EXHIBIT 10.17
SALES AGENCY AGREEMENT
BETWEEN
BIOPURE CORPORATION
"BIOPURE"
AND
(ABAZALI BIO VENTURES (PTY) LTD)
"ABAZALI"
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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TABLE OF CONTENTS
1 Definitions
2 Appointment
2.1 Appointment
3 Abazali's Duties
3.1 Sales Promotion
3.2 Sales Outside Territory
3.3 Product Registration
3.4 Product Complaints and Product Inquiries
3.5 Safety Surveillance and Adverse Events
3.6 Abazali's Indemnity
3.7 Trademarks and Trade Names
3.8 Promotional Material
3.9 Marketing Plan
4 Biopure's Duties
4.1 Remuneration of Abazali
4.2 Catalogues and Information
4.3 Biopure's Indemnity
5 Term of Agreement
5.1 Term of Agreement
5.2 Breach of Agreement
5.3 Insolvency of a Party
5.4 Change in Abazali's Ownership
6 Miscellaneous
6.1 Force Majeure
6.2 Trade Secrets and Confidential Information
6.3 Relationship Between Parties
6.4 Non-Disclosure of Agreement
6.5 Legal Compliance
6.6 Anti-Bribery Laws
6.7 Books and Records
6.8 English Language Controls
6.9 Assignment
6.10 Waiver
6.11 Severability
6.12 Entire Agreement
6.13 Choice of Law and Jurisdiction
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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SALES AGENCY AGREEMENT
AGREEMENT made between Biopure Corporation, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, XX
00000 XXX, a US corporation, whose principal place of business is 00 Xxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 XXX ("Biopure"), and Abazali Bio Ventures, a South
African company, whose principal place of business is Building E, Xx Xxxxx, 000
Xxxx Xxxx, Xxxxxxxxx 0000, XX ("Abazali").
WITNESSETH
WHEREAS, the Biopure Corporation, is a developer and manufacturer of oxygen
therapeutics; and
WHEREAS, Biopure wishes to sell in the territory hereinafter defined certain
products and Abazali wishes to market and promote the sale of said products;
NOW, THEREFORE, Biopure and Abazali agree as follows:
1 DEFINITIONS
As used in this Agreement, the following initially capitalized terms, whether
used in the singular or plural, shall have the respective meanings set forth
below.
TERM DEFINITION
Confidential Information the confidential information set forth in Section 6.2
Products the product(s) set forth in Appendix A
Territory the country/countries set forth in Appendix B
2 APPOINTMENT
2.1 APPOINTMENT. Biopure hereby appoints Abazali as its exclusive
Agent to promote and market the Products in the Territory. Abazali
shall not use a third party to perform its activities pursuant to
this Agreement without Biopure's written consent.
3 ABAZALI'S DUTIES
3.1 SALES PROMOTION. Abazali shall at all times use its best efforts
to promote, develop, and increase the sales of the Products
throughout the Territory. For such purposes, Abazali shall:
3.1.1 At its sole expenses, maintain a sales organization and
generally do all such things as may be necessary or useful
for the performance of its duties and obligations
hereunder, including but not limited to hiring
appropriately qualified and trained personnel, traveling,
personal representation etc.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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Abazali shall maintain at all times a minimum of two
qualified and trained sales agents solely
representing the Product and, in addition, necessary
or appropriate operational support.
3.1.2 Survey the market in the Territory and inform Biopure of
all opportunities of selling the Product and more generally
to report on the needs of the local customers, prevailing
prices, products distributed by competitors and on whatever
may be relevant to the development of Biopure's sales
within the Territory.
3.1.3 Create and maintain the best possible relations with the
local customers, participate in negotiations and do its
best to ensure the successful conclusion of each
transaction.
3.1.4 Provide Biopure's staff visiting the Territory with the
necessary assistance in establishing contacts with the
appropriate organizations and customers in the Territory.
3.1.5 Disseminate information provided by Biopure regarding the
Product among the appropriate customers, registration
institutes and governmental agencies in keeping with
national laws and regulations of the Territory.
3.1.6 Give written notice to Biopure of all acts of unfair
competition or counterfeiting and imitations of Biopure's
trade-marks of Products and give reasonable assistance to
Biopure in taking action against imitations, counterfeiting
and unfair competition by others.
