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Exhibit 10(p)
AGREEMENT
THIS AGREEMENT made this 2 day of June, 1995, by and between ADVANCED VIRAL
RESEARCH CORP. of Miami, Florida, Incorporated under the laws of the State of
Delaware (the "Company"), and AVIX International Pharmaceutical Corp. with
principal offices located at 0000 Xxxxx 0, Xxxxxxxx, Xxx Xxxxxx, organized
under the laws of the State of New York, and with executive offices located at
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, X.X. (the "Distributor").
1 The Company hereby grants to Distributor the exclusive right
to import, warehouse, market, sell, and distribute (the "Rights") the
pharmaceutical product known by the name "RETICULOSE" within the territories
and countries of China, Japan, Thailand, Singapore, Hong Kong, Taiwan, and
Malaysia, and only in such countries (the "Territory").
2. a. The Company assumes no responsibility for any misuse
or illegal use of RETICULOSE.
b. The Company represents that the RETICULOSE sold and
delivered to Distributor shall have shelf life of not less than thirty (30)
months.
3. Distributor hereby accepts the Rights and, in accordance
therewith, shall use Its best efforts to work and develop the Rights.
4. This Agreement shall remain in force and govern all
transactions and relations between the parties hereto for a period of five (5)
years from the time that Distributor obtains the Approval in any country within
the Territory (hereinafter the "Approval") (as defined at Section 10 of this
Agreement); provided, however, in the event the Approval is not granted within
360 days from the date hereof, this Agreement may be terminated by the Company
at the Company's discretion, unless Distributor shall be diligently pursuing
such Approval. If Distributor is diligently seeking Approval but has not
obtained Approval within said 360 day period, in order for Distributor to
maintain its rights for an additional twelve (12) months under this Agreement
it shall make payment to Company of the sum of $8,000.00 per month for each
month Distributor wishes to maintain the Rights during the twelve (12) month
period, which sum shall be credited to Distributor's purchase of RETICULOSE.
If Distributor is complying with the terms of this Agreement, including the
purchase requirements, this Agreement will automatically extend for an
additional five (5) five (5) year terms.
5. The Company agrees that for so long a time as Distributor
shall continue to sell RETICULOSE in a manner and to an extent and quality
satisfactory to the Company, and while this Agreement shall be and remain in
effect, no other or different person, firm or corporation shall be granted the
Rights in the Territory.
6. Upon Distributor obtaining Approval (as defined at Section 10
to this Agreement), Distributor shall pay to the Company the sum of $500,000.00
for volumes in milliliters listed in
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Schedule "A" of RETICULOSE and an additional $500,000.00 for volumes in
milliliters listed in Schedule "A" of RETICULOSE after one (1) year from the
date of Approval [attached]. All other purchases of RETICULOSE shall be
priced in accordance with Schedule B hereto [attached].
7. (a) Distributor shall purchase, at a minimum, from the
Company, during each year of this Agreement, that amount of milliliters of
RETICULOSE as set forth on Schedule "A to this Agreement. All purchases made
by Distributor shall (a) be paid in cash (U.S. dollars only) in advance of the
Company's obligation to ship RETICULOSE; or (b) be the subject of an
Irrevocable letter of credit from a banking institution acceptable to the
Company and with terms and conditions acceptable to the Company (the "Letter of
Credit"). The Company shall ship RETICULOSE within ninety (90) days of receipt
of either payment in full for the accepted purchase order of RETICULOSE or
the establishment of the Letter of Credit. In the event the Company is unable
to ship RETICULOSE within ninety (90) days of (a) payment being received by the
Company therefor; or (b) the establishment of the Letter of Credit, (the "90
Day Period"), the purchase price for the subject RETICULOSE shall be reduced by
a factor of ten percent (10%) for every thirty (30) days which expires
subsequent to the 90 Day Period, in addition to Distributor's rights in (c)
below. The capacity of the Company's production is approximately 4,000,000
milliliters per year, and no orders from Distributor for China shall exceed the
90 day period production capacity for a period of one year.
b. In the event that Distributor fails to meet annual
minimum purchase requirements, as set forth on Schedule "A" to this Agreement,
the Company may, at its discretion, terminate this Agreement.
8. Distributor shall provide the Company with quarterly reports
of Distributor's sales of RETICULOSE and with quarterly reports regarding the
status of the Approval.
