EXHIBIT 10
INTERNATIONAL DISTRIBUTION AGREEMENT
Agreement, made and effective as of October 13, 2005 ("Effective Date") by and
between
(1) ThermoGenesis Corp., a corporation having a place of business at 0000
Xxxxxx Xxxx, Xxxxxx Xxxxxxx, XX 00000, XXX ("TGC") and
(2) Amersham Biosciences AB, a GE Healthcare company headquartered at
Xxxxxxxxxx 00, XX-000 00 Xxxxxxx, Xxxxxx ("GEHC").
RECITALS
Whereas, TGC is developing the Auto Xpress(TM) (AXP(TM)) System, which automates
the volume reduction process for cord blood (the "AXP System"). This system
consists of a battery-operated device, a processing set that has integrated
sampling segments and GMP-compliant software (XpressTRAK(TM)). In addition TGC
has already commercialized the BioArchive(R) System, a computer-controlled,
robotic liquid nitrogen cryopreservation and storage system that enables the
freezing and managing of approximately 3,600 blood component samples (the
"BioArchive System").
Whereas, GEHC has an interest in obtaining, and TGC has an interest in granting
to GEHC, distribution rights to these two TGC product lines.
Whereas, the GEHC maintains a competent and trained sales force for the
marketing and sales of such products and services in the Territory.
Now therefore, the parties have agreed as follows:
1 DEFINITIONS
As used in this Agreement the following terms shall have the meaning given
below:
1.1 "Affiliate" means any company controlling, controlled by or under
common control with the relevant party where control means direct or
indirect ownership of at least 50% of the voting stock or interest in
a company or control of the composition of the board of directors.
1.2 "Appropriate Regulatory Authorities" means those governmental or
regulatory agencies within the Territory, which are responsible for
(i) approving Products before they can be sold commercially and ( ii)
regulating the manufacturing, packaging, labelling, marketing,
advertising, storage, records and reports and distribution of
Products.
1.3 "Confidential information" means any information, knowledge or
material of a confidential or secret nature of or concerning TGC or
GEHC or their respective activities, which shall include, but not be
limited to, information, knowledge or material:
(a) of a technical or scientific nature relating to or concerning
know-how, technical data, computer programs and systems, designs,
databases, inventions, manufacturing or engineering techniques
and procedures, equipment, materials, product designs and
specifications, test and quality assurance procedures, research
and research projects, and plans for future development;
(b) of a business nature such as marketing plans, product plans,
business strategies, costs, profits, formulae, markets, sales,
lists of customers and suppliers, distributors, agents,
consultants, information concerning or relating to any of its
employees, training methods and the like; or
(c) entrusted to TGC or any of its Affiliates by third parties on a
confidential basis.
1.4 "Existing Arrangements" means the Product distribution and service
arrangements described on Schedule 1 hereto.
1.5 "Products" means the BioArchive Platform products and the Auto Xpress
Platform products as specified in Schedule 2 hereto, which are or will
be manufactured by TGC or its Affiliates during the term of this
Agreement. The term "Products" shall also include all future products
developed by TGC that evolve from these two product lines during the
term of this Agreement. Notwithstanding anything else contained in
this Agreement, pricing for any such future Products will be
determined by mutual agreement of TGC and GEHC.
1.6 "Territory" means the entire world, subject to the provisions of
Sections 2 and 11.1 below.
2 Representation
2.1 Subject to the terms and conditions hereinafter set out, and TGC's
Existing Arrangements, TGC appoints GEHC as its exclusive distributor
and service provider for the Products in the Territory; provided that
the Territory shall not include any market covered by an Existing
Arrangement until the expiration or termination of such Existing
Arrangement. Except as otherwise provided in this Agreement, GEHC
shall purchase all Products and replacement Product parts from TGC,
which Products and replacement Product parts shall thereafter be
resold by GEHC to its customers. GEHC shall maintain an inventory of
the Products and replacement Product parts in quantities sufficient to
adequately service its customers.
2.2 GEHC shall market and sell the Products under the TGC product names
and trademarks and service marks described on Schedule 3 hereto and
may hold itself out only as the distributor and service provider for
the Products. GEHC shall not use any brand names, trademarks or
service marks other than as may be listed on Schedule 3 in connection
with the Products without also indicating in a clear and conspicuous
manner that the Products are manufactured by TGC. For the avoidance of
doubt and by way of example, GEHC shall not market the AXP System
Product using any brand names, trademarks or service marks not listed
on Schedule 3 unless such Product also contains the phrase "Auto
Xpress(TM) by ThermoGenesis".
2.3 The Territory shall be deemed to expand and include any markets that
are covered by the Existing Arrangements as such arrangements expire
or are terminated by either party according to their respective terms.
For the avoidance of doubt, the parties agree and acknowledge that TGC
shall not be required to terminate any such Existing Arrangements
other than in accordance with the terms of such arrangements.
