Exhibit 10.16
OEM SUPPLY AND DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made this 21st day of May, 2003, by and
between Specialized Health Products International, Inc., a Delaware corporation
having an address at 000 Xxxx 000 Xxxxx, Xxxxxxxxx, Xxxx 00000 (hereinafter
referred to as "SHPI"), and ExelInt International, Company, a California
corporation having a place of business at 0000 Xxxx Xxxxxxxxx Xxx., Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "EXEL").
RECITALS
WHEREAS, SHPI desires to grant to EXEL, and EXEL desires to accept from
SHPI, the non-exclusive right to promote, market, distribute and sell the
"Products" (as hereinafter defined) and all "Improvements" (as hereinafter
defined) in the "Field" (as hereinafter defined) throughout the "Territory" (as
hereinafter defined).
NOW, THEREFORE, in consideration of the terms and conditions set forth
in this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the execution hereof, SHPI and EXEL
hereby agree as follows:
I. DEFINITIONS
The following terms are defined for purposes of this Agreement.
1.1. "Effective Date" shall mean the date and year first written above.
1.2. "Affiliate" shall mean any person or corporation or other business
entity controlled by, controlling, or under common control with a party to this
Agreement.
1.3. "Act" shall mean the United States Food, Drug and Cosmetic Act of
1938, as amended and all regulations promulgated pursuant thereto, and any state
and local laws and regulations thereunder promulgated and all similar laws and
regulations of any other country or relevant jurisdiction related to the
development, manufacture, sale or distribution of Products or Improvements.
1.4. "Products" shall mean single-pack, E-beam sterilized safety port
access infusion sets (commonly referred to as Xxxxx needle infusion sets), which
are manufactured by SHPI.
1.5. "Improvements" shall mean any modification, enhancement, further
development and/or improvement to the Products, made or acquired at any time
during the term of this Agreement by SHPI, or any Affiliate of SHPI.
1.6. "Specifications" shall mean the raw material, manufacturing,
quality assurance, packaging and finished product specifications and protocols
relating to the Products previously provided, or in the case of Improvements, as
will be provided, by SHPI to EXEL, as the same may be modified and/or
supplemented pursuant to the provisions hereof.
1.7. "Field" shall mean hospitals and group purchasing organizations
(GPOs) and alternate sites, such as homecare services, nursing homes, oncology
centers, infusion centers, same day surgery centers, physician offices and
clinics, non-hospital pharmacies and pain clinics.
1.8. "Territory" shall mean the United States. The Territory shall
extend to the United Kingdom and Japan when SHPI obtains regulatory clearance in
the United Kingdom and Japan respectively.
1.9. "Confidential Information" shall mean any information of a
confidential and/or proprietary nature as to which EXEL or an Affiliate of EXEL
or SHPI or an Affiliate of SHPI, as the disclosing party, prior to or during the
term of this Agreement, develops or acquires any interest, including but not
limited to, all discoveries, inventions, improvements, and ideas relating to any
process, formula, machine, device, manufacture, composition of matter, plan or
design, whether patentable or not, or relating to the conduct of business by the
disclosing party (including the existence and subject matter of this Agreement)
which, prior to or during the term of this Agreement, was or is disclosed to the
other party, as the receiving party, exclusive of data or information: (i)
which, at the time of disclosure hereunder, was in the public domain or which,
subsequent to disclosure hereunder, becomes part of the public domain by any
means other than the breach by the receiving party of its obligations hereunder,
or (ii) which was known to the receiving party, at the time of disclosure
hereunder, as evidenced by the receiving party's business records maintained in
the ordinary course of business, or (iii) which is, at any time, disclosed to
the receiving party by any person or entity not a party hereto whom the
receiving party believes, after reasonable inquiry, has the right to disclose
the same, or (iv) which is developed by an employee of the receiving party who
is shown, by competent proof and by clear and convincing evidence, not to have
been privy to information disclosed by the disclosing party, or (v) which is
disclosed verbally, except where the disclosing party reduces the verbal
disclosure to writing, marks the same as confidential and proprietary and
furnishes the receiving party with the reduction to writing within thirty (30)
days of the verbal disclosure.