9. In the event of the termination of this Agreement by either
party pursuant to the terms of this Agreement, the Company may, at its option,
repurchase RETICULOSE from Distributor at the net price paid by Distributor to
the Company, plus actual freight or shipment charges paid by Distributor. Upon
demand and the tender by the Company of the repurchase price, Distributor shall
be obligated to deliver such goods to the Company forthwith. Company reserves
the right, however, to reject any RETICULOSE which does not meet Company's
specifications for quality, identity, purity and labeling.
10. Notwithstanding anything herein contained to the contrary,
Distributor undertakes and assumes full responsibility to secure and obtain all
necessary and appropriate national, regional and local governmental approvals,
licenses, permits and regulations and any other necessary documents required to
import and distribute RETICULOSE into any country within the Territory (the
"Approval") within 360 calendar days from the date hereof, except as otherwise
provided in this agreement.
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11. The Company reserves the right to make any design or
manufacturing changes which will Improve RETICULOSE appearance, quality, or
medical effectiveness without notice to Distributor, If any such changes are
made, there will be no obligation on the Company to make such changes upon any
RETICULOSE previously shipped to Distributor.
12. Distributor shall NOT during the term of this Agreement sell
any pharmaceutical product of any other manufacturer which shall in any way
compete with the sale of RETICULOSE, as covered by this Agreement.
13. Distributor shall pay all excise or sales taxes or any taxes
that may be required to be paid by Distributor or the Company by statute or
regulation of any government, outside the U.S. in Distributor's territory.
14. If during the term of this Agreement Distributor shall have
reason to believe it has KNOWLEDGE Of any claim against the Company in respect
to transaction growing out of this Agreement, Distributor shall in writing
notify the Company within thirty (30) days after Distributor knows or has
reason to know the basis of any such claim. Failure to give such notice shall
relieve the Company from any and all liability on any claim in respect of any
transaction growing out of this Agreement, notice and full details of which are
not given to the Company in writing within thirty (30) days after such
termination. The provisions of this section shall survive the termination of
other provisions of this Agreement.
15. The results of all studies, all research data and
documentation and any research publications regarding RETICULOSE resulting from
studies initiated by Distributor or any of Distributor's agent and in which
Distributor has an interest, will be made available to the Company and shall be
owned by the Company; and will be made public at the Company's discretion, and
such studies are only permitted as part of this exclusive Agreement. The
Company will similarly provide the Distributor with results of all tests and
studies and other material information, excluding proprietary information
regarding RETICULOSE.
16. Distributor shall be responsible for product liability and
other such insurance, and Distributor shall indemnify the Company against any
claims against the Company arising in the Territory. The Distributor shall not
be liable to nor responsible to indemnify the Company against claims arising in
the Territory solely as a result of the Company's negligence or willful
misconduct. The Company shall indemnify and hold harmless the Distributor
against any and all claims against the Distributor arising in the Territory
resulting from the gross negligence or wilful misconduct of the Company.
Inclusive in any payment due to the other party shall be all reasonable
attorneys fees, costs and expenses incurred by the other party in the
settlement of any suit, claim and or demand. The parties agree that the
instant indemnification and hold harmless provision shall not be dischargeable
in bankruptcy proceeding.
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17. Distributor acknowledges that Company is the owner of the
trade names RETICULOSE and Advanced Viral Research Corp. The Company
acknowledges that DISTRIBUTOR is the owner of the trade name AVIX INTERNATIONAL
PHARMACEUTICAL CORP. Each party acknowledges the validity of said trade names
or registrable trademarks and all statutory and common law rights therein and
that the same are the property of each respective party and not the other.
Each party shall only use such trade names or registrable trademarks of the
other in accordance with such proper usage as may be communicated in writing
from time to time by one party to the other.
18. This Agreement does not constitute either party hereto as the
legal representative or agent of the other party for any purpose, nor authorize
either party to transact any business in the name of or on account of the other
party, not to assume or create any obligation binding upon the other party in
any manner however, without the prior written consent of the other party.
19/ Nothing herein shall be deemed to constitute this a joint
venture or partnership between the parties. Neither party shall have the right
to bind the other except as expressly provided in this Agreement.