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2.4 In connection the services to be provided by GEHC:
(a) TGC shall use its best efforts to cause replacement Product parts
to be delivered to GEHC or GEHC's customers, as directed by GEHC
without excessive delay. GEHC shall be obliged to purchase all
replacement Product parts from TGC. GEHC should have an option to
source replacement Product parts from other third party suppliers
who are not Affiliates of GEHC if negotiated prices are ^Removed
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934^
or more above an alternative firm bid (which price is not met by
TGC) or quality standards do not meet the component or product
specification defined in TGC's technical files for such
replacement Product parts; provided that in such event TGC will
have no further indemnification obligations under this Agreement
with respect to Products which may include replacement parts
acquired from such other suppliers. TGC will supply order lead
time for all system components to facilitate forecasting efforts;
(b) GEHC may integrate the Products with GEHC's service delivery
platforms provided that any such integrated Products comply with
(i) TGC's QSR (Quality Systems Requisitions) procedures,
including engineering change notices, and (ii) any Product
regulatory certifications then-issued by all Appropriate
Regulatory Authorities. Such Product integrations may include
integration of tools for remote service delivery or design
modification of future generations of the Products to improve
serviceability;
(c) subject to the terms of the Existing Arrangements, GEHC shall
have the exclusive right and obligation to deliver training,
qualification, repair and other services related to the Products
at commercial terms in the Territory with respect to Products
(subject to the next sentence), whether or not such Products were
sold pursuant to this Agreement; provided that GEHC shall be
entitled to collect any service payments made by customers for
services performed by GEHC. For the avoidance of doubt, (i) GEHC
shall provide warranty repair service for all Products and
replacement Product parts sold up to one (1) year prior to or
during the term of this Agreement; provided that TGC shall
provide, at its cost, any necessary replacement Product parts
free and GEHC shall provide, at its cost, any necessary labor to
perform such warranty repair service, and (ii) GEHC may sell
service contracts for Products sold prior to or during the term
of this Agreement, provided that GEHC purchases replacement
Product parts for use in connection with such service contracts
pursuant to Section 2.4(a) above;
(d) subject to the terms of the Existing Arrangements, TGC shall
forward to GEHC inquiries or other issues from customers and
other third parties in the Territory which relate to the Products
for handling. GEHC shall promptly respond to such inquiries or
other issues and keep TGC advised of contacts with the customers
or potential customers and all developments resulting from these
contacts; and
(e) during the term of this Agreement, GEHC will have reasonable and
comprehensive access to a BioArchive System and may acquire a
system for use in service engineer training and related
activities.
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2.5 TGC shall have an option to exclude GEHC's rights to sell the Products
for use in bone marrow applications in writing upon sixty (60) days
notice in the event that either (i) GEHC notifies TGC that GEHC has
elected not to market the Products for use in bone marrow
applications, or (ii) GEHC is not actively marketing the Products for
use in bone marrow applications within two years of the Effective
Date.
2.6 In the event that GEHC intends to sell the Products into a country
that will require modification of such Products by TGC, GEHC shall
provide written notice of the required modifications, along with an
estimate of projected sales, not less than ninety (90) days prior to
the initiation of marketing activities into such country. Provided
that the costs of the required modifications are reasonable in light
of the projected revenues to be received by TGC in connection with
such sales, TGC shall work with GEHC in an attempt to modify the
Products to comply with any such requirements within a reasonable time
frame.
3 PURCHASE OF PRODUCTS AND PROJECTIONS
3.1 GEHC shall place orders with TGC for its requirements of the Products
in compliance with the projections for the calendar quarter ended
December 31, 2005 and on quarterly basis for the year ended December
31, 2006 attached as Schedule 4 hereto, and TGC shall deliver any such
ordered Products to GEHC or GEHC customers, as directed by GEHC,
within thirty (30) days of receipt of the order for the BioArchive
System Products and fifteen (15) days for the AXP System Products
(once the AXP Product is validated and production thereof has
commenced). For subsequent years, TGC shall maintain these same lead
times provided the quantities ordered are within ^Removed pursuant to
Rule 24b-2 under the Securities Exchange Act of 1934^ of the projected
orders for the second, third and fourth quarters of the rolling
forecasts described in Section 3.3 below. In the event that TGC cannot
deliver the quantity ordered within such lead times, then TGC shall
notify GEHC thereof writing three (3) working days and suggest an
alternate delivery schedule.
3.2 GEHC shall not remove or change trademarks, trade names, signs or
other marks on any Product or its packaging or make any alterations in
the construction or design of any Product.
3.3 Before the end of October of each calendar year during the term of
this Agreement beginning in 2006, GEHC and TGC shall negotiate and
agree on revised quarterly projections for the sale of Products by TGC
to GEHC for the coming calendar year (together with the projections
described in Section 3.1 above, the "Sales Projections").
