1
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
EXHIBIT 10.4.32
NEOPROBE CORPORATION
&
EV PRODUCTS
SUPPLY AGREEMENT
DECEMBER 1997
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
2
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
TABLE OF CONTENTS
ARTICLE. DEFINITIONS.........................................................1
1.01 Affiliate.........................................................1
1.02 Calendar Year.....................................................1
1.03 Certificate of Release (or Certificate of Compliance).............1
1.04 Crystal...........................................................2
1.05 Effective Date....................................................2
1.06 FDA and Act.......................................................2
1.07 Crystals and/or Modules...........................................2
1.08 Person............................................................2
1.09 Quality Assurance Standards.......................................2
1.10 Schedules.........................................................2
2.01 Supply of Product.................................................2
2.02 Price of Crystals and/or Modules..................................3
2.03 Working Forecast..................................................3
2.04 Long-Term Business Forecast.......................................3
2.05 Placement of an Order.............................................3
2.06 eV's Obligation to Meet Requirements..............................3
2.07 Neoprobe's Obligation to Meet Requirements........................3
2.08 Exclusivity.......................................................3
2.09 Shipment of and Payment for Crystals and/or Modules...............4
ARTICLE III. TOOLING.........................................................4
3.01 Ownership of Tooling..............................................4
3.02 Tooling Maintenance...............................................4
3.03 Tooling Removal...................................................4
ARTICLE IV. TERM AND TERMINATION.............................................5
4.01 Term..............................................................5
4.02 Termination for Material Breach...................................5
4.03 Termination for Insolvency........................................5
4.04 Rights or Obligations Upon Termination............................5
4.05 Confidentiality Upon Termination..................................5
ARTICLE V. REGULATORY.......................................................5
5.01 Access to eV's Facilities.........................................5
5.02 Regulatory Support................................................6
5.03 Manufacturing Facility............................................6
ARTICLE VI. REPRESENTATIONS & WARRANTIES.....................................6
6.01 Product Warranty..................................................6
ARTICLE VII. INDEMNIFICATION.................................................6
7.01 eV Indemnity......................................................6
7.02 Neoprobe Indemnity................................................6
7.03 Notice of Defense of Actions......................................7
(i)
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
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Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
ARTICLE VIII. CONFIDENTIALITY................................................7
8.01 Confidential Information..........................................7
8.02 Limitations on Confidentiality....................................7
8.03 Disclosure Required by Law........................................8
8.04 Equitable Remedies for Breach of Confidentiality..................8
ARTICLE IX. PROTECTION OF SUPPLY.............................................8
9.01 Disaster Recovery.................................................8
9.02 Placement of Ingot Order .........................................8
9.03 Close of eV's Business............................................9
ARTICLE X. MISCELLANEOUS.....................................................9
10.01 Force Majeure........................................................9
10.02 Relationship.........................................................9
10.03 Governing Law ......................................................10
10.04 Notice..............................................................10
10.05 Legal Construction..................................................11
10.06 Entire Agreement, Modifications, Consents, Waivers..................11
10.07 Copyright...........................................................11
10.08 Section Headings; Construction......................................11
10.09 Execution Counterparts..............................................12
ARTICLE XI. LIMITATION OF LIABILITY........................................12
ARTICLE XII. BINDING EFFECT.................................................12
SIGNATURE PAGE..............................................................13
SCHEDULE 1.07 SPECIFICATIONS...............................................(I)
SCHEDULE 2.02 CRYSTALS AND/OR MODULES PRICE...............................(II)
SCHEDULE 2.08 NEOPROBE COMPETITORS.......................................(III)
SCHEDULE 9.02 CRYSTAL INGOT PRICE.........................................(IV)
(ii)
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
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Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
SUPPLY AGREEMENT
THIS AGREEMENT entered into this 8th day of December 1997, between
Neoprobe Corporation, a Delaware corporation with principle offices at 000 Xxxxx
Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000 (hereinafter "NEOPROBE"), and eV
PRODUCTS, a Division of II-VI Incorporated, located at 000 Xxxxxxxxx Xxxx.,
Xxxxxxxxx, XX 00000 (hereinafter referred to as "eV").
