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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): January 10, 1997
(December 9, 1996)
THERAGENICS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State of Incorporation)
0-15443 58-1528626
(Commission File Number) (I.R.S. Employer Identification No.)
5325 Oakbrook Parkway, Norcross, Georgia 30093
(Address of Principal Executive Offices) (Zip Code)
(404) 381-8338
(Registrant's Telephone Number, Including Area Code)
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Item 2. Acquisition or Disposition of Assets
Theragenics Agrees to Purchase of Four Additional Cyclotrons
Theragenics Corporation ("Theragenics" or the "Company") entered into four
agreements ("Agreements") dated December 27, 1996, each for the purchase of one
cyclotron from Ion Beam Applications s.a., the manufacturer of Theragenics'
current four cyclotrons ("Manufacturer"). The Agreements, which are attached
hereto as Exhibits 10.23 (a), (b), (c) and (d), call for the Manufacturer to
install and turn over to Theragenics one cyclotron in the late first quarter of
1998, a second cyclotron in the late second quarter of 1998, a third cyclotron
in the late third quarter of 1998 and a fourth cyclotron in the late fourth
quarter of 1998. All four agreements are payable to the Manufacturer in Begian
Francs.
The purchase of these four cyclotrons will be part of a larger expansion
project which will combine at one location the Company's cyclotron and assembly
facilities that are now in separate cities. Also included in this expansion
project will be administrative offices for the Company's executives and
management staff. The cost of this expansion including the cost of the four
cyclotrons and the facilities to house them and the assembly and administrative
facilities is currently expected to total approximately $20,000,000, based upon
today's exchange rate of U.S. dollars to the Manufacturer's country's currency.
Theragenics currently plans to finance this expansion project from a
combination of current cash balances, cash flow from future operations, bank
credit facilities and additional funds from future debt financings, stock
offerings or other forms of financing for this project.
Item 5. Other Events
Theragenics Secures $11 Million Credit Facility
Theragenics Corporation ("Theragenics") in an agreement with NationsBank
dated December 9, 1996, secured a Revolving Credit Facility (the "Facility")
totaling $11,000,000, which is attached hereto as Exhibit 10.24. Under the
Facility, $11,000,000 became immediately available to Theragenics upon signing.
Provisions of the Facility limit the amount of annual capital expenditures, the
incurrence of additional debt and requires, among other things, the maintenance
of certain minimum financial ratios. The Facility replaces a previous Line of
Credit Facility and Revolving Credit Facility totaling $5,000,000 and the
approximate $1,000,000 balance of a $2,100,000 term loan with NationsBank which
has been in place since September 1994. Management plans to use proceeds from
the Facility to help finance the Company's growth and partially fund expansion
involving the addition of a fifth, sixth, seventh and eighth cyclotron and new
manufacturing and administrative facilitiesas described in Item 2 above.
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Item 7. Exhibits
Exhibit Number Description
10.23(a) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.23(b) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.23(c) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.23(d) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.24* Second Amended and Restated Loan and Security
Agreement by and between Theragenics Corporation and
NationsBank, N.A. (South), Dated as of December 9, 1996
Confidential portions of Exhibits 10.23(a) - (d) have been omitted and
have been filed separately with the Commission.
- -----
* Previously filed.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized. THERAGENICS CORPORATION
/s/ Bruce W. Smith
Bruce W. Smith
Secretary, Treasurer and
Chief Financial Officer
Dated: March 24, 1997
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EXHIBIT 10.23(a)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidential portions of this document have been blanked out and have been
filed separately with the Securities and Exchange Commission.
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Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_____________Cyclotron Number 5
and
Related Target Equipment
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Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights.......................................17
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................20
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................23
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
___________ Target Parameters
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
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Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model ___________ cyclotron, related
____________ equipment and spare parts therefore, all as more particularly
described herein : and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the ________________ cyclotron to be purchased including
related equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
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"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"____________ Target Parameters".
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2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a ______________________ cyclotron, the technical
specifications of which are more fully described in the Appendix "Cyclotron
Parameters" Appendix hereto; ii) _________________ target system, the technical
specifications of which are more fully described in the Appendix
"__________ Target Parameters" hereto; and (iii) a set of spare parts listed in
the Appendix "Included Spare Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be
_______________________________________________________________. This price
shall also include the technical assistance by the Seller as described in
Section 25, the Spare Parts as listed in Appendix "Included Spare Parts" and the
Seller's contribution to the applicable USA customs duty as stated in Section 11
of this Agreement.
b) As a down payment equivalent to _____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
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i) _____________________________________________________________________ to
be paid to the Seller upon execution of this Agreement;
ii) ___________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii) ____________________________________________________________ to be
paid to the Seller on July 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv) ___________________________________________________________ to be paid
to the Seller within 15 days from shipment of the Supplies as evidenced by
receipt of the shipping documents and no later than December 1, 1997 if the
shipment is delayed by Buyer's fault. This payment shall be guaranteed by an
irrevocable standby Letter of Credit to be issued in favor of and approved by
the Seller by the date of shipping of the Supplies, to be notified by Seller to
the Buyer at least 30 days in advance.
v) _________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
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d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by ________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
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within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron. c) The Buyer at its sole
expense shall provide the Seller with closed premises on or reasonably near the
Site in which the Seller may store employee clothing and tools and equipment
required for the installation. However, the Buyer does not assume any risk with
respect to the loss or theft of any such items while on the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
seven weeks of the Effective Date. All additional costs related to
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making the Supplies conform to those norms or specific standards shall be
charged to the Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, on _________________, the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By _____________, the
Buyer shall furnish to the Seller drawings and plans for the Site including the
building and systems detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications" in sufficient detail to enable the Seller
to judge whether the Site will be satisfactory for the Supplies and will meet
the specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". Within four (4) weeks of the receipt of
this initial set of architectural and engineering drawings and plans, the Seller
shall provide the Buyer with comments thereon and detailed information as to
such modifications therein as the Seller deems necessary including such drawings
and technical documents as may be required by the Buyer to complete the
installation of the cables, cooling water and compressed air systems. However,
the time devoted to preparation by personnel of Seller of additional layouts or
drawings and/or reviews of revised sets of architectural and engineering
drawings will be invoiced at Seller's regular rates. No additional charge will
be made for telephone consultations. Travel and related expenses incurred as a
result of attendance by personnel of the Seller required at meeting outside of
Belgium with the Buyer's architects, engineers, consultants and/or
representatives will be reimbursed by the Buyer. With respect to the foregoing,
the responsibility for determining whether conflict exists between local
building codes and/or other laws or government regulations and the content of
drawings, data sheets, memoranda or other forms of communication submitted by
the Seller is solely the responsibility of the Buyer, his architects, engineers
and/or consultants. The definitive drawings and plans for the Site, made in
accordance with the Seller's comments and recommendations, will then be
furnished by the Buyer to the Seller by ___________. In addition, unless
otherwise specified, the Buyer shall have the sole responsibility for the design
and construction of the radiation monitoring systems, of the shielding
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required to prevent radiation leakage and of the systems required to handle the
disposal of radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by _______________. If the preparatory work as
regards the cyclotron vault is substantially completed before that date, the
Buyer shall accept delivery and/or installation of the Supplies as soon as
possible under the applicable laws and regulations. In the event that such work
has not been completed before that date, or if for any other reason the Buyer is
unable to accept delivery of the Supplies or commencement of the installation
thereof by that date, the Buyer shall immediately give the Seller written notice
of this fact and the anticipated new date for completion of the preparatory
work. In any case, the Seller may ship the Supplies to the Buyer at any time and
the Buyer shall store them in one of its warehouses until the date the
preparatory work is completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
Import Permits" and the requirements detailed in Appendix "Building
<PAGE> 12
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
<PAGE> 13
Agreement by issuing an acceptance certificate "Acceptance Certificate"
acknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until ___________, the Seller shall have unimpeded access to the Supplies to
complete the Acceptance Tests. If the Seller is unable to successfully complete
the Acceptance Tests by _____________, the Buyer shall be free to begin use of
the Supplies forty five (45) days later. Should the Supplies be put into use
under this condition, it is understood the Buyer and Seller will make a good
faith effort to facilitate the completion of the Acceptance Tests, but it is
further understood that the Buyer's production of Pd-103 with the machine takes
precedence. The Buyer agrees to allow the Seller three (3) prescheduled days of
unimpeded access to the Supplies per month during the period between ___________
until the period for acceptance has expired as specified in Section 4 "Title and
Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE> 14
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE> 15
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE> 16
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix "________ Target Parameters" for a period
of one (1) year after the Acceptance Date. The Seller shall resolve any design
flaws appearing during the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by _____________, the Seller's warranty shall start and be in effect until
_________________.
<PAGE> 17
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in _________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
<PAGE> 18
have it trained, possibly by the Seller; that, where necessary, the Supplies
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE> 19
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE> 20
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE> 21
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE> 22
or by a regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, ________________, spare parts and components to the Supplies, and
the Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE> 23
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE> 24
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE> 25
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE> 26
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE> 27
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer Director of Operations
ION BEAM APPLICATIONS, S.A.
/s/ Yves Jongen /s/Sabine de Vohgel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE> 28
APPENDIX
CYCLOTRON PARAMETERS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
METHOD OF VERIFICATION
BEAM FOR THE ACCEPTANCE TESTS
not required
calculated
measured
rationale
calculated
POWER CONSUMPTION
measured
measured
MAGNETIC STRUCTURE
value provided
value provided
value provided
value provided
value provided
value provided
value provided
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.1
<PAGE> 29
The Seller agrees that if the Buyer develops at its own expense a
______________ to ___________, and if the device does not interfere or
compromise the functioning of this _______, the Seller will cooperate with the
Buyer to integrate this __________ into its design _________.
R.F. SYSTEM
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
ION SOURCE
verified
value provided
The Seller agrees to provide _______________________.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.2
<PAGE> 30
GENERAL DIMENSIONS
value provided
value provided
value provided
value provided
WEIGHT
value provided
VACUUM SYSTEM
The Buyer will make its best effort to have _____ whenever possible.
CONTROL SYSTEM
STRAY BEAM CONTROL
WATER MANIFOLD
The water manifold will be __________________________.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.3
<PAGE> 31
APPENDIX
________ TARGET PARAMETERS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
METHOD OF VERIFICATION
TESTS FOR THE ACCEPTANCE
calculated
measured
measured
calculated
specified
specified
measured*
Notes:
1) It is understood the Seller will make its best effort to
____________.
2) The Buyer understands the ____________ to be delivered is to
function at ____________. The Seller will however consider the
possibility of ______________ and if this can be done at
_______________, will _________________.
* to be measured after completion of the Acceptance Tests
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.4
<PAGE> 32
APPENDIX
BUILDING REQUIREMENTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
A. RECOMMENDED ROOM CONFIGURATION
1. CYCLOTRON VAULT
Inside dimensions:
Recommended vault shielding:
Floor loading:
Floor drains: As required by local code & subject to health
safety rules
Temperature limits:
Humidity limits:
Power dissipated in the air:
Lifting eyebolts and anchoring points shall be installed in the vault
according to IBA specifications, if required.
2. POWER SUPPLY AND CONTROL ROOM
Inside dimensions:
Temperature limits:
Humidity limits:
Power dissipated in the air:
The door height for the insertion of the Supplies shall be more than 5 cm
higher than that of the Supplies.
