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Exhibit 10.70
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 11th day of May, 2000, by and between
Calypte Biomedical Corporation ("Calypte"), incorporated under the laws of
Delaware, and Biobras S.A. ("DISTRIBUTOR"), incorporated under the laws of
Brazil.
WHEREAS, Calypte is a developer and manufacturer of in vitro diagnostic kits
and kit components, and whereas DISTRIBUTOR wishes to commercially distribute
said kits and kit components in its Territory;
WHEREAS, in consideration of the mutual covenants and promises set forth
below, and with intent to be legally bound, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
(A) "Product" shall mean the products listed in Schedule 1 hereof.
(B) "Territory" shall mean Brazil.
(C) "Exclusive Distributor" shall mean that no other distributor,
regardless of location of principal offices shall have any rights
to commercially distribute the Products for sale in the Territory.
(D) "Trademarks" shall mean those commercial marks listed in Schedule
4 hereof.
ARTICLE 2 - APPOINTMENT OF DISTRIBUTOR
2.0 APPOINTMENT Calypte hereby designates and appoints DISTRIBUTOR as its
Exclusive Distributor in the Territory for the sale, promotion,
support, and distribution of the urine HIV-1 Products in the
Territory, and non-exclusive distributor for the serum HIV-1 and HTLV
Products in the Territory, subject to the terms and conditions of this
Agreement.
2.1 INDEPENDENT CONTRACTOR Except for the limited purpose set forth
herein, nothing in this Agreement shall be deemed to constitute a
partnership between the parties hereto or be deemed to constitute
DISTRIBUTOR as agent or employee for Calypte for any purpose,
including the right to contract in the name of or for the account of
Calypte nor to assume or create any liability or obligation of any
kind, express or implied, on behalf of Calypte in any way or for any
purpose. This Agreement does not constitute a Trademark license or
grant of Trademark rights. The relationship between the parties is
that of independent contractors in which Calypte is the vendor and
DISTRIBUTOR is the vendee.
ARTICLE 3 TERM
3.0 EFFECTIVE DATE This Agreement shall become effective as of the date
first shown in this Agreement.
3.1 TERM Unless sooner terminated or unless renewed as provided herein,
this Agreement shall terminate three years after the date upon which
both the urine HIV-1 EIA and Western Blot tests are registered by the
Brazilian authorities.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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3.2 EXTENSION Unless sooner terminated or otherwise renewed as provided
herein, DISTRIBUTOR shall have the right to renew this Agreement for
an additional two (2) year period provided: i) DISTRIBUTOR meets or
exceeds the sales minima detailed in Schedule 3, and ii) DISTRIBUTOR
notifies Calypte in writing of its intention to renew the Agreement no
less than ninety (90) days prior to the date the Agreement would
otherwise terminate, and iii) DISTRIBUTOR has not declined
distribution rights for any new Product which Calypte has offered to
DISTRIBUTOR during the term of the Agreement, provided the new
Products offered to DISTRIBUTOR are Products which DISTRIBUTOR could
be reasonably expected to sell.
ARTICLE 4 DISTRIBUTOR'S UNDERTAKINGS
DISTRIBUTOR agrees, at its sole expense (unless otherwise expressly
provided herein), during the term of this Agreement:
4.1.1 BEST EFFORTS At all times to use its best efforts to vigorously and
actively market, advertise, promote, and extend the sale of the
Products throughout the Territory. To this end, DISTRIBUTOR agrees to
maintain an adequate and competent staff of sales and technical
support personnel which can function in all languages of the
Territory. All advertisements, brochures, and other materials
distributed in connection with the sale of the Products shall be
submitted to Calypte for prior written approval, such approval not to
be unreasonably withheld.
4.1.2 TECHNICAL SUPPORT AND RECALL CAPABILITY To provide to Calypte's
Technical Services department a monthly report detailing any customer
complaint(s) related to performance of the Products, such report to be
issued even in the absence of complaints during the reporting period.
Complaint reports shall provide full particulars regarding the nature
of the complaint(s) and mechanism(s) of successful resolution.
