Exhibit 6.4
Distribution Agreement
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Retractable Technologies, Inc., a Texas U.S.A. corporation
("Manufacturer"), and ____________________, an ____________________ corporation
("Distributor"), enter into this Distribution Agreement (the "Agreement") and
agree as follows:
1. Term of Agreement. The "Term" of this Agreement shall commence on
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the date of execution by both Manufacturer and Distributor, and shall continue
until ____________. This Agreement may be renewed annually for one year terms
not to extend beyond ___________. Distributor shall ship at least one container
per quarter to each country listed as part of the exclusive territory described
hereinafter in section 2. Territory, in order for said country to remain a part
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of the Distributor's exclusive territory.
2. Territory. The "Territory" covered by this Agreement consists of
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the countries listed under "Exclusive Active Territory." Distributor has the
right to sell Products to end users and distributors in the Territory.
Distributor shall not i) sell Products outside the Territory, either directly or
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indirectly; ii) sell Products to another who may resell them outside the
Territory; or iii) purchase Products outside the Territory unless purchased
directly from Manufacturer.
Distributor's "Exclusive Active Territory" is (LIST COUNTRIES HERE).
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Distributor shall use its best efforts to actively solicit orders within
Distributor's Active Territory.
3. Product and Pricing. The products that Manufacturer will sell to
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Distributor under this Agreement (the "Products") and the prices at which
Manufacturer will sell the Products to Distributor during the first twelve (12)
months of this Agreement are set forth in Exhibit A to this Agreement.
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Manufacturer must provide Distributor with four (4) months prior notice of any
price increase. This price does not include, and Distributor shall be
responsible for, any applicable shipping costs, any applicable taxes imposed by
taxing authorities outside the United States, or any customs duties imposed by
the United States government or any other government.
4. Volume. Manufacturer shall make available and Distributor shall
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order a minimum of ______ containers in the year 20___, ________ containers in
the year 20__ and _______ containers in the year 20____. Orders shall be placed
for full cases and not partial cases and shall be placed in increments of a
twenty (20) foot or six (6) meter shipping "Container". Purchases which exceed
this agreed volume are not guaranteed by this Agreement and are conditioned on
the further written agreement of the parties regarding price and availability.
Any agreement to purchase volumes beyond that set forth above shall (unless such
agreement states otherwise) be subject to all terms of this Agreement except for
the terms governing price and volume.
5. Orders. In the event of any conflict between the terms of this
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Agreement and the terms of Distributor's purchase orders or Manufacturer's
invoices or confirmations, the terms of this Agreement shall prevail.
6. Payment. Distributor's first container order shall be paid in full
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by wire transfer payable
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thirty (30) days from date of original invoice. All subsequent orders shall be
due and payable in full via wire transfer so that good funds are available at
Manufacturer's bank within forty-five (45) calendar days following the date of
original invoice, except that Manufacturer may in its sole discretion still
require payment in full prior to shipping if Distributor's payment on any prior
invoice is still outstanding or if Distributor has failed to remit payment for
any prior invoice when due. A service charge of one and one-half percent (1-
1/2%) per month will be added to all past due balances (or at the highest amount
allowed by law, if lower). Manufacturer may in its sole discretion establish a
maximum credit limit to be extended to Distributor and revise same from time to
time. Manufacturer may in its sole discretion refuse to extend further credit if
Distributor fails to remit payment for invoices when due or exceeds the credit
limit established by Manufacturer.
7. Shipment, Risk of Loss and Title. Distributor shall be responsible
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for arranging transport of Products from Manufacturer's dock and shall incur all
costs associated with shipping. Manufacturer's Delivery of the Products shall be
"EXW loaded upon departing vehicle" as defined in ICC Incoterms 1990 at the
loading dock of Manufacturer's facility in Xxxxxx County, Texas, USA and shall
be deemed to occur for all purposes when the Products are made available for
loading at that location. Title, possession, risk of loss and responsibility for
the cost of transport and clearing customs shall pass to Distributor upon
Delivery. Distributor shall make all necessary arrangements for shipping.