Power supply, control and cyclotron rooms will be located close to each other
to avoid long cables and shall not be more than 30 meters away from each
other.
3. CYCLOTRON COOLING SYSTEM REQUIREMENTS
The cooling system should be located as close to the cyclotron vault as
possible, with access to a water supply.
A __________ is sufficient to accommodate the heat exchanger, column and pump.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.5
<PAGE> 33
Locating the cooling system on a different level from the cyclotron's is
possible to a maximum height difference of __________ the cyclotron median
plane _____________.
The area should be easily accessible for servicing the equipment.
B. SERVICES SPECIFICATIONS
1. ELECTRICAL POWER
_________, other voltages possible if specified within two weeks of the time
of order.
______________.
______________.
Voltage to be nominal ____________.
Delivered to IBA's power distribution cabinet in the power supply room.
The Buyer shall provide, install and terminate the power cables to the "mains"
connection (AC power input) of all IBA power distribution cabinets in
accordance with local electrical code requirements.
2. COOLING, SECONDARY LOOP
Water requirements (chiller loop):
Flow:
Temperature:
Power to be removed:
D P:
____________ water has to be delivered in the cooling room ___________.
Drains according to local building codes should be included.
3. COMPRESSED AIR
Pressure:
Quality:
Average flow:
Peak flow:
Outlets must be provided.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.6
<PAGE> 34
4. ____________ FOR CYCLOTRON VENTING
Pressure:
Quantity:
5. _____________ FOR THE ION SOURCE
Pressure:
Quantity:
Quality:
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.7
<PAGE> 35
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The building shall be fully completed and shall have been accepted by the
Seller prior to the arrival of both the Seller's team and the equipment
necessary for the installation of the Supplies. The Seller will start
installation work when the following conditions have been complied with to
Seller's reasonable satisfaction.
A "Site Acceptance Document" will be provided by the Seller to the Buyer and
will list the mutually agreed progress of the site reaching specification.
1. CONCRETE
All concrete must cure for at least ________ prior to arrival of the Supplies
and related equipment in order to avoid _______________ problems.
2. PIPES AND CABLES
All conduits, cable trenches, raceways, cable trays and related equipment shall
be installed by the Buyer prior to equipment arrival. Cables and pipes shall
be relayed to the various working areas by way of a _________ having a
____________, built in accordance with relevant electrical standards. The
_______ shall be equipped with cable ladders and/or cable ducts and be covered
(planks or galvanized roofing...).
The Seller shall provide detailed plans and recommendations regarding location,
size and number of trenches/pipes and cable trays that are required.
Cables and pipes for the ____________ shall be laid in different cable trays or
conduits from the cable trays or conduits housing the ___________.
_____________ cables are to be separately routed.
The Seller recommends that the trench be provided with ___________________.
______________ are needed for power cables, control cables, cyclotron system
water cooling pipes, vacuum system water cooling pipes, compressed air pipes,
gas pipes and ________________.
It is the Buyer's responsibility to ensure that the cable routing system meets
local electrical codes and requirements.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.8
<PAGE> 36
3. SERVICES
All services, as described in Appendix "Building Requirements", shall be
installed and made ready to be put into operation, before installation
commences.
4. SECONDARY WATER COOLING CONNECTIONS
All piping from the Buyer's water cooling system must be installed. Piping,
routed to locations suggested by the Seller, should have _______________ prior
to equipment installation. A water make-up line should be provided.
5. DUST
All floors, ceilings and walls including the inside of the trenches and other
openings shall be given a surface that minimizes dust generation. It is
recommended that all surfaces be painted in a light color to improve visibility
and to promote safety. All painting, sanding, placement of doors and windows
or similar will be completed.
6. LIGHTING AND ELECTRICAL EQUIPMENT POWER
Suitable and sufficient lighting shall be provided in all work areas. Standard
recommendations are as follows:
-Vault
-Power supply room
-Control room
Emergency lighting should be available in all relevant areas.
Single phase outlets shall be located at intervals of 3 meters or less in each
room where Seller's equipment will be installed.
7. COMPRESSED AIR OUTLETS
Exact location for the compressed air outlet will be specified for the
particular application by the Seller to the Buyer in due time.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.9
<PAGE> 37
8. POWER SUPPLY AND CONTROL ROOM FLOORING
This room requires a raised or "computer type" flooring.
9. VENTILATION
The control and power supply rooms will be air-conditioned to ensure optimal
operation of the electronic equipment. The other areas will be ventilated and
heated when necessary. Ventilation conditions and other conditions, shall be
organized according to the current regulations in the Buyer's country. The
relative humidity level will not exceed ____% in all relevant areas. The
passageways of ventilation ducts in the walls shall comply with the
________________.
10. HEATING
A temperature at ________ will be maintained in all relevant areas during the
installation and testing of the equipment.
11. RADIATION PROTECTION
While the Seller can offer building design suggestions, the entire
responsibilities for meeting all local codes and regulations regarding
radiation protection remain with the Buyer. The building and all work areas
will comply with all relevant safety standards concerning radiation protection
during all phases of construction, installation, testing and operation. The
Buyer will be responsible for installation plans of a radiation protection
system in accordance with local codes and regulations.
12. INFRASTRUCTURE & SERVICES
The Seller requires sufficient office space, tool storage, locker, furniture
and shower facilities for its personnel during the period of installation and
testing. Construction site access must also meet the approval of the Seller's
engineer.
The Buyer must, at his own expense arrange for the destruction, pick-up and/or
clearing away of all waste, including Seller's Supplies packaging except
radioactive waste which will be handled as follows. The Buyer agrees to
provide an uncontaminated area directly in front of the cyclotron vault that
can be used for unpacking components of the Supplies during assembly with the
understanding that all packing materials and other waste must be removed from
this area before the start of beam tests at which time the area in front of the
vault will be incorporated into the contaminated Hot Maintenance Area. The
Buyer will also provide appropriate disposable protective clothing and gear for
Seller's personnel during installation and testing and will at its own expense
dispose of all such protective clothing and gear. The Buyer will also at its
own expense dispose of one 55 gallon drum of solid radioactive waste produced
by Seller's personnel during installation. For any additional
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.10
<PAGE> 38
radioactive waste produced by Seller's personnel during the installation
process, the Buyer and Seller agree to equally share the cost of disposal up to
a maximum of ____________ paid by the Seller.
Besides the maintenance of the building site, providing security and fire
protection is also the Buyer's responsibility.
13. COMMUNICATION AND SURVEILLANCE EQUIPMENT
An intercom system shall interlink the ______________. It would be useful to
be able to communicate from the ____________. It is suggested that a
________________ be used in the ___________ for personnel safety.
14. INSERTION OF THE SUPPLIES
a) An appropriate opening through the wall shall be made in the cyclotron
vault to allow for passage of the cyclotron. This opening shall be
closed by the Buyer as soon as the cyclotron will have been rigged
into the cyclotron vault as closing of the opening is necessary for
progressing with the installation of the Supplies. The inside surface
of the vault closing will be finished within 5 days after the
cyclotron has been place in its final location.
b) A maneuvering area for a heavy trailer ______________ unloading and a
covered area ____________ for the assembly of the major components of
the Supplies must be provided for in front of the opening outside the
vault with adequate access to nearby roads.
The covered area shall be such as to be able to serve as storage area
for the rest of the Supplies while the cyclotron is rigged and the
opening in the vault is closed. Its floor shall support the use of a
three-ton forklift truck.
The ground of the cyclotron vault and of the unloading area shall be
surfaced with reinforced concrete capable of withstanding the
necessary maneuvering of the cyclotron into position.
c) All doors, corridors and other passageways leading to the control room
or any other room where Seller's equipment will be installed shall be
cleared so as to allow transportation of the Seller's equipment by
mean of a three-ton forklift truck or a similar transportation vehicle
from the unloading area to the place of final installation of the said
equipment.
d) For unloading and installation of additional equipment delivered to
the Site during the installation period, the Buyer shall prepare
building access and surroundings in order to allow access and
unloading of 10-ton trucks (unloading platform if possible). It must
be possible to perform the trucks unloading and the introduction of
the additional equipment in the building with a hand-lift. The
possibility to use the Buyer's fork-lift if needed would be
appreciated.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.11
<PAGE> 39
15. CONSULTING SERVICES
Typically, prior to the issuance of a purchase order or execution of some other
form of purchase agreement, the Seller will have prepared a preliminary layout
of the Buyer's facility and furnished various data regarding required building
services. After the purchase agreement has become effective, the Seller,
without additional charge, will make a final layout and prepare such other
plans and memoranda necessary to transmit data to the Buyer's architects and
engineers. Similarly, the Seller, without additional charge, will review the
initial set of architectural and engineering drawings and minor revisions
thereof. However, the time devoted to preparation by the Seller's personnel of
additional layouts or drawings and/or reviews of revised sets of architectural
and engineering drawings will be invoiced at the Seller's regular rates. No
additional charge will be made for telephone consultations. Travel and related
expenses incurred as a result of attendance by the Seller personnel required at
meetings outside of Belgium with the Buyer's architects, engineers, consultants
and/or representatives will be reimbursed by the Buyer. With respect to the
foregoing, the responsibility for determining whether conflict exists between
local building codes and/or other laws or government regulations and the
content of drawings, data sheets, memoranda or other forms of communication
submitted by the Seller is solely the responsibility of the Buyer, his
architects, engineers and/or consultants.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.12
<PAGE> 40
APPENDIX
INCLUDED SPARE PARTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following spare parts are included in the total purchase price of the
Supplies:
-other miscellaneous spares for a value of __________, to be specified
by the Buyer.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.13
<PAGE> 41
APPENDIX
ACCEPTANCE CRITERIA
Confidential Portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer is prepared to purchase the Supplies because the Seller has
represented that they will possess certain characteristics which make them
useful and of value to the Buyer. The following Acceptance Criteria embody the
Buyer's understanding of these characteristics and therefore the Buyer's
willingness to purchase the Supplies is predicated upon the Supplies actually
having these characteristics. The Acceptance Tests which follow are intended
to establish whether or not the Supplies are likely to possess these
characteristics and consequently determine if the Buyer should pay the full
agreed price for the Supplies.
Acceptance of the Supplies by the Buyer requires that they meet the following
minimum criteria as demonstrated by the Acceptance Tests:
1. The Supplies must conform with the parameters set out in the Appendix.
"Cyclotron Parameters" and the Appendix "______________ Target Parameters."
2. All of the items making up the Supplies must function together in a
way which provides reliable, continuous operation with _________________. This
performance must be sustainable over a routine production schedule defined as
_______________. Furthermore, the ___________________.
3. The target system must be designed so that it efficiently utilizes the
protons impinging the target. The rate of Pd-103 production in the rhodium
target must meet or exceed __________. If the rate of production is determined
during the Acceptance Test to be _____________ of the above production rate,
the Seller may correct the deficiency by _____________, i.e., the guaranteed
intensity as referred to in Appendix "Cyclotron Parameters".
4. Void.
5. Routine operation as defined in Item 2 above must not lead to
structural damage to internal components of the cyclotron or the target
assembly due to interactions between the beam and such components.
6. The radiation level within the cyclotron must not increase as a result
of proton and neutron activation and target evaporation to a level which makes
it unsafe to maintain and service the internal components.
