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EXHIBIT 10.102
VITROGEN INTERNATIONAL DISTRIBUTION AGREEMENT
This VITROGEN INTERNATIONAL DISTRIBUTION AGREEMENT ("Agreement"),
effective as of January 1, 1998 (the "Effective Date"), is made by and between
COLLAGEN INTERNATIONAL, INC., a Delaware corporation ("CII"), and COHESION
TECHNOLOGIES, INC., a Delaware corporation formerly known as Collagen
Technologies, Inc. ("Technologies").
RECITALS
1. CII is a wholly owned subsidiary of Collagen Corporation
("Collagen").
2. Technologies and Collagen have entered into a relationship
whereby certain assets and liabilities are being transferred from Collagen to
Technologies as further described in the Separation and Distribution Agreement
effective as of January 1, 1998 between Collagen and Technologies (the
"Separation Agreement") and in the Ancillary Agreements.
3. Technologies wishes to appoint CII as a non-exclusive
distributor in the Territory for certain products defined herein, and CII wishes
to accept such appointment;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Except as otherwise defined herein, capitalized terms used herein shall
have the meanings given to them in the Separation Agreement. In addition, for
the purposes of this Agreement, the capitalized terms set forth below shall have
the meanings set forth in this Article I.
1.1 "Product" shall mean the product currently known as
Vitrogen(TM), the specifications which are attached hereto as Exhibit A
("Specifications").
1.2 "Net Sale Price" shall mean the gross invoiced price for
Products received by CII and/or its Affiliates for the sale of Product in the
Territory less deductions made in the normal course of business for: (a)
commercially reasonable quantity, trade and cash discounts or rebates, recalls,
credits or allowance and adjustments separately and actually credited to
customers for rejections and returns of Product; (b) charges for freight,
postage, transportation, insurance, third party distribution costs and other
distribution or delivery costs not otherwise charged to the customer and
actually paid by CII and/or its Affiliates; and (c) any export, import, sales,
use, withholding or excise tax, VAT, duties, tariffs, federal, state or local
tax, or any other taxes or other government charges levied on the use, sale,
transportation or delivery of Product and borne by CII and/or its Affiliates
except any tax based on the net income of CII or its Affiliates.
1.3 "Territory" shall mean Germany.
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ARTICLE II
DISTRIBUTION
2.1 APPOINTMENT. Subject to the terms and conditions in this
Agreement, Technologies hereby appoints CII as a non-exclusive distributor and
reseller for the Product in the Territory, and CII hereby accepts such
appointment; provided, however, that the parties specifically agree that CII
shall have no duty to advertise, market or promote the Product in the Territory
so as to increase or maintain Product sales in the Territory.
2.2 ORDER AND ACCEPTANCE. No later than ninety (90) days prior to
the beginning of each calendar quarter, representatives from each party shall
meet, or communicate via telephone conference, to agree upon a forecast, of the
projected sales for the Product in the Territory for such quarter ("Forecast").
Based on such Forecast, CII shall deliver to Technologies a written purchase
order for Product no later than sixty (60) days prior to the beginning of such
quarter specifying Product quantity and delivery date for such quarter. Purchase
orders may initially be placed by telephone or telecopy; provided, however, that
a signed confirming purchase order is received in writing (which may include
telecopy transmission) by Technologies. Upon receipt, Technologies shall
promptly accept such purchase order and return a signed acceptance thereof to
CII. Notwithstanding anything herein to the contrary, no order shall be binding
upon either party until accepted by Technologies in writing. Once accepted, each
party may cancel or reschedule purchase orders for Product only with prior
written approval of the other party.
2.3 DELIVERY. Technologies shall ship (or shall direct Collagen to
ship) Product to the address specified in the applicable purchase order
submitted by CII by the scheduled delivery date specified therein; provided that
Technologies shall have no liability for any delay in shipment that is due to
Collagen's actions or failures to act. Technologies shall deliver Product to CII
packaged and labeled in such form as to be ready for direct shipment to end
users. All shipments shall be F.O.B. CII's receiving facilities in Munich,
Germany, and Technologies shall bear the risk of loss and cost of transportation
of the Product to CII's receiving facilities. All shipping, freight and
insurance shall be paid by Technologies.