1.10. "Contract Year" shall mean the twelve-month period commencing on
the date of the first Commercial Sale, and each successive twelve-month period
thereafter.
1.11. "Regulatory Approval" shall mean the notification to or
concurrence, acknowledgment, or approval of any governmental or
quasi-governmental agency or regulatory body, which notification, concurrence,
acknowledgment or approval is necessary for or useful to the manufacturing,
processing, marketing or sale of Products or Improvements anywhere in the United
States, and which is made in the name of SHPI or has been given/granted on
behalf of SHPI.
1.15. "Commercial Sale" - means, with respect to the Products, or any
Improvement which EXEL elects to distribute hereunder, the sale by EXEL or any
Affiliate of EXEL (or their respective distributors) to any non-Affiliate.
II. REPRESENTATIONS AND WARRANTIES
2.1. SHPI Representations and Warranties. SHPI hereby represents and
warrants to EXEL:
(a) that it has received pre-market notification, as defined
in section 510(k) of the Act, with respect to all Products and that it
will manufacture the Products under such pre-market notifications, and
(b) that SHPI is not currently a party to any agreement, oral
or written, which would, in any manner, be inconsistent with the rights
herein granted to EXEL, and shall not enter into any such agreement or
understanding, oral or written, during the term of this Agreement, nor,
during the term of this Agreement, directly or indirectly, will engage
in any activity which would, in any manner, be inconsistent with the
rights herein granted to EXEL,
(c) that SHPI is a corporation organized, validly existing and
in good standing under the laws of Delaware, has all requisite
corporate power and authority to own and operate its property and to
carry on its business as now being conducted and is duly qualified and
in good standing to do business in any of those jurisdictions where it
is required to be qualified, and
(d) that the execution and delivery of this Agreement by SHPI
has been duly and validly authorized by all necessary corporate action
on the part of SHPI and that (assuming valid execution by EXEL where
applicable and subject to federal bankruptcy law) this Agreement is a
valid and binding obligation of SHPI enforceable against it, and
(e) all Products may be lawfully sold in the Territory under
the appropriate Regulatory Approvals when received by SHPI.
2.2. EXEL Representations and Warranties. EXEL hereby represents and
warrants to SHPI:
(a) that EXEL is a corporation organized, validly existing and
in good standing under the laws of California, has all requisite
corporate power and authority to own and operate its property and to
carry on its business as now being conducted and is duly qualified and
in good standing to do business in any of those jurisdictions where it
is required to be qualified as a result of ownership of property or
residence of any of its employees or agents, and
(b) that the execution and delivery of this Agreement by EXEL
has been duly and validly authorized by all necessary corporate action
on the part of EXEL and that (assuming valid execution by SHPI and
subject to federal bankruptcy law) this Agreement is a valid and
binding obligation of EXEL enforceable against it, and
(c) that EXEL is not currently a party to any agreement or
understanding, oral or written, which would, in any manner, be
inconsistent with its obligations described herein and shall not enter
into any such agreement or understanding, oral or written, during the
term of this Agreement, nor, during the term of this Agreement,
directly or indirectly, engage in any activity which would, in any
manner, be inconsistent with its obligations described herein, and
(d) that it is registered with the Food and Drug
Administration and authorized to sell the Products.
III. DISTRIBUTION OF PRODUCTS
3.1. Appointment of EXEL as Distributor. Subject to the terms and
conditions hereof, SHPI hereby appoints EXEL, and EXEL hereby agrees to act, as
a non-exclusive distributor of Products and Improvements in the Field throughout
the Territory, for the term of this Agreement. **
3.2. EXEL's Responsibilities. EXEL will use reasonable efforts to
promote sales and use of the Products and Improvements in the Territory. SHPI
hereby expressly acknowledges and agrees that the grant set forth in Section 3.1
shall be deemed to include a grant to EXEL of the right to sell through any
Affiliate of EXEL and through distributors of EXEL or any Affiliate of EXEL.