7. The target handling device shall reliably remove the ______________
target from the cyclotron and place it into a shielded container for manual
transfer to the target processing laboratory. The operation of the target
handling device shall be _______________________. A written procedure,
providing adequate radiation protection, shall be prepared in case it is
necessary to _________________. The rhodium surface and all other surfaces of
the target handling system
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.14
<PAGE> 42
shall be shielded so an operator can safely enter the cyclotron vault to
transfer the shielded target out for processing.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.15
<PAGE> 43
APPENDIX
ACCEPTANCE TESTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following tests were developed based on experience gained through the
operation of the first three IBA __________ cyclotrons. They provide a
reasonable test of the functionality of the Supplies and when combined with the
Technical Assistance provided by the Seller as called for in Section 25 of the
Contract, should provide the Buyer a fully functional cyclotron properly
integrated into Buyer's production environment.
All radiation monitoring and measuring equipment used in these tests will be
provided by the Buyer. All targets and the _________ are the Buyer's
responsibility and at its own expense.
Test 1. The Supplies shall be demonstrated to comply with the specifications
set out in the Appendix "Cyclotron Parameters" and the Appendix "___________
Target Parameters" by the means specified in the Appendices.
Test 2. When the Supplies have been declared fully operational by the Seller,
the target handling device shall be cycled through a complete transfer from
demounting a fully installed target as it would be installed for a production
run through placing the target into a shielded container and the container
closed. This portion of this test shall be deemed passed when ___________ have
been completed. The target shall be transferred from the cyclotron to the
shielded container 5 times following the routine procedure for
__________________.
Test 3. When the Supplies are fully installed and Tests 1 and 2 have been
successfully completed, the Supplies must operate for ____________________.
The target must then be removed and inspected in the hot cell to determine that
the beam strike was on target, _________________. When the Buyer concurs in
writing, such concurrence not to be unreasonably withheld, that the Supplies
performed according to the specifications, the Supplies will be deemed to have
been accepted and Seller become eligible for the Acceptance Payment.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.16
<PAGE> 44
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date of
__________________. Official request must be made in writing and addressed to
Yves Jongen, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of ___________ for each complete day between the actual date of
early acceptance and ______________, including the day of
_______________________.
Theragenics/IBA Contract - Cyclotron #5 - _____________ - p.17
<PAGE> 1
EXHIBIT 10.23(b)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidentialportions of this document have been blanked out and have been filed
separately with the Securities and Exchange Commission.
<PAGE> 2
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_______________ Cyclotron Number 6
and
Related Target Equipment
<PAGE> 3
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights......................................18
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................20
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................23
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
__________ Target Parameters
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
<PAGE> 4
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model _________ cyclotron, related ___________ targetry
equipment and spare parts therefore, all as more particularly described herein :
and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the ______________ cyclotron to be purchased including related
equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
<PAGE> 5
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"____________ Target Parameters".
<PAGE> 6
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a __________ model cyclotron, the technical specifications
of which are more fully described in the Appendix "Cyclotron Parameters"
Appendix hereto; (ii) _________________________ target system, the technical
specifications of which are more fully described in the Appendix
"__________________________ Target Parameters" hereto; and (iii) a set of spare
parts listed in the Appendix "Included Spare Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be ______________________
_______________________ This price shall also include the technical assistance
by the Seller as described in Section 25, the Spare Parts as listed in Appendix
"Included Spare Parts" and the Seller's contribution to the applicable USA
customs duty as stated in Section 11 of this Agreement.
b) As a down payment equivalent to ____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
<PAGE> 7
i) ___________ ____________________________________________________ to be
paid to the Seller upon execution of this Agreement;
ii) ___________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii)_____________________________________________________________ to be
paid to the Seller on ______________. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv)_____________________________________________________ to be paid to the
Seller within 15 days from shipment of the Supplies as evidenced by receipt of
the shipping documents and no later than March 1, 1998 if the shipment is
delayed by Buyer's fault. This payment shall be guaranteed by an irrevocable
standby Letter of Credit to be issued in favor of and approved by the Seller by
the date of shipping of the Supplies, to be notified by Seller to the Buyer at
least 30 days in advance.
v)_________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
<PAGE> 8
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by _________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
<PAGE> 9
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron.
c) The Buyer at its sole expense shall provide the Seller with closed premises
on or reasonably near the Site in which the Seller may store employee clothing
and tools and equipment required for the installation. However, the Buyer does
not assume any risk with respect to the loss or theft of any such items while on
the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
seven weeks of the Effective Date. All additional costs related to making the
<PAGE> 10
Supplies conform to those norms or specific standards shall be charged to the
Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, ________________ the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By _____________ the
Buyer shall furnish to the Seller drawings and plans for the Site including the
building and systems detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications" in sufficient detail to enable the Seller
to judge whether the Site will be satisfactory for the Supplies and will meet
the specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". Within four (4) weeks of the receipt of
this initial set of architectural and engineering drawings and plans, the Seller
shall provide the Buyer with comments thereon and detailed information as to
such modifications therein as the Seller deems necessary including such drawings
and technical documents as may be required by the Buyer to complete the
installation of the cables, cooling water and compressed air systems. However,
the time devoted to preparation by personnel of Seller of additional layouts or
drawings and/or reviews of revised sets of architectural and engineering
drawings will be invoiced at Seller's regular rates. No additional charge will
be made for telephone consultations. Travel and related expenses incurred as a
result of attendance by personnel of the Seller required at meeting outside of
Belgium with the Buyer's architects, engineers, consultants and/or
representatives will be reimbursed by the Buyer. With respect to the foregoing,
the responsibility for determining whether conflict exists between local
building codes and/or other laws or government regulations and the content of
drawings, data sheets, memoranda or other forms of communication submitted by
the Seller is solely the responsibility of the Buyer, his architects, engineers
and/or consultants. The definitive drawings and plans for the Site, made in
accordance with the Seller's comments and recommendations, will then be
furnished by the Buyer to the Seller by ________________. In addition, unless
otherwise specified, the Buyer shall have the sole responsibility for the design
and construction of the radiation monitoring systems, of the shielding required
<PAGE> 11
to prevent radiation leakage and of the systems required to handle the disposal
of radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by ____________. If the preparatory work as regards
the cyclotron vault is substantially completed before that date, the Buyer shall
accept delivery and/or installation of the Supplies as soon as possible under
the applicable laws and regulations. In the event that such work has not been
completed before that date, or if for any other reason the Buyer is unable to
accept delivery of the Supplies or commencement of the installation thereof by
that date, the Buyer shall immediately give the Seller written notice of this
fact and the anticipated new date for completion of the preparatory work. In any
case, the Seller may ship the Supplies to the Buyer at any time and the Buyer
shall store them in one of its warehouses until the date the preparatory work is
completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
Import Permits" and the requirements detailed in Appendix "Building
<PAGE> 12
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
Agreement by issuing an acceptance certificate "Acceptance Certificate"
<PAGE> 13
acknowledging that decision, or advise the Seller in writing of the extent
to which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until ______________ the Seller shall have unimpeded access to the Supplies to
complete the Acceptance Tests. If the Seller is unable to successfully complete
the Acceptance Tests by _____________, the Buyer shall be free to begin use of
the Supplies forty five (45) days later. Should the Supplies be put into use
under this condition, it is understood the Buyer and Seller will make a good
faith effort to facilitate the completion of the Acceptance Tests, but it is
further understood that the Buyer's production of Pd-103 with the machine takes
precedence. The Buyer agrees to allow the Seller three (3) prescheduled days of
unimpeded access to the Supplies per month during the period between,
_____________ until the period for acceptance has expired as specified in
Section 4 "Title and Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE> 14
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE> 15
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE> 16
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix ____________ Target Parameters for a
period of one (1) year after the Acceptance Date. The Seller shall resolve any
design flaws appearing during the first year following the Acceptance of the
Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by _______________, the Seller's warranty shall start and be in effect
until ______________.
<PAGE> 17
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in __________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
have it trained, possibly by the Seller; that, where necessary, the Supplies
<PAGE> 18
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE> 19
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE> 20
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE> 21
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE> 22
or by regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy ;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, _____________________ spare parts and components to the Supplies,
and the Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE> 23
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE> 24
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE> 25
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE> 26
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE> 27
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer
/s/ Yves Jongen /s/ Sabine de Voghel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE> 28
APPENDIX
CYCLOTRON PARAMETERS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
METHOD OF VERIFICATION
BEAM FOR THE ACCEPTANCE TESTS
not required
calculated
measured
rationale
calculated
POWER CONSUMPTION
measured
measured
MAGNETIC STRUCTURE
value provided
value provided
value provided
value provided
value provided
value provided
value provided
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.1
<PAGE> 29
The Seller agrees that if the Buyer develops at its own expense a
______________ to ___________, and if the device does not interfere or
compromise the functioning of this _______, the Seller will cooperate with the
Buyer to integrate this __________ into its design _________.
R.F. SYSTEM
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
ION SOURCE
verified
value provided
The Seller agrees to provide _______________________.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.2
<PAGE> 30
GENERAL DIMENSIONS
value provided
value provided
value provided
value provided
WEIGHT
value provided
VACUUM SYSTEM
The Buyer will make its best effort to have _____ whenever possible.
CONTROL SYSTEM
STRAY BEAM CONTROL
WATER MANIFOLD
The water manifold will be __________________________.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.3
<PAGE> 31
APPENDIX
________ TARGET PARAMETERS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
METHOD OF VERIFICATION
TESTS FOR THE ACCEPTANCE
calculated
measured
measured
calculated
specified
specified
measured*
Notes:
1) It is understood the Seller will make its best effort to
____________.
2) The Buyer understands the _______________ to be delivered is to
function at ____________. The Seller will however consider
the possibility of ______________ and if this can be done at
_______________, will _________________.
* to be measured after completion of the Acceptance Tests
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.4
<PAGE> 32
APPENDIX
BUILDING REQUIREMENTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
A. RECOMMENDED ROOM CONFIGURATION
1. CYCLOTRON VAULT
Inside dimensions:
Recommended vault shielding:
Floor loading:
Floor drains: As required by local code & subject to health
safety rules
Temperature limits:
Humidity limits:
Power dissipated in the air:
Lifting eyebolts and anchoring points shall be installed in the vault
according to IBA specifications, if required.
2. POWER SUPPLY AND CONTROL ROOM
Inside dimensions:
Temperature limits:
Humidity limits:
Power dissipated in the air:
The door height for the insertion of the Supplies shall be more than 5 cm
higher than that of the Supplies.
Power supply, control and cyclotron rooms will be located close to each other
to avoid long cables and shall not be more than 30 meters away from each
other.
3. CYCLOTRON COOLING SYSTEM REQUIREMENTS
The cooling system should be located as close to the cyclotron vault as
possible, with access to a water supply.
A ___________ is sufficient to accommodate the heat exchanger, column and pump.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.5
<PAGE> 33
Locating the cooling system on a different level from the cyclotron's is
possible to a maximum height difference of __________ the cyclotron median
plane _____________.
The area should be easily accessible for servicing the equipment.
B. SERVICES SPECIFICATIONS
1. ELECTRICAL POWER
_________, other voltages possible if specified within two weeks of the time
of order.
______________.
______________.
Voltage to be nominal ____________.
