DISTRIBUTOR'S AGREEMENT
This Agreement is made and entered into as of this 30th day of July, 1995,
by and between ATHENA Medical Corporation ("ATHENA"), having a principal address
of 00000 X.X. Xxxxxx Xxx., Xxxxx X0, Xxxxxxxx, XX 00000 and OSSCA International,
Inc., ("OSSCA"), having a principal address of 000-000xx Xxx., Xxxxxxxx Xxxxxx,
XX 00000, XXX
RECITALS
WHEREAS ATHENA manufactures and sells female healthcare and feminine
hygiene products, including the Fresh 'n Fitt-Registered Trademark- interlabial
Padette-TM- ("Padette"), and
WHEREAS ATHENA is seeking a distributor for sales of the Padette for all
uses other than stress incontinence to the U.S. military, and other related U.S.
Government agencies, and
WHEREAS OSSCA wishes to become the exclusive distributor of the Padette for
the U.S military, and other related U.S. Government agencies, and represents
that it is experienced in the distribution of consumer products to the U.S.
military and such agencies.
THEREFORE, in exchange for proper and adequate consideration, the parties
hereby agree as follows:
1. SERVICES:
a. OSSCA will exert its best efforts to promote and make all necessary
contacts with the appropriate agencies of the U.S. military and other U.S.
Government agencies, for sale of the Padette. OSSCA will follow-up on these
contacts to complete requirements for distribution. OSSCA will maintain such
facilities, transportation and personnel as are adequate to perform its services
under this Agreement.
b. OSSCA will provide worldwide customer service, point-of-sale, other
marketing support and reasonable technical assistance to its customers, through
training that will be provided to OSSCA by ATHENA at ATHENA's facilities in
Ponte Vedra, Florida. ATHENA may at its election, provide customer service and
technical assistance directly.
c. OSSCA agrees to an initial order of 1,000,000 Padettes, and an annual
order rate of 6,000,000 Padettes. Failure of OSSCA for any reason to order and
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accept fewer than 6,000,000 Padettes during the first year, and 3,000,000
Padettes during any subsequent consecutive 6-month period, beginning on the date
of this Agreement, will be considered a breach by OSSCA
d. OSSCA agrees to provide necessary support and documentation to
establish a credit line with ATHENA ' sufficient to cover payment of its largest
expected shipment, not less than 1,000,000 Padettes.
e. OSSCA will comply with and observe all applicable federal contracting
rules and policies, and promptly notify ATHENA of any of potential application
to ATHENA.
f. OSSCA will from time to time, as specified by ATHENA, submit written
reports detailing its promotional efforts, sales and commissions, with
supplemental telephone reports as requested.
2. EXCLUSIVITY OF CUSTOMERS
a. OSSCA will register with ATHENA in writing all entities to be serviced
under this Agreement;
b. ATHENA will, following approval of the entities, grant OSSCA non-
exclusivity to sell Padettes to all approved entities, for a period of three (3)
consecutive years beginning on the date of approval. ATHENA maintains the right
to initiate the sale of Padettes directly, or indirectly (via a third party),
with OSSCA's approved entities anytime during said three year period, with
ninety days notice of its intentions to do so.
c. Following the placement of an order by OSSCA for 1,000,000 or more
Padettes during the first six months of this agreement, and the receipt of full
payment for said order, ATHENA shall provide written notice of the conversion of
paragraph 2.b. to exclusivity.
3. NONCOMPETE PROVISIONS
Should OSSCA terminate this agreement for any reason whatsoever, other than
breach by ATHENA, OSSCA hereby agrees not to promote or sell any products to the
U.S. military or other U.S. Governmental agency, that are deemed substantially
equivalent to the Padette by patent or other trade laws, for a period of three
(3) consecutive years from the termination date of this agreement. In a like
manner, should ATHENA terminate this agreement for any reason whatsoever, other
than breach by OSSCA, ATHENA hereby agrees not to sell the Padette or any
similar products to the U.S. Government agencies listed on OSSCA's approved
list, for a
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period of three (3) consecutive years from the termination date of this
agreement, unless ATHENA first agrees to pay OSSCA a 7% commission based upon
the net selling price received by ATHENA, for all Padettes sold, directly or
indirectly, to those entities listed on OSSCA's approved list, during said three
(3) year period.