3.1.7 Market and sell the product under Biopure's trademarks and
trade names.
3.2 SALES OUTSIDE TERRITORY. Abazali shall not solicit orders for the
Products from any purchaser with a view to their sale outside of
the Territory or within the Territory with a view to their
exportation.
3.3 PRODUCT REGISTRATION. Product shall be registered in the name of
Biopure or its nominee. Abazali understands and agrees as follows:
The Product is registered in South Africa only. No sales shall be
made in any other part of the Territory unless or until the
Product is registered or otherwise may be sold in accordance with
the law of the applicable jurisdiction. Nothing in this Agreement
shall be deemed to require Biopure to obtain marketing approval in
any country in the Territory.
3.4 PRODUCT COMPLAINTS AND PRODUCT INQUIRIES. Abazali shall report in
writing to Biopure or its designee in accordance with the
procedure outlined from time to time by Biopure or its designee in
writing (i) all complaints including product quality complaints
and medical complaints related to the Products; and (ii) all
inquires about the Products, including but not limited to,
relating to the medical description of the Product, medical claims
for the Product, contra-indications of the Product.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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3.5 SAFETY SURVEILLANCE AND ADVERSE EVENTS. The parties agree to use
their best reasonable efforts to establish a process document
regarding compliance with all regulations and obligations related
to safety surveillance and adverse event reporting
responsibilities for the Products promptly upon signing of this
Agreement.
3.6 ABAZALI'S INDEMNITY. Abazali shall hold Biopure harmless with
respect to any claims by other persons who allege injury or loss
as a result of Abazali's activities in violation of its covenants
under this Agreement. Notwithstanding anything to the contrary in
this Agreement, in no event shall Abazali be liable to Biopure for
any incidental, indirect, exemplary, special or consequential
damages whatsoever (including, but not limited to, lost profits,
loss of goodwill, or interruption of business) that may be
suffered or incurred by Biopure as a results of Abazali's
violation of its covenants under this Agreement.
3.7 TRADEMARKS AND TRADE NAMES.
3.7.1 Abazali shall use Biopure's trademarks or trade names only
to identify and advertise the Products and shall not use
said trademarks or trade names as part of Abazali's own
name or trademarks or in any other manner.
3.7.2 It is understood and agreed that this right to use
Biopure's trademarks and trade names is revocable at will
by Biopure and does not constitute, in any manner, a direct
or implied license or assignment of such trademarks or
trade names.
3.7.3 Upon the expiration or termination of the Agreement for any
reason whatsoever, Abazali shall immediately cease using
Biopure's trademarks and trade name and shall return to
Biopure all promotional and advertising material carrying
Biopure's name or trademarks.
3.8 PROMOTIONAL MATERIAL. Abazali shall use solely advertising and
promotional material approved by Biopure. Abazali undertakes that
it will submit to Biopure or its designee for prior written
approval all written materials which Abazali proposes to use for
the purpose of marketing, selling, distributing or advertising the
Products.
3.9 Marketing Plan. The parties shall agree annually upon a marketing
plan for sales of the Product. The marketing plan will take into
account needs in the Territory, past experience, Biopure's
manufacturing capacity and other information deemed relevant. The
first marketing plan shall be for the 6-month period beginning six
months from the effective date of this Agreement. In preparing the
first marketing plan the parties will review the first six months
of experience under this Agreement. At the same time the parties
will prepare a marketing plan for the subsequent six months, i.e.,
the six months beginning on the first anniversary of this
Agreement. (It is understood that all dates may be adjusted for
convenience to begin on the first day of a month.) Thereafter,
prior to the end of the second six-months marketing plan and prior
to the end of each year of this Agreement, the parties will agree
upon a business plan for the 12 months beginning on the day after
the last day of the previous marketing plan. Marketing plans will
be detailed by month.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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4 BIOPURE'S DUTIES.
4.1 REMUNERATION OF ABAZALI.
4.1.1 In respect of all orders from customers within the
Territory accepted by Biopure during the term of this
Agreement, Abazali shall receive a payment of:
[**] per unit for the first 500 units sold;
[**] per unit above 500 units sold and up to 1000 units
sold;
[**] per unit above 1000 units sold.