20. Miscellaneous.
a. Entire Agreement. This Agreement (including the schedules
hereto) constitute the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior negotiations,
understandings, agreements, arrangements and understandings, both oral and
written, among the parties hereto with respect to such subject matter.
b. Amendment. This Agreement may not be amended or modified in
any respect, except by the mutual written agreement of the parties hereto.
c. No Third Party Beneficiary. Nothing expressed or implied in
this Agreement is Intended, or shall be construed, to confer upon or give any
person, firm, corporation, partnership, association or other entity, other than
the parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
d. Waivers and Remedies. The waiver by any of the parties hereto
of any other party's prompt and complete performance, or breach or violation,
of any provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation, and the waiver by any of the
parties hereto to exercise any right or remedy which it may possess hereunder
shall not operate nor be construed as a bar to the exercise of such right or
remedy by such party upon the occurrence of any subsequent breach or violation.
e. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this
Agreement shall not affect the enforceability of the remaining portions of this
Agreement or an part hereof, all of which are inserted conditionally on
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their being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, emotions or subsections contained in this
Agreement shall be declared invalid by a court of competent jurisdiction, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, section or sections, or
subsection or subsections had not been inserted.
f. Descriptive Headings. Descriptive headings contained
herein are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
g. Counterparts. This Agreement may be executed in any numbers
of counterparts and by the separate parties hereto in separate counterparts,
each of which shall be deemed to be one and the same instrument.
h. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process In
regard hereto shall be in welting and shall be deemed to have been duly given,
when delivered by hand or three (3) days after deposited in the United States
mail, by registered or certified mail, return receipt requested, postage
prepaid, as follows:
If to the Company:
Advanced Viral Research Corp.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
If to Distributor,
AVIX International Pharmaceutical Corp.
0000 Xxxxx 0
Xxxxxxxx, XX 00000
Attention: XXXXXXX XXXXX
or to such other address as any party hereto may from time to time designate in
writing delivered In a like manner.
i. Successors and assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. None of the parties hereto shall assign any of its
rights or obligations hereunder unless the assignee agrees to be bound by the
terms and conditions of this Agreement AND UNLESS THE COMPANY AGREES TO SUCH
ASSIGNMENT.
j. Applicable Law. This Agreement shall be governed by, and
shall be construed,
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interpreted and enforced in accordance with the laws of the State of Florida.
k. Expenses. Each of the parties hereto agrees to pay all of the
respective expenses incurred by it in connection with the negotiation,
preparation, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
l. Attorneys' Fees. In the event any suit or other legal
proceeding is brought for the enforcement of any of the provisions of this
Agreement, the parties hereto agree that the prevailing party or parties shall
be entitled to recover form the other party or parties upon final judgment on
the merits reasonable attorneys' fees (and sales taxes thereon, if any),
including attorneys' fees for any appeal, and costs incurred in bringing such
suit or proceeding.
m. Restrictive Covenant. In the event any restrictive covenant
of this Agreement shall be deemed unenforceable, invalid or over broad in whole
or in part for any reason, then any court of competent jurisdiction is hereby
authorized, requested and instructed to reform such provision(s) to provide for
the maximum competitive restraints upon Distributor's activities (in time,
product, geographic area and customer solicitation) which may then be legal and
valid.
n. Agent. Neither party is hereby constituted an agent or legal
representative of the other party hereto and neither is granted any right or
authority hereunder to assume or create any obligation, express or implied, or
to make any representation, covenant, warranty, or guaranty, except as
expressly granted or made in this Agreement.
o. Force Majeure. No party shall be responsible for any
resulting loss if the fulfillment of any of the terms or provisions of this
Agreement are delayed, substantially compromised or prevented by riot, wars,
acts of enemies, national emergency, strike, floods, fires, acts of God,
statute, edict, any changing of the political status of the United States, or
by any other cause not within the control of the party whose purposes Is
Interfered with, which, by the exercise of reasonable diligence, such party Is
unable to prevent whether of the close of causes enumerated above or not;
provided, however, that if such conditions shall extend beyond six (6) months,
then either party may cause this Agreement to be terminated and the parties
shall take all steps necessary to effect that result.
p. Other Documents. The parties hereto shall cooperate in the
effectuation of the transactions contemplated hereby and shall execute any and
all additional documents and shall take such additional actions as shall be
reasonably necessary or appropriate for such purposes.
q. Applicable Law and Venue. This Agreement shall be construed
in accordance with and be governed by the laws of the State of Florida and the
parties hereto agree that any suit brought hereunder shall be brought only in
the Circuit Court for the Eleventh Judicial Circuit In and for Dade County,
Florida and the United States District Court for the Southern District of
Florida, Miami Division.