3.3. Device Complaints. EXEL shall maintain a system of product
complaint recording and reporting wherein it will record the details of product
complaints it receives. EXEL agrees to send copies of the complaint reports
relating to substantial design, technical or quality issues to SHPI. SHPI shall
be responsible for supporting EXEL's investigation of such complaint reports.
SHPI shall, within thirty (30) days after SHPI receives the initial complaint
reports from EXEL, forward the findings of any investigations to EXEL.
3.4. Recall. If EXEL or SHPI are required by any competent governmental
authority to conduct a recall of any of the Products or either party determines
in its reasonable business judgment a voluntary recall of any Product is
required (and in the instance of a voluntary recall with the consent of the
other party hereto, which neither SHPI nor EXEL will unreasonably withhold),
then SHPI shall bear the reasonable expenses related to the cost and return of
the Products.
3.5 Trademarks. Products shall be provided to EXEL on a private label
basis with SHPI's LiftLoc(R) trademark. SHPI agrees to limit usage of the
LiftLoc(R) trademark to safety infusion sets. EXEL shall be required to use the
SHPI's registered trademarks for LiftLoc(R), which include U.S. Registration
Nos. 2,681,832 and 2,678,961 respectively ("Trademarks"), in connection with the
marketing, promotion and sale of the Products and Improvements, if any, in the
Territory as approved by SHPI, which approval shall not be unreasonably
withheld. In connection with such use, SHPI hereby grants to EXEL, to the extent
necessary, a royalty-free, non-exclusive license to use and employ the
Trademarks for the term of this Agreement to affix the Trademarks to the
Products and Improvements, if any. Trademarks shall also include all common law
trademark rights to LiftLoc.
IV. TERMS OF PURCHASE AND SALE
4.1. Purchase Orders. EXEL shall provide a non-binding, rolling 12
month forecast at the beginning of each calendar quarter. All sales and
purchases of Products or Improvements shall be initiated pursuant to EXEL's
purchase order for the same placed with SHPI. All such sales and purchases shall
be governed by the terms and
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The "**" marks the location of information that has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
provisions of this Agreement and any such purchase order, provided that in the
event there is a conflict between the terms of this Agreement and any of the
terms of such purchase order, the terms of this Agreement shall prevail. All
purchase orders issued by EXEL hereunder shall be firm and non-cancelable, and
shall be submitted at least 45 days prior to the delivery date.
4.2. Selling Price. (a) SHPI and EXEL hereby agree that: (i) the
selling prices by SHPI to EXEL for each unit of Product and any Improvement
shall be for each unit Product or any such Improvement, as the case may be, in
fully-finished, packaged and sterilized form in accordance with applicable
Specifications, (ii) the initial selling prices by SHPI to EXEL of each unit of
Product shall be as set forth on Exhibit A, which is attached hereto and
incorporated herein, which selling prices shall be firm for purchase orders
placed through the end of the fifth complete Contract Year, (iii) upon renewal
of this Agreement the selling prices by SHPI to EXEL shall be mutually agreed
upon by SHPI and EXEL, (iv) in the event EXEL desires to market any Improvement,
the initial selling prices by SHPI to EXEL for each unit of such Improvement
shall be promptly negotiated by the parties in good faith and shall be firm for
purchase orders placed thereon through the end of the period commencing on the
date of the first Commercial Sale of such Improvement and ending on the second
anniversary of such date. All payments shall be made in United States dollars.
4.3. Delivery. (a) SHPI shall use commercially reasonable efforts to
manufacture and deliver Products to EXEL, but in no event will SHPI be obligated
to deliver more than 20% over the forecasted volumes for a quarter, as such
forecast is determined in accordance with Section 4.1. EXEL shall provide up to
six (6) months notice for increases to the forecast if the increase in volume is
more than 20% of the amount forecasted.
4.4. Payment and Shipment. Shipment shall be in accordance with EXEL's
instructions. SHPI shall invoice EXEL for Products and Improvements at the time
of shipment. All payments shall be due net thirty (30) days after shipment. A
**% prompt payment discount may be taken on invoices paid within 20 days (**%,
20 days or net 45 days). Invoices paid after 45 days will be billed with
interest at a rate of **% per month. All shipments shall be C.I.F. (container
insurance and freight) to EXEL's Los Angeles, California distribution center.
