SUPPLY AGREEMENT ANHYDROUS CRYSTALLINE MALTOSE
Exhibit
10.52
ANHYDROUS
CRYSTALLINE MALTOSE
THIS
AGREEMENT is made and effective this 26th day of October, 2006, by and between
AMARILLO BIOSCIENCES, INC., a Texas corporation with its principal place of
business at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 (hereinafter “ABI”)
and HAYASHIBARA BIOCHEMICAL LABORATORIES, INC. and XXXXXXXXXXX XXXXX, INC.,
each
of them with its principal place of business at 0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx
000-0000, Xxxxx (hereinafter collectively “Hayashibara”). ABI and Hayashibara
collectively referred to hereinafter as the “Parties”.
WHEREAS,
Hayashibara desires to grant to ABI, and ABI desires to have, the exclusive
right to purchase and distribute Hayashibara’s pharmaceutical grade anhydrous
crystalline maltose, subject to the specifications as attached herewith
(hereinafter “ACM”), for sale as an active ingredient in a nutraceutical product
to treat dry mouth, which are developed, produced and commercialized by ABI's
proprietary technology worldwide, except Japan.
NOW,
THEREFORE, for and in consideration of the mutual covenants contained herein,
Hayashibara and ABI agree as follows:
Section
1. Right to Purchase and Distribute Exclusively for Dry
Mouth.
Hayashibara
hereby grants to ABI the exclusive right to purchase, distribute and sell,
worldwide, except Japan, a nutraceutical product for human consumption
containing ACM as an active ingredient to relieve dry mouth (hereinafter the
“Products”).
Section
2. Consideration.
Hayashibara
shall receive a transfer fee from ABI in the amount of **** per kilogram. f.o.b.
Kobe, Japan. At any time after the second contract year, either Party may notify
the other that it desires to renegotiate the transfer fee. In such case, the
parties shall attempt, in good faith, to agree to a mutually acceptable transfer
fee. In the event the Parties agree to a modified transfer fee, said modified
fee shall remain in force for a minimum of Two (2) years, and if the term of
this Agreement is then within Two (2) years of expiration, the term of this
Agreement shall be extended so that this Agreement shall terminate Two (2)
years
from the date the modified transfer fee became effective. In the event the
Parties fail to agree to a modified transfer fee, either Party may terminate
this Agreement by giving Six (6) months advanced written notice to the other
party.
Section
3. Term.
Unless
sooner terminated as hereinafter provided, this Agreement shall remain in effect
for a period of Five (5) years from the date of this Agreement. After that
initial term, the Agreement shall be automatically renewed for successive One
(1) year term unless one of the Parties gives written notice of termination
or
modification of this Agreement to the other
****
Indicates that a portion of the text has been omitted and filed separately
with
the Commission
CONFIDENTIAL
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within
Thirty (30) days prior to commencement of the renewal term. Any termination
pursuant to this paragraph shall not relieve Hayashibara of any obligation
to
fill purchase orders placed with Hayashibara prior to termination. Similarly,
such termination shall not relieve ABI of any obligation to Hayashibara to
pay
for ACM delivered by Hayashibara and any payment due hereunder prior to tell
termination.
If
ABI
shall at any time during the initial term or any subsequent renewal term of
this
Agreement default in any obligation hereunder or fail to pay any payment due,
and such default shall not be cured within sixty (60) days after written notice
from Hayashibara to ABI specifying the nature of the default, Hayashibara may
terminate this Agreement, or may demand specific performance and remedies for
violation of the terms of this Agreement under applicable law.
If
ABI
shall be involved in financial difficulties as evidenced (a) by its commencement
of a voluntary bankruptcy under any applicable bankruptcy code or statute,
or by
its authorizing, by appropriate proceedings, the commencement of such a
voluntary bankruptcy; or (b) by its failing to receive dismissal of any
involuntary case under any applicable bankruptcy code or statute within Sixty
(60) days after initiation of such action or petition; or (c) by its seeking
relief as a debtor under any applicable law of any jurisdiction relating to
the
liquidation or reorganization of debtors or to the modification or alteration
of
the rights of creditors, or by consenting to or acquiescing in such relief,
or
(d) by the entry of an order by a court of competent jurisdiction finding it
to
be bankrupt or insolvent, or ordering or approving its liquidation,
reorganization or any modification or alteration of the rights of its creditors
or assuming custody of, or appointing a receiver or other custodian for, all
or
a substantial part of its property or assets; or (e) by its making an assignment
for the benefit of, or entering into a composition with, its creditors, or
appointing or consenting to the appointment of a receiver or other custodian
for
all or a substantial part of its property, this Agreement shall be terminated
immediately.