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r. Event of Bankruptcy. In the event the Distributor (i) files
with any Bankruptcy Court of competent jurisdiction or is the subject of any
petition under Title 11 of the U.S. Code, as amended, (ii) is the subject of
any order for relief issued under such Title 11 of the U.S. Code as amended,
(iii) files or is the subject of any petition seeking any reorganization
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
debtors, (iv) has sought or acquiesces In the appointment of any trustee,
receiver, conservator or liquidator, (v) is the subject of any order, judgment
or decree entered by any court of competent jurisdiction approving a petition
filed against such party, for any reorganization arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency or relief
from debtors, the Distributor will not object to Company's entitlement to
relief from any automatic stay imposed by Section 382 of Title 11 of U.S. Code,
as amended, or Company's exercise of its rights and remedies otherwise
available to it as provided in this Agreement, at law, in equity or otherwise.
s. Public Disclosure. From and after the date hereof,
Distributor shall not issue a press release or any other public announcement
with respect to the transactions contemplated hereby without the prior WRITTEN
consent of the Company, which consent shall not be unreasonably withheld or
delayed. It is understood by Distributor that the Company is required to meet
the requirements of the Security and Exchange Law and regulations.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, HAVE
HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF THEIR OWN CHOICE,
AND UNDERSTAND EACH OF THE PROVISIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hand
and seals the day and year first above written.
AVIX PHARMACEUTICAL CORP.
By: /s/ President
------------------------------------
Authorized Representative
ADVANCED VIRAL RESEARCH CORP.
By: /s/ Xxxxxxx Xxxxxxxxx, President
------------------------------------
Authorized Representative
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SCHEDULE A
SCHEDULE FOR CHINA ONLY
BASED UPON NOTES FROM MEETING WITH XXXXXXX XXX 05-22-95
1. PROPOSED PRICE PER SHOT TO XX XXX == $1.00 PER SHOT of 1/2 mL
2. MINIMUM 60-90 DAY LEAD TIME
3. DISCUSS FOR LATER USE OF BULK 1 LITER CONTAINERS
PURCHASE 1 LITER BOTTLES AND FILL INTO AMPULE IN CHINA
4. IN CHINA FILL INTO 1 ML DISPOSABLE SYRINGES UNDER N2
FOR FUTURE POSSIBILITY.
5. XX. XXX BELIEVES IT WILL TAKE 1 YEAR TO OBTAIN REGISTRATION.
6. INITIAL ORDER MUST BE 1,000,000 DOSES (1/2 ML)
7. COST OF EACH 1/2 ML SHOT TO AVIX FROM AVR SHALL BE $0.875 PROVIDED
MINIMUM ORDER SHALL BE FOR NO LESS THAN 1,000,000 SHOTS
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FOR BALANCE OF COUNTRIES EXCLUDING CHINA
SCHEDULE "B"
RETICULOSE PRICE SCHEDULE
SCHEDULE ESTABLISHED ON A PER ANNUM BASIS
1-10,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . . . . . . U.S. $6.00 per Milliliter
10,001 - 20,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . . U.S. $5.70 per Milliliter
20,001-50,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . . . . U.S. $5.40 per Milliliter
50,001-100,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . . . U.S. $5.10 per Milliliter
100,001-200,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . . . U.S. $4.80 per Milliliter
200,001-300,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . . . U.S. $4.50 per Milliliter
300,001-1,000,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . . U.S. $4.20 per Milliliter
1,000,001-2,000,000 Milliliters . . . . . . . . . . . . . . . . . . . . . . U.S. $3.90 per Milliliter
Multiples over two million milliliters per year, prices will be negotiable.
ALL PRICES ARE F.O.B. FACTORY
ALL PRICES FOR ALL ORDERS WILL BE MADE BY UNCONDITIONAL, IRREVOCABLE LETTER OF
CREDIT, OR ADVANCE PAYMENT BY DIRECT FUNDS TRANSFER TO THE COMPANY'S BANK; ONLY
IN U.S. DOLLARS.
THE ABOVE PRICES ARE BASED UPON 2 MILLILITER AMPULES. AN ADDITIONAL DISCOUNT
OF 15% SHALL BE APPLIED TO ANY PURCHASES IN LITER CONTAINER OR OTHER BULK
SIZING.
THE PRICING PAID BY THE DISTRIBUTOR SHALL BE BASED UPON THE PRIOR YEAR'S
CLOSING PRICE.
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