4.5 Minimum Purchase Requirements. (a) During each Contract Year during
the term of this Agreement (or, in the case of the first Contract Year,
including the period beginning from the Effective Date through the date of the
first Commercial Sale), EXEL agrees to place purchase orders with SHPI for a
quantity of Products and/or Improvements not less than the quantity applicable
to such Contract Year, as set forth in Exhibit A, which is attached hereto and
incorporated herein (hereinafter referred to as the "Minimum Purchase
Requirements").
4.6 Competitive Products. The parties agree that nothing in this
Agreement shall restrict SHPI's right to manufacture, market and sell and/or
license, or EXEL's right to distribute, products or technologies competitive
with the Products.
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The "**" marks the location of information that has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
V. MANUFACTURE OF PRODUCTS
5.1. SHPI hereby represents and warrants to EXEL:
(a) that each of the Products and Improvements sold to EXEL
hereunder shall be manufactured in accordance with the requirements of
the Quality Systems Regulations set forth in 21CFR, Parts 808, 812 and
820; and
(b) that each of the Products and Improvements sold to EXEL
hereunder shall be new, free from defects in material and workmanship,
and shall comply in all respects with the applicable Specifications
therefor; and
(c) that each of the Products and Improvements sold to EXEL
hereunder will not, at the time of delivery to EXEL, be adulterated or
misbranded within the meaning of the Act or within the meaning of any
jurisdiction in which the definitions of misbranding and adulterating
are substantially the same as in the Act, nor, following FDA approval
of Products and Improvements, will any Product or Improvement at the
time of delivery to EXEL be an article which may not, under the Act, be
introduced into interstate commerce, and
(d) that SHPI holds good and marketable title to all Products
or Improvements and they shall comply with their intended use, and
(e) that all Products and Improvements shall, at the time of
delivery to EXEL, have an expiration date of not less than 24 months
from the date of manufacture and shall have a remaining shelf-life of
at least 22 months. SHPI will complete required testing and
documentation to support 36-month expiration dates by September 31,
2003. However, there can be no assurances such testing will be
successful.
5.2. There are no other express or implied warranties, including any
warranty of merchantability or fitness for a particular purpose. In the event of
any breach of the warranties set forth in Section 5.1 hereof, SHPI shall, at
SHPI's sole cost and expense, at EXEL's option, repair or replace the Products
or Improvements which are non-conforming or defective within thirty (30) days of
the return of such item(s) to SHPI or shall credit EXEL's account for the
purchase price paid for such item(s) by EXEL upon the return thereof by EXEL.
All shipping costs incurred incident to any such breach shall be borne by SHPI.
5.3. Labeling. Product labeling shall have primary and secondary bar
coding in compliance with the Health Industry Bar Coding standards. No changes
may be made to any Product labeling or packaging without the prior written
consent of EXEL.
VI. TERM AND TERMINATION
6.1. Term. (a) This Agreement shall remain in full force and effect
through the completion of the fifth Contract Year (the "Initial Term").
Thereafter, this Agreement shall be automatically renewed for successive
five-year terms unless terminated by either Party by providing written notice to
the other Party not less than ** prior the expiration of the initial term or any
renewal term. In the event this Agreement is automatically renewed, the parties
shall meet, no later than 90 days prior to the completion of the Initial Term or
any renewal term, to discuss the Minimum Purchase Requirements and Product
pricing for such renewal term.
6.2. Breach. Except as otherwise provided in this Agreement, in the
event of a material breach or default by either of the parties hereto of any
term or provision of this Agreement on their respective parts to be observed or
performed, the party who is not in breach or default shall have the right to
give the other party notice thereof, whereupon the party receiving such notice
shall have thirty (30) days to cure or cause the cure of such breach or default,
or if the same cannot reasonably be cured within such thirty (30) days, the
party receiving such notice shall, within said period, commence or have caused
the commencement of such cure and thereafter continue to diligently prosecute or
cause the prosecution of cure of the same. If such breach or default is so
cured, this Agreement shall remain in full force and effect. If such breach or
default is not so cured, this Agreement shall immediately terminate upon notice
of termination given to the party which failed to so cure such breach or
default.
