Calypte designee, upon reasonable
advance notice, to audit DISTRIBUTOR's premises and sales records in
connection with this Agreement at no expense to DISTRIBUTOR.
4.16 COMPETING PRODUCTS During the term of this Agreement, DISTRIBUTOR
agrees that it shall not directly nor through any third party,
including African Medical Solutions or any of African Medical
Solutions' partners, collaborators, or joint venture partners
manufacture, sell, promote, market, or advertise without prior written
permission from Calypte, any non-Calypte in vitro diagnostic test for
the detection of HIV antibodies.
4.17 NEW PRODUCTS To accept distribution rights and obligations for new
Products which the parties believe DISTRIBUTOR could be reasonably
expected to sell as they may become available from time to time, and
under such terms and
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
5
conditions as the parties may negotiate in good faith. However this
obligation may be imposed only for products which are reasonably
related to the sales of existing Products by DISTRIBUTOR.
ARTICLE 5 CALYPTE'S UNDERTAKINGS
Calypte agrees, during the term of this Agreement:
5.1.1 EXCLUSIVE DISTRIBUTOR To limit the authorized sale of the Products in
the Territory to DISTRIBUTOR, and to take such action as may be
necessary to ensure compliance of third parties in this regard.
5.2 FILLING ORDERS To use its best efforts to fill all orders of
DISTRIBUTOR for delivery of the Products hereunder. Orders shall be
placed in writing and mailed or transmitted by facsimile in accordance
with the Rolling Demand Forecasting system described in Section 4.4.1
hereof. No order from DISTRIBUTOR shall be binding upon Calypte until
such order is accepted by Calypte in writing by mail or facsimile,
such acceptance not to be unreasonably withheld. Calypte shall make
commercially reasonable efforts to fill orders which are placed in
addition to orders placed through the Rolling Demand Forecasting
system.
5.3 TRADEMARKS To use its best efforts to maintain the Trademarks in good
legal standing in the Territory.
5.4 SALES MATERIAL To furnish to DISTRIBUTOR, at Calypte's expense, a
reasonable supply of sales literature and promotional materials. The
promotional materials may be furnished in the English language.
DISTRIBUTOR may translate the materials at its own expense, and with
prior approval from Calypte, such approval not to be unreasonably
withheld. Calypte may make reasonable charges if more than a nominal
quantity of promotional materials is supplied to DISTRIBUTOR, which
will be agreed upon between Calypte and DISTRIBUTOR in advance.
5.5 WARRANTY To warrant the Products as set out in Article 8 below.
5.6 SALES LEADS To forward to DISTRIBUTOR sales leads and inquiries from
customers located within the Territory.
5.7 TRAINING To provide to DISTRIBUTOR such sales, marketing, and
technical training as may be reasonably required, at Calypte's
facility, but not to exceed one week during each year of this
Agreement. Costs incurred in such training excluding travel and
accommodation, but including training materials, trainer time, and a
reasonable amount of Product shall be borne by Calypte.
5.8 To provide telephone technical support to DISTRIBUTOR during Calypte's
normal business hours.
5.9 NEW PRODUCTS To offer to DISTRIBUTOR the right of first refusal on new
Products which Calypte may develop from time to time, and which the
parties believe DISTRIBUTOR may be reasonably expected to sell.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
6
5.10 NEW MARKETS To negotiate in good faith with DISTRIBUTOR the
opportunity to expand the Territory governed by this Agreement,
subject to Territory availability.
ARTICLE 6 PRICE AND PAYMENT
6.1 [*]
6.2 [*]
6.3 CURRENCY Payment shall be made in U.S. dollars.
ARTICLE 7 SHIPPING-TITLE AND RISK-CANCELLATION
7.1 [*]
7.2 [*]
ARTICLE 8 WARRANTY - NO CONSEQUENTIAL DAMAGES - INDEMNITY
8.1 WARRANTY Calypte warrants the Products to be of sufficient quality of
materials and manufacture as to meet the claims and specifications set
forth in the Product's packaging and labeling when used according to
the directions provided therein.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
7
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, CALYPTE MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER, WITH RESPECT TO
THE PRODUCTS. DISTRIBUTOR's exclusive remedy will be for direct
damages, and Calypte's total liability for any and all losses and
damages arising out of any cause whatsoever (whether such cause be
based in contract, warranty, negligence, strict liability, other tort
or otherwise) will in no event exceed DISTRIBUTOR's landed cost of the
Products in respect to which such cause arises or, at Calypte's
option, the replacement of such Products. In no event will Calypte be
liable for incidental, consequential or punitive damages resulting
from any cause whatsoever. Calypte warrants that at the time that the
Products left Calypte's possession, they were deemed to be of good
quality.