Notwithstanding anything else contained in this Agreement, the total
value of the Sales Projections for each calendar year during the term
of this Agreement shall not be less than ^Removed pursuant to Rule
24b-2 under the Securities Exchange Act of 1934^ of the total value of
the Sales Projections during the previous calendar year.
4 DELIVERY AND TITLE
4.1 TGC shall deliver the Products and replacement Product parts to GEHC
or GEHC's customers, as directed by GEHC, FOB, Rancho Cordova,
California.
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4.2 Risk in and title to the Products and replacement Product parts shall
pass to GEHC on delivery.
4.3 GEHC shall be responsible for:
(a) obtaining all necessary importation and exportation licenses or
other permits for the Products and replacement Product parts; (b)
making suitable arrangements for the importation of the Products
and replacement Product parts into countries other than the
United States;
(c) making suitable shipping arrangements for the Products and
replacement Product parts from Rancho Cordova, California to the
customers' locations; and
(d) minimizing the risk of any loss in activity or perishing of the
Products resulting from importation and inland transportation
procedures.
4.4 During the period there are Existing Arrangements outstanding, TGC
reserves the right to allocate available Products and replacement
Products parts in times of shortages by any method it, in its sole
discretion, deems fair and appropriate, provided that GEHC's minimum
purchase obligation shall be waived for as long as the shortage lasts.
5 FEES, PRICES AND PAYMENT
5.1 In consideration of the rights to distribute and service the Products
exclusively in the Territory GEHC shall pay to TGC a fee of ^Removed
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934^ in
three installments with
(a) Removed pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934^ to be paid on the date hereof;
(b) Removed pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934^ to be paid on or prior to 10th January, 2006; and
(c) Removed pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934^ to be paid on or prior to 10th January, 2007.
5.2 In addition to the foregoing, GEHC shall pay to TGC a technology
access fee of ^Removed pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934^ on or prior to 10th January, 2006.
5.3 In addition to the foregoing, GEHC shall purchase the Products and
replacement Product parts from TGC for the purchase prices described
on Schedule 5 hereto, provided that such prices may be adjusted by
mutual agreement of TGC and GEHC as needed with respect to specific
customers. Such purchase prices shall be discussed on an annual basis
and, if mutually agreed to by TGC and GEHC, shall be adjusted annually
such that GEHC shall resell such Products and replacement Product
parts on the basis of an anticipated average gross margin of no less
than ^Removed pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934^ averaged across all of the Territory and the Products. In
case GEHC can produce records that show that such a margin is unlikely
to be achieved based on the minimum purchase price offered by TGC, TGC
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shall not charge a higher purchase price than the prior year's prices
increased by the producer price index inflation rate only.
5.4 In the event that GEHC's annual (or with respect to the quarter ended
December 31, 2005, quarterly) purchases of the Products should exceed
the applicable Sales Projections target by more than ^Removed pursuant
to Rule 24b-2 under the Securities Exchange Act of 1934^, GEHC will
pay TGC an additional ^Removed pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934^ of the TGC sale price to GEHC on the
excess sales. Such amount shall to be payable to TGC on or prior to
the last day of each January with respect to the excess sales during
the previous calendar year (or, with respect to the quarter ended
December 31, 2005, quarter).
5.5 Payment for the Products and other charges shall be made in full in
United States dollars ($) by GEHC to TGC net of any Swedish or other
applicable withholding, sales, use or other taxes and fees. GEHC will
be responsible for paying all VAT and import fees, charges, tariffs
and assessments attributed to amounts payable to TGC. GEHC shall
furnish TGC upon request with duly obtained sales tax exemption
certificates to the effect that all sales made to distributor by TGC
are for resale, and such other certificates, permits and documents as
TGC may request for tax purposes.
5.6 GEHC will make payment to TGC of all amounts due pursuant to Section
5.3 above within forty-five (45) days after delivery and receipt of an
invoice. Invoices should be sent to the Accounts Payable Department at
the address for GEHC set forth in Section 20.1 below.
5.7 In the event of a failure to make any payment on the due date agreed
hereunder interest compounded quarterly shall be paid on the
outstanding balance at the rate of three percent (3%) above three
month LIBOR for the currency of payment from the day next following
the due date up until the day of payment. In the event of a failure to
make any payment within forty-five (45) days of the due date agreed
hereunder, TGC shall have the option to terminate this Agreement at
any time thereafter upon sixty (60) days written notice to GEHC.