DISTRIBUTOR also certifies that it has, and shall maintain, the
capability of tracking Product shipments by lot number in order to
facilitate a Product recall should such a recall be required.
4.1.3 MINIMA [*]
4.2 EXCLUSIVE TERRITORY Not to solicit customers for any of the Products
outside the Territory, either directly or through any third party,
without Calypte's prior written approval. Furthermore, should it
become evident that Product sold by DISTRIBUTOR within the Territory
is being resold outside the Territory by any customer of DISTRIBUTOR,
to take such action as may be necessary to discontinue that practice.
4.3.1 REGISTRATION AND PERMITS At no charge to Calypte, to provide
reasonable assistance to Calypte in the registration of the Products
with the regulatory authorities in the Territory, and to provide
reasonable assistance in securing such licenses and registrations
which may be required in connection with the importation and sale of
the Products in the Territory. Such assistance may include among
others DISTRIBUTOR providing to Calypte, or directly to
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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authorities, such information as may be necessary to permit the
importation of Product or components, occasional communication with
regulatory authorities, and the coordination of Product regulatory
trials. Such trials may require DISTRIBUTOR to provide
instrumentation, laboratory disposables, and the training and
monitoring of trial sites. Calypte shall offer such guidance and test
kits as may be required, provided that the requirement for test kits
not exceed that required by the USFDA, plus payment of government
registration fees and trial site fees directly associated with local
registration of the Products.
4.3.2 Local law demands that Product registrations be held and administered
by a local entity. Calypte hereby appoints DISTRIBUTOR for this
purpose. DISTRIBUTOR shall at all times administer the registration(s)
in accordance with Calypte's instruction. DISTRIBUTOR hereby certifies
that in the event that this agreement is terminated for any reason by
either party, DISTRIBUTOR shall not obstruct or challenge in any
manner whatsoever the prompt and orderly transfer of Product
registration(s) to another distributor, nor shall DISTRIBUTOR
obstruct or challenge in any manner the re-registration of the
Products by another distributor as the case may be.
4.4.1 ROLLING DEMAND PURCHASE FORECAST On a quarterly basis, and no later
than the first Monday of the calendar quarter, to provide to Calypte a
six-month rolling purchase forecast, the first three months of which
shall be considered firm orders.
4.4.2 SALES REPORTS To submit to Calypte within thirty days of January 1 and
July 1of each year a written summary as to the prevailing market
conditions, the attitudes of customers, the activities of competitors,
or any other market conditions which may significantly impact the
sales of the Products in the Territory.
4.5.1 HANDLING OF PRODUCTS To ensure that the Products are handled, stored,
and shipped in accordance with Calypte's instructions.
4.5.2 To order, and to maintain a representative selection of Calypte's
up-to-date sales literature or other promotional material in good
condition.
4.5.3 To maintain such stock of the Products as is reasonably necessary to
enable DISTRIBUTOR to comply with its obligations hereunder.
4.6 SALES LEADS To exercise its best judgement to follow up on sales leads
supplied by Calypte.
4.7 CONFIDENTIALITY Not at any time to divulge to any third party any
Confidential Information relating to the Products or to Calypte's
affairs or business or method of carrying on business, except so far
as is necessary, to those authorized to have access to such
information within DISTRIBUTOR's organization.
DISTRIBUTOR may receive information from Calypte, its personnel, or
through DISTRIBUTOR's activities under this Agreement, either by
direct or indirect communication or observation; more specifically,
Calypte will make available to DISTRIBUTOR, after execution of this
Agreement, such marketing and quality control data, and other
proprietary, secret, and confidential information owned by
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Calypte which, in the opinion of Calypte, are necessary for
DISTRIBUTOR to sell the Products (herein collectively referred to as
"Confidential Information").
DISTRIBUTOR shall not make use of the Confidential Information other
than in connection with the marketing and sale of the Products under
this Agreement and shall under no circumstances disclose the
Confidential Information to any third party. Except for such of the
Confidential Information that becomes publicly available through
Calypte or independent third parties, DISTRIBUTOR shall not use,
employ or exploit the Confidential Information, except for the direct
benefit of Calypte, without Calypte's written consent for the term of
this Agreement and seven (7) years thereafter.
