AMENDMENT OF AGREEMENT
BETWEEN: ATHENA MEDICAL CORPORATION ("AFEM");
AND: BEIJING XXXX XXX BIOLOGICAL PRODUCTS, LTD., a joint venture
comprised of Xxxx XxxXxxxxx & Xxxxxx, Inc., and Fang-Hai Science
and Technology ("Xxxx Xxx").
DATED: Effective November 1, 1995.
R E C I T A L:
The parties have previously entered into an arrangement, evidenced by
letters dated January 10, February 10 and February 12, 1995 (the "Agreement"),
under which Xxxx Xxx would have the exclusive right to manufacture, distribute
and sell various current and future products of AFEM within China and other
countries and areas. The parties' relationship has not progressed as intended,
and the parties now desire to amend the arrangement on the terms and conditions
set forth below.
A G R E E M E N T:
In consideration of the foregoing Recital and the terms, covenants and
conditions set forth below, the parties agree as follows:
1. The Agreement is terminated as of the effective date of this Amendment
of Agreement (the "Amendment"). On and after such effective date of
termination, neither party has any obligation or liability to the other arising
out of any matter described or implied in the Agreement.
2. In consideration of the expense incurred by Xxxx Xxx in obtaining
nationwide approval for sale of AFEM's Fresh 'N Fit-Registered Trademark-
interlabial Padette-TM- (the "Padette") in China, and in consideration of this
Amendment, AFEM agrees to pay to Xxxx Xxx (through Xxxx XxxXxxxxx & Xxxxxx, Inc.
("CMT")) $0.0025 U.S. (1/4 of one U.S. cent) for each Padette sold by AFEM
within China during a three-year term commencing on the effective date of this
Amendment and terminating on the third anniversary thereof. Provided, however,
that no such payment shall exceed $100,000.00 U.S. in any twelve-month period
(beginning on the effective date of this Amendment). Amounts which would have
been payable to Xxxx Xxx but for such limitation shall not be carried into
future years. For purposes of the above, the word "sold" means receipt by AFEM
of payment for such Padettes, but excludes receipts from Xxxx Xxx or any partner
or affiliate of it. Payment by AFEM to Xxxx Xxx pursuant to this Paragraph 2
will be made within 30 days after the end of each calendar quarter of the term,
with the first such payment due on April 30, 1996 (for the quarterly period
ending March 31, 1996 and the two months of the prior quarter). Xxxx Xxx
recognizes that AFEM is not warranting any particular level of sales of Padettes
in China during any period or periods of the term.
3. Xxxx Xxx may, on and after the date of this Amendment, place orders
for the purchase of products from AFEM for sale in China. All such orders shall
be subject to acceptance by AFEM in its sole discretion, and if accepted will be
payable by irrevocable confirmed letter of credit and on such other terms and
conditions as the parties may mutually agree in writing. Nothing in this
Section 3 shall be construed to prevent AFEM from entering into sales or
distribution arrangements with other third parties.
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4. AFEM and Xxxx Xxx entered into the Agreement, and have entered into
this Amendment, in good faith and with absolute confidence in the integrity of
each other. However, considerations of U.S. law make it necessary to address
the following matters formally and substantially. Nothing set forth in this
Paragraph 4 is to be interpreted negatively with regard to the business
practices of either party or any other person.
4.1 Xxxx Xxx has not knowingly made and will not knowingly make, in
the performance of the Agreement or this Amendment, any payments, loans or gifts
or promises or offers of payments, loans or gifts of any money or anything of
value, directly or indirectly: (a) to or for the use or benefit of any official
or employee of any government or an agency or instrumentality of any such
government; (b) to any political party or official or candidate thereof; (c) to
any other person if Xxxx Xxx knows or has reason to know that any part of such
payment, loan or gift will be directly or indirectly given or paid to any such
governmental official or employee or political party or candidate or official
thereof; or (d) to any other person, the payment of which would violate either
the laws or policies of any country in which the Agreement or this Amendment is
to be performed or the country or countries of such person.
4.2 Xxxx Xxx will answer in reasonable detail any questionnaire or
other written or oral communications from AFEM or its outside auditors, to the
extent same pertains to compliance with the foregoing representations and
warranties.