Manufacturer will assist in loading the Products at Manufacturer's dock as
needed. Manufacturer expressly disclaims any retention of title in the Products
following Delivery. Manufacturer will use its best efforts to Deliver all
accepted orders within a commercially reasonable time, but Manufacturer shall
not be liable for any loss or damage to Distributor arising out of delay or
failure of delivery. Distributor shall have the right to cancel any such delayed
order at any time before the Products are loaded for transport at Manufacturer's
dock.
8. Advertising and Proprietary Marks. Although Manufacturer may
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voluntarily provide marketing materials, Distributor shall be responsible to
develop, translate and pay for printing and distribution of any marketing
materials used by Distributor. Distributor may submit an English translation of
any proposed marketing material to Manufacturer for approval as to factual
accuracy. Manufacturer shall assume responsibility for and warrant the factual
accuracy of any English translation so approved, and Distributor shall assume
responsibility for and warrant the factual accuracy of any marketing material
employed without first obtaining such approval.
"Manufacturer's Proprietary Marks" include all trademarks, trade names,
logotypes and trade dress employed by Manufacturer and include, but are not
limited to: i) the name "VanishPoint"; ii) the letters "RT" surrounded by an
oval; iii) the graphic depiction of a needle surrounded by a spring; iv) the
appearance and arrangement of information on the wrapper containing each
individual Product; and v) all other marks which are sufficiently similar to the
foregoing to cause confusion regarding the source of goods. Distributor hereby:
i) acknowledges the validity of Manufacturer's Proprietary Marks; ii)
acknowledges that Manufacturer's Proprietary Marks are the property of
Manufacturer; iii) agrees not to acquire any interest in, infringe upon,
contest, or take any other action to injure or to assist another to injure
Manufacturer's rights in Manufacturer's Proprietary Marks; and iv) agrees that
any interest which may be acquired by Distributor in Manufacturer's Proprietary
Marks during the Term of this Agreement or within one year thereafter, whether
in the Territory or elsewhere, shall be acquired on behalf of and for the
benefit of Manufacturer and shall be assigned to Manufacturer upon request at no
charge. Distributor shall use Manufacturer's Proprietary Marks only to identify
the Products sold by Distributor, only in connection with
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Manufacturer's Products, and only during the Term of this Agreement.
9. Limitation of Distributor's Authority. Distributor is an
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independent contractor of Manufacturer. Under no circumstances shall Distributor
or its representatives, agents, or employees be deemed agents of Manufacturer
for any purpose. Distributor shall not attempt to represent in any manner that
it is the agent of Manufacturer. Distributor shall not enter into any contract
or make any representation or commitment in the name of or on behalf of
Manufacturer.
10. Warranties, Directions for Use. Distributor shall not make any
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warranties or representations with respect to the Products beyond those
warranties and representations which are expressly issued or approved by
Manufacturer in writing or which are included in Manufacturer's promotional or
informational materials. Manufacturer hereby warrants that: i) the Products are
CE marked; ii) the Products are fit for medical use as generally defined within
the boundaries of United States FDA approval; iii) the Products are not
defective; and iv) the Products will conform to the descriptions set forth in
their respective labeling provided that they are used in accordance with such
labeling and Manufacturer's written directions for use. Products which conform
to these four warranties shall be deemed to conform to the requirements of this
Agreement. The foregoing warranties are exclusive and are in lieu of all other
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warranties or requirements of any kind (whether statutory, written, oral,
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express or implied) including any warranty or requirement of merchantability,
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fitness for ordinary use, or fitness for a particular purpose. Manufacturer
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shall include directions for Product use in each unopened box of Product, and
Distributor shall include a copy of those directions with every opened box or
portion thereof which is distributed by Distributor. Distributor shall
distribute Products in their original wrappers as packaged by Manufacturer.
11. Notice of Defects and Claims, Indemnification. Distributor shall
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promptly convey to Manufacturer all information obtained by Distributor relating
to any complaint or to any claimed or actual defect or deficiency regarding any
of the Products; Distributor shall in all such cases proceed as instructed by
Manufacturer. Distributor shall promptly convey to Manufacturer all information
obtained by Distributor relating to any legal proceeding involving Manufacturer
or any of its agents, employees or Products or involving Distributor in
connection with Distributor's relationship with Manufacturer. Distributor shall,
to the extent allowed by law, keep confidential all matters referenced in this
paragraph.