4.8 SUB-DISTRIBUTORS In the event that DISTRIBUTOR appoints
subdistributors, such appointments shall be made only in the name and
for the account of DISTRIBUTOR, shall be for a term no longer than the
term of this Agreement, and shall not confer upon such subdistributors
and/or independent sales representatives any rights greater than those
which are granted by Calypte to DISTRIBUTOR under this Agreement.
DISTRIBUTOR shall also impose on any such subdistributors and/or
independent sales representatives the same obligations that Calypte
has imposed on DISTRIBUTOR under this Agreement for the purpose of
protecting the goodwill of Calypte and the Products.
4.9 LEGAL STANDARDS To advise Calypte in writing of any changes which
DISTRIBUTOR becomes aware of in legal standards within the Territory
pertaining to the Products during the term of this Agreement,
including but not limited to packaging, labeling and ingredient
standards, sufficiently in advance of the imposition of such legal
standards as to permit Calypte's orderly scheduling and delivery of
Product within DISTRIBUTOR's requested time of shipment.
4.10.1 LABELING To ensure that the Products are sold and promoted in the form
and with the labeling or markings designated by Calypte, which shall
be in accordance with local laws, and not to alter, remove, or
interfere therewith without the prior written consent of Calypte.
4.10.2 DISTRIBUTOR LABELS Notwithstanding the generality of the foregoing,
Calypte hereby authorizes DISTRIBUTOR to affix a small label which
denotes DISTRIBUTOR as the authorized distributor in the Territory,
such label to be applied in a manner which does not obscure Calypte's
tradenames or other marks.
4.11.1 TRADEMARKS To respect Calypte's rights in connection with the Products
(including but not limited to Calypte's patents, trademarks, and
copyrights), to comply with all local laws and regulations with
respect thereof, and to assist Calypte in taking any steps necessary
to defend such rights. Any reasonable expenses incurred under this
paragraph by DISTRIBUTOR, and which are preapproved by Calypte, shall
be reimbursed by Calypte.
4.11.2 To acknowledge at all times Calypte's exclusive right, title, and
interest in and to the trademarks associated with the Products listed
in Schedule 1 and registered by Calypte in the United States of
America or the Terrritory; and not at any time to do or cause to be
done any act or any thing contesting or in any way impairing or
tending to impair any part of such right, title and interest. In
connection with any reference to the trademarks, DISTRIBUTOR shall
not in any manner represent that it has ownership interest in the
trademarks or registration thereof, but shall clearly indicate
Calypte's ownership of the trademarks.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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4.11.3 To use no trademarks, trade names, corporate names, or trade styles
employing the trademarks, whether in advertising or otherwise, without
the prior written consent of Calypte, such consent not to be
unreasonably withheld, and generally not to produce any advertising or
promotional material or activity without Calypte's written consent.
Except as provided in Article 9.1.3, any and all use by DISTRIBUTOR of
said trademarks, trade names, corporate names or trade styles within
the Territory shall cease upon the expiration or termination of this
Agreement.
4.12 PRESS To make no statements to the press concerning Calypte's
personnel, business practices, Product development efforts, or alleged
Product performance problems without the prior written consent of
Calypte.
4.13 MANAGEMENT CHANGE To provide to Calypte prompt notice, in writing, of
any change of key management or ownership and any change in the mode
of operation of DISTRIBUTOR.
4.14 PROOF OF SALE To expressly represent that any Products purchased are
for the purpose of sale in the Territory and will furnish upon
Calypte's requests, documents which certify that the Products have
been sold in that Territory. DISTRIBUTOR further represents that it
will undertake all appropriate steps to ensure that the Products are
sold exclusively to customers which are permitted under the laws of
the Territory to purchase and use the Products.
4.15 AUDIT To permit Calypte staff or a Calypte designee, upon reasonable
advance notice, to audit DISTRIBUTOR's premises and sales records in
connection with this Agreement at no expense to DISTRIBUTOR. Said
auditor shall not be permitted to record DISTRIBUTOR's customer list,
except where customers specified by name by Calypte are the subject of
investigation.