Delivered to IBA's power distribution cabinet in the power supply room.
The Buyer shall provide, install and terminate the power cables to the "mains"
connection (AC power input) of all IBA power distribution cabinets in
accordance with local electrical code requirements.
2. COOLING, SECONDARY LOOP
Water requirements (chiller loop):
Flow:
Temperature:
Power to be removed:
D P:
____________ water has to be delivered in the cooling room ___________.
Drains according to local building codes should be included.
3. COMPRESSED AIR
Pressure:
Quality:
Average flow:
Peak flow:
Outlets must be provided.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.6
<PAGE> 34
4. ____________ FOR CYCLOTRON VENTING
Pressure:
Quantity:
5. _____________ FOR THE ION SOURCE
Pressure:
Quantity:
Quality:
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.7
<PAGE> 35
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The building shall be fully completed and shall have been accepted by the
Seller prior to the arrival of both the Seller's team and the equipment
necessary for the installation of the Supplies. The Seller will start
installation work when the following conditions have been complied with to
Seller's reasonable satisfaction.
A "Site Acceptance Document" will be provided by the Seller to the Buyer and
will list the mutually agreed progress of the site reaching specification.
1. CONCRETE
All concrete must cure for at least ________ prior to arrival of the Supplies
and related equipment in order to avoid _______________ problems.
2. PIPES AND CABLES
All conduits, cable trenches, raceways, cable trays and related equipment shall
be installed by the Buyer prior to equipment arrival. Cables and pipes shall
be relayed to the various working areas by way of a _________ having a
____________, built in accordance with relevant electrical standards. The
________ shall be equipped with cable ladders and/or cable ducts and be covered
(planks or galvanized roofing...).
The Seller shall provide detailed plans and recommendations regarding location,
size and number of trenches/pipes and cable trays that are required.
Cables and pipes for the ____________ shall be laid in different cable trays or
conduits from the cable trays or conduits housing the ___________.
_____________ cables are to be separately routed.
The Seller recommends that the trench be provided with ___________________.
______________ are needed for power cables, control cables, cyclotron system
water cooling pipes, vacuum system water cooling pipes, compressed air pipes,
gas pipes and ________________.
It is the Buyer's responsibility to ensure that the cable routing system meets
local electrical codes and requirements.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.8
<PAGE> 36
3. SERVICES
All services, as described in Appendix "Building Requirements", shall be
installed and made ready to be put into operation, before installation
commences.
4. SECONDARY WATER COOLING CONNECTIONS
All piping from the Buyer's water cooling system must be installed. Piping,
routed to locations suggested by the Seller, should have _______________ prior
to equipment installation. A water make-up line should be provided.
5. DUST
All floors, ceilings and walls including the inside of the trenches and other
openings shall be given a surface that minimizes dust generation. It is
recommended that all surfaces be painted in a light color to improve visibility
and to promote safety. All painting, sanding, placement of doors and windows
or similar will be completed.
6. LIGHTING AND ELECTRICAL EQUIPMENT POWER
Suitable and sufficient lighting shall be provided in all work areas. Standard
recommendations are as follows:
-Vault
-Power supply room
-Control room
Emergency lighting should be available in all relevant areas.
Single phase outlets shall be located at intervals of 3 meters or less in each
room where Seller's equipment will be installed.
7. COMPRESSED AIR OUTLETS
Exact location for the compressed air outlet will be specified for the
particular application by the Seller to the Buyer in due time.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.9
<PAGE> 37
8. POWER SUPPLY AND CONTROL ROOM FLOORING
This room requires a raised or "computer type" flooring.
9. VENTILATION
The control and power supply rooms will be air-conditioned to ensure optimal
operation of the electronic equipment. The other areas will be ventilated and
heated when necessary. Ventilation conditions and other conditions, shall be
organized according to the current regulations in the Buyer's country. The
relative humidity level will not exceed ____ in all relevant areas. The
passageways of ventilation ducts in the walls shall comply with the
________________.
10. HEATING
A temperature at ________ will be maintained in all relevant areas during the
installation and testing of the equipment.
11. RADIATION PROTECTION
While the Seller can offer building design suggestions, the entire
responsibilities for meeting all local codes and regulations regarding
radiation protection remain with the Buyer. The building and all work areas
will comply with all relevant safety standards concerning radiation protection
during all phases of construction, installation, testing and operation. The
Buyer will be responsible for installation plans of a radiation protection
system in accordance with local codes and regulations.
12. INFRASTRUCTURE & SERVICES
The Seller requires sufficient office space, tool storage, locker, furniture
and shower facilities for its personnel during the period of installation and
testing. Construction site access must also meet the approval of the Seller's
engineer.
The Buyer must, at his own expense arrange for the destruction, pick-up and/or
clearing away of all waste, including Seller's Supplies packaging except
radioactive waste which will be handled as follows. The Buyer agrees to
provide an uncontaminated area directly in front of the cyclotron vault that
can be used for unpacking components of the Supplies during assembly with the
understanding that all packing materials and other waste must be removed from
this area before the start of beam tests at which time the area in front of the
vault will be incorporated into the contaminated Hot Maintenance Area. The
Buyer will also provide appropriate disposable protective clothing and gear for
Seller's personnel during installation and testing and will at its own expense
dispose of all such protective clothing and gear. The Buyer will also at its
own expense dispose of one 55 gallon drum of solid radioactive waste produced
by Seller's personnel during installation. For any additional
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.10
<PAGE> 38
radioactive waste produced by Seller's personnel during the installation
process, the Buyer and Seller agree to equally share the cost of disposal up to
a maximum of ____________ paid by the Seller.
Besides the maintenance of the building site, providing security and fire
protection is also the Buyer's responsibility.
13. COMMUNICATION AND SURVEILLANCE EQUIPMENT
An intercom system shall interlink the ______________. It would be useful to
be able to communicate from the ____________. It is suggested that a
________________ be used in the ___________ for personnel safety.
14. INSERTION OF THE SUPPLIES
a) An appropriate opening through the wall shall be made in the cyclotron
vault to allow for passage of the cyclotron. This opening shall be
closed by the Buyer as soon as the cyclotron will have been rigged
into the cyclotron vault as closing of the opening is necessary for
progressing with the installation of the Supplies. The inside surface
of the vault closing will be finished within 5 days after the
cyclotron has been place in its final location.
b) A maneuvering area for a heavy trailer ______________ unloading and a
covered area ____________ for the assembly of the major components of
the Supplies must be provided for in front of the opening outside the
vault with adequate access to nearby roads.
The covered area shall be such as to be able to serve as storage area
for the rest of the Supplies while the cyclotron is rigged and the
opening in the vault is closed. Its floor shall support the use of a
three-ton forklift truck.
The ground of the cyclotron vault and of the unloading area shall be
surfaced with reinforced concrete capable of withstanding the
necessary maneuvering of the cyclotron into position.
c) All doors, corridors and other passageways leading to the control room
or any other room where Seller's equipment will be installed shall be
cleared so as to allow transportation of the Seller's equipment by
mean of a three-ton forklift truck or a similar transportation vehicle
from the unloading area to the place of final installation of the said
equipment.
d) For unloading and installation of additional equipment delivered to
the Site during the installation period, the Buyer shall prepare
building access and surroundings in order to allow access and
unloading of 10-ton trucks (unloading platform if possible). It must
be possible to perform the trucks unloading and the introduction of
the additional equipment in the building with a hand-lift. The
possibility to use the Buyer's fork-lift if needed would be
appreciated.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.11
<PAGE> 39
15. CONSULTING SERVICES
Typically, prior to the issuance of a purchase order or execution of some other
form of purchase agreement, the Seller will have prepared a preliminary layout
of the Buyer's facility and furnished various data regarding required building
services. After the purchase agreement has become effective, the Seller,
without additional charge, will make a final layout and prepare such other
plans and memoranda necessary to transmit data to the Buyer's architects and
engineers. Similarly, the Seller, without additional charge, will review the
initial set of architectural and engineering drawings and minor revisions
thereof. However, the time devoted to preparation by the Seller's personnel of
additional layouts or drawings and/or reviews of revised sets of architectural
and engineering drawings will be invoiced at the Seller's regular rates. No
additional charge will be made for telephone consultations. Travel and related
expenses incurred as a result of attendance by the Seller personnel required at
meetings outside of Belgium with the Buyer's architects, engineers, consultants
and/or representatives will be reimbursed by the Buyer. With respect to the
foregoing, the responsibility for determining whether conflict exists between
local building codes and/or other laws or government regulations and the
content of drawings, data sheets, memoranda or other forms of communication
submitted by the Seller is solely the responsibility of the Buyer, his
architects, engineers and/or consultants.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.12
<PAGE> 40
APPENDIX
INCLUDED SPARE PARTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following spare parts are included in the total purchase price of the
Supplies:
-other miscellaneous spares for a value of __________, to be specified
by the Buyer.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.13
<PAGE> 41
APPENDIX
ACCEPTANCE CRITERIA
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer is prepared to purchase the Supplies because the Seller has
represented that they will possess certain characteristics which make them
useful and of value to the Buyer. The following Acceptance Criteria embody the
Buyer's understanding of these characteristics and therefore the Buyer's
willingness to purchase the Supplies is predicated upon the Supplies actually
having these characteristics. The Acceptance Tests which follow are intended
to establish whether or not the Supplies are likely to possess these
characteristics and consequently determine if the Buyer should pay the full
agreed price for the Supplies.
Acceptance of the Supplies by the Buyer requires that they meet the following
minimum criteria as demonstrated by the Acceptance Tests:
1. The Supplies must conform with the parameters set out in the Appendix.
"Cyclotron Parameters" and the Appendix "______________ Target Parameters."
2. All of the items making up the Supplies must function together in a
way which provides reliable, continuous operation with _________________. This
performance must be sustainable over a routine production schedule defined as
_______________. Furthermore, the ___________________.
3. The target system must be designed so that it efficiently utilizes the
protons impinging the target. The rate of Pd-103 production in the rhodium
target must meet or exceed __________. If the rate of production is determined
during the Acceptance Test to be _____________ of the above production rate,
the Seller may correct the deficiency by _____________, i.e., the guaranteed
intensity as referred to in Appendix "Cyclotron Parameters".
4. Void.
5. Routine operation as defined in Item 2 above must not lead to
structural damage to internal components of the cyclotron or the target
assembly due to interactions between the beam and such components.
6. The radiation level within the cyclotron must not increase as a result
of proton and neutron activation and target evaporation to a level which makes
it unsafe to maintain and service the internal components.
7. The target handling device shall reliably remove the ______________
target from the cyclotron and place it into a shielded container for manual
transfer to the target processing laboratory. The operation of the target
handling device shall be _______________________. A written procedure,
providing adequate radiation protection, shall be prepared in case it is
necessary to _________________. The rhodium surface and all other surfaces of
the target handling system
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.14
<PAGE> 42
shall be shielded so an operator can safely enter the cyclotron vault to
transfer the shielded target out for processing.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.15
<PAGE> 43
APPENDIX
ACCEPTANCE TESTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following tests were developed based on experience gained through the
operation of the first three IBA __________ cyclotrons. They provide a
reasonable test of the functionality of the Supplies and when combined with the
Technical Assistance provided by the Seller as called for in Section 25 of the
Contract, should provide the Buyer a fully functional cyclotron properly
integrated into Buyer's production environment.