6.3. Effect of Termination or Expiration. Expiration or prior
termination of this Agreement, for any reason, will not release either party
from any liability which at said time it has already incurred to the other
party, nor affect in any way the survival of any rights, duties or obligations
of either party which are expressly stated elsewhere in this Agreement to
survive said expiration or prior termination. Nothing in the immediately
preceding sentence will affect, be construed or operate as a waiver of the right
of the party aggrieved by any breach of this Agreement to be compensated for any
injury or damage resulting therefrom which is incurred before or after such
expiration or termination.
6.4. Disposition of Inventory. In the event of termination or
expiration of this Agreement for any reason, EXEL will retain its inventory and
stock of the Products or Improvements, if any, that has been paid for by EXEL.
EXEL will be entitled to sell its stock of the Products or Improvements, if any,
for a twenty-four month period following the termination or expiration of this
Agreement, or if such date is later, the date of delivery of any Products or
Improvements to EXEL.
VII. REGULATORY MATTERS
7.1. SHPI agrees to fully comply in all respects with the Act. SHPI
agrees to provide EXEL with copies of all papers, concurrence and office actions
pertaining to regulatory communications.
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The "**" marks the location of information that has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
7.2. SHPI represents and covenants that all Products and Improvements,
if any, shall have all Regulatory Approvals in compliance with the Act necessary
for SHPI to manufacture and for EXEL to market and sell the Products and
Improvements. Same shall have been validly issued and shall be in full force and
effect.
7.3 SHPI and EXEL will mutually agree on a product complaint protocol.
VIII. INDEMNIFICATION/INSURANCE.
SHPI shall obtain an endorsement from its product liability insurer to
protect EXEL from any liability which arises or results from alleged injury
incident to the use of any products covered by this Agreement up to ** per
occurrence and ** in aggregate. SHPI further agrees to indemnify and hold
harmless EXEL from any claims, lawsuits, losses, liabilities and damages of any
nature arising out of any patent infringement or product liability or any other
claim relating to a defect of a product, except with respect to claims based
solely upon EXEL' misrepresentations regarding the products. As a condition
precedent to SHPI obligations under this clause, the party charged in such suit
shall promptly notify SHPI and shall not settle the same without SHPI's prior
written approval. EXEL shall indemnify SHPI against all suits, actions, claims,
demands, judgments, liabilities and expenses relating to the sale and/or
distribution of any products covered by this Agreement.
IX. MISCELLANEOUS
9.1. Confidential Information. Each party shall hold in confidence any
Confidential Information disclosed by the other or otherwise obtained by such
party as a result of activities contemplated by this Agreement, and each party
shall protect the confidentiality thereof with the same degree of care that it
exercises with respect to its own information of a like nature, but in no event
less than reasonable care. Access to Confidential Information must be restricted
to the receiving party's employees, who, in each case, need to have access to
carry out a permitted use and are bound in writing to maintain the
confidentiality of such Confidential Information. The Confidential Information
and all copies of part or all thereof, shall be and remain the exclusive
property of the disclosing party, and the receiving party shall acquire only
such rights as are expressly set forth under the terms and conditions of this
Agreement and only for so long as such rights are in effect.
9.2. Survival. The following Articles or Sections shall continue in
effect notwithstanding any termination of this Agreement: Article II, Article V,
Section 6.3, Section 6.4, Article VII, Section 8.1, Section 9.1, Section 9.5,
Section 9.7 and Article X, and no termination of this Agreement shall relieve
any party of liability for a breach or violation of this Agreement occurring
before such termination.