WHEREAS, NEOPROBE is a biopharmaceutical company engaged in the
development and marketing of proprietary products and methods useful in the
treatment of various diseases including cancer; and
WHEREAS, among the products Neoprobe has under development and will
market is a portable radiation detection device consisting of a control unit and
hand-held probe; and
WHEREAS, eV manufactures certain crystals and associated hybrid
electronics which are components of the probe; and WHEREAS, Neoprobe desires to
purchase its requirements for crystals and associated electronics used in the
probe exclusively from eV; and
WHEREAS, eV is willing to sell crystals and associated hybrid
electronics to Neoprobe for the above-described purpose;
NOW, THEREFORE, in consideration of the mutual covenants exchanged
herein, the parties agree as follows:
ARTICLE. DEFINITIONS
--------------------
1.01 Affiliate. The term "Affiliate" as used herein shall mean with
respect to any specified Person, any other Person that directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the Person specified. For purposes of this definition,
"control" including, with correlative meanings, the terms "controlled by" and
"under common control with" means ownership directly or indirectly of more than
thirty percent (30%) of the equity capital having the right to vote for election
of directors in the case of a corporation and more than thirty percent (30%) of
the beneficial interest in the case of a business entity other than a
corporation.
1.02 Calendar Year. The term "Calendar Year" shall mean the consecutive
twelve (12) month period beginning January 1 of a year and ending December 31 of
such year.
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which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
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Confidential Treatment under Rule 24b-2.
1.03 Certificate of Release (or Certificate of Compliance). As used
herein the term "Certificate of Release" is used to mean the document supplied
by eV with each lot or batch of Crystals and/or Modules stating that all
Crystals and/or Modules (as defined in Section 1.07) manufactured by eV meet or
exceed the Specifications attached hereto as Schedule 1.07.
1.04 Crystal. As used herein, the term "Crystal" shall mean the active
detection medium of the hand-held probe referred to above, consisting of a
Cadmium-Zinc-Telluride (CZT) crystal of dimensions and shape defined by the
Specifications.
1.05 Effective Date. The "Effective Date" of this Agreement shall be
the date first written herein above.
1.06 FDA and Act. The term "FDA" and the term "Act" as used herein
shall mean the United States Food and Drug Administration or any successor
agency having the administrative authority to regulate the approval for testing
or marketing of human pharmaceutical or biological therapeutic products and
medical devices in the United States; and the term "Act" as used herein refers
to the Federal Food, Drug & Cosmetic Act (21 U.S.C. '301 et seq.) and the
regulations promulgated thereunder.
1.07 Crystals and/or Modules. As used herein the term "Crystals and/or
Modules" shall mean a Crystal having certain attached electronic components and
circuits as described in the Specifications attached hereto as Schedule 1.07 and
incorporated herein.
1.08 Person. As used herein the term "Person" shall mean any
individual, corporation, partnership, business trust, business association,
governmental entity, governmental authority or other legal entity.
1.09 Schedules. The Schedules to this Agreement are listed below and
are an integral part of this Agreement and are incorporated herein
SCHEDULE DESCRIPTION
-------- -----------
1.07 Specifications
2.02 Crystal and/or Modules Price
2.08 Neoprobe Competitors
9.01 Crystal Ingot Price
ARTICLE II. FORECAST AND SUPPLY OF CRYSTALS AND/OR MODULES
----------------------------------------------------------
2.01 Supply of Product. Neoprobe hereby agrees to buy and eV hereby
agrees to sell to Neoprobe all of Neoprobe's requirements for the Crystals
and/or
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information, has been replaced by "***" in this Exhibit.
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Confidential Treatment under Rule 24b-2.
Modules. eV shall manufacture the Crystals and/or Modules in accordance with the
Specifications.
2.02 Price of Crystals and/or Modules. The price of the Crystals and/or
Modules supplied by eV to Neoprobe shall be as set forth in Schedule 2.02.
2.03 Working Forecast. Within fifteen (15) days after the Effective
Date, Neoprobe shall deliver to eV a forecast of the quantity of Crystals and/or
Modules required for the initial 24 month period from the Effective Date (the
"Initial Forecast"), and shall thereafter update such forecast on a monthly
basis and provide it to eV on the first day of each month, so that the parties
have a twenty-four (24) month rolling forecast of the estimated requirements for
the Crystals and/or Modules. Any change to the working forecast of +/- 25% or
more requires notification and negotiation prior to acceptance.