2.4 PURCHASE PRICE. CII and/or its Affiliates shall pay to
Technologies the Net Sale Price actually received by CII and/or its Affiliates
for Product sold by CII and/or its Affiliates in the Territory.
2.5 INVOICING AND REPORTING.
2.5.1 Technologies shall invoice CII for each shipment of
Product based on the Technologies' direct cost of procuring the Product ("Cost
of Goods") contained in such shipment. All invoices shall be sent via first
class mail or by telecopy to CII's address for notices hereunder.
2.5.2 Within sixty (60) days after the last day of each
calendar quarter, CII shall provide Technologies with a written report ("Sales
Report") setting forth:
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(i) the quantity of Product sold by CII and/or its
Affiliates in such quarter; and
(ii) the gross invoiced sales price and corresponding
Net Sales Price received by CII and/or its
Affiliates therefore in the currency in which
such sale was made.
2.6 PAYMENT AND AUDIT. CII shall pay Technologies for all invoiced
amounts for Cost of Goods within thirty (30) days of receipt of Technologies'
invoice. In addition, on the same day as the Sales Report is delivered for a
quarter, CII shall pay Technologies an amount equal to the Net Sales Price less
the Cost of Goods paid by CII for all Product sold during such quarter. All
payments shall be made to Technologies in U.S. Dollars. The exchange rate to be
used for all currency conversions shall be the rate as reported in the Wall
Street Journal (Western Edition) on the last business day of the quarter for
which such payment is due. Upon reasonable notice to CII, Technologies shall
have the right to have an independent certified public accountant, selected by
Technologies and reasonably acceptable to CII, audit CII's records during normal
business hours to verify CII's calculation of the Net Sales Price for Product;
provided, however, that such audit shall not take place more frequently than
once a year and shall not cover such records for more than the preceding two (2)
years. The accountant shall only report to Technologies to the accuracy of the
amounts payable by CII to Technologies for Product, and in the event of any
inaccuracy, the correct amounts thereof. Technologies shall promptly refund to
CII the amount of any overpayment determined in such audit, and CII shall
promptly pay to Technologies the amount of any underpayment. Such audit shall be
at Technologies' expense unless such audit indicates greater than five percent
(5%) underpayment by CII, in which case such audit shall be at CII's expense.
CII shall preserve and maintain all such records and accounts required for audit
for a period of two (2) years after the calendar quarter for which the record
pertains.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 BY BOTH PARTIES. Each party represents and warrants to the other
that: (i) it has full power and authority to execute, deliver and perform this
Agreement; and (ii) the execution, delivery and performance by such party of
this Agreement does not contravene any law, regulation, rule or order binding on
such party and do not contravene the provisions of or constitute a default under
any contract or other agreement binding on such party.
3.2 REGULATORY APPROVALS. Technologies warrants to CII that any and
all required government approvals, including any approvals under applicable
health and safety laws and regulations, to import, register, market, distribute
and sell the Product in the Territory, have been secured as of the Effective
Date and shall be maintained during the Term of this Agreement, and Technologies
shall indemnify CII for any liabilities and damages to CII arising from any
breach of the foregoing warranty.
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ARTICLE IV
TERM AND TERMINATION
4.1 TERM. The term of this Agreement ("Term") shall commence on the
Effective Date and continue in full force and effect until June 30, 1999.
4.2 TERMINATION FOR CAUSE. Either party shall have the right to
terminate this Agreement following any material breach or default in performance
under this Agreement by the other party upon sixty (60) days prior written
notice to the breaching party specifying the nature of the breach or default.
Unless the breaching party has cured the breach or default prior to the
expiration of the sixty (60) day period, the non-breaching party, at its sole
option, may terminate this Agreement upon written notice to the breaching party.