8.2 DEFECTS Without limiting the generality of the foregoing, CALYPTE
SHALL NOT BE BOUND TO MAKE GOOD ANY DEFECT IN THE PRODUCTS WHERE THE
PRODUCTS HAVE BEEN SUBJECTED TO MISUSE, NEGLECT, OR ACCIDENTAL
DAMAGE, UNLESS SUCH DEFECT RESULTED FROM THE NEGLIGENCE OF CALYPTE.
8.3 TRADEMARKS Calypte is the record owner of registrations for its
trademarks in the Territory and believes it has the right to use these
trademarks throughout the Territory. Notwithstanding, CALYPTE MAKES NO
EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY THAT THE PRODUCTS WILL
NOT INFRINGE THE LEGITIMATE AND VALID TRADEMARKS, TRADE NAMES, OR
OTHER INDUSTRIAL PROPERTY RIGHTS OF THIRD PARTIES IN THE TERRITORY.
DISTRIBUTOR shall immediately notify Calypte of any such claims of
others, and Calypte shall, at its sole option, have the right to
assume the defense of any such claim.
8.4 INSPECTION It shall be the responsibility of DISTRIBUTOR to inspect
the Products after taking title to same. Notwithstanding Article 8.1
above, Calypte shall not be liable for any shortage, breakage, or
damage to the Products or for any breach of warranty, implied or
otherwise, unless it receives written notice of any defect or
shortcoming within ten (10) days after the date on which DISTRIBUTOR
takes title to the Products, and the defect or shortcoming results
from the fault or negligence of Calypte.
8.5 INDEMNIFICATION Calypte shall indemnify and hold DISTRIBUTOR harmless
from any claims, demands, liabilities, suits or expenses of any kind
arising out of any misrepresentations which Calypte makes concerning
the Product supplied by Calypte.
Calypte shall indemnify DISTRIBUTOR for any damages or loss actually
paid by DISTRIBUTOR resulting from a legal decision on a claim by
third parties made against DISTRIBUTOR and which is caused by Calypte
with respect to products made or supplied by Calypte.
DISTRIBUTOR is responsible for, and shall hold Calypte harmless from
any loss, claim, damage, illness or injury to persons or property
which arises out of or pertains to the sale, use, packaging,
advertising, or promotion of the Product, and which is caused by
DISTRIBUTOR or DISTRIBUTOR's subdistributors, agents or employees.
This provision shall survive the expiration or termonation of this
Agreement for any reason and shall be liberally construed in favor of
Calypte.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
8
ARTICLE 9 TERM AND TERMINATION
9.1.1 TERMINATION FOR CAUSE Calypte, at its sole option, may immediately
terminate this Agreement with respect to the Territory, upon giving
notice to this effect, whenever any of the following events occurs:
(i) if any governmental unit within the Territory threatens (in the
sole judgement of Calypte) to enact or enacts any law, decree or
regulation which would restrict the right of Calypte to terminate or
elect not to renew this Agreement as herein provided, or would make
Calypte liable to DISTRIBUTOR for compensation or damages upon
termination or failure to renew this Agreement;
(ii) if DISTRIBUTOR at any time discontinues or abolishes its
business, files a petition of bankruptcy or insolvency or admits in
writing its inability to pay its debts as they become due and
payable, or if DISTRIBUTOR is adjudicated bankrupt or insolvent, or
if there is filed any petition seeking reorganization of DISTRIBUTOR,
or if a receiver is appointed for all or substantially all of
DISTRIBUTOR's property, or if DISTRIBUTOR makes an assignment for the
benefit of creditors or if any proceedings are instituted for the
liquidation or winding up of DISTRIBUTOR;
(iii) if DISTRIBUTOR uses Calypte's trademarks or trade names or
styles in any way which might deceive or mislead the consumer or
which might in any way damage or impair the reputation or value of
such trademarks, trade names, or styles;
(iv) if DISTRIBUTOR fails to comply with any of the terms or
conditions herein contained and, after notice by Calypte requiring
DISTRIBUTOR to make good such default, DISTRIBUTOR fails to cure such
default within sixty (60) days after receipt of such notice;
(v) if DISTRIBUTOR is at any time nationalized or falls under the
control of any governmental unit within the Territory;
(vi) if DISTRIBUTOR's authority to carry on business is cancelled by
competent authorities;
(vii) if control of DISTRIBUTOR should be transferred to another
party, whether such party is a competitor of Calypte or otherwise; or
(viii) all Products are deleted from Schedule 1.
(ix) Clause 15.1 herein is breached
(x) HIV-1 Urine EIA and HIV-1 Urine Western Blot have not been
registered on or before August 30, 2000.