2.04 Long-Term Business Forecast. Within thirty (30) days after the
Effective Date, Neoprobe shall deliver to eV a forecast of the quantity of
Crystals and/or Modules required per year for each year from the Effective Date
to December 31, 2002. This long-term forecast is for planning purposes only;
actual production scheduling and order placements shall be made against the
working forecast of Section 2.03.
2.05 Placement of an Order. Neoprobe shall initiate an order for
Crystals and/or Modules by sending to eV a purchase order corresponding to
Neoprobe's forecasted requirements for a Calendar Year. The first or "initial"
purchase order shall be for the period starting January 1, 1998 and ending
December 31, 1998, and shall be for a quantity of Crystals and/or Modules
corresponding to the Initial Forecast less any pre-existing orders. The
"initial" purchase order shall be placed no later than 15 working days from the
Effective Date. Thereafter, Neoprobe shall place purchase orders covering each
12-month period on November 1 of each Calendar Year during the term of the
Agreement. Orders may be placed in writing, by e-mail or by facsimile.
2.06 eV's Obligation to Meet Requirements. eV agrees to supply, in each
Calendar Year, all orders placed by Neoprobe up to one hundred percent (100%) of
Neoprobe's Calendar Year order. eV shall attempt to supply any quantity of
Crystals and/or Modules ordered by Neoprobe in excess of the order.
2.07 Neoprobes Obligation to Meet Requirements. Neoprobe agrees to
receive and/or pay for a minimum of 75% of the Crystals and/or Modules specified
by a Neoprobe purchase order placed pursuant to Section 2.05.
2.08 Exclusivity. During the term of this Agreement and any extensions
thereof, eV shall not supply Crystals and/or Modules for use in hand-held,
radiation detecting, medical devices to any third party listed as specified in
Schedule 2.08 attached hereto, as such Schedule may be amended from time to time
by Neoprobe. In the event the size (quantity and dollar value) of the order
placed by Neoprobe pursuant to Section 2.05 does not increase on a yearly basis
during the
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which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
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initial term of the Agreement, eV shall have the right to market and sell
Crystals to third parties including those listed on Schedule 2.08.
2.09 Shipment of and Payment for Crystals and/or Modules. eV shall ship
all Crystals and/or Modules C.I.P. Neoprobe's designated facility. Neoprobe
shall pay eV for Crystals and/or Modules within thirty (30) days after receipt
of the invoice for Crystals and/or Modules and receipt of a Certificate of
Release for the Crystals and/or Modules.
ARTICLE III. TOOLING
--------------------
3.01 Ownership of Tooling. eV shall procure and/or produce upon mutual
pre-approvals, all tools, dies, jigs, and fixtures required to manufacture the
Crystals and/or Modules. eV shall invoice Neoprobe, at mutually pre-approved
amounts and intervals, for all labor and materials required to procure or
produce all such tooling, jigs, fixtures, and the like, and upon payment
Neoprobe shall obtain unrestricted ownership thereof and to the detailed
assembly drawings for such tooling. Neoprobe shall pay eV for all such items
within thirty (30) days after receipt of the invoice. All replacement tools
required shall also be owned by Neoprobe upon payment by Neoprobe of the cost
thereof. Termination of this Agreement shall result in the surrender by eV of
all tools, drawings, for tools, replacement tools, fixtures and jibs, paid for
and owned by Neoprobe.
3.02 Tooling Maintenance. At all times under this Agreement during
which eV has possession of Neoprobe tooling, eV shall have the responsibility of
performing normal, expected maintenance and repairs. The cost of modifying or
replacing or rebuilding Neoprobe owned tooling worn through usage or in need of
major repair for reasons other than lack of periodic maintenance shall be borne
by Neoprobe. eV shall be responsible for such costs if such costs are incurred
due to a failure to perform proper maintenance. Payment for the cost of any
other required tooling changes shall be negotiated by the parties prior to any
change. All modifications and major repairs to tooling must be approved in
advance by Neoprobe. eV will obtain a warranty on all tooling purchased by eV
for Neoprobe that warrants the tooling against defect during its normal useful
life and that obligates the supplier to replace without cost any defective
tooling. Neoprobe shall have the right to inspect all tooling during normal
business hours. eV agrees that it will obtain agreement from any third parties
that will be given possession of Neoprobe owned tooling that such third parties
will permit Neoprobe to inspect tooling during normal business hours.