Section
4. Orders, Shipment and Payment.
Actual
quantities and delivery dates relating to ACM shall be specified in purchase
orders submitted by ABI to Hayashibara, which purchase orders shall constitute
firm and legally binding orders. Unless otherwise agreed in writing, Hayashibara
hereunder shall accept each "individual purchase order by notifying ABI in
writing its acceptance of an order within Ten (10) business days of receipt
of
the purchase order. Hayashibara shall ship ACM as specified in such accepted
purchase orders within Thirty (30) days after Hayashibara's acceptance of a
purchase order from ABI. The shipment of ACM under this Agreement shall be
made
on f.o.b. Kobe, Japan, unless otherwise agreed in writing. For shipment of
ACM
Hayashibara may arrange for a vessel or vessel space in ABI's name at ABI's
cost.
Section
5. Minimum Purchase.
For
the
second contract year (which shall be the Twelve (12) month period commencing
after the expiration of One (1) year from the date of this Agreement), ABI
guarantees that it will purchase at least **** of ACM, with such amount
increasing to **** for the third contract year, **** for the fourth contract
year, and **** for the fifth and subsequent contract years.
****
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with
the Commission
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ABI
agrees that the complete performance of the above minimum purchase guarantee
is
of essence for assuring the maintenance and continuation of this Agreement
as an
exclusive Supply Agreement. In the event such minimum purchases are not
effected, this Agreement shall become nonexclusive; provided, however, that
if
the Parties shall have renegotiated an increased transfer fee pursuant to
Section 2, above, and this Agreement thereafter becomes non-exclusive,
Hayashibara shall not sell ACM to another party at a price less than the latest
renegotiated transfer fee pursuant to Section 2, above.
Section
6. Indemnification.
ABI
shall
indemnify, hold harmless and defend Hayashibara from all claims, demands,
payments, suits, actions and judgments brought, recovered or executed against
the Parties on account of death, injury or damage sustained by any party in
connection with ABI's distribution, marketing or sales of the Products under
this Agreement, to the extent that such claims are the result of actions or
inactions by ABI or its affiliates acting hereunder pursuant to this
Section.
Hayashibara
shall indemnify, hold harmless and defend ABI from all claims, demands,
payments, suits, actions and judgments brought, recovered or executed against
the Parties on account of death, injury or damage sustained by any party in
connection with Hayashibara's manufacture or shipment of ACM under this
Agreement, to the extent that such claims are the result of actions or inactions
by Hayashibara.
Section
7. Confidentiality.
Each
of
the Parties agrees to maintain confidential and secret all information which
may
be disclosed or provided to it by the other and that the Parties may together
subsequently acquire in relation to the Products and which is designated in
writing by clearly identifiable legend as being confidential or secret in
character.
Each
Party's obligation to the other (to maintain confidentiality) hereunder shall
terminate with respect to any particular item and only said item of the
disclosing Party's confidential information, when the recipient Party can
demonstrate that such item of information:
(1)
Is
publicly known and available through some means other than by the recipient
Party's act or omission; or
(2)
Was
in the recipient Party's possession prior to its disclosure by the other Party,
provided that written evidence of such possession is established;
or
(3)
Has
come into the recipient Party's possession through a third party free of any
obligation of confidentiality to the disclosing Party, where said third party
has acquired information lawfully and not under circumstances forbidding its
disclosure.
****
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with
the Commission
CONFIDENTIAL
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Neither
Party will permit confidential or secret information nor any part thereof to
be
disclosed to third parties or to employees except on a “need-to-know” basis and
each will maintain confidential or secret information and/or documents with
the
same precautions it uses to safeguard its own confidential or secret
information.