4.16 COMPETING PRODUCTS During the term of this Agreement, neither directly
nor through any third party to manufacture, sell, promote, market, or
advertise without prior written permission from Calypte, any in vitro
diagnostic test for the detection of HIV antibodies in bodily fluids
other than serum or plasma.
4.17 NEW PRODUCTS To accept distribution rights and obligations for new
Products which the parties believe DISTRIBUTOR could be reasonably
expected to sell as they may become available from time to time, and
under such terms and conditions as the parties may negotiate in good
faith.
ARTICLE 5 CALYPTE'S UNDERTAKINGS
Calypte agrees, during the term of this Agreement:
5.1 EXCLUSIVE DISTRIBUTOR To limit the authorized sale of the Products in
the Territory to DISTRIBUTOR, and to take such action as may be
necessary to ensure compliance of third parties in this regard.
5.2 FILLING ORDERS To use its best efforts to fill all orders of
DISTRIBUTOR for delivery of the Products hereunder within forty-five
(45) days of acceptance of DISTRIBUTOR'S order. Orders shall be placed
in writing and mailed or transmitted by facsimile in accordance with
the Rolling Demand Forecasting system described in Section 4.4.1
hereof. No order from DISTRIBUTOR shall be
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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binding upon Calypte until such order is accepted by Calypte in
writing by mail or facsimile, such acceptance not to be unreasonably
withheld. Calypte shall make commercially reasonable efforts to fill
orders which are placed in addition to orders placed through the
Rolling Demand Forecasting system. Calypte also agrees to consider on
an individual basis, DISTRIBUTOR's proposals for Calypte to sell
Product directly to an end-user within the Territory.
5.3 TRADEMARKS To use its best efforts to maintain the Trademarks in good
legal standing in the Territory.
5.4 SALES MATERIAL To furnish to DISTRIBUTOR, at Calypte's expense, a
reasonable supply of sales literature and promotional materials. The
promotional materials may be furnished in the English language.
DISTRIBUTOR may translate the materials at its own expense, and with
prior approval from Calypte, such approval not to be unreasonably
withheld. Calypte may make reasonable charges if more than a nominal
quantity of promotional materials is supplied to DISTRIBUTOR, which
will be agreed upon between Calypte and DISTRIBUTOR in advance.
5.5 WARRANTY To warrant the Products as set out in Article 8 below.
5.6 SALES LEADS To forward to DISTRIBUTOR sales leads and inquiries from
customers located within the Territory.
5.7 TRAINING To provide to DISTRIBUTOR such sales, marketing, and
technical training as may be reasonably required, at Calypte's
facility, but not to exceed one week during each year of this
Agreement. Costs incurred in such training excluding travel and
accommodation, but including training materials, trainer time, and a
reasonable amount of Product shall be borne by Calypte.
5.8 To provide telephone technical support to DISTRIBUTOR during Calypte's
normal business hours, and to communicate to DISTRIBUTOR the status of
any technical investigation it undertakes on behalf of DISTRIBUTOR or
DISTRIBUTOR's customers no more than two working days after
notification of a technical problem.
5.9 NEW PRODUCTS To offer to DISTRIBUTOR the right of first refusal on new
Products which Calypte may develop from time to time, and which the
parties believe DISTRIBUTOR may be reasonably expected to sell.
5.10 NO-CHARGE EVALUATION MATERIALS [*]
5.11 PACKAGING AND LANGUAGE To discuss in good faith the needs of the
DISTRIBUTOR, as may be specified by local laws, regarding package
inserts in the local language, as well as packaging options such as
bulk or smaller kits sizes.