3.03 Tooling Removal. Upon expiration or termination of this Agreement,
Neoprobe shall have the right to take possession of and remove from the eV
facility or from the facility of any third party, all tooling owned by Neoprobe
and all confidential information owned by Neoprobe upon request and upon any
expiration, cancellation, or termination of this Agreement. The cost of removing
and transferring such tooling shall be borne by Neoprobe. In addition to jigs,
fixtures, and tooling, Neoprobe may take possession of a detailed assembly
drawing for such
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information, has been replaced by "***" in this Exhibit.
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tooling subject to the conditions stated. eV assumes no patent responsibility
and gives no express warranty whatsoever on tooling and equipment removed and,
other than warranty of title, such tooling is removed "as is".
ARTICLE IV. TERM AND TERMINATION
--------------------------------
4.01 Term. Upon execution by both parties, this Agreement shall be
effective as of the date first set forth above and shall expire on December 31,
2002; provided however, that unless either party notifies the other in writing
no later than October 31 of that year, the Agreement shall automatically renew
for an additional three (3) year period, to end December 31, 2005.
4.02 Termination for Material Breach. Either party may terminate this
Agreement in the event of a material breach by the other, provided that the
party asserting such breach first serves written notice of the alleged breach on
the offending party and such alleged breach is not cured within (60) days of
said notice.
4.03 Termination for Insolvency. In the event that either party shall
become insolvent or shall suspend its business, or shall file a voluntary
petition or any answer admitting the jurisdiction of the court and the material
allegations of, or shall consent to, an involuntary petition pursuant to or
purporting to be pursuant to any reorganization or insolvency law of any
jurisdiction, or shall make an assignment for the benefit of creditors, or shall
apply for or consent to the appointment of a receiver or trustee of all or a
substantial part of its property (such party, upon the occurrence of any such
event, a "Bankrupt Party"), then to the extent permitted by the law the other
party hereto may thereafter immediately terminate this Agreement by giving
notice of termination to the Bankrupt Party.
4.04 Rights or Obligations Upon Termination. Termination of this
Agreement, for whatever reason, shall not affect any rights or obligations which
may have accrued to either party prior to the effective date of termination.
4.05 Confidentiality Upon Termination. The obligations of
confidentiality in Article IX and of Indemnification as provided in Article VIII
shall survive the expiration or termination of this Agreement.
ARTICLE V. REGULATORY
---------------------
5.01 Access to eV's Facilities. Neoprobe shall have access to eV's
manufacturing facility during regular business hours to inspect relevant
portions of eV's assembly and test equipment and facilities. In addition,
Neoprobe shall have access to any relevant books, records and other
documentation of eV reasonably necessary to assure that eV is in compliance with
all applicable federal, state and local rules and regulations.
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which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
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Confidential Treatment under Rule 24b-2.
5.02 Regulatory Support. eV shall provide Neoprobe at no additional
charge, with relevant documents and technical information pertaining to the
Crystals and/or Modules, that Neoprobe may require in support of its regulatory
filings. In the event additional regulatory support over and above that just
described is required by Neoprobe, eV shall provide such support and shall
charge Neoprobe for the labor and materials used.
5.03 The Manufacturing Facility. eV represents and warrants that it
shall use its best efforts to maintain the relevant portions of its facilities
in such a fashion as to be in compliance with applicable federal, state and
local rules and regulations.
ARTICLE VI. REPRESENTATIONS & WARRANTIES
----------------------------------------
6.01 Product Warranty. eV hereby represents and warrants that all
Crystals and/or Modules sold to Neoprobe hereunder at the time of shipment to
Neoprobe shall have been:
(i) manufactured in accordance with the Specifications;
(ii) manufactured, packaged, stored and shipped in conformity with
all applicable requirements; and
(iii) title to all Crystals and/or Modules sold hereunder shall pass
to Neoprobe as provided herein free and clear of any security
interest, lien or other encumbrance.
ARTICLE VII. INDEMNIFICATION
----------------------------
7.01 eV Indemnity. eV agrees to indemnify, protect and defend Neoprobe
and hold Neoprobe harmless from and against any claims, damages, liability,
harm, loss, costs, penalties, lawsuits, threats of lawsuit, recalls or other
governmental action, including reasonable attorneys' fees, brought or claimed by
any third party which (i) arise as the result of eV's breach of this Agreement
or of any warranty or representation made to Neoprobe under this Agreement; or,
(ii) which result from any claim made against Neoprobe in connection with eV's
supply of defective Crystals and/or Modules to Neoprobe.
