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EXHIBIT 6.7
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS EXCLUSIVE DISTRIBUTION AGREEMENT ("Agreement") is made and entered
into this 1st day of the month of July, 1999 by and between Advanced Plant
Pharmaceuticals, Inc. ("APPI") a Delaware corporation, having its principal
office at, 00 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, and Manayer Egypt Trading &
Medical Supplies Co. ("MEM") an Egyptian corporation, having its principal
office in Alexandria, Arab Republic of Egypt.
WITNESSETH
WHEREAS, APPI manufactures and produces certain pharmaceutical products
(the "Products" as listed in Exhibit A attached hereto and as may be amended
from time to time) and would like MEM to distribute such Products in Egypt
(hereinafter referred to as the "Territory") and MEM is willing to become a
distributor of such Products, all on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. TERM. This Agreement will remain in effect as of the date hereof for a period
of five (5) years until June 30, 2004, unless this Agreement is terminated
sooner as hereafter provided.
2. APPOINTMENT. APPI hereby appoints MEM during the term of this Agreement, and
MEM hereby accepts such appointment, as APPI's exclusive distributor of the
Products in the Territory.
3. SALE AND PURCHASE OF PRODUCTS.
APPI hereby agrees to provide those documents requested by MEM needed
for MEM to obtain a Registration Certificate from the appropriate authorities in
Egypt which Registration Certificate is needed for MEM to sell the Products in
the Territory. MEM agrees to make a good faith effort to obtain such
Registration Certificate as soon as possible from the date hereof.
From the date MEM receives the Registration Certificate from the
appropriate authorities in Egypt, MEM agrees to purchase from APPI at least the
Minimum Purchase Quantity of the registered Products as such minimums are
defined in Exhibit B attached hereto.
Sales of Products: (as listed in Exhibit B attached hereto)
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Products Purchase Prices: (as listed in Exhibit C attached hereto)
Payments for Products ordered by MEM shall be made as listed in Exhibit
D attached hereto.
APPI, at its expense, will make available the Products ordered by MEM,
within thirty (30) days after MEM requests such Products. APPI will make the
Products available by giving notice to MEM, in accordance with Section 15 of
this Agreement, that such ordered Products are available for pick up by MEM at
Xxxx X. Xxxxxxx International Airport ("JFK") located at Jamaica N.Y. 11430, at
a pickup area to be agreed upon by the undersigned parties. After such notice is
given to MEM, and such Products are made available to MEM at JFK, title to and
all risk of loss of and damage to the Products will pass to MEM. (FOB, free on
board - JFK)
4. EXCLUSIVITY; SALES BY DISTRIBUTOR.
While this Agreement is in effect, APPI hereby grants to MEM the
exclusive right to sell the Products in the agreed Territory. While this
Agreement remains in effect, APPI will not, directly or indirectly, sell the
Products within the Territory and will not permit anyone else, either directly
or indirectly, to sell the Products within the Territory.
MEM may sell the Products in such manner, on such terms, and at such
prices as approved by APPI. MEM will comply with all applicable laws, rules and
regulations in selling and in otherwise dealing with the Products.
Neither MEM, nor its officers, employees or agents will be deemed to be
the agents, employees, partners, co-venturers or representatives, legal or
otherwise, of APPI for any purpose whatsoever.
Products not covered by this Agreement: APPI hereby grants to MEM the
right of "First Refusal" of its Products for sales in the Territory. APPI agrees
to inform MEM, in writing about any new products that APPI, intends to sell.
Should MEM choose to exercise its right of First Refusal, MEM must inform APPI
in writing within thirty (30) days. After this period, APPI will warn MEM in a
written notice that within thirty (30) days MEM will lose the exclusive
distribution rights of the new products without giving any further written
notice. If MEM does not respond accordingly, does not wish to distribute the new
products, or if MEM & APPI are unable to come to an agreement on terms &
conditions, then APPI has the right to distribute its new products through other
means.