9.1.2 DISTRIBUTOR, at its sole option, may immediately terminate this
Agreement with respect to the Territory, upon giving notice to this
effect, whenever any of the following events occurs:
(i) if Calypte at any time discontinues or abolishes its business,
files a petition of bankruptcy or insolvency or admits in writing its
inability to pay its debts as they
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
9
become due and payable, or if Calypte is adjudicated bankrupt or
insolvent, or if there is filed any petition seeking reorganization
of Calypte, or if a receiver is appointed for all or substantially
all of Calypte's property, or if Calypte makes an assignment for the
benefit of creditors or if any proceedings are instituted for the
liquidation or winding up of Calypte; or
(ii) if Calypte fails to comply with any of the terms or conditions
herein contained and, after notice by DISTRIBUTOR requiring Calypte to
make good such default, Calypte fails to cure such default within
sixty (60) days after receipt of such notice.
9.2.1 Upon termination or expiration of this Agreement for any reason:
i) at Calypte's option, DISTRIBUTOR may sell its remaining inventory
of Product within the Territory, or shall make available to Calypte or
Calypte's designee, all current stocks of Product held by DISTRIBUTOR
with a minimum of four (4) months' expiration remaining, at
DISTRIBUTOR's landed cost, FOB DISTRIBUTOR's warehouse, which shall
include any duty, freight, insurance documentation and inland freight
to warehouse distribution.
ii) DISTRIBUTOR shall at its own expense return to Calypte or its
designee all Confidential Information furnished by Calypte in
accordance with Article 5.2 hereof, as well as all sales literature,
catalogues, samples, and other promotional materials supplied by
Calypte;
iii) Calypte will not be liable to pay to DISTRIBUTOR any termination
compensation, benefits or damages of any kind whatsoever, whether for
DISTRIBUTOR's loss of present or prospective profits, anticipated
sales, expenditures, investments or commitments made in connection
with this Agreement, or due to the termination of any of DISTRIBUTOR's
employees, agents, or subdistributors, or due to any other matter or
cause whatsoever, and whether provided by any current or future law,
regulation or interpretation thereof by any authority exercising
jurisdiction over this Agreement, and;
iv) all obligations of Calypte shall be canceled, but such expiration
or termination will not affect any of Calypte's rights hereunder, and
Calypte will further have the right, immediately upon such expiration
or termination, to appoint a new distributor or sales representative.
Such expiration or termination will not affect DISTRIBUTOR's
obligation to make payment for any orders of the Products which remain
unpaid at such time.
ARTICLE 10 ASSIGNMENT
DISTRIBUTOR shall not be entitled to assign its rights and obligations
under this Agreement without the prior written consent of Calypte. In
the context of this Agreement, a change in control or ownership of the
DISTRIBUTOR, whether involving a competitor of Calypte or otherwise,
shall constitute assignment, and in accordance with 9.1.1(vii) Calypte
may, at its discretion, terminate this Agreement.
ARTICLE 11 WAIVER The failure of either party to assert a right under, or to
enforce at any time or for any period of time, the provisions hereof
or the failure of either party to exercise an option herein shall not
be construed as a waiver of
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
10
such provision or option and shall in no way affect that party's
right to enforce such provisions or exercise such options. A waiver
of any breach of any provision of this agreement shall not be
construed as a continuing waiver of other breaches of the same or
other provisions of this agreement.
ARTICLE 12 ENTIRE AGREEMENT
With the exception of previously signed Confidentiality Agreements,
this Agreement cancels and supersedes any previous understandings or
agreements, oral or written, between the parties relating to the
subject matter hereof, including any previously existing
distributorship arrangement. This Agreement expresses the complete and
final understanding of the parties with respect to the subject matter
hereof, and may not be changed in any way except upon the explicit
intention of both parties expressed by a signed written agreement. Any
terms or conditions stated in DISTRIBUTOR's purchase orders
inconsistent with this Agreement shall be null and void.
ARTICLE 13 SEVERABILITY
If any provision of this Agreement shall be found by a court of
competent jurisdiction to be invalid or unenforceable, the invalidity
or unenforceability of such provision shall not affect the other
provisions of this Agreement and all provisions not affected by such
invalidity shall remain in full force and effect but that in any
event, the provisions concerning payment for the Product shall be
binding upon the parties.
ARTICLE 14 NOTICES
14.1 NOTICE Any notice required or permitted by this Agreement shall be in
writing and in the English language, and shall be delivered personally
or by registered air mail, postage prepaid, or by facsimile, addressed
to the parties as follows:
If to Calypte: Calypte Biomedical Corporation
1265 Harbor Bay Parkway
Alameda, California 94502
United States of America
Facsimile: 510-814-8408
Attention: President
If to DISTRIBUTOR: American Edge Medical
425 24th Street
West Palm Beach, FL 33407
Facsimile: 561-655-3494
Attention: President
14.2 RECEIPT Any notice sent by registered prepaid air mail properly
addressed and posted shall be deemed to have been received ten (10)
days after it is delivered to the postal authorities in the country of
the party by whom it is sent. If sent by
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
11
facsimile, a copy of the facsimile shall be sent promptly by
registered prepaid air mail to the addressee.