5.8 GEHC agrees to (i) accurate and uniform sales and financial records
regarding the Products, which records shall be preserved during the
term of this Agreement and for a period of two (2) years thereafter
and (ii) submit to TGC, from time to time as TGC may reasonably
request, complete and accurate information concerning the sales and
service of the Products and the other activities of GEHC pursuant to
this Agreement. In addition, at any time during the term of this
Agreement, but not more frequent than once every calendar year, and
for a period of one (1) year thereafter, TGC shall have the right to
have GEHC's sales and financial records examined by an independent
public accountant reasonably acceptable to GEHC for the sole purpose
of resolving a dispute regarding GEHC's margins stated in Section 5.3
above, at the place where GEHC maintains such records and during
GEHC's usual business hours, in order to verify the information
provided by GEHC pursuant to the preceding sentence.
6 GEHC STATUS AND TERMS OF RESALE
6.1 GEHC shall act on its own behalf as an independent reseller of the
Products, as independent contractor and not as an employee, agent,
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partner, representative or joint venturer of, or in the name of, TGC.
This Agreement shall not create a relationship of principal and agent
or the like and GEHC shall have no authority to accept any order or
conclude any agreement or make any other representation for or on
behalf of TGC.
6.2 Selling prices for the sale of the Products in the Territory by GEHC
shall be established and revised from time to time by GEHC, provided
that in no event shall any pricing of the Products by GEHC require TGC
to lower its pricing of the Products or replacement Product parts to
GEHC.
6.3 GEHC shall purchase the Products and replacement Product parts from
TGC and sell the Products to its customers in its own name and for its
own account and risk, provided that replacement Product parts required
to meet warranty claims shall be free of charge and forwarded directly
to GEHC's customer free of charge as provided in Section 2.4(c) above.
6.4 GEHC shall be entitled to engage sub-distributors and/or agents at
arms length terms to discharge of its obligations hereunder, provided,
that GEHC shall remain responsible to TGC for any and all acts and
omissions of such sub-distributors and agents.
6.5 TGC will provide GEHC, free of charge, in reasonable quantities, with
English language promotional material and sales literature.
7 GEHC'S DUTIES
7.1 GEHC shall use its best efforts to introduce and promote each of the
Products through the use of appropriate methods common to the trade,
and shall maintain a competent and adequate sale force trained in the
marketing and sales of products such as the Products.
7.2 GEHC shall maintain a training program for sales personnel in
connection with demonstrations, use and sale of the Products, and
attend such technical and sales training programs, trade shows and
sales meetings as the parties may from time to time agree in the
annual budget to be agreed upon by GEHC and TGC.
7.3 GEHC shall maintain adequate records concerning the sale of the
Products as required by Appropriate Regulatory Authorities and as
reasonably required by TGC for its Product tracing needs. TGC shall
have access to such records upon reasonable request.
7.4 GEHC shall use only advertising literature provided or approved by
TGC; provided, however, that GEHC may translate such literature into
the native language of the Territory. In the event GEHC decides to
translate any such materials, GEHC will provide sample copies to TGC
prior to their use by GEHC, and will be solely responsible for any
inaccuracies arising out of any such translations.
7.5 GEHC shall fully observe and comply with all applicable laws,
ordinances, rules and regulations including but not limited to those
promulgated by Appropriate Regulatory Authorities.
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7.6 GEHC shall not make any Product representations which violate (i) any
applicable laws, ordinances, rules or regulations laws or (ii) any of
TGC's Product specifications.
7.7 GEHC acknowledges that TGC is exclusively entitled to use all of the
trademarks, trade names and copyrighted materials heretofore or
hereafter used by TGC in connection with the Products, and GEHC will
not use any of such trademarks, trade names or copyrighted material in
any manner which may be misleading or tend to create doubt as to the
ownership of TGC of such trademarks, trade names and other materials.
GEHC further acknowledges that TGC possesses a proprietary interest in
the Products and GEHC shall not infringe or use for its own purpose
the proprietary rights of TGC in and to the Products.
8 TGC'S SUPPORT
8.1 During the first fifteen (15) months from the Effective Date TGC
agrees to retain at least six (6) dedicated competent and experienced
employees working on sales and technical support for the Products.
During the subsequent twelve (12) months, TGC agrees to retain at
least four (4) such employees. Should any of these employees terminate
their employment with TGC, TGC will not replace them without GEHC's
approval. With the prior written consent of TGC, GEHC has the right
but not the obligation to offer the retained personnel positions
within GEHC at any time during the term of this Agreement.
8.2 Further, TGC agrees to fund the expenses incurred by Xxxx Xxxxxx
during the first fifteen (15) months from the Effective Date due to
lobbying activities related to the Products with at least ^Removed
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934^.
9 MINIMUM PURCHASE OBLIGATION
9.1 In the event that GEHC does not purchase Products of at least ^Removed
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934^ of
the amounts in value contained in the Sales Projections during any
calendar year (or with respect to the quarter ended December 31, 2005,
during such quarter), GEHC shall purchase Products, in each of the
BioArchive System Product line and AXP System Product line, which in
value represent ^Removed pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934^ of the difference between the projected and the
actual purchases. Such purchases shall be made by GEHC on or prior to
the last day of each January with respect to purchase shortfalls
during the previous calendar year (or, with respect to the quarter
ended December 31, 2005, during the previous quarter). TGC shall
deliver such Products in accordance with the provisions of Sections
3.1 and 4.1.