All radiation monitoring and measuring equipment used in these tests will be
provided by the Buyer. All targets and the _________ are the Buyer's
responsibility and at its own expense.
Test 1. The Supplies shall be demonstrated to comply with the specifications
set out in the Appendix "Cyclotron Parameters" and the Appendix "___________
Target Parameters" by the means specified in the Appendices.
Test 2. When the Supplies have been declared fully operational by the Seller,
the target handling device shall be cycled through a complete transfer from
demounting a fully installed target as it would be installed for a production
run through placing the target into a shielded container and the container
closed. This portion of this test shall be deemed passed when ___________ have
been completed. The target shall be transferred from the cyclotron to the
shielded container 5 times following the routine procedure for
__________________.
Test 3. When the Supplies are fully installed and Tests 1 and 2 have been
successfully completed, the Supplies must operate for ____________________.
The target must then be removed and inspected in the hot cell to determine that
the beam strike was on target, _________________. When the Buyer concurs in
writing, such concurrence not to be unreasonably withheld, that the Supplies
performed according to the specifications, the Supplies will be deemed to have
been accepted and Seller become eligible for the Acceptance Payment.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.16
<PAGE> 44
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date of
__________________. Official request must be made in writing and addressed to
Yves Jongen, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of ___________ for each complete day between the actual date of
early acceptance and ______________, including the day of
_______________________.
Theragenics/IBA Contract - Cyclotron #6 - _____________ - p.17
<PAGE> 1
EXHIBIT 10.23(c)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidentialportions of this document have been blanked out and have been filed
separately with the Securities and Exchange Commission.
<PAGE> 2
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_______________ Cyclotron Number 7
and
Related Target Equipment
<PAGE> 3
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights.......................................17
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................20
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................23
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
__________ Target Parameters
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
<PAGE> 4
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model _____________ cyclotron, related targetry
equipment and spare parts therefore, all as more particularly described herein :
and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the ______________ cyclotron to be purchased including related
equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
<PAGE> 5
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"_______________________ Target Parameters".
<PAGE> 6
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a __________________ cyclotron, the technical specifications
of which are more fully described in the Appendix "Cyclotron Parameters"
Appendix hereto; (ii) _________ target system, the technical specifications of
which are more fully described in the Appendix "__________ Target Parameters"
hereto; and (iii) a set of spare parts listed in the Appendix "Included Spare
Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be ____________________
________________________________. This price shall also include the technical
assistance by the Seller as described in Section 25, the Spare Parts as listed
in Appendix "Included Spare Parts" and the Seller's contribution to the
applicable USA customs duty as stated in Section 11 of this Agreement.
b) As a down payment equivalent to ____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
<PAGE> 7
i) ____________________________________________________________________ to
be paid to the Seller upon execution of this Agreement;
ii) ____________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii)_____________________________________________________________ to be
paid to the Seller on January 1, 1998. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv) _________________________________________________________ to be paid to
the Seller within 15 days from shipment of the Supplies as evidenced by receipt
of the shipping documents and no later than June 1, 1998 if the shipment is
delayed by Buyer's fault. This payment shall be guaranteed by an irrevocable
standby Letter of Credit to be issued in favor of and approved by the Seller by
the date of shipping of the Supplies, to be notified by Seller to the Buyer at
least 30 days in advance.
v) _________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
<PAGE> 8
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by _____________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
<PAGE> 9
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron.
c) The Buyer at its sole expense shall provide the Seller with closed premises
on or reasonably near the Site in which the Seller may store employee clothing
and tools and equipment required for the installation. However, the Buyer does
not assume any risk with respect to the loss or theft of any such items while on
the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
<PAGE> 10
seven weeks of the Effective Date. All additional costs related to making the
Supplies conform to those norms or specific standards shall be charged to the
Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, on_____________, the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By __________________,
the Buyer shall furnish to the Seller drawings and plans for the Site including
the building and systems detailed in Appendix "Building Requirements" and
Appendix "Building Completion Specifications" in sufficient detail to enable the
Seller to judge whether the Site will be satisfactory for the Supplies and will
meet the specifications detailed in Appendix "Building Requirements" and
Appendix "Building Completion Specifications". Within four (4) weeks of the
receipt of this initial set of architectural and engineering drawings and plans,
the Seller shall provide the Buyer with comments thereon and detailed
information as to such modifications therein as the Seller deems necessary
including such drawings and technical documents as may be required by the Buyer
to complete the installation of the cables, cooling water and compressed air
systems. However, the time devoted to preparation by personnel of Seller of
additional layouts or drawings and/or reviews of revised sets of architectural
and engineering drawings will be invoiced at Seller's regular rates. No
additional charge will be made for telephone consultations. Travel and related
expenses incurred as a result of attendance by personnel of the Seller required
at meeting outside of Belgium with the Buyer's architects, engineers,
consultants and/or representatives will be reimbursed by the Buyer. With respect
to the foregoing, the responsibility for determining whether conflict exists
between local building codes and/or other laws or government regulations and the
content of drawings, data sheets, memoranda or other forms of communication
submitted by the Seller is solely the responsibility of the Buyer, his
architects, engineers and/or consultants. The definitive drawings and plans for
the Site, made in accordance with the Seller's comments and recommendations,
will then be furnished by the Buyer to the Seller by ________________. In
addition, unless otherwise specified, the Buyer shall have the sole
responsibility for the design and construction of the radiation monitoring
systems, of the shielding required to
<PAGE> 11
prevent radiation leakage and of the systems required to handle the disposal of
radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by ____________. If the preparatory work as regards
the cyclotron vault is substantially completed before that date, the Buyer shall
accept delivery and/or installation of the Supplies as soon as possible under
the applicable laws and regulations. In the event that such work has not been
completed before that date, or if for any other reason the Buyer is unable to
accept delivery of the Supplies or commencement of the installation thereof by
that date, the Buyer shall immediately give the Seller written notice of this
fact and the anticipated new date for completion of the preparatory work. In any
case, the Seller may ship the Supplies to the Buyer at any time and the Buyer
shall store them in one of its warehouses until the date the preparatory work is
completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
<PAGE> 12
Import Permits" and the requirements detailed in Appendix "Building
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
<PAGE> 13
Agreement by issuing an acceptance certificate "Acceptance Certificate"
acknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until _____________, the Seller shall have unimpeded access to the Supplies to
complete the Acceptance Tests. If the Seller is unable to successfully complete
the Acceptance Tests by _______________, the Buyer shall be free to begin use of
the Supplies forty five (45) days later. Should the Supplies be put into use
under this condition, it is understood the Buyer and Seller will make a good
faith effort to facilitate the completion of the Acceptance Tests, but it is
further understood that the Buyer's production of Pd-103 with the machine takes
precedence. The Buyer agrees to allow the Seller three (3) prescheduled days of
unimpeded access to the Supplies per month during the period
between________________, until the period for acceptance has expired as
specified in Section 4 "Title and Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE> 14
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE> 15
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE> 16
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix "_____ Target Parameters" for a period
of one (1) year after the Acceptance Date. The Seller shall resolve any design
flaws appearing during the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by _____________, the Seller's warranty shall start and be in effect until
__________________.
<PAGE> 17
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in _________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
<PAGE> 18
have it trained, possibly by the Seller; that, where necessary, the Supplies
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE> 19
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE> 20
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE> 21
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE> 22
or by a regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy ;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, _____________, spare parts and components to the Supplies, and the
Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE> 23
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE> 24
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE> 25
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE> 26
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE> 27
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer Director of Operations
ION BEAM APPLICATIONS, S.A.
/s/ Yves Jongen /s/ Sabine de Voghel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE> 28
APPENDIX
CYCLOTRON PARAMETERS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
METHOD OF VERIFICATION
BEAM FOR THE ACCEPTANCE TESTS
not required
calculated
measured
rationale
calculated
POWER CONSUMPTION
measured
measured
MAGNETIC STRUCTURE
value provided
value provided
value provided
value provided
value provided
value provided
value provided
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.1
<PAGE> 29
The Seller agrees that if the Buyer develops at its own expense a
______________ to ___________, and if the device does not interfere or
compromise the functioning of this _______, the Seller will cooperate with the
Buyer to integrate this __________ into its design _________.
R.F. SYSTEM
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
ION SOURCE
verified
value provided
The Seller agrees to provide _______________________.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.2
<PAGE> 30
GENERAL DIMENSIONS
value provided
value provided
value provided
value provided
WEIGHT
value provided
VACUUM SYSTEM
The Buyer will make its best effort to have _____ whenever possible.
CONTROL SYSTEM
STRAY BEAM CONTROL
WATER MANIFOLD
The water manifold will be __________________________.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.3
<PAGE> 31
APPENDIX
________ TARGET PARAMETERS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
METHOD OF VERIFICATION
TESTS FOR THE ACCEPTANCE
calculated
measured
measured
calculated
specified
specified
measured*
Notes:
1) It is understood the Seller will make its best effort to
____________.
2) The Buyer understands the _____________ to be delivered is to
function at ____________. The Seller will however consider
the possibility of ______________ and if this can be done
_______________, will _________________.
* to be measured after completion of the Acceptance Tests
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.4
<PAGE> 32
APPENDIX
BUILDING REQUIREMENTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
A. RECOMMENDED ROOM CONFIGURATION
1. CYCLOTRON VAULT
Inside dimensions:
Recommended vault shielding:
Floor loading:
Floor drains: As required by local code & subject to health
safety rules
Temperature limits:
Humidity limits:
Power dissipated in the air:
Lifting eyebolts and anchoring points shall be installed in the vault
according to IBA specifications, if required.
2. POWER SUPPLY AND CONTROL ROOM
Inside dimensions:
Temperature limits:
Humidity limits:
Power dissipated in the air:
The door height for the insertion of the Supplies shall be more than 5 cm
higher than that of the Supplies.
Power supply, control and cyclotron rooms will be located close to each other
to avoid long cables and shall not be more than 30 meters away from each
other.
3. CYCLOTRON COOLING SYSTEM REQUIREMENTS
The cooling system should be located as close to the cyclotron vault as
possible, with access to a water supply.
A ___________ is sufficient to accommodate the heat exchanger, column and pump.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.5
<PAGE> 33
Locating the cooling system on a different level from the cyclotron's is
possible to a maximum height difference of __________ the cyclotron median
plane _____________.
The area should be easily accessible for servicing the equipment.
B. SERVICES SPECIFICATIONS
1. ELECTRICAL POWER
_________, other voltages possible if specified within two weeks of the time
of order.
______________.
______________.
Voltage to be nominal ____________.
Delivered to IBA's power distribution cabinet in the power supply room.
The Buyer shall provide, install and terminate the power cables to the "mains"
connection (AC power input) of all IBA power distribution cabinets in
accordance with local electrical code requirements.
2. COOLING, SECONDARY LOOP
Water requirements (chiller loop):
Flow:
Temperature:
Power to be removed:
D P:
____________ water has to be delivered in the cooling room ___________.
Drains according to local building codes should be included.