Any party seeking indemnification under this Agreement must, as a
condition of indemnification, provide the party from whom indemnification is
sought with: i) prompt notice of the reported or alleged defect, infringement,
injury or claim; ii) the opportunity to investigate such claim, control the
defense of such claim, and settle such claim at its discretion; iii) such
information and assistance as the indemnifying party may reasonably require to
defend against such claim; and iv) in the case of Distributor, fulfill the
obligations stated in the preceding paragraph.
Manufacturer shall, if the conditions of this section have been met by
Distributor, indemnify, defend and hold Distributor harmless from and against
any claim asserted against or liability (including cost of defense and
reasonable settlement) incurred by Distributor for injury to person or property
arising from breach of any express warranty made in section 9 of this Agreement,
for products liability, or for infringement of intellectual property, provided
that such claim does not result in whole or in part from the negligence, willful
misconduct, breach of this Agreement, or
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making of any unauthorized representation regarding the Products by Distributor.
Manufacturer will carry product liability insurance with a minimum limit of five
million dollars ($5,000,000), will list Distributor as an additional insured of
this product liability policy throughout the term of this Agreement, and will
provide Distributor with a certificate evidencing such insurance within thirty
(30) calendar days after execution of this Agreement. Manufacturer's liability
for failure of the Products to conform with any other implied warranty, express
warranty, guarantee or specification required for conformance with this
Agreement shall be limited to a return of the purchase price paid by
Distributor.
Distributor shall, if the conditions of this section have been met by
Manufacturer, indemnify, defend and hold Manufacturer harmless from and against
any claim asserted against or liability (including cost of defense and
reasonable settlement) incurred by Manufacturer arising in whole or in part out
of the negligence, willful misconduct, breach of this Agreement, or making of
any unauthorized representation regarding the Products by Distributor or its
distributors.
12. Termination. If either party shall fail to remedy a material
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default of this Agreement within thirty (30) days following written notice of
the specific default involved, the non-defaulting party shall have good cause to
terminate this Agreement immediately by giving written notice to the defaulting
party within fifteen (15) days following expiration of the period permitted for
cure. Manufacturer may immediately terminate this Agreement for good cause if
Distributor i) sells or purchases Products in violation of section 2 of this
Agreement; or ii) makes payments which violate the FCPA or OECD Convention
identified in paragraph 14(D).
Manufacturer shall notify Distributor if any competitor of Distributor
acquires more than 20% of the outstanding shares of Manufacturer. Within fifteen
(15) days following Distributor's receipt of such notice, Distributor may: i)
immediately terminate this Agreement for good cause by giving written notice to
Manufacturer; or instead ii) demand that Manufacturer provide written assurance
that Manufacturer will continue to make available to Distributor the volume of
Products required under this Agreement and will not discriminate against
Distributor in the date of Delivery of Distributor's orders. If Manufacturer
fails to provide such written assurance within fifteen days following receipt of
Distributor's demand, then Distributor may immediately terminate this Agreement
for good cause by giving written notice to Manufacturer within fifteen (15) days
following the period permitted for providing such written assurance.
Either party may terminate this Agreement without good cause with
ninety (90) days prior written notice. In the event that, i) manufacturer
terminates this Agreement without good cause, or ii) Manufacturer breaches this
Agreement and fails to timely cure such breach or iii) a majority of the assets
or stock of Manufacturer is acquired by another business entity during the term
of this Agreement; then Manufacturer shall be liable to Distributor for eight
(8) times the profit earned by Distributor under this Agreement during the
quarter preceding such acquisition, breach or termination; except that if a
majority of the assets or stock of Manufacturer is acquired by another business
entity, then Manufacturer may instead at its option offer to extend the term of
this Agreement through the third anniversary of such acquisition. Distributor's
profit shall be calculated under this paragraph as Distributor's actual sales
during said quarter less: i) the price paid for such Product by Distributor to
Manufacturer; ii) the actual shipping cost from Manufacturer to Distributor; and
iii) any other customs duties, sales taxes or value added taxes regularly
included by Distributor in its sale price of the Products.