9.3. No Agency. This Agreement shall not constitute EXEL the agent or
legal representative of SHPI for any purpose whatsoever and EXEL shall not hold
itself out as an agent of SHPI. This Agreement creates no relationship of joint
ventures, partners, associates, employment or principal and agent between the
parties, and
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The "**" marks the location of information that has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
both parties are acting as independent contractors. EXEL is not granted herein
any right or authority to and shall not attempt to assume or create any
obligation or responsibility for or on behalf of SHPI. EXEL shall not have any
authority to bind SHPI to any contract, whether of employment or otherwise, and
EXEL shall bear all of its own expenses for its operations, including, without
limitation, the compensation of its employees and salespeople and the
maintenance of its offices, service and warehouse facilities. EXEL shall be
solely responsible for its own employees and salespeople and for their acts and
the things done by them.
9.4. Amendments. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the parties hereto.
9.5. Waivers. No waiver of any provision of this Agreement, or consent
to any departure from the terms hereof, shall be effective unless the same shall
be in writing and signed by the party waiving or consenting thereto. No failure
on the part of any party to exercise and no delay in exercising, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy by such party preclude any other or
further exercise thereof or the exercise of any other right or remedy. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate as a waiver of any subsequent breach. All rights and remedies
hereunder are cumulative and are in addition to and not exclusive of any other
rights and remedies provided by law.
9.6. Performance. Each party hereto acknowledges that money damages
alone will not adequately compensate such party for breach of such party's
obligations under Section 10.1 and, therefore, agrees that in the event of the
breach or threatened breach of any such obligation, in addition to all other
remedies available to the other party, at law, in equity or otherwise, such
other party shall be entitled to injunctive relief compelling specific
performance of, or other compliance with, the terms of such Section.
9.7. Notices. Any notice or communication given pursuant to this
Agreement by any party to any other party shall be in writing and shall be
sufficiently given if personally delivered, sent by facsimile or other means of
confirmed electronic transmission or sent by a recognized next-day courier
service or by mail, postage prepaid to the parties at the following addresses or
to such other address as either party may hereafter designate to the others by
like notice:
(a) if to SHPI, to:
Specialized Health Products International, Inc.
000 Xxxx 000 Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile Number: (000) 000-0000
(b) if to EXEL, to:
ExelInt International, Company
0000 Xxxx Xxxxxxxxx Xxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile Number: (000) 000-0000
9.8. Expenses. Each party hereto shall pay its own expenses in
connection with the transactions contemplated hereby, whether or not they are
completed.
9.9. Publicity. All notices to third parties and all other publicity
relating to the transactions contemplated by this Agreement shall be jointly
planned, coordinated and agreed to by the parties except to the extent
disclosures are required by law.
9.10. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all negotiations, representations, warranties, commitments, offers,
contracts and writings prior to the date hereof.
9.11. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with, the substantive laws of the state of Utah,
without giving effect to its conflicts of law rules.
9.12. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. In the event that
any provision of this Agreement shall be determined to be unenforceable by
reason of its extension for too great a period of time or over too large a
geographic area or over too great a range of activities, it shall be interpreted
to extend only over the maximum period of time, geographic area or range of
activities as to which it may be enforceable.
9.13. Exhibits. All Exhibits mentioned in this Agreement shall be
attached to this Agreement and shall form an integral part hereof. All
capitalized terms defined in this Agreement which are used in any Exhibit shall,
unless the context otherwise requires, have the same meaning therein as given
herein.
9.14. Counterparts. This Agreement may be executed in two (2) or more
counterparts, including facsimile counterparts, all of which shall be considered
one and the same agreement and shall become effective when two (2) or more
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
9.15. Assignments; Successors and Assigns. Neither party shall transfer
or assign (by operation of law or otherwise) its rights or obligations under
this Agreement without the prior written consent of the other party. Subject to
the preceding sentence, this Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their permitted successors and
assigns.
9.16. Force Majeure. Either party shall be excused from delay in
performing or from its failure to perform hereunder to the extent that such
delay or failure results from any cause or causes beyond such party's reasonable
control, including: delay by any supplier in providing materials, parts or
services; delay by any carrier; fire; flood; acts of God; labor dispute; riot;
compliance with any applicable governmental act, regulation or request; and
shortage of labor, materials or manufacturing facilities.