Termination of this Agreement shall become effective upon receipt of such second
notice by the breaching party.
4.3 EFFECT OF TERMINATION. Expiration or termination of this
Agreement shall not relieve the parties of any right or obligation, including
but not limited to any payment obligations, accruing prior to or upon such
expiration or termination. The provisions of Sections 2.5, 2.6, 3.2 and 4.3 and
Articles V and VI shall survive the expiration or termination of this Agreement
for any reason. All other rights and obligations of the parties shall cease upon
expiration or termination of this Agreement.
ARTICLE V
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR
ANY OTHER THIRD PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF
ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUCH
PARTY TO THIS AGREEMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
ARTICLE VI
MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed, controlled,
interpreted and defined by and under the laws of the State of California and the
United States without regard to that body of law known as conflicts of law. The
parties specifically disclaim application of the Convention on Contracts for the
International Sale of Goods to this Agreement.
6.2 SECTION HEADINGS. The article and section headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
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6.3 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be sent by prepaid registered or certified mall,
return receipt requested, internationally recognized courier or personal
delivery, addressed to the other party at the address below or at such other
address for which such party gives notice hereunder.
Collagen International, Inc.
Attn: _________________________
_______________________________
Fax number: ___________________
Collagen Technologies, Inc.
Attn: _________________________
0000 Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
Fax number: ___________________
Such notice shall be deemed to have been given when delivered or, if delivery is
not accomplished by some fault of the addressee, when tendered.
6.4 FORCE MAJEURE. Neither party shall be considered in default of
performance of its obligations under this Agreement to the extent that
performance of such obligations is delayed by force majeure or contingencies or
causes beyond the reasonable control of such party or its suppliers, including
but not limited to strike, fire, flood, earthquake, windstorm, governmental acts
or orders or restrictions, failure of suppliers, or any other reason to the
extent that the failure to perform is beyond the reasonable control and not
caused by the negligence or willful misconduct of the nonperforming party.
6.5 NONASSIGNABILITY AND BINDING EFFECT. Each party agrees that its
rights and obligations under this Agreement may not be transferred or assigned
directly or indirectly without the prior written consent of the other party,
which consent shall not be unreasonably withheld, except in connection with the
sale of all or substantially all of the assigning party's related business.
Subject to the foregoing sentence, this Agreement shall be binding upon and
inure to, the benefit of the parties hereto, their successors and assigns.
6.6 PARTIAL INVALIDITY. If any provision of this Agreement is held
to be invalid by a court of competent jurisdiction, then the remaining
provisions shall remain, nevertheless, in full force and effect. The parties
agree to renegotiate in good faith any term held invalid and to be bound by the
mutually agreed substitute provision in order to give the most approximate
effect intended by the parties.
6.7 NO WAIVER. No waiver of any term or condition of this Agreement
shall be valid or binding on either party unless agreed in writing by the party
to be charged. The failure of either party to enforce at any time any of the
provisions of the Agreement, or the failure to require at any time performance
by the other party of any of the provisions of this Agreement,
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shall in no way be construed to be a present or future waiver of such
provisions, nor in any way affect the validity of either party to enforce each
and every such provision thereafter.
6.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
6.9 ENTIRE AGREEMENT. This Agreement, including the Exhibits
attached hereto, constitutes the entire agreement of the parties with respect to
the subject matter hereof, and supersedes all prior or contemporaneous
understandings or agreements, whether written or oral, between CII and
Technologies with respect to such subject matter. No amendment or modification
hereof shall be valid or binding upon the parties unless made in writing and
signed by the duly authorized representatives of both parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Vitrogen
International Distribution Agreement to be executed by their duly authorized
representatives.
COLLAGEN INTERNATIONAL, INC.
Dated: March 5, 1998 By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
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Title: President and CEO
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COHESION TECHNOLOGIES, INC.
Dated: March 5, 1998 By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CEO
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EXHIBIT A
SPECIFICATIONS
Vitrogen(TM) Collagen Corporation Part No. 07010702