Each
Party will notify the other promptly if it has knowledge that a third party
possesses confidential or secret information of the other Party related to
the
Products.
Section
8. Miscellaneous.
(1)
Force
Majeure.
The
failure of Hayashibara, ABI, or any of their affiliates or sublicenses to take
any act required by this Agreement if occasioned by an act of God or the public
enemy, fire, explosion, perils of the sea, floods, drought, war, riot, sabotage,
accident, embargo or any circumstances of like or different character beyond
the
reasonable control of the Party so failing or by the interruption or delay
in
transportation, inadequacy, or shortage or failure of the supply of materials
and/or request of any governmental officer, department or agency and whether
in
any case such circumstance now exists or hereafter arises, shall not subject
said Party to any liability to the other.
(2)
Arbitration.
The
Parties hereto desire to avoid and settle without litigation future disputes
that may arise between them relative to this Agreement. Accordingly, the parties
agree to engage in good faith negotiations to resolve any such dispute. In
the
event they are unable to resolve any such dispute by negotiation, such dispute
shall be submitted to arbitration as follows: If arbitration is initiated by
Hayashibara, it shall be held in the State of Texas, USA, in compliance with
the
Commercial Arbitration Rules of the American Arbitration Association. If
arbitration is initiated by ABI, it shall be held in Tokyo, Japan in compliance
with the Rules of the Japan Commercial Arbitration Association. The arbitration
award shall be final and binding upon the parties hereto and may be filed with
and enforced by any competent court having jurisdiction to enforce said
award.
(3)
Communication.
Any
payment, notice or other communication required or permitted to be made or
given
to either Party hereto pursuant to this Agreement shall be sufficiently made
or
given on the date of sending if sent to such Party by certified or registered
mail or by Federal Express or a similar overnight courier service, postage
or
delivery charge prepaid, by telex, or telephone facsimile addressed to it at
its
address set forth, or to such other address(es) as it may designate by written
notice given to the other Party as follows:
****
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with
the Commission
CONFIDENTIAL
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In
case
of HBL
Xx.
Xxxxxxxx Xxxxxx
Overseas
Business Development
Hayashibara
Company Ltd.
0-0
Xxxxxxxxxx 0-xxxxx
Xxxxxxx,
Xxxxx
In
case
of ABI
Xx.
Xxxxxx X. Xxxxxxx, President
Amarillo
Biosciences, Inc.
0000
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx,
XX 00000
(4)
Assignment or Sublicense.
This
Agreement shall not be assignable by ABI to any person or entity without prior
written consent of HBL, which consent shall not be unreasonably withheld in
any
case involving or the sale or transfer of all or substantially all of the
business or assets of ABI.
The
foregoing restrictions on assignment notwithstanding, ABI may contract, license,
or otherwise employ one or more distributors to assist it in the sale of the
Products.
(5)
Amendment.
This
Agreement shall not be amended, in whole or in part, without the prior written
consent of the Parties.
(6)
Nature of Relationship.
Nothing
herein shall be construed to place the Parties in a relationship of partners
or
joint ventures, nor does this Agreement make either Party the agent or legal
representative of the other for any purposes whatsoever. The Parties further
agree that no representation shall be made by either Party that would create
an
apparent agency, employment, partnership or joint venture. Neither Party shall
have the power express or implied, to obligate the other in any manner
whatsoever.
****
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with
the Commission
CONFIDENTIAL
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IN
WITNESS WHEREOF, the Parties hereunto have caused this Distribution Agreement
to
be executed in duplicate by their duly authorized representatives as of the
date
first above written.
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ABI
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On
behalf of Hayashibara
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AMARILLO
BIOSCIENCES, INC.
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HAYASHIBARA
BIOCHEMICAL LABORATORIES, INC.
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By:
/s/ Xxxxxx X. Xxxxxxx
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By:
/s/ Xxxxxxx Xxxxxxxxxxx
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Xxxxxx
X. Xxxxxxx, DVM, PhD
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Xx.
Xxxxxxx Xxxxxxxxxxx
CEO
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