EXHIBIT 10.1
EXCLUSIVE DISTRIBUTOR AGREEMENT
BETWEEN
ALL - RUSSIAN RESEARCH INSTITUTE OF
VETERINARY VIROLOGY AND MICROBIOLOGY
AND
AMERICAN BIOGENETIC SCIENCES, INC.
ANIMAL VACCINES
AGREEMENT EXECUTED IN BOTH ENGLISH AND RUSSIAN WITH BOTH LANGUAGE
VERSIONS BEING OF EQUAL VALIDITY
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EXCLUSIVE DISTRIBUTOR AGREEMENT
This Agreement, effective this 30th day November, 2001, by and between
American Biogenetic Sciences, Inc. ("Distributor"), a Delaware Corporation, and
the All - Russian Research Institute of Veterinary Virology and Microbiology
(the "VNIIVViM").
IT IS MUTUALLY AGREED THAT:
1. Definitions.
(A) Products. The terms "Product" and "Products", as used in this
Agreement, mean biological products (vaccines, diagnostics kids, biological
active products).
(B) Territory. The term "Territory" as used in this Agreement shall
be defined as the world, except for the Russian Federation (former USSR).
2. Appointment. Subject to the terms and conditions of this Agreement,
VNIIVViM hereby appoints the Distributor on an exclusive basis to promote and
sell the Products in the Territory, and Distributor accepts such appointment
upon the terms and conditions herein stated. Distributor will be the exclusive
Distributor of the Products, and Distributor shall retain the right to assign
sub-Distributors or sales agents for the sales of the Products in the Territory.
3. Sales Promotion. Distributor agrees to use reasonable
commercial effort to promote the sale of the Products in the
Territory.
4. Product Purchase.
(A) Product Prices. The price of the Products that VNIIVViM
manufactures or has manufactured, for the Distributor shall be negotiated by the
parties from time to time. Products may be delivered in bulk or in dispensing
units as needed by Distributor.
B) Point of Shipment. All of the prices for the Products sold to the
Distributor are F.O.B. the VNIIVViM, Pokrov, Vladimirskaya oblast, Russia. Title
to the Products passes to the Distributor at the time delivery of the Products
on any appropriate carrier to Distributor is completed. The Distributor shall be
responsible for the payment of all import arrangements including taxes, duties,
import licenses and appropriate import documents.
(C) Specifications. Parties shall agree to specifications as to quality,
packaging and labeling.
(D) Payment. Invoices are due and payable on or before the ninety (90) days
following the date VNIIVViM invoices and delivers Products to the Distributor.
1 Note: the word "kids" in the section on "Products" is a
typographical error and should be "kits".
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(E) Purchase Order Acceptance. Purchase contracts between the Distributor and
VNIIVViM are binding when VNIIVViM its notice of acceptance of
Distributor's purchase order within ten (10) days.
(F) Order Fulfillment. VNIIVViM agrees that it will use its reasonable
commercial efforts to fill the accepted orders as promptly as practicable.
5. Distributor's, Relationships and Conduct of Business.
(A) It is agreed and understood that the Distributor is an
independent contractor.
(B) Any expenses or costs which the Distributor incurs under this
Agreement, and any other expenses incurred by the Distributor to operate
pursuant to this Agreement shall be paid and borne by Distributor.
6. Term and Termination.
(A) This Agreement shall be for a term of ten (10) years from the
date hereof, and shall automatically extend for one (1) year periods, unless
VNIIVViM or Distributor give one (1) year prior written notice of termination.
(B) If either party breaches a material term of this Agreement the
other party shall be allowed to terminate this Agreement if an adequate remedy
to cure the breach has not been implemented within ninety (90) days after
written notice.
7. Quality Assurance Rights and Obligations.
(A) VNIIVViM shall manufacture, or have manufactured, and test the
Products in accordance with written procedures, and shall document conformance
of the manufacture and testing of each lot with such written procedures.
VNIIVViM shall implement Quality Assurance procedures to assure that such
written manufacturing and testing procedures are followed and that the
manufacturing and testing of each lot of Product are properly documented.
VNIVViM warrants that all Products supplied to Distributor will (i) conform to
mutually acceptable Good Manufacturing Practices for the Russian and U. S.
Government rules and regulations, (ii) be free of defects in material, design
and workmanship, and (iii) conform to specifications agreed to between VNIIVViM
and Distributor. To confirm compliance with these requirements, VNIIVViM will
provide to Distributor a certificate of compliance with each shipment of the
Products delivered to Distributor hereunder.
8. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy or facsimile transmission and e-mail, (iii) sent by recognized national
overnight courier service, or (iv) sent by registered mail, return receipt
requested, postage prepaid.
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If to Distributor:
If to VNIIVViM: Xxxxxx X. Xxxxx, Chairman and CEO
Xxxxxx X. XXXXXXXXX American Biogenetic Sciences, Inc.
Director 0000 Xxxxx Xxxxxx Xxxxxxxx, Xxx Xxxx
Tel./Fax: (09243) 6-21-25 Tel: 000-000-0000 Fax: 000-000-0000
E-mail: XXXXXXxX@xxxx.xxxxxx.xxxxx.xx E-mail: xxxx@xxxxx.xxx
9. Distributor Manufacturing. Distributor reserves the right to
manufacture, or have manufactured, or have filled, the Products on
terms to be agreed upon.
10. Assignment. Distributor shall have the right to assign or
transfer this Agreement, to one or more third parties.
11. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions
contemplated and may only be amended or modified if reduced to writing
and signed by both parties.
12. Governing Law. This Agreement and any modifications and
additions thereto shall be governed in accordance with the laws of
Russia. The parties agrees to submit to the jurisdiction of the courts
of the Russia.
13. Captions, Headings, or Titles. All captions, headings or titles in the
sections of the Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement or a limitation of scope of the
particular sections to which they apply.
14. Counterparts. This Agreement may be signed in counterparts and
shall become effective as if executed in a single, complete document as
of the date hereof upon its execution by both parties. Facsimile
signatures of the undersigned parties will have the same force and
effect as original signatures.
15. Disputes and Arbitration. Any controversy or claim arising out of or
relating to this Agreement shall be settled by binding arbitration by the
International Court of Arbitration of the International Chamber of Commerce (the
"ICC") in accordance with the ICC Rules of Arbitration in effect at the time of
the arbitration. The arbitration proceedings shall be conducted in Geneva,
Switzerland and in the English language. There shall be three (3) arbitrators,
one of whom shall be selected by the party seeking to initiate the arbitration,
one by the other party and the third by the two arbitrators so selected. The
arbitration award shall be given in writing and shall be final and binding on
the parties with respect to the subject matter in controversy. The parties shall
keep confidential the arbitration proceedings and terms of any arbitration
award, except as may otherwise be required by law. Each party shall bear its own
legal fees and other costs related to the arbitration, except that the
arbitrators shall determine who shall bear the costs of the arbitrators. The
arbitrators may determine arbitrability but may not award punitive damages or
limit, expand or otherwise modify the terms of this Agreement.
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In Witness Whereof, VNIVViM and the Distributor have duly signed and
executed this Agreement effective as of the date first written above.
By /s/ Xxxxxx X. XXXXXXXXX By /s/ Xxxxxx X. Xxxxx
---------------------------- ---------------------------------
VNIVViM Distributor:
Xxxxxx X. XXXXXXXXX Xxxxxx X. Xxxxx
Director Chairman and CEO
American Biogenetic Sciences, Inc.
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