7.02 Neoprobe Indemnity. Neoprobe agrees to indemnify, protect, and
defend eV and hold eV harmless from and against any claims, damages,
liabilities, harm, loss, costs, penalties, lawsuits, threats of lawsuit, recalls
or other governmental action, including reasonable attorneys' fees, brought or
claimed by any third party, which (i) arise out of Neoprobe's breach of this
Agreement or of any warranty or representation to eV under this Agreement; or,
arise in connection with Neoprobe's sale, marketing or distribution of Devices
containing the Crystals and/or Modules or other activities or actions in
connection with the Crystals and/or Modules.
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which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
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Confidential Treatment under Rule 24b-2.
7.03 Notice of Defense of Actions. Each party shall give the other
prompt notice of any potential liability, and promptly after receipt by a party
claiming indemnification under this Article VII of notice of the commencement of
any action, such indemnified party shall notify the indemnifying party of the
commencement of the action and generally summarize such action. The indemnifying
party shall have the right to participate in and to assume the defense of such
action with counsel of its choosing. An indemnifying party shall not have the
right to direct the defense in such an action of an indemnified party if counsel
to such indemnified party has reasonably concluded that there may be defenses
available to it that are different from or additional to those available to the
indemnifying party; provided, however, that in such event, the indemnified party
shall bear the fees and expenses of separate counsel reasonably satisfactory to
the indemnifying party. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to the ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Article VII. No settlement of any claim or action
may be made without the consent of the indemnifying party (which consent shall
not be unreasonably withheld or delayed).
ARTICLE VIII. CONFIDENTIALITY
-----------------------------
8.01 Confidential Information. Each party ("Receiving Party") shall
maintain in confidence all information heretofore or hereafter disclosed by the
other ("Disclosing Party") during the term of this Agreement and for a period of
five (5) years following the termination or expiration of the term, which the
Receiving Party knows or has reason to know are trade secrets and other
proprietary information owned by or licensed to the other, including, but not
limited to information relating to the Crystals and/or Modules, the Device or
the Crystal as well as licenses, patents, patent applications, technology or
processes and business plans of the other party, including, without limitation,
information designated as confidential in writing from one party to the other
(all of the foregoing hereinafter referred to as "Confidential Information"),
and shall not use such Confidential Information except as permitted by this
Agreement or disclose the same to anyone other than those of its officers,
directors or employees as are necessary in connection with such party's
activities as contemplated by this Agreement. Each party shall use its best
efforts to ensure that its officers, directors and employees do not disclose or
make any unauthorized use of such Confidential Information. Each party shall
notify the other promptly upon discovery of any unauthorized use or disclosure
of the other's Confidential Information.
8.02 Limitations on Confidentiality. The obligation of confidentiality
contained in this Article VIII shall not apply to the extent that: i) the
Receiving Party is required to disclose information by applicable law,
regulation or order of a governmental agency or a court of competent
jurisdiction; ii) the Receiving Party can demonstrate that the disclosed
information was at the time of disclosure already in the public domain other
than as a result of actions or failure to act of the Receiving Party, its
officers, directors or employees, in violation hereof; iii) the
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information, has been replaced by "***" in this Exhibit.
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disclosed information was rightfully known by the Receiving Party (as shown by
its written records) prior to the date of disclosure to the Receiving Party in
connection with this Agreement; or iv) the disclosed information was received by
the Receiving Party on an unrestricted basis from a source which is not under a
duty of confidentiality to the other party.
8.03 Disclosure Required by Law. In the event that the Receiving Party
shall be required to make disclosure pursuant to the provisions of Section 8.02
as a result of the issuance of a court order or other government process, the
Receiving Party shall promptly, but in no event more than forty-eight (48) hours
after learning of such court order or other government process, notify, by
personal delivery or facsimile, all pursuant to Section 12.04 hereof, the
Disclosing Party and, at the Disclosing Party's expense, the Receiving Party
shall: a) take all reasonably necessary steps requested by the Disclosing Party
to defend against the enforcement of such court order or other government
process, and b) permit the Disclosing Party to intervene and participate with
counsel of its choice in any proceeding relating to the enforcement thereof.