14.3 VERBAL NOTICE Nothing contained herein shall justify or excuse
failure to give verbal notice for the purpose of informing the other
party thereof when prompt notification is appropriate, but such verbal
notice shall not satisfy the requirement of written notice.
ARTICLE 15 APPLICABLE LAWS
15.1 EXPORT LAWS Calypte is subject to U.S. laws and regulations governing
the export of U.S. products. DISTRIBUTOR agrees that it will not
directly or indirectly engage in any acts which would cause Calypte to
be found in violation of such laws or regulations.
15.2 PAYMENTS DISTRIBUTOR acknowledges that certain laws of the United
States may result in the imposition of sanctions on Calypte and its
employees in the event that offers, promises, or payments are directly
or indirectly made to government officials or others for the purpose
of influencing decisions favorable to Calypte, and, therefore
DISTRIBUTOR agrees that neither it nor its employees will commit such
acts or engage in such activities and that DISTRIBUTOR shall defend,
indemnify, and hold Calypte harmless for any damages, claims,
liabilities and expenses which arise or allegedly arise from
DISTRIBUTOR's violation of the obligations of articles 15.1 or 15.2.
15.3 ASSURANCES DISTRIBUTOR agrees to furnish to Calypte, by affidavit or
other reasonable means from time to time at Calypte's request, and to
the reasonable satisfaction of Calypte, assurances that the
appointment of DISTRIBUTOR hereunder, its activities under this
Agreement, and the payment to DISTRIBUTOR of any monies or
consideration contemplated hereunder are proper and lawful under the
laws in force in the Territory. DISTRIBUTOR further represents that
no person employed by it is an official of any government agency or a
corporation owned by a government unit within the Territory and that
no part of any monies or consideration paid hereunder shall accrue
for the benefit of any such official.
15.4 TERRITORY LAWS If Calypte determines that the appointment or use of
DISTRIBUTOR is not permitted under the laws and regulations in force
in the Territory, Calypte has the right, at its sole discretion and
upon notice to DISTRIBUTOR, to terminate this Agreement as Calypte
sees fit. Upon notice of this decision, DISTRIBUTOR will cease its
activities under this Agreement and shall not seek damages or
compensation in any form, according to Article 9 of this Agreement.
ARTICLE 16 GOVERNING LAW
This Agreement and the obligations of the parties hereunder shall be
governed and construed in accordance with the laws of the State of
California, U.S.A.
ARTICLE 17 FORCE MAJEURE
Calypte and DISTRIBUTOR will be excused from failure to perform under
this Agreement and will not be liable in any way for any loss if such
failure is due to causes beyond the reasonable control of either
party, including but not limited to, natural disasters such as
earthquakes or floods, fires, riots, strikes and other labor
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
12
disputes, war conditions, shortage of raw materials or government
action for the period any such conditions exist.
ARTICLE 18 HEADINGS
The headings used herein are for convenience only and in no way affect
the liabilities, obligations, or responsibilities of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CALYPTE BIOMEDICAL CORPORATION
By: /s/ Nancy E. Katz
--------------------------
Title: President, COO, CFO
-----------------------
Date: 4/24/00
------------------------
AMERICAN EDGE MEDICAL
By: /s/ Oscar Kizar
--------------------------
Title: Marketing Director
-----------------------
Date: 04/24/00
------------------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
13
SCHEDULE 1 - PRODUCTS
Calypte HIV-1 Urine EIA Test Kit An enzyme immunoassay in microwell format
for the detection of antibodies to HIV-1 in urine.
Cat. No. 700000 480 tests
Cat. No. 700001 192 tests
Cambridge Biotech HIV-1 Serum Western Blot Test Kit. A Western Blot
supplemental immunoassay for the analysis of serum or plasma samples that are
repeatedly reactive on a serum or plasma HIV-1 EIA. Cat. No. 98002 27 tests
Cambridge Biotech HIV-1 Urine Western Blot Test Kit. A Western Blot
supplemental immunoassay for the analysis of urine samples that are
repeatedly reactive on the Calypte HIV-1 Urine EIA. Cat. No. 98076 27 tests
Cambridge Biotech HTLV I/II Serum Western Blot Test Kit. A Western Blot
supplemental immunoassay for the analysis of serum or plasma samples that are
repeatedly reactive on a serum or plasma HTLV EIA. Cat. No. 98051 27 tests
SCHEDULE 2 - PRICE
[*]
SCHEDULE 3 - MINIMA
[*]
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
14
SCHEDULE 4 - TRADEMARKS
Calypte name and corporate logo
Calypte hummingbird logo
Sentinel tradename
Cambridge Biotech name and corporate logo
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
15