4. PRODUCT PRICING AND PAYMENT PROVISIONS
ATHENA agrees to sell the Padettes to OSSCA, packaged and ready for retail
sale, at the following schedule of prices: (1) to 250,000 Padettes are $0.07US
per Padette; (2) 250,001 to 2,500,000 Padettes are $0.0575US per Padette; and
(3) 2,500,001 Padettes and above are $0.05US per Padette; F.O.B. Salt Lake City,
UT. OSSCA shall pay ATHENA, in full, within 60 days of receipt of each Padette
shipment from ATHENA. Overdue invoices will be subject to a charge of 1.5% per
month (18.0% annual), subject to increases in interest rates, based on the
percentage increase of the prime rate, on unpaid balances. ATHENA agrees to
provide OSSCA with a reasonable quantity of product samples, technical
information and sale literature for promotion of the Padette, free of charge.
Any labeling or packaging changes requested or required by the U.S. military or
other U.S. Government agency shall, if accepted by ATHENA, be implemented at the
cost of OSSCA and deducted from commissions owing or otherwise reimbursed to
ATHENA. ATHENA may also change labeling, package design, etc. in its sole
discretion, provided that ATHENA provides OSSA with samples of said changes at
least 14 days before retail shipment to OSSCA. All samples, technical
information, literature and other documents of ATHENA will be promptly returned
to ATHENA on termination or cancellation of this Agreement, or at any other time
upon request.
5. PRODUCT AVAILABILITY
ATHENA will provide shipments within 30 days of acceptance of an order
(maximum order of 1,000,000 Padettes per month, unless otherwise agreed by
ATHENA). ATHENA will not be liable for delays or inability to fill orders due
to governmental orders or actions, transportation conditions, weather, labor or
material shortages, strikes, riots, natural disaster or other unanticipated
cause beyond ATHENA's control.
6. CONFIDENTIALLY
The terms of this agreement, and all financial, trade secret and other
proprietary business information of each party, shall remain strictly
confidential. No party hereto shall have the right to disclose the terms of
this agreement, such information, or any part thereof, without the prior written
consent of the other party, unless required by government regulation.
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7. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, but no party hereto
shall have the right to assign this Agreement, or any part hereof, without the
prior written consent of the other.
8. TERMINATION
Unless canceled as set forth below, this Agreement shall remain in force
for an initial period of three (3) years, and may be extended for an indefinite
number of twelve (12) month periods, by mutual written consent of the parties.
a. CANCELLATION FOR BREACH: If this Agreement is canceled for reasons of
breach, the injured party shall no longer be obligated to comply with the terms
of said Agreement. Conversely, the - party found to be in breach shall continue
to remain fully obligated to comply with the terms of said Agreement.
Conversely, the party found to be in breach shall continue to remain fully
obligated and bound by the terms .this Agreement.
b. CANCELLATION FOR BANKRUPTCY: Should either party file for bankruptcy,
and said bankruptcy is not corrected within thirty (30) days, the other party
shall have the right to cancel this Agreement by written notice.
c. CANCELLATION FOR ANY OTHER REASON: Cancellation for any other reason,
including expiration o f this Agreement, shall not relieve either party from
fulfilling an remaining obligations set forth herein, for whatever the time
period prescribed.
9. CHOICE OF LAW
This Agreement shall be governed by, and construed and enforced in
accordance with the laws of the State of Oregon.
10. REMEDIES
In the event of the breach or threatened breach of the Agreement by either
party, the injured party shall be entitled to seek injunctive relief, both
preliminary and permanent, enjoining and restraining such breach or threatened
breach. Such remedy shall be in addition to all of the remedies available to
the injured party at law or in equity, including the right of the injured party
to recover any and all damages that may be sustained as a result of the breach.
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11. ATTORNEY FEES
In the event of any dispute; or breach under this Agreement, the prevailing
party shall be entitled, whether or not any action is instituted, to recover
from the other party its reasonable costs, disbursements and attorney fees,
including without limitation at trial, on appeal on denial of any petition for
review, and in connection with enforcement of any judgment.
12. SCOPE
This Agreement applies only to sales by ATHENA of the Padette for
distribution to the U.S. military and other U.S. Governmental agencies for
feminine hygiene protection use. It does not apply to therapeutic, diagnostic
or other uses. In addition, OSSCA has no authority to make any express or
implied warranties or other representations respecting the Padette other than
those supplied in writhing by ATHENA.
13. FINAL AGREEMENT; MODIFICATION; SAVINGS CLAUSE
This Agreement is the entire agreement of the parties with respect to the
subject matter and supersedes all prior or contemporaneous oral or written
communications or agreements between the parties. It shall not be modified in
any way except in writing signed by the parties. If any part of this Agreement
shall be determined invalid, all other provisions of .this Agreement shall,
nevertheless less, remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly Authorized officers as of the date first written,
hereinabove.
For: For:
Athena Medical Corporation OSSCA International, lnc.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
------------------------------ --------------------------------
Xxxxxxx X. Xxxxxxx Xxxx X. Xxxxxxx
President President
(Corporate Seal)
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