8.04 Equitable Remedies for Breach of Confidentiality. The parties
acknowledge that their failure to comply with the provisions of Section 8.01 of
this Article VIII may cause irreparable harm and damage to the name and
reputation of the other party for which no adequate remedy may be available at
law. Accordingly, the parties agree that upon a breach by a party of such
provisions, the non-breaching party may, at its option, enforce the obligations
of the breaching party under those provisions by seeking equitable remedies in a
court of competent jurisdiction.
ARTICLE IX. PROTECTION OF SUPPLY
--------------------------------
9.01 Disaster Recovery. The Parties agree that it is in the best
interest of both Parties for Neoprobe to have assurance of an uninterrupted
supply of Crystals for use in the Crystals and/or Modules. Accordingly, eV
agrees that no later than one hundred twenty (120) days after the Effective Date
of this Agreement it will start to store, in an off-site storage location
(storage), an amount of crystal material sufficient to produce a twelve (12)
month supply of Crystals. This will be accomplished by taking the mass
equivalent (in kilograms) of one (1) ingot per month from the eV production
furnaces and placing it in storage immediately subsequent to performing a
standard characterization and qualification of said material. The amount of
crystal material to be maintained in storage will be determined by reviewing the
Forecast as specified in Section 2.03 and the projected fabrication yield. The
location of the off-site storage location shall be determined by mutual
agreement.
9.02 Placement of Ingot Order. Neoprobe shall initiate an order for the
required mass of Crystal by sending to eV a purchase order corresponding to the
mass equivalent to a 12 month supply, to be placed in the storage location
during the first sixteen (16) month period of the Agreement. This order is to be
placed no later than fifteen (15) days following the issuance of the Initial
Forecast. The price
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of the mass equivalent supplied by eV to storage shall be as set forth in
Schedule 9.02 attached hereto and incorporated herein. Neoprobe shall pay eV for
the mass equivalent within thirty (30) days after receipt of material
certification and transfer into storage. The total mass of Crystal in storage
shall be reviewed by both Neoprobe and eV with each update to the fifteen (15)
month rolling forecast (as specified in Section 2.03). Neoprobe shall initiate
subsequent purchase orders to increase the total mass in storage to maintain a
12 month supply per the latest forecast. In the event that Neoprobe elects to
consume Crystal that resides in storage, eV shall deduct from the Crystals
and/or Modules price, the respective value of the Crystal.
9.03 Close of eV's Business. During the term of this Agreement, in the
event eV shall cease to do business, eV shall notify Neoprobe at least ninety
(90) days prior to going out of business and Neoprobe shall have the following
rights:
a) Right to purchase on commercial terms no more onerous than
those governing this Agreement at the time of notification by
eV of its intent to cease business, all work-in-progress
relating to this Agreement including but not limited to,
crystal ingots, Crystals and/or Modules; and
b) Right of first refusal to purchase on reasonable commercial
terms all manufacturing equipment, technology and know-how
necessary for the production of Crystals and/or Modules.
ARTICLE X. MISCELLANEOUS
------------------------
10.01 Force Majeure. Neither of the parties to this Agreement shall be
liable to the other party for any loss, injury, delay, damage or other casualty
suffered or incurred by such other party due to strikes, lockouts, accidents,
fire, delays in manufacture, transportation or delivery of material, embargoes,
inability to ship, explosions, floods, war, governmental action or any other
cause similar thereto which is beyond the reasonable control of such other party
and any failure or delay by a party in the performance of any of its obligations
under this Agreement shall not be considered as a breach of this Agreement due
to, but only so long as there exists, one or more of the foregoing causes;
provided, however, that if eV cannot complete an order within ninety (90) days
due to any such cause, Neoprobe may cancel the order without liability to eV.
10.02 Relationship. This Agreement shall not be construed to create
between the parties hereto or their respective successors or permitted assignees
the relationship of principal and agent, joint-venturers, co-partners or any
other similar relationship, the existence of which is hereby expressly denied by
each party
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information, has been replaced by "***" in this Exhibit.
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and each of the parties shall in all matters connected to this Agreement be
independent contractors. Neither party shall be liable to any third party in any
way for engagement, obligation, contract, representation or transaction or for
any negligent act or omission to act of the other except as expressly provided.
10.03 Governing Law. The provisions of this Agreement shall be governed
in all respects by the laws of the State of Pennsylvania.