4.3 The Agreement and this Amendment have been duly executed and
delivered by an authorized representative of Xxxx Xxx, and neither the execution
and delivery of nor the performance of the provisions of the Agreement or this
Amendment conflict with or result in a breach of any law or of any regulation,
order, writ, injunction or decree of any court or governmental authority of any
country in which the Agreement or this Amendment is to be performed, so as to
have a materially adverse effect on AFEM, except xx Xxxx Mei may otherwise
advise AFEM in writing.
4.4 Xxxx Xxx represents that the provisions of this Amendment
relating to payment to Xxxx Xxx are legal and binding under the laws and
policies of China (including without limitation taxation and exchange control
laws and regulations), and with respect to both to such payment provisions and
any payment pursuant thereto, no consent of or notice to such government, or any
agency thereof, is recorded or necessary, except xx Xxxx Xxx may otherwise
advise AFEM in writing.
5. Miscellaneous provisions:
5.1 Each party represents that it has not previously assigned,
encumbered or otherwise transferred any right, liability or interest it has
under the Agreement.
5.2 As the context may require in this Amendment, the use of any
gender (male, female or neuter) shall include any other gender, and the singular
shall include the plural and the plural the singular. As used in this
Amendment, the term "person" includes individual, sole proprietorship,
partnership, joint venture, trust, corporation, limited liability company,
association or any other entity or agency.
5.3 Any notice, advice or consent required or permitted to be given
under this Amendment shall be in writing and shall be deemed to have been given
when personally delivered to a party or 24 hours after deposit in the United
States Mail, first class postage prepaid by certified or
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registered mail, return receipt requested, or 24 hours after delivery to a
recognized national overnight carrier, with overnight shipping charges paid, and
addressed to such party as follows:
If to AFEM: Athena Medical Corporation
Attn: Xxxxxxx X. Xxxxxxx, President
00000 XX Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxx, XX 00000
If to Xxxx Xxx: Beijing Xxxx Xxx Biological Products, Ltd.
c/o Xxxx XxxXxxxxx & Xxxxxx, Inc.
Attn: Xxxxxx X. Xxxxxxx, President
0000 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
or such other address as a party may specify by a notice in writing, given in
the same manner.
5.4 This Amendment shall be governed by and construed in accordance
with the laws and decisions of the state of Oregon, without regard to the
conflict of laws rules of such state. If litigation is instituted by a party to
enforce or interpret this Amendment, venue shall lie in Multnomah or Washington
County, Oregon. Such venue is exclusive.
5.5 This Amendment is binding on and shall operate for the benefit of
Xxxx Xxx and each partner of it. By executing this Amendment individually, CMT
represents to AFEM that CMT is authorized to execute and deliver and to receive
payments pursuant to this Amendment. CMT further agree to indemnify, defend
and hold harmless AFEM (and its directors, officers, employees, agents,
successors and assigns) from all claims (including expenses, reasonable attorney
fees and costs incurred by such indemnitees in investigating and defending such
claims) of and liabilities owed to any actual or purported joint venture partner
of CMT (including without limitation Fang-Hai Science and Technology) arising
out of or related to the Agreement, this Amendment, or performance by AFEM or
CMT pursuant to this Amendment.
5.6 THIS AMENDMENT CONTAINS THE FINAL AND EXCLUSIVE AGREEMENT AND
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF IT, AND
SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN. EXCEPT AS
SET FORTH IN THIS AMENDMENT, THERE ARE NO PROMISES, REPRESENTATIONS, AGREEMENTS
OR UNDERSTANDINGS, ORAL OR WRITTEN, AMONG THE PARTIES RELATING TO THE SUBJECT
MATTER OF THIS AMENDMENT. This Amendment may not be modified except by a
writing signed by the party affected.
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EXECUTED by the duly authorized representatives of each party, to be
effective as set forth above.
Athena Medical Corporation
By
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Xxxxxxx X. Xxxxxxx, President
AFEM
Beijing Xxxx Xxx Biological Products, Ltd.
By Xxxx XxxXxxxxx & Xxxxxx, Inc., partner
By
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Xxxxxx X. Xxxxxxx, President
XXXX XXX
Xxxx XxxXxxxxx & Xxxxxx, Inc., individually
By
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Xxxxxx X. Xxxxxxx, President
CMT
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