10 LIMITED WARRANTY
10.1 The only warranty made by TGC with respect to the Products and the
replacement Product parts is the printed warranty accompanying the
Products and such replacement Product parts. No other affirmation of
fact or promise made by TGC, whether by words or action shall
constitute a warranty. EXCEPT AS PROVIDED IN THE WRITTEN LIMITED
WARRANTY WHICH ACCOMPANIES THE PRODUCTS AND THE REPLACEMENT PRODUCT
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PARTS, TGC MAKES NO WARRANTIES TO GEHC OR TO ANY OTHER PARTY WITH
RESPECT TO THE PRODUCTS OR THE REPLACEMENT PRODUCT PARTS SOLD PURSUANT
TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.2 IN THE EVENT ANY WARRANTY OR REMEDY OFFERED BY TGC FAILS OF ITS
ESSENTIAL PURPOSE, GEHC'S SOLE AND EXCLUSIVE REMEDY SHALL BE THE
LESSER OF (i) GEHC'S ACTUAL DAMAGES, OR (ii) RETURN OF THE PURCHASE
PRICE PAID BY GEHC FOR THE DEFECTIVE PRODUCT OR REPLACEMENT PRODUCT
PART. IN NO EVENT, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE OR
OTHERWISE, SHALL TGC BE LIABLE TO GEHC OR TO ANY OTHER PARTY FOR LOSS
OF PROFITS, LOSS OF USE, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES,
OR PECUNIARY LOSS OF ANY KIND. THE PURCHASE PRICES STATED HEREIN FOR
THE PRODUCTS AND THE REPLACEMENT PRODUCT PARTS ARE BASED UPON AND ARE
IN CONSIDERATION FOR LIMITING TGC'S LIABILITY AS PROVIDED IN THIS
SECTION 10 AND IN SECTION 2.4(C). NOTICE OF ANY CLAIM FOR A
NON-CONFORMING SHIPMENT OR BREACH OF WARRANTY MUST BE GIVEN PROMPTLY
TO TGC IN WRITING AFTER RECEIPT OF THE PRODUCT OR REPLACEMENT PRODUCT
PART AND IN NO EVENT LATER THAN THE EARLIER OF (I) THIRTY (30) DAYS
AFTER RECEIPT OF THE PRODUCT OR REPLACEMENT PRODUCT PART BY GEHC, IF
THE CLAIM IS FOR SHORTAGES OR OTHER NON-CONFORMITIES OR A BREACH WHICH
COULD BE DISCOVERED BY VISUAL INSPECTION; (II) TWENTY (20) DAYS AFTER
ACTUAL DISCOVERY OF ANY NON-CONFORMITY OR BREACH; OR (III) THIRTY (30)
DAYS AFTER RECEIPT OF THE PRODUCT OR REPLACEMENT PRODUCT PART BY
GEHC'S FINAL CUSTOMER IN THE CASE OF NON-CONFORMITIES OR A BREACH
WHICH COULD NOT BE DISCOVERED BY VISUAL INSPECTION. FAILURE TO GIVE
NOTICE AS REQUIRED BY THIS SECTION SHALL VOID ANY WARRANTY AND BAR
GEHC AND ITS CUSTOMERS FROM ANY REMEDY. IN NO EVENT MAY ANY ACTION OR
PROCEEDING CONCERNING THE PRODUCTS OR REPLACEMENT PRODUCT PARTS BE
FILED BY GEHC MORE THAN ONE (1) YEAR AFTER DELIVERY OF THE PRODUCTS OR
REPLACEMENT PRODUCT PARTS CLAIMED TO BE DEFECTIVE OR UNSUITABLE OR, IN
THE CASE OF OTHER CLAIMS CONCERNING HIS AGREEMENT, MORE THAN ONE (1)
YEAR AFTER SUCH CLAIM AROSE. If GEHC fails to give TGC notice as
required by this Section 10.2 within the specified period, GEHC shall
thereafter be barred from asserting the claim for which notice was
required.
10.3 In no event will TGC have any warranty obligation with respect to the
Products or any replacement Products parts if any of the following
events occur:
(a) the Products or replacement Product parts are subject to abuse,
misuse, negligence accident, or improper or abnormal environment;
(b) any installation, fabrication, engineering, testing, service,
maintenance or use is not in accordance with the written
specifications of TGC, applicable laws and regulations or
industry standards;
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(c) any engineering, installation, testing, maintenance or services
are performed negligently, by unqualified or unauthorized
personnel or without competent supervision;
(d) the Products or any replacement Product parts are altered or
modified without the prior written approval of TGC; and
(e) TGC has not received full payment of the invoice price of the
order containing the warranted Product or replacement Product
part.