10.04 Notice. All notices, proposals, submissions, offers, approvals,
agreements, elections, consents, acceptances, waivers, reports, plans, requests,
instructions and other communications required or permitted to be made or given
hereunder (all of the foregoing hereinafter collectively referred to as
"Communications") shall be in writing, and shall be deemed to have been duly
made or given when: a) delivered personally with receipt acknowledged; b) sent
by registered or certified mail or equivalent, return receipt requested, or c)
sent by facsimile or telex (which shall promptly be confirmed by a writing sent
by registered or certified mail or equivalent, return receipt requested), or d)
sent by recognized overnight courier for delivery within twenty-four (24) hours,
in each case addressed or sent to the parties at the following addresses and
facsimile numbers or to such other or additional address or facsimile as any
party shall hereafter specify by Communication to the other parties:
To Neoprobe: Xxxxx X. Xxxx President
Neoprobe Corporation
000 Xxxxx Xx. X. , Xxxxx 000
Xxxxxx, XX 00000
Fax No.: (000)000-0000
Copy To: P.A. Xxxxxx Legal Counsel
To eV: Xxxxx Xxxxx
Division Manager
eV PRODUCTS, a Division of II-VI Incorporated
000 Xxxxxxxxx Xxxx.
Xxxxxxxxx, Xx 00000
Fax No.: (000) 000-0000
page - 10
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
14
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
Copy to: Xxxxxx X. German
Xxxxxxxx, German and Xxxxx
0, Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Notice of change of address shall be deemed given when actually
received, all other Communications shall be deemed to have been given, received
and dated on the earlier of: (i) when actually received, or on the date when
delivered personally; (ii) one (1) day after being sent by facsimile, cable,
telex (each promptly confirmed by a writing as aforesaid) or overnight courier;
or four (4) business days after mailing.
10.05 Legal Construction. In case any one or more of the provisions
contained in this Agreement shall be invalid or unenforceable in any respect,
the validity and enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby and the parties will
attempt to agree upon a valid and enforceable provision which shall be a
reasonable substitute for such invalid and unenforceable provision in light of
the tenor of this Agreement, and, upon so agreeing, shall incorporate such
substitute provision in this Agreement.
10.06 Entire Agreement, Modifications, Consents, Waivers. This
Agreement together with the Schedules attached hereto contains the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may not be modified or amended except by an instrument or instruments
in writing signed by the party against whom enforcement of any such modification
or amendment is sought. Each party hereto may, by an instrument in writing,
waive compliance by the other party hereto with any term or provision of this
Agreement on the part of such other party to be performed or complied with. The
waiver by either party hereto of a breach of any term or provision of this
Agreement shall not be construed as a waiver of any subsequent breach.
10.07 Copyright. Copyright in any drawing, computer software, manual or
other documentation (hereinafter referred to as the "Materials"), produced by eV
solely as a result of its manufacture and release of the Crystals and/or Modules
pursuant to this Agreement shall belong to Neoprobe and eV agrees to take all
necessary steps and execute all necessary documentation, at Neoprobe's expense,
to assign the copyright in such Materials to Neoprobe.
10.08 Section Headings; Construction. The section headings and titles
contained herein are each for reference only and shall not be deemed to affect
the meaning or interpretation of this Agreement. The words "hereby", "herein",
"herein above", "hereinafter", "hereof" and "hereunder", when used anywhere in
this Agreement, refer to this Agreement as a whole and not merely to a
subdivision in which such words appear, unless the context otherwise requires.
The singular shall include the plural, the conjunctive shall include the
disjunctive and the
page - 11
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
15
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
masculine gender shall include the feminine and neuter, and vice versa, unless
the context otherwise requires.
10.09 Execution Counterparts. This Agreement may be executed in any
number of counterparts and each such duplicate counterpart shall constitute an
original, any one of which may be introduced in evidence or used for any other
purpose without the production of its duplicate counterpart. Moreover,
notwithstanding that any of the parties did not execute the same counterpart,
each counterpart shall be deemed for all purposes to be an original, and all
such counterparts shall constitute one and the same instrument, binding on all
of the parties hereto.