5. ADVERTISING. APPI acknowledges that during the term of this Agreement MEM may
suggest and recommend to APPI marketing and promotional strategies to help MEM
sell the Products in the stated Territory. APPI, after review and approval of
such marketing and promotional strategies and at APPI's sole discretion, will
match, dollar for dollar in U.S. currency, those funds which MEM is willing to
contribute towards such marketing and
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promotional strategies with the understanding and acknowledgment by MEM that
APPI will not contribute in excess of ten thousand U.S. dollars ($10,000) per
each calendar year, throughout the Term of this Agreement. Should APPI review
and approve such marketing expenses, APPI will notify MEM of such approval, MEM
will notify APPI regarding the dollar amount that MEM expects to contribute,
APPI within fifteen business days will then match such stated amount by sending
a check or wire transfer to MEM, and MEM will then provide to APPI evidence that
such funds were expended on the agreed upon marketing and promotional items.
6. CONFIDENTIALITY. MEM hereby acknowledges and agrees that a Confidentiality
Agreement will be signed between MEM and APPI prior to the signing of this
agreement (a copy of which will be annexed hereto). All Confidential Information
is and shall remain the exclusive property of APPI.
7. RIGHT TO RENEW. The terms of this Agreement shall be automatically renewed
for similar periods (five years each time) unless one of the parties notifies
the other in accordance with Section 15 of this Agreement of its intention not
to renew the Agreement, at least six months prior to the date of expiration.
This notice shall not cause forfeiture of the rights of either of the two
parties hereto vis a vis each other. Each party in its sole discretion shall
have the right to determine, for any reason whatsoever, not to renew, continue
or extend this Agreement.
8. PATENTS AND TRADEMARKS. MEM acknowledges and agrees that APPI is the sole and
exclusive owner of all right, title and interest in and to the products Lo-Chol
and ACA, and that MEM will not claim or assert any rights or interests in the
trademarks or patents of such names and/or products. Nothing contained in this
Agreement shall operate as or be construed as an assignment, grant or other
transfer of any kind of any of APPI's right, title, or interest in or to any of
the trademarks or patent rights of Lo-Chol and ACA.
9. INDEMNITY. MEM agrees to indemnify and hold harmless APPI and its Affiliates
and any director, officer, stockholder, employee or agent of any of them from
and against any and all claims, losses, liabilities, damages, costs, and
expenses (including, but not limited to, attorney, expert witness and accounting
fees and expenses) which may be sustained and arise out of MEM's activities, or
those of its employees or agents, including without limitation, any
misrepresentations or misleading statements in respect of the Products or any
violation by MEM of any of the provisions of this Agreement.
10. EXPENSES. All expenses and costs incurred by MEM in the performance of its
obligations under this Agreement shall be the sole responsibility of MEM and
shall not be advanced or reimbursed by APPI other than those outlined in Section
5 of this Agreement.
11. ASSIGNABILITY. MEM may not assign, transfer or delegate this Agreement or
any of its rights or obligations under this Agreement without the prior written
consent of APPI, and any
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attempted assignment, transfer or delegation without such consent shall be
deemed null and void and of no effect.
12. TERMINATION. In case of breach of any of the terms of this Agreement, this
agreement may be terminated by either party at any time, by giving ninety (90)
days prior written notice to the other party. If the party that receives notice
of termination fails to respond to the other party notification within ninety
(90) days, the Agreement shall then be terminated. After MEM meets the First
Year stated minimum purchase requirements, if MEM fails to meet the stated
minimum purchase requirements for two (2) successive years or fails to make
timely payments in accordance with this Agreement, then APPI shall treat such
action as a material default and may terminate this Agreement and/or seek
liquidated damages from MEM.
13. GOVERNING LAW. The validity, interpretation and performance of this
Agreement and any dispute connected herewith shall be governed and construed in
accordance with the International laws, without reference to its conflict of law
principles. Any disputes arising in regard to the provisions of this Agreement
shall be settled amicably through mutual consultation between the two parties.
Any disputes not settled through mutual consultation as stipulated in the
proceeding sentence shall be finally settled by the arbitration court of the
International Chamber of commerce in Paris.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
APPI and MEM. This Agreement supersedes any prior or existing contracts and
arrangements by and between APPI and MEM for the distribution of the Products in
the Territory.