Under no circumstances will TGC have any liability for any Products or
replacement Product parts that have been modified by, or under the
direction of, GEHC.
10.4 GEHC agrees to use its best efforts to incorporate into its agreement
with its customers language limiting liability which is similar in
substance and import as that stated in this Section 10, and to use its
best efforts to have such language incorporated into the agreement
between the end-user or purchaser of any Product or replacement
Product part and its seller if GEHC is not such seller. GEHC shall not
provide any warranty with respect to any Product or replacement
Product part that is inconsistent with the terms of this Section 10.
11 PRODUCT REGISTRATION
11.1 Unless otherwise agreed upon by the parties, GEHC shall handle and
assume full responsibility for product registration and other contacts
with Appropriate Regulatory Authorities in the markets in Territory in
which GEHC holds exclusive rights to sell the Products.
Notwithstanding the foregoing, TGC shall file and maintain the master
file with the United States Food and Drug Administration and shall
obtain the necessary CE certifications in Europe, for the Products as
developed by TGC. TGC shall without undue delay transfer to GEHC such
product registrations in countries which are added to the Territory in
accordance with Section 2.3. Notwithstanding anything else contained
in this Agreement to the contrary, in the event GEHC is not actively
pursuing registration within six (6) months of gaining exclusive
rights to the Territory of any of the Products in any market, TGC may,
upon sixty (60) days written notice to GEHC, cause such market to be
removed from the definition of the "Territory" for the remainder of
the term of this Agreement with respect to such Product, and GEHC
shall thereafter have no rights or obligations with respect to such
Product in such market.
11.2 In connection with GEHC's obligations pursuant to Section 11.1 above,
TGC shall make available to GEHC such information relating to the
Products as GEHC shall reasonably request. GEHC shall bear all
reasonable costs in connection with its registration of the Products.
12 FURTHER DEVELOPMENT
12.1 TGC agrees to use its best efforts in pursuing further development of
the Products, including new applications and methods, and shall pay
due consideration to GEHC's proposals and suggestions.
12.2 GEHC has the right to develop line extensions for, and
engineering-related modifications to, individual Products, only with
the prior written consent of TGC, which shall not be unreasonably
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withheld. Except as may relate to intellectual property provided by
GEHC in connection with such extensions or modifications, all
intellectual property rights resulting from such extensions shall be
owned by TGC. For such purposes and for the commercialization of such
line extensions and modifications, TGC shall grant to GEHC a
non-exclusive license to the background technology covering the line
extensions and modifications for the term of this Agreement.
12.3 Both parties will work together to build a network of external
collaborators for new application development.
12.4 GEHC will sponsor semi-annual scientific review meetings that shall
include at a minimum the TGC Chief Executive Officer, the individual
in charge of GEHC's research and development program and Xxxxx
Xxxxxxxxxx should he agree to consult with GEHC.
13 EXPORT CONTROL
13.1 GEHC acknowledges that the Products and replacement Product parts may
be subject to export control regulations of Appropriate Regulatory
Authorities including, without limitation, the U.S. Government. GEHC
agrees not to re-export the Products or replacement Product parts
covered by this Agreement in violation of any such regulations, and
shall, prior to exporting or importing any such Products or
replacement Product parts, acquire all required licenses and permits
from relevant bodies of the United Nations or any similar
international organization, the United States Government, the country
of origin and the original country of export. Upon request by TGC,
GEHC shall furnish copies of all documents relating to such export or
import.
14 CONFIDENTIALITY
14.1 Both GEHC and TGC undertake to treat any and all Confidential
Information of the disclosing party as strictly confidential and not
to divulge it to any third party for any purpose whatsoever, whether
during the course of or after the termination of this Agreement, and
not to make use of such disclosing party's Confidential Information or
any part thereof for any purpose (other than disclosure to or in the
course of performing services to officers, employees, advisers or
contractors of either party) without the disclosing party's prior
written consent.
14.2 The undertakings in 14.1 shall not apply to:
(a) information which at the time of disclosure is published or
otherwise generally available to the public;
(b) information which is published or becomes generally available to
the public, otherwise than through any act or omission on the
part of the receiving party;
(c) information which the receiving party can show by reasonable
written record was in its possession at the time of disclosure
and which was not acquired directly or indirectly from the
disclosing party;
(d) information rightfully acquired from a third party who did not
obtain it under pledge of secrecy to the disclosing party or
another; or
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(e) information, which has been developed by the receiving party
independently of the Confidential Information, received from the
disclosing party.
14.3 Confidential Information shall not be deemed to be in the public
domain merely because any part of said Confidential Information is
embodied in general disclosures or because individual features,
components or combinations thereof are known to the public.
14.4 All Confidential Information supplied to or acquired by either party
shall be returned promptly to the Company on termination of this
Agreement.