5.12 CERTIFICATE OF ANALYSIS To provide to DISTRIBUTOR with each shipment,
Calypte's standard report of final QC testing for each lot of each
Product shipped.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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ARTICLE 6 PRICE AND PAYMENT
6.1 [*]
6.2 [*]
6.3 CURRENCY Payment shall be made in U.S. dollars.
ARTICLE 7 SHIPPING-TITLE AND RISK-CANCELLATION
7.1 [*]
7.2 [*]
ARTICLE 8 WARRANTY - NO CONSEQUENTIAL DAMAGES - INDEMNITY
8.1 WARRANTY Calypte warrants the Products to be of sufficient quality of
materials and manufacture as to meet the claims and specifications set
forth in the Product's packaging and labeling when used according to
the directions provided therein.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, CALYPTE MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
FITNESS FOR A PARTICULAR
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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PURPOSE, OR ANY OTHER MATTER, WITH RESPECT TO THE PRODUCTS.
DISTRIBUTOR's exclusive remedy will be for direct damages, and
Calypte's total liability for any and all losses and damages arising
out of any cause whatsoever ( whether such cause be based in
contract, warranty, negligence, strict liability, other tort or
otherwise) will in no event exceed DISTRIBUTOR's landed cost of the
Products in respect to which such cause arises or, at Calypte's
option, the replacement of such Products. In no event will Calypte be
liable for incidental, consequential or punitive damages resulting
from any cause whatsoever. Calypte warrants that at the time that the
Products left Calypte's possession, they were deemed to be of good
quality. In the event that a defect is identified and agreed upon by
both parties, the invoice for the defective Product shall be rendered
void, and a new invoice generated upon delivery of replacement
Product. In the event that Calypte advises DISTRIBUTOR to destroy
Product, DISTRIBUTOR shall furnish the invoice for doing so. Said
invoice shall confirm Product destruction, and DISTRIBUTOR shall be
reimbursed by Calypte in US dollars at the then-current exchange
rate, or provided credit in equal amount.
8.2 DEFECTS Without limiting the generality of the foregoing, CALYPTE
SHALL NOT BE BOUND TO MAKE GOOD ANY DEFECT IN THE PRODUCTS WHERE THE
PRODUCTS HAVE BEEN SUBJECTED TO MISUSE, NEGLECT, OR ACCIDENTAL DAMAGE.
8.3 TRADEMARKS Calypte is the record owner of registrations for its
trademarks in the Territory and believes it has the right to use these
trademarks throughout the Territory. Notwithstanding, CALYPTE MAKES NO
EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY THAT THE PRODUCTS WILL
NOT INFRINGE THE LEGITIMATE AND VALID TRADEMARKS, TRADE NAMES, OR
OTHER INDUSTRIAL PROPERTY RIGHTS OF THIRD PARTIES IN THE TERRITORY.
DISTRIBUTOR shall immediately notify Calypte of any such claims of
others, and Calypte shall, at its sole option, have the right to
assume the defense of any such claim.
8.4 INSPECTION It shall be the responsibility of DISTRIBUTOR to inspect
the Products after taking title to same. Notwithstanding Article 8.1
above, Calypte shall not be liable for any shortage, breakage, or
damage to the Products or for any breach of warranty, implied or
otherwise, unless it receives written notice of any defect or
shortcoming within ten (10) days after the date on which DISTRIBUTOR
takes title to the Products, and the defect or shortcoming results
from the fault or negligence of Calypte.
8.5 INDEMNIFICATION Calypte shall indemnify and hold DISTRIBUTOR harmless
from any claims, demands, liabilities, suits or expenses of any kind
arising out of any misrepresentations which Calypte makes concerning
the Product supplied by Calypte.
Calypte shall indemnify DISTRIBUTOR for any damages or loss actually
paid by DISTRIBUTOR resulting from a legal decision on a claim by
third parties made against DISTRIBUTOR and which is caused by Calypte
with respect to products made or supplied by Calypte.
DISTRIBUTOR is responsible for, and shall hold Calypte harmless from
any loss, claim, damage, illness or injury to persons or property
which arises out of or pertains to the sale, use, packaging,
advertising, or promotion of the Product, and which is caused by
DISTRIBUTOR or DISTRIBUTOR's subdistributors, agents
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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or employees. This provision shall survive the expiration or
termination of this Agreement for any reason and shall be liberally
construed in favor of Calypte.