ARTICLE XI. LIMITATION OF LIABILITY
-----------------------------------
IN NO EVENT SHALL EITHER PARTY NOR ANY OF ITS RESPECTIVE AFFILIATES BE
LIABLE TO THE OTHER PARTY OR ANY OF ITS AFFILIATES FOR SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, including, but not limited to, loss
of profits or revenue, loss of use of any equipment, cost of capital, down time
costs, delays, or claims of customers of any of them or other third parties for
such special, indirect, incidental or consequential damages.
ARTICLE XII. BINDING EFFECT
---------------------------
Neither party may directly or indirectly assign, delegate, encumber or
in any other manner transfer any of its rights, remedies, obligations,
liabilities or interests in or arising under this Agreement, without the prior
consent of the other, which consent shall not be unreasonably withheld or
delayed; provided, however, that a party may, upon prior written notice, but
without obtaining prior consent, directly or indirectly assign, delegate,
encumber or in any other manner transfer any of its rights, remedies,
obligations, liabilities or interests in or arising under this Agreement, to: i)
any Affiliate of a party, or ii) any entity which succeeds, by purchasing stock
or assets, by merger or otherwise, to all or substantially all of the assets of
the assigning party. Any attempted assignment, delegation, encumbrance or other
transfer in violation of this Agreement shall be void and of no effect, and
shall be a material breach hereof.
IN WITNESS WHEREOF, the parties have cause this Agreement to be
executed as of the day and year first written above.
(Signature Page - Page 13...)
page - 12
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
16
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
NEOPROBE CORPORATION eV PRODUCTS
Division of II-VI Incorporated
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxx Xxxxxxx X. Xxxxxx
President, COO President, COO
II-VI Incorporated
Date: December 8, 1997 Date: 12/16/97
cmf971208
page - 13
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
17
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
SCHEDULE 1.07
SPECIFICATIONS
--------------
The Specifications for the Crystal and the Crystals and/or Modules are those
contained in the following documents:
12 mm Probe Specification; Document number ***; May 15, 1997
19 mm Probe Specification; Document number ***; May 15, 1997
*** mm dia. X *** mm thick CdZnTe crystal: Neoprobe dwg.***
*** mm dia. X ***mm thick CdZnTe crystal: Neoprobe dwg.***
eV acknowledges that as of the Effective Date it has a copy of the most current
version of the applicable documents and drawings listed above
(I)
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
18
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
SCHEDULE 2.02
CRYSTALS AND/OR MODULES PRICE
-----------------------------
----------------------------------------------------------------------------------------------------
ITEM DESCRIPTION QTY UNIT PRICE
----------------------------------------------------------------------------------------------------
1 eV-290; 12 mm re-useable probe 250-499 ***
500-999 ***
1000-2499 ***
2500-4999 ***
5000-9999 ***
10,000+ ***
2 eV-291; 19mm re-usable probe 250-499 TBA
500-999 TBA
1000-2499 XXX
0000-0000 XXX
0000-0000 TBA
10,000+ TBA
3 CdZnTe detector crystal, *** mm dia. X *** mm thick 100-249 ***
250-499 ***
500-999 ***
1,000+ ***
4 CdZnTE detector crystals,*** mm dia. X *** mm thick 100-249 ***
250-499 ***
500-999 ***
1000+ ***
1) Prices are correct as of November 30, 1997 and are subject to revision
annually
2) Prices are valid for Detector specification as per Schedule 1.07 of
Supplier Agreement dated November 21, 1997. Any change in specification
may result in a revision of these prices.
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
19
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
SCHEDULE 2.08
NEOPROBE COMPETITORS*
---------------------
1. ***
2. ***
3. ***
4. ***
5. ***
6. ***
7. ***
8. ***
9. ***
10. ***
11. ***
12. ***
*Includes Affiliates
(III)
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
20
Omitted portions of this Exhibit are subject to a Request for
Confidential Treatment under Rule 24b-2.
SCHEDULE 9.02
CRYSTAL INGOT PRICE
-------------------
CdZnTe material costs us *** per kilogram to grow. A typical ingot yields ***
kilograms of good CdZnTe (before yield losses). According to latest forecasts,
we will need to dedicate *** furnaces to the growth of material for Neoprobe
detectors. This equates to *** kilograms of material; therefore, a ***-month
supply of CdZnTe, at the current estimated detector production rate, will cost
***.
(IV)
Text which has been omitted and filed separately under Rule 24b-2, pursuant to
which Neoprobe Corporation has requested confidential treatment of this
information, has been replaced by "***" in this Exhibit.