14.5 The provisions of this Section 14 shall survive any termination of
this Agreement.
15 INDEMNIFICATION
15.1 TGC shall indemnify and hold GEHC harmless against any and all
liability, damages, losses, costs and expenses, arising from any
breach by TGC of the terms of this Agreement or, subject to the
provisions of Section 10 above, arising from any death, bodily injury
and/or damage to property which are caused by the Products (other than
Products that have been modified by, or under the direction of, GEHC).
15.2 GEHC shall indemnify and hold TGC harmless against any and all
liability, damages, losses, costs and expenses, arising from any
breach by GEHC of the terms of this Agreement or, subject to the
provisions of Section 10 above, arising from any death, bodily injury
and/or damage to property which have been caused by Products that have
been modified by, or under the direction of, GEHC.
15.3 Neither party shall in any event (excluding cases of malicious intent)
be liable for any indirect, consequential or punitive damage of any
kind from any cause arising out of the sale, installation, use or
inability to use any Product or service, including without limitation,
loss of profits, or goodwill or business interruption.
16 INFRINGEMENT
16.1 TGC represents and warrants that the ordinary use of the Products
(other than with respect to any modifications to the Products by, or
under the direction of, GEHC) does not infringe any intellectual
property rights of any third party. TGC would be solely responsible
for all payments for any license to a third party patent holder deemed
to be required by the parties for the commercial success of the
Products as produced by TGC as of the date hereof (other than with
respect to any modifications to the Products by, or under the
direction of, GEHC).
17 FORCE MAJEURE
17.1 The obligations of either party hereunder shall be excused or
suspended to the extent performance is prevented or delayed by any
future condition, which (i) is beyond the reasonable control, and
without the fault or negligence, of the party affected thereby, and
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(ii) was not foreseeable by such party. Such conditions shall include
but not be limited to war, mobilization, riots, fire, explosion,
flood, insurrection, embargo, currency restriction, shortage of
transport, general shortage of material and acts or omissions or
governments in their sovereign capacity.
17.2 The party invoking Section 17 hereof shall, without any delay after
commencement of the condition there mentioned, give written notice
thereof, and of the anticipated consequences thereof, to the other
party. Within seven (7) days after termination or cessation of such
condition, the affected party shall give further written notice to the
other party detailing the actual results of such condition.
17.3 In the event of any such condition, the party affected thereby shall
take all reasonable measures to mitigate and minimize the effect of
the condition, and to resume as promptly as possible the diligent
performance of its obligations under this Agreement. Nothing in this
Section 17 shall, however, obligate either party to settle strikes or
other labor disputes except on terms and conditions, which it, in the
exercise of its sole discretion, deems appropriate.
18 TERM AND TERMINATION
18.1 This Agreement shall become effective on 13th October, 2005 and shall
remain effective for an initial period ending on 31st December, 2010.
Unless terminated in writing by either party not less than twelve (12)
months before expiration of the then-current term, the term of this
Agreement shall automatically be prolonged for two (2) year periods at
a time. Notwithstanding the foregoing, the initial term for any market
covered by an Existing Arrangement shall remain effective for an
initial period ending on the fifth (5th) anniversary of the date of
the expiration or termination of such Existing Arrangement, provided
that any automatic extension of the initial term for such market shall
remain effective only until the expiration date of the then-current
term of the remainder of this Agreement for markets not covered by an
Existing Arrangement.
18.2 Except as otherwise provided, this Agreement may be terminated by
either party upon written notice upon the occurrence of any materially
adverse event which in either party's reasonable opinion may be
damaging to its business or reputation, including but not limited to
material breach of contract, bankruptcy, liquidation or failure to
obtain the requisite regulatory approval for the Products, provided
that this Agreement shall not be terminated if the defaulting party
has cured such default within sixty (60) days after the notice has
been given, provided further that the foregoing right to cure shall
not be applicable to the rights to terminate contained in Section 5.7
above and Sections 18.3 and 18.4 below.
18.3 In the event that GEHC is obligated to purchase Products pursuant to
Section 9.1 for two (2) consecutive years, either party shall have
right to terminate this Agreement upon sixty (60) days written notice.
Such right to terminate shall be exercised on or prior to the sixtieth
(60th) day after GEHC is obligated to purchase Products pursuant to
such Section 9.1 for the second (2nd) calendar year.
18.4 In the event that GEHC or any of its Affiliates decide to make, use,
sell or license, directly or indirectly, any product which is
competing with any of the Products in the areas of cell archiving and
13
cell concentration based on centrifugation methods excluding
separation media, TGC shall have the right to terminate this Agreement
upon sixty (60) days written notice.