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This Agreement will automatically terminate if either party: i) becomes
insolvent; ii) institutes or permits to be instituted against it any legal
proceedings seeking receivership, trusteeship, bankruptcy, reorganization,
readjustment of debt, or any similar legal proceedings; iii) makes an assignment
for the benefit of creditors or other arrangement pursuant to any bankruptcy
law; iv) discontinues or dissolves its business; or v) if a receiver is
appointed for the for the business and such receiver is not discharged within
thirty (30) days.
Once notice has been given of this Agreement's termination, this
Agreement may be reinstated only by an explicit statement to that effect signed
by both parties. Placement of orders by Distributor and acceptance of same by
Manufacturer after giving notice of termination or after termination shall not
operate to reinstate or renew this Agreement.
Termination of this Agreement in the manner set forth in this Agreement
shall not entitle the other party to receive damages, indemnification or
compensation by reason of such termination. Termination of this Agreement shall
not affect the right of Distributor to place and receive orders prior to the
effective date of such termination, shall not affect the right of Manufacturer
to receive payment and lot tracing information for Products Delivered to
Distributor, and shall not relieve either party of any liability incurred prior
to termination. Sections 7-13 of this Agreement shall survive termination.
Upon termination of this Agreement, Manufacturer shall repurchase from
Distributor all of Manufacturer's Products remaining in Distributor's inventory,
FOB Distributor's facility, at the acquisition cost actually paid by Distributor
calculated as purchase price plus shipping cost plus customs duties plus
European VAT turnover tax but excluding any other tax, all under First In First
Out accounting, provided such inventory is in saleable condition. The
manufacturer is not obligated to repurchase any inventory that is not in
saleable condition.
13. Notices. All communications required or permitted under this
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Agreement shall be in writing and shall be considered to have been duly given if
delivered to the other party at its address given below in any of the following
ways (or by fax and any other of the following ways in the case of
communications relating to default or termination): i) fax; ii) personal
delivery; iii) certified mail, return receipt requested; or iv) international
overnight delivery service. Notices shall be deemed effective on the date of fax
transmission or actual delivery. Either party may change the address at which it
receives such communications upon ten (10) days' notice to the other party.
Correspondence to Manufacturer Correspondence to Manufacturer
regarding orders regarding default or termination
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Purchasing Department Xxxxxx Xxxx
Retractable Technologies, Inc. Retractable Technologies, Inc.
X.X. Xxx 0 X.X. Xxx 0
000 Xxxx Xxxx 000 Xxxx Xxxx
Xxxxxx Xxx, Xxxxx 00000 Xxxxxx Xxx, Xxxxx 00000
000-000-0000 000-000-0000
000-000-0000 - fax 000-000-0000 - fax
Correspondence to Distributor Correspondence to Distributor
regarding orders regarding default or termination
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14. General.
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A. Assignment. Any attempt by Manufacturer or Distributor to assign,
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sell, or otherwise transfer this Agreement or any of its rights or obligations
hereunder without the express written consent of the other party shall be void.
B. No Third Party Beneficiaries. This Agreement is made for the
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exclusive benefit of Manufacturer and Distributor and is not made for the
benefit of any other person or entity.
C. Confidentiality. The parties may openly disclose i) that
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Distributor is an authorized distributor of Manufacturer's Products within the
Territory and the effective term of this Distribution Agreement; ii) the
Limitations on Distributor's Authority; and iii) the Warranties made by
Manufacturer. The remaining terms of this Agreement, including but not limited
to pricing and payment terms, are to be kept confidential by Manufacturer and
Distributor for a period of three years following termination of this Agreement,
except as may be required by law or required by Manufacturer to raise equity or
debt financing.
D. Observance of Laws. Distributor agrees to operate its business in a
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lawful manner. Distributor is aware of the standards contained in the
international Organization for Economic Co-operation and Development's
Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions ("OECD Convention") and the United States' Foreign Corrupt
Practices Act ("FCPA") and agrees to comply with those standards.