3. COMPRESSED AIR
Pressure:
Quality:
Average flow:
Peak flow:
Outlets must be provided.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.6
<PAGE> 34
4. ____________ FOR CYCLOTRON VENTING
Pressure:
Quantity:
5. _____________ FOR THE ION SOURCE
Pressure:
Quantity:
Quality:
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.7
<PAGE> 35
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The building shall be fully completed and shall have been accepted by the
Seller prior to the arrival of both the Seller's team and the equipment
necessary for the installation of the Supplies. The Seller will start
installation work when the following conditions have been complied with to
Seller's reasonable satisfaction.
A "Site Acceptance Document" will be provided by the Seller to the Buyer and
will list the mutually agreed progress of the site reaching specification.
1. CONCRETE
All concrete must cure for at least ________ prior to arrival of the Supplies
and related equipment in order to avoid _______________ problems.
2. PIPES AND CABLES
All conduits, cable trenches, raceways, cable trays and related equipment shall
be installed by the Buyer prior to equipment arrival. Cables and pipes shall
be relayed to the various working areas by way of a _________ having a
____________, built in accordance with relevant electrical standards. The
_______ shall be equipped with cable ladders and/or cable ducts and be covered
(planks or galvanized roofing...).
The Seller shall provide detailed plans and recommendations regarding location,
size and number of trenches/pipes and cable trays that are required.
Cables and pipes for the ____________ shall be laid in different cable trays or
conduits from the cable trays or conduits housing the ___________.
_____________ cables are to be separately routed.
The Seller recommends that the trench be provided with ___________________.
______________ are needed for power cables, control cables, cyclotron system
water cooling pipes, vacuum system water cooling pipes, compressed air pipes,
gas pipes and ________________.
It is the Buyer's responsibility to ensure that the cable routing system meets
local electrical codes and requirements.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.8
<PAGE> 36
3. SERVICES
All services, as described in Appendix "Building Requirements", shall be
installed and made ready to be put into operation, before installation
commences.
4. SECONDARY WATER COOLING CONNECTIONS
All piping from the Buyer's water cooling system must be installed. Piping,
routed to locations suggested by the Seller, should have _______________ prior
to equipment installation. A water make-up line should be provided.
5. DUST
All floors, ceilings and walls including the inside of the trenches and other
openings shall be given a surface that minimizes dust generation. It is
recommended that all surfaces be painted in a light color to improve visibility
and to promote safety. All painting, sanding, placement of doors and windows
or similar will be completed.
6. LIGHTING AND ELECTRICAL EQUIPMENT POWER
Suitable and sufficient lighting shall be provided in all work areas. Standard
recommendations are as follows:
-Vault
-Power supply room
-Control room
Emergency lighting should be available in all relevant areas.
Single phase outlets shall be located at intervals of 3 meters or less in each
room where Seller's equipment will be installed.
7. COMPRESSED AIR OUTLETS
Exact location for the compressed air outlet will be specified for the
particular application by the Seller to the Buyer in due time.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.9
<PAGE> 37
8. POWER SUPPLY AND CONTROL ROOM FLOORING
This room requires a raised or "computer type" flooring.
9. VENTILATION
The control and power supply rooms will be air-conditioned to ensure optimal
operation of the electronic equipment. The other areas will be ventilated and
heated when necessary. Ventilation conditions and other conditions, shall be
organized according to the current regulations in the Buyer's country. The
relative humidity level will not exceed ____% in all relevant areas. The
passageways of ventilation ducts in the walls shall comply with the
________________.
10. HEATING
A temperature at ________ will be maintained in all relevant areas during the
installation and testing of the equipment.
11. RADIATION PROTECTION
While the Seller can offer building design suggestions, the entire
responsibilities for meeting all local codes and regulations regarding
radiation protection remain with the Buyer. The building and all work areas
will comply with all relevant safety standards concerning radiation protection
during all phases of construction, installation, testing and operation. The
Buyer will be responsible for installation plans of a radiation protection
system in accordance with local codes and regulations.
12. INFRASTRUCTURE & SERVICES
The Seller requires sufficient office space, tool storage, locker, furniture
and shower facilities for its personnel during the period of installation and
testing. Construction site access must also meet the approval of the Seller's
engineer.
The Buyer must, at his own expense arrange for the destruction, pick-up and/or
clearing away of all waste, including Seller's Supplies packaging except
radioactive waste which will be handled as follows. The Buyer agrees to
provide an uncontaminated area directly in front of the cyclotron vault that
can be used for unpacking components of the Supplies during assembly with the
understanding that all packing materials and other waste must be removed from
this area before the start of beam tests at which time the area in front of the
vault will be incorporated into the contaminated Hot Maintenance Area. The
Buyer will also provide appropriate disposable protective clothing and gear for
Seller's personnel during installation and testing and will at its own expense
dispose of all such protective clothing and gear. The Buyer will also at its
own expense dispose of one 55 gallon drum of solid radioactive waste produced
by Seller's personnel during installation. For any additional
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.10
<PAGE> 38
radioactive waste produced by Seller's personnel during the installation
process, the Buyer and Seller agree to equally share the cost of disposal up to
a maximum of ____________ paid by the Seller.
Besides the maintenance of the building site, providing security and fire
protection is also the Buyer's responsibility.
13. COMMUNICATION AND SURVEILLANCE EQUIPMENT
An intercom system shall interlink the ______________. It would be useful to
be able to communicate from the ____________. It is suggested that a
________________ be used in the ___________ for personnel safety.
14. INSERTION OF THE SUPPLIES
a) An appropriate opening through the wall shall be made in the cyclotron
vault to allow for passage of the cyclotron. This opening shall be
closed by the Buyer as soon as the cyclotron will have been rigged
into the cyclotron vault as closing of the opening is necessary for
progressing with the installation of the Supplies. The inside surface
of the vault closing will be finished within 5 days after the
cyclotron has been place in its final location.
b) A maneuvering area for a heavy trailer ______________ unloading and a
covered area ____________ for the assembly of the major components of
the Supplies must be provided for in front of the opening outside the
vault with adequate access to nearby roads.
The covered area shall be such as to be able to serve as storage area
for the rest of the Supplies while the cyclotron is rigged and the
opening in the vault is closed. Its floor shall support the use of a
three-ton forklift truck.
The ground of the cyclotron vault and of the unloading area shall be
surfaced with reinforced concrete capable of withstanding the
necessary maneuvering of the cyclotron into position.
c) All doors, corridors and other passageways leading to the control room
or any other room where Seller's equipment will be installed shall be
cleared so as to allow transportation of the Seller's equipment by
mean of a three-ton forklift truck or a similar transportation vehicle
from the unloading area to the place of final installation of the said
equipment.
d) For unloading and installation of additional equipment delivered to
the Site during the installation period, the Buyer shall prepare
building access and surroundings in order to allow access and
unloading of 10-ton trucks (unloading platform if possible). It must
be possible to perform the trucks unloading and the introduction of
the additional equipment in the building with a hand-lift. The
possibility to use the Buyer's fork-lift if needed would be
appreciated.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.11
<PAGE> 39
15. CONSULTING SERVICES
Typically, prior to the issuance of a purchase order or execution of some other
form of purchase agreement, the Seller will have prepared a preliminary layout
of the Buyer's facility and furnished various data regarding required building
services. After the purchase agreement has become effective, the Seller,
without additional charge, will make a final layout and prepare such other
plans and memoranda necessary to transmit data to the Buyer's architects and
engineers. Similarly, the Seller, without additional charge, will review the
initial set of architectural and engineering drawings and minor revisions
thereof. However, the time devoted to preparation by the Seller's personnel of
additional layouts or drawings and/or reviews of revised sets of architectural
and engineering drawings will be invoiced at the Seller's regular rates. No
additional charge will be made for telephone consultations. Travel and related
expenses incurred as a result of attendance by the Seller personnel required at
meetings outside of Belgium with the Buyer's architects, engineers, consultants
and/or representatives will be reimbursed by the Buyer. With respect to the
foregoing, the responsibility for determining whether conflict exists between
local building codes and/or other laws or government regulations and the
content of drawings, data sheets, memoranda or other forms of communication
submitted by the Seller is solely the responsibility of the Buyer, his
architects, engineers and/or consultants.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.12
<PAGE> 40
APPENDIX
INCLUDED SPARE PARTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following spare parts are included in the total purchase price of the
Supplies:
-other miscellaneous spares for a value of __________, to be specified
by the Buyer.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.13
<PAGE> 41
APPENDIX
ACCEPTANCE CRITERIA
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer is prepared to purchase the Supplies because the Seller has
represented that they will possess certain characteristics which make them
useful and of value to the Buyer. The following Acceptance Criteria embody the
Buyer's understanding of these characteristics and therefore the Buyer's
willingness to purchase the Supplies is predicated upon the Supplies actually
having these characteristics. The Acceptance Tests which follow are intended
to establish whether or not the Supplies are likely to possess these
characteristics and consequently determine if the Buyer should pay the full
agreed price for the Supplies.
Acceptance of the Supplies by the Buyer requires that they meet the following
minimum criteria as demonstrated by the Acceptance Tests:
1. The Supplies must conform with the parameters set out in the Appendix.
"Cyclotron Parameters" and the Appendix "______________ Target Parameters."
2. All of the items making up the Supplies must function together in a
way which provides reliable, continuous operation with _________________. This
performance must be sustainable over a routine production schedule defined as
_______________. Furthermore, the ___________________.
3. The target system must be designed so that it efficiently utilizes the
protons impinging the target. The rate of Pd-103 production in the rhodium
target must meet or exceed __________. If the rate of production is determined
during the Acceptance Test to be _____________ of the above production rate,
the Seller may correct the deficiency by _____________, i.e., the guaranteed
intensity as referred to in Appendix "Cyclotron Parameters".
4. Void.
5. Routine operation as defined in Item 2 above must not lead to
structural damage to internal components of the cyclotron or the target
assembly due to interactions between the beam and such components.
6. The radiation level within the cyclotron must not increase as a result
of proton and neutron activation and target evaporation to a level which makes
it unsafe to maintain and service the internal components.
7. The target handling device shall reliably remove the ______________
target from the cyclotron and place it into a shielded container for manual
transfer to the target processing laboratory. The operation of the target
handling device shall be _______________________. A written procedure,
providing adequate radiation protection, shall be prepared in case it is
necessary to _________________. The rhodium surface and all other surfaces of
the target handling system
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.14
<PAGE> 42
shall be shielded so an operator can safely enter the cyclotron vault to
transfer the shielded target out for processing.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.15
<PAGE> 43
APPENDIX
ACCEPTANCE TESTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following tests were developed based on experience gained through the
operation of the first three IBA __________ cyclotrons. They provide a
reasonable test of the functionality of the Supplies and when combined with the
Technical Assistance provided by the Seller as called for in Section 25 of the
Contract, should provide the Buyer a fully functional cyclotron properly
integrated into Buyer's production environment.
All radiation monitoring and measuring equipment used in these tests will be
provided by the Buyer. All targets and the _________ are the Buyer's
responsibility and at its own expense.
Test 1. The Supplies shall be demonstrated to comply with the specifications
set out in the Appendix "Cyclotron Parameters" and the Appendix "___________
Target Parameters" by the means specified in the Appendices.
Test 2. When the Supplies have been declared fully operational by the Seller,
the target handling device shall be cycled through a complete transfer from
demounting a fully installed target as it would be installed for a production
run through placing the target into a shielded container and the container
closed. This portion of this test shall be deemed passed when ___________ have
been completed. The target shall be transferred from the cyclotron to the
shielded container 5 times following the routine procedure for
__________________.
Test 3. When the Supplies are fully installed and Tests 1 and 2 have been
successfully completed, the Supplies must operate for ____________________.