ARTICLE 9 TERM AND TERMINATION
9.1.1 TERMINATION FOR CAUSE Calypte, at its sole option, may immediately
terminate this Agreement with respect to the Territory, upon giving
notice to this effect, whenever any of the following events occurs:
(i) if any governmental unit within the Territory threatens (in the
sole judgement of Calypte) to enact or enacts any law, decree or
regulation which would restrict the right of Calypte to terminate or
elect not to renew this Agreement as herein provided, or would make
Calypte liable to DISTRIBUTOR for compensation or damages upon
termination or failure to renew this Agreement;
(ii) if DISTRIBUTOR at any time discontinues or abolishes its
business, files a petition of bankruptcy or insolvency or admits in
writing its inability to pay its debts as they become due and
payable, or if DISTRIBUTOR is adjudicated bankrupt or insolvent, or
if there is filed any petition seeking reorganization of DISTRIBUTOR,
or if a receiver is appointed for all or substantially all of
DISTRIBUTOR's property, or if DISTRIBUTOR makes an assignment for the
benefit of creditors or if any proceedings are instituted for the
liquidation or winding up of DISTRIBUTOR;
(iii) if DISTRIBUTOR uses Calypte's trademarks or trade names or
styles in any way which might deceive or mislead the consumer or
which might in any way damage or impair the reputation or value of
such trademarks, trade names, or styles;
(iv) if DISTRIBUTOR fails to comply with any of the terms or
conditions herein contained and, after notice by Calypte requiring
DISTRIBUTOR to make good such default, DISTRIBUTOR fails to cure such
default within sixty (60) days after receipt of such notice;
(v) if DISTRIBUTOR is at any time nationalized or falls under the
control of any governmental unit within the Territory;
(vi) if DISTRIBUTOR's authority to carry on business is cancelled by
competent authorities;
(vii) if control of DISTRIBUTOR should be transferred to another
party, whether such party is a competitor of Calypte or otherwise; or
(viii) all Products are deleted from Schedule 1.
9.1.2 DISTRIBUTOR, at its sole option, may immediately terminate this
Agreement with respect to the Territory, upon giving notice to this
effect, whenever any of the following events occurs:
(i) if Calypte at any time discontinues or abolishes its business,
files a petition of bankruptcy or insolvency or admits in writing its
inability to pay its debts as they become due and payable, or if
Calypte is adjudicated bankrupt or insolvent, or if there is filed any
petition seeking reorganization of Calypte, or if a receiver is
appointed for all or substantially all of Calypte's property, or if
Calypte makes
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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an assignment for the benefit of creditors or if any proceedings are
instituted for the liquidation or winding up of Calypte; or
(ii) if Calypte fails to comply with any of the terms or conditions
herein contained and, after notice by DISTRIBUTOR requiring Calypte to
make good such default, Calypte fails to cure such default within
sixty (60) days after receipt of such notice.
9.1.3 Upon termination or expiration of this Agreement for any reason with
respect to the Territory:
i) at Calypte's option, DISTRIBUTOR may sell its remaining inventory
of Product within the Territory, or shall make available to Calypte or
Calypte's designee, all current stocks of Product held by DISTRIBUTOR
with a minimum of four (4) months' expiration remaining, at
DISTRIBUTOR's landed cost, EXW DISTRIBUTOR's warehouse, which shall
include any duty, freight, insurance documentation and inland freight
to warehouse distribution. In the event that DISTRIBUTOR has firm
supply obligations with customers that extend beyond the termination
date, and DISTRIBUTOR advises Calypte of these with full details,
Calypte agrees to continue to supply DISTRIBUTOR with Product for
these customers only, and only for the duration of said obligation or
for a maximum of twelve (12) months beyond the date of termination,
whichever comes first.
ii) DISTRIBUTOR shall at its own expense return to Calypte or its
designee all Confidential Information furnished by Calypte in
accordance with Article 5.2 hereof, as well as all sales literature,
catalogues, samples, and other promotional materials supplied by
Calypte;
iii) Calypte will not be liable to pay to DISTRIBUTOR any termination
compensation, benefits or damages of any kind whatsoever, whether for
DISTRIBUTOR's loss of present or prospective profits, anticipated
sales, expenditures, investments or commitments made in connection
with this Agreement, or due to the termination of any of
DISTRIBUTOR's employees, agents, or subdistributors, or due to any
other matter or cause whatsoever, and whether provided by any current
or future law, regulation or interpretation thereof by any authority
exercising jurisdiction over this Agreement, and;
iv) all obligations of Calypte shall be canceled, but such expiration
or termination will not affect any of Calypte's rights hereunder, and
Calypte will further have the right, immediately upon such expiration
or termination, to appoint a new distributor or sales representative.