E. Governing Law. This Agreement shall be interpreted in accordance
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with and the rights of the parties shall be governed by the laws of the State of
Texas and the federal law applicable therein, except that no effect shall be
given to any choice of law provision that would select the law of another
jurisdiction. The United Nations Convention on Contracts for the International
Sale of Goods is hereby excluded from application to this Agreement or to any
sales hereunder.
F. Legal Actions. No legal action arising out of the relationship
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between Manufacturer and Distributor may be filed until thirty (30) days after
the presidents of Manufacturer and Distributor have spoken to each other about
the dispute either in person or by telephone. Any legal action relating to this
Agreement shall be settled in a court of general jurisdiction in the State of
Texas. Recovery in any legal action relating to this Agreement may not be based
in whole or in part upon conduct which occurred more than two years prior to the
filing of such legal action, but a shorter time may be specified by applicable
law.
G. Waiver. One or more waivers of any breach of any term of this
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Agreement by either party shall not be construed as a waiver of a subsequent
breach of the same or any other term.
H. Force Majeure. The timely performance of obligations under this
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Agreement shall be
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excused to the extent that delay of such performance is caused by an act of God,
unusually severe weather, strike, civil commotion, riot, terrorism, sabotage,
war, revolution, act of government, world shortage of qualified equipment or
materials, or other cause which is reasonably beyond the control of the party
obligated to perform. If performance is so delayed for more than ninety (90)
calendar days, the parties shall meet and attempt to arrive at a resolution
within the spirit and intent of this Agreement. This paragraph shall not excuse
any obligation relating to payment or indemnification.
I. Severability and Reformation. If any provision of this Agreement is
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held by a court to be invalid, void or unenforceable in any jurisdiction, then
i) the offending provision shall be deleted only to the extent required by the
law of the offended jurisdiction and (if allowed by law) only in its application
to the offended jurisdiction; ii) the Parties shall cooperate in reforming this
Agreement to effectuate the intent of the offending provision to the fullest
extent allowed by the law of the offended jurisdiction; and iii) any such
reformations as well as the remaining provisions of this Agreement shall survive
and continue in full force and effect without being impaired or invalidated in
any way.
J. Entire Agreement, Modification. This Agreement is in addition to
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and does not replace any agreement regarding the confidential treatment of
information. As to all other matters, this Agreement contains the entire
agreement between Manufacturer and Distributor and supersedes any and all prior
agreements, understandings and arrangements, whether oral or written, between
Manufacturer and Distributor. Manufacturer and Distributor each represent and
warrant to the other that it is not relying upon, and has not been induced to
execute or deliver this Agreement by, any statement, promise, agreement,
understanding, arrangement or inducement other than those which are specifically
set forth in this Agreement. No modification of this Agreement shall be
effective unless made in writing and signed by the party against whom
enforcement of the modification is sought. Distributor understands that no
employee or representative of Manufacturer is authorized to modify this
Agreement orally or in any other manner except in writing.
K. Authority to Execute. The individuals signing this Agreement on
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behalf of Manufacturer and Distributor each represent and warrant individually
that he or she is duly authorized to execute this Agreement on behalf of
Manufacturer or Distributor as indicated below.
L. Multiple Counterparts. This Agreement is executed in two
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counterparts, each of which shall be deemed an original for all purposes.
In WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date written below.
MANUFACTURER DISTRIBUTOR
Retractable Technologies, Inc.
By:____________________________ By:____________________________
Xxxxxx X. Xxxx Name
President and Chief Executive Officer Title
Date: ________________ Date: ________________
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EXHIBIT A
Products and Pricing
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Product Distributor Price (in U.S. dollars)
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VanishPoint(R) blood collection tube holders $ 0.25 each
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VanishPoint(R) small tube adaptor $ 0.12 each
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VanishPoint(R) 3cc syringes $ 0.35 each
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VanishPoint(R) 5cc syringes $ 0.50 each
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VanishPoint(R) 10cc syringes $ 0.55 each
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Note: XxxxxxXxxxx(X) 0xx, 5cc and 10cc syringes are not yet available, but Manufacturer shall
notify Distributor when these products become available and shall then make these products
available at the above prices. Samples in limited quantities may be provided before availability
for commercial sale.
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