15. NOTICE. Any notice required hereunder shall be made in writing by
hand-delivery, telefax, telex, courier, registered air mail, electronic mail, or
by any other means of delivery which enables the sending party to verify receipt
thereof. Such notice shall be deemed given (a) at the actual time of receipt in
the case of hand-delivery or transmission by telefax, (b) Upon receipt of the
addressee's answer back on the sender's machine in case of transmission by
telex, and (c) three (3) business days after sending in case of notice by
courier, cable or registered air mail. Any notices shall be sent to the
following addresses:
If to APPI: If to MEM:
Advanced Pharmaceuticals, Inc. Manayer Egypt Trading & Medical Supplies Co.
Attention: Xxx Xxxxxxxxx Attention: Mohamed Abd Al-Xxxxxx XXXXXX
00 Xxxxxx Xxxx P.O. Box 1048 Alexandria 21111
Xxx Xxxx, XX 00000 Xxxx Xxxxxxxx of Egypt
Either party may change the address to which notices are to he sent to
it by giving notice of such change of address to the other party in the manner
herein provided for giving notice.
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16. COUNTERPARTS. This Agreement may be executed in any number of separate
counterparts, each of which shall be deemed to be original but which together
shall constitute one in the same instrument.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE
EXECUTED AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN BY THEIR RESPECTIVE
AUTHORIZED OFFICIALS.
MANAYER EGYPT TRADING & MEDICAL ADVANCED PLANT PHARMACEUTICALS, INC.
SUPPLIES CO.
By: /s/ Mohamed Abd Al-Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
---------------------------------- -------------------------
Name: Mohamed Abd Al-Xxxxxx Xxxxxx Name: Xxxxx Xxxxxxxxx
Title: General Manager Title: President
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EXHIBIT A
As referred to in the EXCLUSIVE DISTRIBUTION AGREEMENT between "APPI" and "MEM",
dated July 1, 1999 the Products are as follows:
CAPSULES
PRODUCT DESCRIPTION FORM CONCENTRATE PER BOTTLE
Lo-Chol 60 Cholesterol lowering agent Caplet 1000mg. 60
Lo-Chol 120 Cholesterol lowering agent Caplet 1000mg. 120
ACA 500mg. Immune system builder Caplet 500mg. 70
ACA 1000mg. Immune system builder Caplet 1000mg. 70
The foregoing list may be amended from time to time upon mutual agreement by the
undersigned parties.
Agreed & signed on July 1, 1999
MANAYER EGYPT TRADING & MEDICAL ADVANCED PLANT PHARMACEUTICALS, INC.
SUPPLIES CO.
By: /s/ Mohamed Abd Al-Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
-------------------------------- -----------------------------
Name: Mohamed Abd Al-Xxxxxx XXXXXX Name: Xxxxx Xxxxxxxxx
Title, General Manager Title, President
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EXHIBIT B
"Minimum Purchase Quantity"
As referred to in the EXCLUSIVE DISTRIBUTION AGREEMENT between "APPI" and "MEM",
dated July 1, 1999, the Minimum Purchase Quantity, shall be as follows:
During the "First Year" as defined below, APPI agrees to sell to MEM, and MEM
agrees to purchase from APPI not less than:
1. "Lo-Chol 60" (Lo-Chol 1000mg. 60 Caplets): not less than 10,000 bottles
"Units".
2. "Lo-Chol 000" (Xx-Xxxx 1000mg. 120 Caplets): not less than 5,000 bottles
"Units".
3. ACA 500 mg. 70 Caplets: not less than 8,000 bottles "Units".
4. ACA 1000 mg. 70 Caplets: not less than 4,000 bottles "Units".
During the "Second Year" as defined below, APPI agrees to sell to MEM, and MEM
agrees to purchase from APPI not less than:
1. "Lo-Chol 60" (Lo-Chol 1000mg. 60 Caplets): not less than 12,000 bottles
"Units".
2. "Lo-Chol 000" (Xx-Xxxx 1000mg. 120 Caplets): not less than 6,000 bottles
"Units".