Such expiration or termination will not affect DISTRIBUTOR's
obligation to make payment for any orders of the Products which
remain unpaid at such time.
ARTICLE 10 ASSIGNMENT
DISTRIBUTOR shall not be entitled to assign its rights and obligations
under this Agreement without the prior written consent of Calypte. In
the context of this Agreement, a change in control or ownership of the
DISTRIBUTOR, whether involving a competitor of Calypte or otherwise,
shall constitute assignment, and in accordance with 9.1.1(vii) Calypte
may, at its discretion, terminate this Agreement.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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ARTICLE 11 WAIVER The failure of either party to assert a right under, or to
enforce at any time or for any period of time, the provisions hereof
or the failure of either party to exercise an option herein shall not
be construed as a waiver of such provision or option and shall in no
way affect that party's right to enforce such provisions or exercise
such options. A waiver of any breach of any provision of this
agreement shall not be construed as a continuing waiver of other
breaches of the same or other provisions of this agreement.
ARTICLE 12 ENTIRE AGREEMENT
With the exception of previously signed Confidentiality Agreements,
this Agreement cancels and supersedes any previous understandings or
agreements, oral or written, between the parties relating to the
subject matter hereof, including any previously existing
distributorship arrangement. This Agreement expresses the complete
and final understanding of the parties with respect to the subject
matter hereof, and may not be changed in any way except upon the
explicit intention of both parties expressed by a signed written
agreement. Any terms or conditions stated in DISTRIBUTOR's purchase
orders inconsistent with this Agreement shall be null and void.
ARTICLE 13 SEVERABILITY
If any provision of this Agreement shall be found by a court of
competent jurisdiction to be invalid or unenforceable, the invalidity
or unenforceability of such provision shall not affect the other
provisions of this Agreement and all provisions not affected by such
invalidity shall remain in full force and effect but that in any
event, the provisions concerning payment for the Product shall be
binding upon the parties.
ARTICLE 14 NOTICES
14.1 NOTICE Any notice required or permitted by this Agreement shall be in
writing and in the English language, and shall be delivered personally
or by registered air mail, postage prepaid, or by facsimile, addressed
to the parties as follows:
If to Calypte: Calypte Biomedical Corporation
1265 Harbor Bay Parkway
Alameda, California 94502
United States of America
Telephone: 510-749-5100
Facsimile: 510-814-8408
Attention: President
If to DISTRIBUTOR: Biobras S.A.
Praca Carlos Chagas 49, 4(DEG.) Andar
Belo Horizonte, MG CEP 30170-020
Telephone: 011-55-31-291-9877
Facsimile: 011-55-31-291-5369
Attention: Diagnostics Division Director
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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14.2 RECEIPT Any notice sent by registered prepaid air mail properly
addressed and posted shall be deemed to have been received ten (10)
days after it is delivered to the postal authorities in the country of
the party by whom it is sent. If sent by facsimile, a copy of the
facsimile shall be sent promptly by registered prepaid air mail to the
addressee.
14.3 VERBAL NOTICE Nothing contained herein shall justify or excuse
failure to give verbal notice for the purpose of informing the other
party thereof when prompt notification is appropriate, but such verbal
notice shall not satisfy the requirement of written notice.
ARTICLE 15 APPLICABLE LAWS
15.1 EXPORT LAWS Calypte is subject to U.S. laws and regulations governing
the export of U.S. products. DISTRIBUTOR agrees that it will not
directly or indirectly engage in any acts which would cause Calypte to
be found in violation of such laws or regulations.