19 EFFECT OF TERMINATION OR NON-RENEWAL
19.1 Any termination or non-renewal of this Agreement shall:
(a) extinguish all rights of GEHC under this Agreement to act as
distributor for TGC in the Territory;
(b) oblige GEHC to return to TGC, within ten (10) days of such
termination, all documents supplied by TGC, all copies thereof
inclusive, in GEHC possession, power or custody and procure the
immediate return of all such documents in the possession, power
or custody of any sub-agent or any other person, all copies
inclusive;
(c) oblige GEHC to provide to TGC, within ten (10) days of such
termination, a full listing of all Products and replacement
Product parts sold by GEHC during the term of this Agreement,
together with a list of all potential customers for the Products
contacted by GEHC within six (6) months prior to the date of such
termination; and
(d) oblige GEHC to put at TGC's disposal within ten (10) days of the
termination GEHC's entire inventory of the Products. TGC shall
have the obligation to repurchase such current and saleable
inventory at the price paid by GEHC.
19.2 Neither the termination nor non-renewal of this Agreement shall
release GEHC from the obligation to pay any sum that may be owing to
TGC (whether then or thereafter due) or operate to discharge any
liability that had been incurred by GEHC prior to any such
termination. Except as qualified by the preceding sentence, neither
party shall, by reason of the termination or non-renewal of this
Agreement be liable to the other for any damages (whether direct,
consequential, incidental, or other including, without limitation,
expenditures, loss of profits or projected profits of any kind
whatsoever) sustained by reason of any such termination.
20 Notices
20.1 Any notice, request, instruction or other document to be given
hereunder shall be in writing and shall be deemed to have been given:
(i) two (2) days after delivery to the courier, if sent by courier;
(ii) upon receipt, if given in person; (iii) on the date of
transmission, if sent by telex, facsimile or other wire transmission;
or (iv) ten (10) days after being deposited in the mail, certified or
registered mail, postage prepaid, as follows:
If to TGC: If to GEHC.
ThermoGenesis Corp. Amersham Biosciences AB
Attention: President Attention: Legal Department
0000 Xxxxxx Xxxx Xxxxxxxxxx 00
Xxxxxx, Xxxxxxx, XX 00000 XX-000 00 Xxxxxxx
XXX Xxxxxx
Fax: x0 (000) 000-0000 Fax: x00 (00) 000 0000
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21 LAW AND DISPUTES
21.1 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of New York without reference to
its conflict of laws provisions.
21.2 Any dispute in connection with this Agreement shall be finally settled
by arbitration by in accordance with the Rules of Arbitration of the
International Chamber of Commerce by one arbitrator appointed in
accordance with such Rules. The arbitration proceeding shall be held
in the English language, unless otherwise agreed. The place of
arbitration shall be New York, NY, USA.
22 MISCELLANEOUS
22.1 Neither party shall have the right, without the written consent of the
other, to assign, sub-contract, transfer or charge this Agreement or
any rights or obligations hereunder or declare itself a trustee of any
or all of its rights under or the benefit of this Agreement, other
than to an Affiliate or an incorporated entity which is controlled the
same shareholders.
22.2 This Agreement shall constitute the entire agreement between the
parties on the subject matter, and it supersedes all previous
negotiations, agreements and commitments relating to this subject
matter including, without limitation, the Term Sheet between the
parties, dated as of September 6, 2005. It is agreed that:
(a) neither party has entered into this Agreement in reliance upon
any representation, warranty or undertaking of the other party
which is not expressly set out or referred to in this Agreement,
and all conditions, warranties or other terms implied by statue
or common law are hereby excluded to the fullest extent permitted
by law;
(b) a party may claim in contract for breach of warranty under this
Agreement but shall have no claim or remedy under this Agreement
in respect of misrepresentation (whether negligent or otherwise,
and whether made prior to, and/or in, this Agreement) or untrue
statement made by the other party; and
(c) this clause shall not exclude any liability for fraudulent
misrepresentation.
22.3 Modification shall only be agreed by the parties in writing and
expressly designated as a modification of this Agreement.
22.4 If any provision of this Agreement or the application of any such
provision to any person or circumstance shall be invalid under the law
of any jurisdiction, the remainder of this Agreement or the
application of such provision to persons or circumstances other than
those as to which it is invalid shall not be affected thereby.
15
22.5 The failure of either party to strictly enforce any provision of this
Agreement shall not be deemed to constitute a waiver of the right to
insist on such strict performance and the waiver by either party of a
breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by such party.
-----------------------------------
In witness whereof, the parties have caused their duly authorized
representatives to execute this Agreement.
ThermoGenesis Corp. Amersham Biosciences AB
Signature-------------------- Signature---------------------------
Name (capitals)-------------- Name (capitals)---------------------
Title------------------------ Title-------------------------------
16
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Schedule 1
Existing Arrangements
Schedule 2
Products
Schedule 3
Brand Names, Tradenames and Service Marks
Schedule 4
Inital Sales Projections
Schedule 5
Initial Purchase Prices
Schedule 5
Initial Purchase Prices
(continued)