3. ACA 500 mg. 70 Caplets: not less than 9,500 bottles "Units".
4. ACA 1000 mg. 70 Caplets: not less than 5,000 bottles "Units".
During each of the "Third Year", "Fourth Year" and "Fifth Year" as defined
below, APPI agrees to sell to MEM, and MEM agrees to purchase from APPI not less
than:
1. "Lo-Chol 60" (Lo Chol 1000mg. 60 Caplets): not less than 14,500 bottles
"Units".
2. "Lo-Chol 000" (Xx-Xxxx 1000mg. 120 Caplets): not less than 7,000 bottles
"Units".
3. ACA 500 mg. 70 Caplets: not less than 11,500 bottles "Units".
4. ACA 1000 mg. 70 Caplets: not less than 6,000 bottles "Units".
"First Year" (Year 1) for any Product: starts from the date MEM receives a
Registration Certificate from the appropriate authorities in Egypt, for a period
of twelve (12) calendar months (the "First Year").
"Second Year" (Year 2) for any Product: the period over twelve (12) calendar
months from the last day of the "First Year" (the "Second Year").
"Third Year" (Year 3) for any Product: the period over twelve (12) calendar
months from the last day of the "Second Year" (the "Third Year").
"Fourth Year" (Year 4) for any Product: the period over twelve (12) calendar
months from the last day of the "Third Year" (the "Fourth Year").
"Fifth Year" (Year 5) for any Product: the period over twelve (12) calendar
months from the last day of the "Fourth Year" (the "Fifth Year").
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The Products to be purchased by MEM as described above, as well as those
Products to be purchased by MEM above and beyond such minimums, shall be priced
in accordance with the foregoing and Exhibit C entitled "Product Purchase
Prices".
Agreed & signed on July 1, 1999
MANAYER EGYPT TRADING & MEDICAL ADVANCED PLANT PHARMACEUTICALS, INC.
SUPPLIES CO.
By: /s/ Mohamed Abd Al-Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Name: Mohamed Abd Al-Xxxxxx XXXXXX Name: Xxxxx Xxxxxxxxx
Title, General Manager Title, President
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EXHIBIT C
"Product Purchase Prices"
As referred to in the EXCLUSIVE DISTRIBUTION AGREEMENT between "APPI" and "MEM",
dated July 1, 1999, the purchase price of the Products to be paid by MEM to APPI
are as follows:
FOB (Free On Board - JFK airport) prices (in USD $ = United States Dollars)
PRODUCT SUGGESTED RETAIL PRICE WHOLESALE COST MEM PURCHASE PRICE
Lo-Chol 1000mg. 14.95 9.95 5.97
00 Xxxxxx
Xx-Xxxx 0000xx. 27.95 17.95 10.77
120 Caplet
ACA 500mg. 26.00 18.00 10.80
70 Caplet
ACA 1000mg. 50.95 34.95 20.97
70 Caplet
Agreed & signed on July 1st, 1999
MANAYER EGYPT TRADING & MEDICAL ADVANCED PLANT PHARMACEUTICALS, INC.
SUPPLIES CO.
By: /s/ Mohamed Abd Al-Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
-------------------------------- --------------------------------
Name: Mohamed Abd Al-Xxxxxx XXXXXX Name: Xxxxx Xxxxxxxxx
Title, General Manager Title, President
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EXHIBIT D
As referred to in the EXCLUSIVE DISTRIBUTION AGREEMENT between "APPI" and "MEM",
dated July 1, 1999, the method of payment from MEM to APPI shall be as follows:
"MEM" undertakes to pay for orders within a period not exceeding ninety (90)
days from the date APPI makes such ordered Products available to MEM for pickup
at JFK. MEM undertakes to pay APPI by a confirmed irrevocable Letter of Credit
(L/C) to be drawn on any bank in Egypt that is acceptable to APPI and payable in
the United States of America.
Agreed & signed on July 1, 1999
MANAYER EGYPT TRADING & MEDICAL ADVANCED PLANT PHARMACEUTICALS, INC.
SUPPLIES CO.
By: /s/ Mohamed Abd Al-Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Name: Mohamed Abd Al-Xxxxxx XXXXXX Name: Xxxxx Xxxxxxxxx
Title, General Manager Title, President
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