15.2 PAYMENTS DISTRIBUTOR acknowledges that certain laws of the United
States may result in the imposition of sanctions on Calypte and its
employees in the event that offers, promises, or payments are
directly or indirectly made to government officials or others for the
purpose of influencing decisions favorable to Calypte, and, therefore
DISTRIBUTOR agrees that neither it nor its employees will commit such
acts or engage in such activities and that DISTRIBUTOR shall defend,
indemnify, and hold Calypte harmless for any damages, claims,
liabilities and expenses which arise or allegedly arise from
DISTRIBUTOR's violation of the obligations of articles 15.1 or 15.2.
15.3 ASSURANCES DISTRIBUTOR agrees to furnish to Calypte , by affidavit or
other reasonable means from time to time at Calypte's request, and to
the reasonable satisfaction of Calypte, assurances that the
appointment of DISTRIBUTOR hereunder, its activities under this
Agreement, and the payment to DISTRIBUTOR of any monies or
consideration contemplated hereunder are proper and lawful under the
laws in force in the Territory. DISTRIBUTOR further represents that
no person employed by it is an official of any government agency or a
corporation owned by a government unit within the Territory and that
no part of any monies or consideration paid hereunder shall accrue
for the benefit of any such official.
15.4 TERRITORY LAWS If Calypte determines that the appointment or use of
DISTRIBUTOR is not permitted under the laws and regulations in force
in the Territory, Calypte has the right, at its sole discretion and
upon notice to DISTRIBUTOR, to terminate this Agreement as Calypte
sees fit. Upon notice of this decision, DISTRIBUTOR will cease its
activities under this Agreement and shall not seek damages or
compensation in any form, according to Article 9 of this Agreement.
ARTICLE 16 GOVERNING LAW
This Agreement and the obligations of the parties hereunder shall be
governed and construed in accordance with the laws of the State of
California, U.S.A.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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ARTICLE 17 FORCE MAJEURE
Calypte and DISTRIBUTOR will be excused from failure to perform under
this Agreement and will not be liable in any way for any loss if such
failure is due to causes beyond the reasonable control of either
party, including but not limited to, natural disasters such as
earthquakes or floods, fires, riots, strikes and other labor
disputes, war conditions, shortage of raw materials or government
action for the period any such conditions exist.
ARTICLE 18 HEADINGS
The headings used herein are for convenience only and in no way affect
the liabilities, obligations, or responsibilities of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CALYPTE BIOMEDICAL CORPORATION
By: /s/ Nancy E. Katz
----------------------------
Title: President
-------------------------
Date: 5/19/00
--------------------------
BIOBRAS S.A.
By: /s/ Humberto de cerega Mendez
------------------------------
Title: Director
-------------------------
Date: 5/11/00
--------------------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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SCHEDULE 1 - PRODUCTS
Calypte HIV-1 Urine EIA Test Kit An enzyme immunoassay in microwell format
for the detection of antibodies to HIV-1 in urine.
Cat. No. 700000 480 tests
Cat. No. 700001 192 tests
Cambridge Biotech HIV-1 Serum Western Blot Test Kit. A Western Blot
supplemental immunoassay for the analysis of serum or plasma samples that are
repeatedly reactive on a serum or plasma HIV-1 EIA. Cat. No. 98002 27 tests
Cambridge Biotech HIV-1 Urine Western Blot Test Kit. A Western Blot
supplemental immunoassay for the analysis of urine samples that are
repeatedly reactive on the Calypte HIV-1 Urine EIA. Cat. No. 98076 27 tests
Cambridge Biotech HTLV I/II Serum Western Blot Test Kit. A Western Blot
supplemental immunoassay for the analysis of serum or plasma samples that are
repeatedly reactive on a serum or plasma HTLV EIA. Cat. No. 98051 27 tests
SCHEDULE 2 - PRICE
[*]
SCHEDULE 3 - MINIMA
[*]
SCHEDULE 4 - TRADEMARKS
Calypte name and corporate logo
Calypte hummingbird logo
Sentinel tradename
Cambridge Biotech name and corporate logo
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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