9.17. Captions. The Article and Section headings contained in this
Agreement have been inserted for convenience of reference only and are not and
shall not be deemed or construed as constituting a part of this Agreement.
X. ARBITRATION
10.1. In the event of a dispute of whatever nature arising between the
parties, including but not limited to, those arising out of or relating to this
Agreement or the construction, interpretation, performance, breach, termination,
enforceability or validity of this Agreement, the parties shall exercise good
faith efforts to resolve such dispute within a reasonable period of time. Should
the parties fail to reach agreement after thirty (30) days of good faith
negotiations, the parties agree to submit said dispute to binding arbitration.
Said arbitration shall take place in Los Angeles, California, in accordance with
the rules of the American Arbitration Association. The arbitration panel shall
consist of one arbitrator selected by the American Arbitration Association.
10.2. The arbitration proceedings conducted pursuant hereto shall be
confidential. Neither party shall disclose or permit the disclosure of any
information about the evidence adduced or the documents produced by the other
party in the arbitration proceedings or about the existence, contents or results
of the arbitration award without the prior written consent of such other party
except in the course of judicial, regulatory or arbitration proceeding or as may
be required by a governmental authority. Before making any disclosure permitted
by the preceding sentence, the party intending to make such disclosure shall
give the other party reasonable written notice of the intended disclosure and
afford the other party reasonable opportunity to protect its interests.
10.3. The arbitrators shall set forth in writing their findings of fact
and conclusions of law and shall render their award based thereon. Said award
shall be a final and binding judgment enforceable by a court of competent
jurisdiction.
10.4. The party for whom the outcome of the arbitrators' decision is
less favorable (as determined by the arbitrators) shall be responsible for
reimbursing the other party for all fees and expenses of such party that are
directly related to the arbitration proceeding (including reasonable attorneys'
fees).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SPECIALIZED HEALTH PRODUCTS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
EXELINT INTERNATIONAL, COMPANY
By: X. Xxxxx
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Name: X. Xxxxx
Title: President
NOTE: This Agreement is approved and signed between EXEL and SHPI directly
and no middleman or broker are involved. Any commission or broker fee
is prohibited.
EXHIBIT A
Minimum Purchase Requirements*
Year LiftLoc(R) Units
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1st Contract Year **
2nd Contract Year **
3rd Contract Year **
4th Contract Year **
5th Contract Year **
**
Minimum Shipment Quantity
The minimum order quantity for any order shall be 10,000 units with a 5 case
minimum order per SKU.
Pricing
LiftLoc(R) Safety Infusion:
Volume Y-Site Non Y-Site
Each Case Each Case
---------------- -------------------- -------------------
0 - 100,000 ** ** ** **
100,000+ ** ** ** **
---------------- -------------------- -------------------
Patient Comfort Pad (TM):
$** for each case of 400 units
-----------------
The "**" marks the location of information that has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
EXHIBIT A (Continued)
Quantity
Order Number Needle Gauge x Length Y-Site Case
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LiftLoc(R) Safety Infusion Set
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01019-75 19G. x 3/4" No 160
01120-75 20G. x 3/4" Yes 160
01020-75 20G. x 3/4" No 160
01022-75 22G. x 3/4" No 160
01019-10 19G. x 1" No 160
01020-10 20G. x 1" No 160
01120-10 20G. x 1" Yes 160
01022-10 22G. x 1" No 160
01020-15 20G. x 1 1/2" No 160
01119-75 19 G. x 3/4" Yes 160
01122-75 22 G. x 3/4" Yes 160
01119-10 19 G. x 1" Yes 160
01122-10 22 G. x 1" Yes 160
01119-15 19 G. x 1 1/2" Yes 160
01120-15 20 G. x 1 1/2" Yes 160
01122-15 22 G. x 1 1/2" Yes 160
01019-15 19 G. x 1 1/2" No 160
01022-15 22 G. x 1 1/2" No 160
Patient Comfort Pad
--------------------------------------------------------------------------------
01000-01 One Size (NA) 400
--------------------------------------------------------------------------------