The target must then be removed and inspected in the hot cell to determine that
the beam strike was on target, _________________. When the Buyer concurs in
writing, such concurrence not to be unreasonably withheld, that the Supplies
performed according to the specifications, the Supplies will be deemed to have
been accepted and Seller become eligible for the Acceptance Payment.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.16
<PAGE> 44
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date of
__________________. Official request must be made in writing and addressed to
Yves Jongen, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of ___________ for each complete day between the actual date of
early acceptance and ______________, including the day of
_______________________.
Theragenics/IBA Contract - Cyclotron #7 - _____________ - p.17
<PAGE> 1
EXHIBIT 10.23(d)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidentialportions of this document have been blanked out and have been filed
separately with the Securities and Exchange Commission.
<PAGE> 2
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_______________ Cyclotron Number 8
and
Related Target Equipment
<PAGE> 3
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights.......................................17
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................19
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................22
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
____________ Target Parameters
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
<PAGE> 4
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model ________________________ cyclotron, related
______________________ targetry equipment and spare parts therefore, all as more
particularly described herein : and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the _______________ cyclotron to be purchased including related
equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
<PAGE> 5
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"____________ Target Parameters."
<PAGE> 6
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a ________________ model cyclotron, the technical
specifications of which are more fully described in the Appendix "Cyclotron
Parameters" Appendix hereto; (ii)____________ target system, the technical
specifications of which are more fully described in the Appendix
"________ Target Parameters" hereto; and (iii) a set of spare parts listed in
the Appendix "Included Spare Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be ______________________
________________________. This price shall also include the technical assistance
by the Seller as described in Section 25, the Spare Parts as listed in Appendix
"Included Spare Parts" and the Seller's contribution to the applicable USA
customs duty as stated in Section 11 of this Agreement.
b) As a down payment equivalent to ____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
<PAGE> 7
i) _____________________________________________________________________ to
be paid to the Seller upon execution of this Agreement;
ii) ____________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii) _____________________________________________________________ to be
paid to the Seller on April 1, 1998. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv) ___________________________________________________________ to be paid
to the Seller within 15 days from shipment of the Supplies as evidenced by
receipt of the shipping documents and no later than September 1, 1998 if the
shipment is delayed by Buyer's fault. This payment shall be guaranteed by an
irrevocable standby Letter of Credit to be issued in favor of and approved by
the Seller by the date of shipping of the Supplies, to be notified by Seller to
the Buyer at least 30 days in advance.
v) _________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
<PAGE> 8
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by _____________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
<PAGE> 9
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron.
c) The Buyer at its sole expense shall provide the Seller with closed premises
on or reasonably near the Site in which the Seller may store employee clothing
and tools and equipment required for the installation. However, the Buyer does
not assume any risk with respect to the loss or theft of any such items while on
the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
<PAGE> 10
seven weeks of the Effective Date. All additional costs related to making the
Supplies conform to those norms or specific standards shall be charged to the
Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, on _________________, the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By _______________, the
Buyer shall furnish to the Seller drawings and plans for the Site including the
building and systems detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications" in sufficient detail to enable the Seller
to judge whether the Site will be satisfactory for the Supplies and will meet
the specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". Within four (4) weeks of the receipt of
this initial set of architectural and engineering drawings and plans, the Seller
shall provide the Buyer with comments thereon and detailed information as to
such modifications therein as the Seller deems necessary including such drawings
and technical documents as may be required by the Buyer to complete the
installation of the cables, cooling water and compressed air systems. However,
the time devoted to preparation by personnel of Seller of additional layouts or
drawings and/or reviews of revised sets of architectural and engineering
drawings will be invoiced at Seller's regular rates. No additional charge will
be made for telephone consultations. Travel and related expenses incurred as a
result of attendance by personnel of the Seller required at meeting outside of
Belgium with the Buyer's architects, engineers, consultants and/or
representatives will be reimbursed by the Buyer. With respect to the foregoing,
the responsibility for determining whether conflict exists between local
building codes and/or other laws or government regulations and the content of
drawings, data sheets, memoranda or other forms of communication submitted by
the Seller is solely the responsibility of the Buyer, his architects, engineers
and/or consultants. The definitive drawings and plans for the Site, made in
accordance with the Seller's comments and recommendations, will then be
furnished by the Buyer to the Seller by ________________. In addition, unless
otherwise specified, the Buyer shall have the sole responsibility for the design
and construction of the radiation monitoring systems, of the shielding required
<PAGE> 11
to prevent radiation leakage and of the systems required to handle the disposal
of radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by _______________. If the preparatory work as
regards the cyclotron vault is substantially completed before that date, the
Buyer shall accept delivery and/or installation of the Supplies as soon as
possible under the applicable laws and regulations. In the event that such work
has not been completed before that date, or if for any other reason the Buyer is
unable to accept delivery of the Supplies or commencement of the installation
thereof by that date, the Buyer shall immediately give the Seller written notice
of this fact and the anticipated new date for completion of the preparatory
work. In any case, the Seller may ship the Supplies to the Buyer at any time and
the Buyer shall store them in one of its warehouses until the date the
preparatory work is completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
Import Permits" and the requirements detailed in Appendix "Building
<PAGE> 12
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
<PAGE> 13
Agreement by issuing an acceptance certificate "Acceptance Certificate"
acknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until _________________ the Seller shall have unimpeded access to the Supplies
to complete the Acceptance Tests. If the Seller is unable to successfully
complete the Acceptance Tests by __________________ the Buyer shall be free to
begin use of the Supplies forty five (45) days later. Should the Supplies be put
into use under this condition, it is understood the Buyer and Seller will make a
good faith effort to facilitate the completion of the Acceptance Tests, but it
is further understood that the Buyer's production of Pd-103 with the machine
takes precedence. The Buyer agrees to allow the Seller three (3) prescheduled
days of unimpeded access to the Supplies per month during the period between
____________________ until the period for acceptance has expired as specified in
Section 4 "Title and Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE> 14
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE> 15
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE> 16
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix "_______ Target Parameters" for a period
of one (1) year after the Acceptance Date. The Seller shall resolve any design
flaws appearing during the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by ______________, the Seller's warranty shall start and be in effect
until ________________.
<PAGE> 17
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in __________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
<PAGE> 18
have it trained, possibly by the Seller; that, where necessary, the Supplies
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE> 19
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE> 20
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE> 21
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE> 22
or by a regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, ____________________, spare parts and components to the Supplies,
and the Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE> 23
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE> 24
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE> 25
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE> 26
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE> 27
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer Director of Operations
ION BEAM APPLICATIONS, S.A.
/s/ Yves Jongen /s/ Sabine de Voghel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE> 28
APPENDIX
CYCLOTRON PARAMETERS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
METHOD OF VERIFICATION
BEAM FOR THE ACCEPTANCE TESTS
not required
calculated
measured
rationale
calculated
POWER CONSUMPTION
measured
measured
MAGNETIC STRUCTURE
value provided
value provided
value provided
value provided
value provided
value provided
value provided
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.1
<PAGE> 29
The Seller agrees that if the Buyer develops at its own expense a
______________ to ___________, and if the device does not interfere or
compromise the functioning of this _______, the Seller will cooperate with the
Buyer to integrate this __________ into its design _________.
R.F. SYSTEM
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
value provided
ION SOURCE
verified
value provided
The Seller agrees to provide _______________________.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.2
<PAGE> 30
GENERAL DIMENSIONS
value provided
value provided
value provided
value provided
WEIGHT
value provided
VACUUM SYSTEM
The Buyer will make its best effort to have _____ whenever possible.
CONTROL SYSTEM
STRAY BEAM CONTROL
WATER MANIFOLD
The water manifold will be __________________________.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.3
<PAGE> 31
APPENDIX
________ TARGET PARAMETERS
METHOD OF VERIFICATION
TESTS FOR THE ACCEPTANCE
calculated
measured
measured
calculated
specified
specified
measured*
Notes:
1) It is understood the Seller will make its best effort to
____________.
2) The Buyer understands the ___________ to be delivered is to
function at ____________. The Seller will however consider
the possibility of ______________ and if this can be done
_______________, will _________________.
* to be measured after completion of the Acceptance Tests
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.4
<PAGE> 32
APPENDIX
BUILDING REQUIREMENTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
A. RECOMMENDED ROOM CONFIGURATION
1. CYCLOTRON VAULT
Inside dimensions:
Recommended vault shielding:
Floor loading:
Floor drains: As required by local code & subject to health
safety rules
Temperature limits:
Humidity limits:
Power dissipated in the air:
Lifting eyebolts and anchoring points shall be installed in the vault
according to IBA specifications, if required.
2. POWER SUPPLY AND CONTROL ROOM
Inside dimensions:
Temperature limits:
Humidity limits:
Power dissipated in the air:
The door height for the insertion of the Supplies shall be more than 5 cm
higher than that of the Supplies.
Power supply, control and cyclotron rooms will be located close to each other
to avoid long cables and shall not be more than 30 meters away from each
other.
3. CYCLOTRON COOLING SYSTEM REQUIREMENTS
The cooling system should be located as close to the cyclotron vault as
possible, with access to a water supply.
A ___________ is sufficient to accommodate the heat exchanger, column and pump.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.5
<PAGE> 33
Locating the cooling system on a different level from the cyclotron's is
possible to a maximum height difference of __________ the cyclotron median
plane _____________.
The area should be easily accessible for servicing the equipment.
B. SERVICES SPECIFICATIONS
1. ELECTRICAL POWER
_________, other voltages possible if specified within two weeks of the time
of order.
______________.
______________.
Voltage to be nominal ____________.
Delivered to IBA's power distribution cabinet in the power supply room.
The Buyer shall provide, install and terminate the power cables to the "mains"
connection (AC power input) of all IBA power distribution cabinets in
accordance with local electrical code requirements.
2. COOLING, SECONDARY LOOP
Water requirements (chiller loop):
Flow:
Temperature:
Power to be removed:
D P:
____________ water has to be delivered in the cooling room ___________.
Drains according to local building codes should be included.
3. COMPRESSED AIR
Pressure:
Quality:
Average flow:
Peak flow:
Outlets must be provided.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.6
<PAGE> 34
4. ____________ FOR CYCLOTRON VENTING
Pressure:
Quantity:
5. _____________ FOR THE ION SOURCE
Pressure:
Quantity:
Quality:
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.7
<PAGE> 35
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The building shall be fully completed and shall have been accepted by the
Seller prior to the arrival of both the Seller's team and the equipment
necessary for the installation of the Supplies. The Seller will start
installation work when the following conditions have been complied with to
Seller's reasonable satisfaction.
A "Site Acceptance Document" will be provided by the Seller to the Buyer and
will list the mutually agreed progress of the site reaching specification.
1. CONCRETE
All concrete must cure for at least ________ prior to arrival of the Supplies
and related equipment in order to avoid _______________ problems.
2. PIPES AND CABLES
All conduits, cable trenches, raceways, cable trays and related equipment shall
be installed by the Buyer prior to equipment arrival. Cables and pipes shall
be relayed to the various working areas by way of a _________ having a
____________, built in accordance with relevant electrical standards. The
trench shall be equipped with cable ladders and/or cable ducts and be covered
(planks or galvanized roofing...).
The Seller shall provide detailed plans and recommendations regarding location,
size and number of trenches/pipes and cable trays that are required.
Cables and pipes for the ____________ shall be laid in different cable trays or
conduits from the cable trays or conduits housing the ___________.
_____________ are to be separately routed.
The Seller recommends that the trench be provided with ___________________.
______________ are needed for power cables, control cables, cyclotron system
water cooling pipes, vacuum system water cooling pipes, compressed air pipes,
gas pipes and ________________.
It is the Buyer's responsibility to ensure that the cable routing system meets
local electrical codes and requirements.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.8
<PAGE> 36
3. SERVICES
All services, as described in Appendix "Building Requirements", shall be
installed and made ready to be put into operation, before installation
commences.
4. SECONDARY WATER COOLING CONNECTIONS
All piping from the Buyer's water cooling system must be installed. Piping,
routed to locations suggested by the Seller, should have _______________ prior
to equipment installation. A water make-up line should be provided.
5. DUST
All floors, ceilings and walls including the inside of the trenches and other
openings shall be given a surface that minimizes dust generation. It is
recommended that all surfaces be painted in a light color to improve visibility
and to promote safety. All painting, sanding, placement of doors and windows
or similar will be completed.
6. LIGHTING AND ELECTRICAL EQUIPMENT POWER
Suitable and sufficient lighting shall be provided in all work areas. Standard
recommendations are as follows:
-Vault
-Power supply room
-Control room
Emergency lighting should be available in all relevant areas.
Single phase outlets shall be located at intervals of 3 meters or less in each
room where Seller's equipment will be installed.
7. COMPRESSED AIR OUTLETS
Exact location for the compressed air outlet will be specified for the
particular application by the Seller to the Buyer in due time.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.9
<PAGE> 37
8. POWER SUPPLY AND CONTROL ROOM FLOORING
This room requires a raised or "computer type" flooring.
9. VENTILATION
The control and power supply rooms will be air-conditioned to ensure optimal
operation of the electronic equipment. The other areas will be ventilated and
heated when necessary. Ventilation conditions and other conditions, shall be
organized according to the current regulations in the Buyer's country. The
relative humidity level will not exceed ____% in all relevant areas. The
passageways of ventilation ducts in the walls shall comply with the
________________.
10. HEATING
A temperature at ________ will be maintained in all relevant areas during the
installation and testing of the equipment.
11. RADIATION PROTECTION
While the Seller can offer building design suggestions, the entire
responsibilities for meeting all local codes and regulations regarding
radiation protection remain with the Buyer. The building and all work areas
will comply with all relevant safety standards concerning radiation protection
during all phases of construction, installation, testing and operation. The
Buyer will be responsible for installation plans of a radiation protection
system in accordance with local codes and regulations.
12. INFRASTRUCTURE & SERVICES
The Seller requires sufficient office space, tool storage, locker, furniture
and shower facilities for its personnel during the period of installation and
testing. Construction site access must also meet the approval of the Seller's
engineer.
The Buyer must, at his own expense arrange for the destruction, pick-up and/or
clearing away of all waste, including Seller's Supplies packaging except
radioactive waste which will be handled as follows. The Buyer agrees to
provide an uncontaminated area directly in front of the cyclotron vault that
can be used for unpacking components of the Supplies during assembly with the
understanding that all packing materials and other waste must be removed from
this area before the start of beam tests at which time the area in front of the
vault will be incorporated into the contaminated Hot Maintenance Area. The
Buyer will also provide appropriate disposable protective clothing and gear for
Seller's personnel during installation and testing and will at its own expense
dispose of all such protective clothing and gear. The Buyer will also at its
own expense dispose of one 55 gallon drum of solid radioactive waste produced
by Seller's personnel during installation. For any additional
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.10
<PAGE> 38
radioactive waste produced by Seller's personnel during the installation
process, the Buyer and Seller agree to equally share the cost of disposal up to
a maximum of ____________ paid by the Seller.
Besides the maintenance of the building site, providing security and fire
protection is also the Buyer's responsibility.
13. COMMUNICATION AND SURVEILLANCE EQUIPMENT
An intercom system shall interlink the ______________. It would be useful to
be able to communicate from the ____________. It is suggested that a
________________ be used in the ___________ for personnel safety.
14. INSERTION OF THE SUPPLIES
a) An appropriate opening through the wall shall be made in the cyclotron
vault to allow for passage of the cyclotron. This opening shall be
closed by the Buyer as soon as the cyclotron will have been rigged
into the cyclotron vault as closing of the opening is necessary for
progressing with the installation of the Supplies. The inside surface
of the vault closing will be finished within 5 days after the
cyclotron has been place in its final location.
b) A maneuvering area for a heavy trailer ______________ unloading and a
covered area ____________ for the assembly of the major components of
the Supplies must be provided for in front of the opening outside the
vault with adequate access to nearby roads.
The covered area shall be such as to be able to serve as storage area
for the rest of the Supplies while the cyclotron is rigged and the
opening in the vault is closed. Its floor shall support the use of a
three-ton forklift truck.
The ground of the cyclotron vault and of the unloading area shall be
surfaced with reinforced concrete capable of withstanding the
necessary maneuvering of the cyclotron into position.
c) All doors, corridors and other passageways leading to the control room
or any other room where Seller's equipment will be installed shall be
cleared so as to allow transportation of the Seller's equipment by
mean of a three-ton forklift truck or a similar transportation vehicle
from the unloading area to the place of final installation of the said
equipment.
d) For unloading and installation of additional equipment delivered to
the Site during the installation period, the Buyer shall prepare
building access and surroundings in order to allow access and
unloading of 10-ton trucks (unloading platform if possible). It must
be possible to perform the trucks unloading and the introduction of
the additional equipment in the building with a hand-lift. The
possibility to use the Buyer's fork-lift if needed would be
appreciated.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.11
<PAGE> 39
15. CONSULTING SERVICES
Typically, prior to the issuance of a purchase order or execution of some other
form of purchase agreement, the Seller will have prepared a preliminary layout
of the Buyer's facility and furnished various data regarding required building
services. After the purchase agreement has become effective, the Seller,
without additional charge, will make a final layout and prepare such other
plans and memoranda necessary to transmit data to the Buyer's architects and
engineers. Similarly, the Seller, without additional charge, will review the
initial set of architectural and engineering drawings and minor revisions
thereof. However, the time devoted to preparation by the Seller's personnel of
additional layouts or drawings and/or reviews of revised sets of architectural
and engineering drawings will be invoiced at the Seller's regular rates. No
additional charge will be made for telephone consultations. Travel and related
expenses incurred as a result of attendance by the Seller personnel required at
meetings outside of Belgium with the Buyer's architects, engineers, consultants
and/or representatives will be reimbursed by the Buyer. With respect to the
foregoing, the responsibility for determining whether conflict exists between
local building codes and/or other laws or government regulations and the
content of drawings, data sheets, memoranda or other forms of communication
submitted by the Seller is solely the responsibility of the Buyer, his
architects, engineers and/or consultants.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.12
<PAGE> 40
APPENDIX
INCLUDED SPARE PARTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following spare parts are included in the total purchase price of the
Supplies:
-other miscellaneous spares for a value of __________, to be specified
by the Buyer.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.13
<PAGE> 41
APPENDIX
ACCEPTANCE CRITERIA
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer is prepared to purchase the Supplies because the Seller has
represented that they will possess certain characteristics which make them
useful and of value to the Buyer. The following Acceptance Criteria embody the
Buyer's understanding of these characteristics and therefore the Buyer's
willingness to purchase the Supplies is predicated upon the Supplies actually
having these characteristics. The Acceptance Tests which follow are intended
to establish whether or not the Supplies are likely to possess these
characteristics and consequently determine if the Buyer should pay the full
agreed price for the Supplies.
Acceptance of the Supplies by the Buyer requires that they meet the following
minimum criteria as demonstrated by the Acceptance Tests:
1. The Supplies must conform with the parameters set out in the Appendix.
"Cyclotron Parameters" and the Appendix "______________ Target Parameters."
2. All of the items making up the Supplies must function together in a
way which provides reliable, continuous operation with _________________. This
performance must be sustainable over a routine production schedule defined as
_______________. Furthermore, the ___________________.
3. The target system must be designed so that it efficiently utilizes the
protons impinging the target. The rate of Pd-103 production in the rhodium
target must meet or exceed __________. If the rate of production is determined
during the Acceptance Test to be _____________ of the above production rate,
the Seller may correct the deficiency by _____________, i.e., the guaranteed
intensity as referred to in Appendix "Cyclotron Parameters".
4. Void.
5. Routine operation as defined in Item 2 above must not lead to
structural damage to internal components of the cyclotron or the target
assembly due to interactions between the beam and such components.
6. The radiation level within the cyclotron must not increase as a result
of proton and neutron activation and target evaporation to a level which makes
it unsafe to maintain and service the internal components.
7. The target handling device shall reliably remove the ______________
target from the cyclotron and place it into a shielded container for manual
transfer to the target processing laboratory. The operation of the target
handling device shall be _______________________. A written procedure,
providing adequate radiation protection, shall be prepared in case it is
necessary to _________________. The rhodium surface and all other surfaces of
the target handling system
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.14
<PAGE> 42
shall be shielded so an operator can safely enter the cyclotron vault to
transfer the shielded target out for processing.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.15
<PAGE> 43
APPENDIX
ACCEPTANCE TESTS
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The following tests were developed based on experience gained through the
operation of the first three IBA __________ cyclotrons. They provide a
reasonable test of the functionality of the Supplies and when combined with the
Technical Assistance provided by the Seller as called for in Section 25 of the
Contract, should provide the Buyer a fully functional cyclotron properly
integrated into Buyer's production environment.
All radiation monitoring and measuring equipment used in these tests will be
provided by the Buyer. All targets and the _________ are the Buyer's
responsibility and at its own expense.
Test 1. The Supplies shall be demonstrated to comply with the specifications
set out in the Appendix "Cyclotron Parameters" and the Appendix "___________
Target Parameters" by the means specified in the Appendices.
Test 2. When the Supplies have been declared fully operational by the Seller,
the target handling device shall be cycled through a complete transfer from
demounting a fully installed target as it would be installed for a production
run through placing the target into a shielded container and the container
closed. This portion of this test shall be deemed passed when ___________ have
been completed. The target shall be transferred from the cyclotron to the
shielded container 5 times following the routine procedure for
__________________.
Test 3. When the Supplies are fully installed and Tests 1 and 2 have been
successfully completed, the Supplies must operate for ____________________.
The target must then be removed and inspected in the hot cell to determine that
the beam strike was on target, _________________. When the Buyer concurs in
writing, such concurrence not to be unreasonably withheld, that the Supplies
performed according to the specifications, the Supplies will be deemed to have
been accepted and Seller become eligible for the Acceptance Payment.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.16
<PAGE> 44
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
Confidential portions of this Appendix
have been omitted and filed separately
with the Commission
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date of
__________________. Official request must be made in writing and addressed to
Yves Jongen, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of ___________ for each complete day between the actual date of
early acceptance and ______________, including the day of
_______________________.
Theragenics/IBA Contract - Cyclotron #8 - _____________ - p.17