The foregoing amounts will be subject to adjustment in the
event of a change in the "Single Exit Price" for the
Product. No amounts shall be owing in respect of orders
placed prior to the start of sales activities by the two
individuals hired and trained pursuant to Section 3.1.1.
4.1.2 A fixed amount of [**] (excluding VAT) per month for the
maintenance of a sales organization as per 3.1.1. above.
4.1.3 Biopure will be responsible for all agreed upon costs for
all activities set forth in Appendix C.
4.1.4 All amounts owing to Abazali shall be invoiced on a monthly
basis. Notwithstanding the above, it is specified that the
amounts shall only be considered to be earned by Abazali
when full and unconditional payment has reached Biopure.
4.1.5 Upon expiry or termination of this Agreement, Biopure shall
be obligated to pay amounts to Abazali in respect of
amounts accepted by Biopure prior to the effective date of
termination.
4.2 CATALOGUES AND INFORMATION. Biopure will provide Abazali with such
information, catalogues, promotional material and documentation,
as Biopure shall from time to time consider necessary. The
aforesaid material shall be used solely for the purpose of
soliciting sales of the Products and shall remain the property of
Biopure. Abazali shall return or dispose of it in accordance with
Biopure's written instructions.
4.3 BIOPURE'S INDEMNITY. Biopure shall hold Abazali harmless with
respect to any claims by other persons who allege injury or loss
as a result of Biopure's manufacture and delivery of the Products
in violation of its covenants under this Agreement.
5 TERM OF AGREEMENT
5.1 TERM OF AGREEMENT. Subject to the provisions contained herein
which provide for earlier termination, this Agreement shall
commence on November 1, 2005 and shall continue in full force and
effect until December 31, 2009 ("Expiry Date"). The Agreement
shall automatically extend for periods of one (1) additional year
unless
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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either of the parties gives written notice to the other party of
its intention not to renew at least sixty (60) days prior to the
Expiry Date or the then current term. Upon expiry of this
Agreement, neither party shall owe to the other any damages, or
indemnification resulting from such expiry.
5.2 BREACH OF AGREEMENT. The foregoing notwithstanding, if either
Abazali or Biopure breaches any of the terms and conditions of
this Agreement, the other party may give notice of the breach to
the party in default. If the defaulting party does not rectify the
breach within thirty (30) days after receipt of the notice, the
party who gave notice may terminate this Agreement upon the
expiration of the thirty (30) days period without prejudice to
such party's claims for damages, or indemnification for the losses
incurred by reason of such termination or breach of the Agreement.
Failure of the parties to agree on a marketing plan, as described
in Section 3.9, shall give either party the right to terminate
this Agreement with 60 days written notice. A failure by Abazali
to meet the marketing plan(s) as in effect for any consecutive 12
months shall be deemed to be a breach of the terms and conditions
of this Agreement by Abazali.
5.3 INSOLVENCY OF A PARTY. In the event either party becomes the
subject of proceedings involving bankruptcy, insolvency,
moratorium of payment, reorganization or liquidation, or if either
party makes any assignment for the benefit of its creditors, then
this Agreement may be terminated forthwith by the other party by
written notice, without prejudice to its claims for damages, or
indemnification for losses incurred by reason of such termination.
5.4 CHANGE IN ABAZALI'S OWNERSHIP.
5.4.1 Abazali shall report promptly to Biopure all changes in the
legal or beneficial ownership of Abazali. If Biopure
reasonably believes that such change is prejudicial to
Biopure's interests or to the proper and efficient
marketing of the Product, Biopure may terminate this
Agreement by giving thirty (30) days prior written notice
within thirty (30) days from the day it is informed of the
change of ownership. In such instance Biopure shall not owe
Abazali for any damages or indemnification resulting from
the termination.
6 MISCELLANEOUS.
6.1 FORCE MAJEURE.
6.1.1 Neither party to this Agreement shall be liable for failure
to perform if the failure is attributable to any cause
which is reasonably beyond the party's control, including:
6.1.1.1 war (declared or undeclared), riot, political
insurrection, rebellion, revolution;
6.1.1.2 acts or orders of or expropriation by any
government (whether facto or de jure) prohibiting
the import or export of the Products or imposing
rationing;
6.1.1.3 inability to procure or shortage of supplies of
necessary materials, equipment, or production
facilities;
6.1.1.4 quarantine restrictions;
6.1.1.5 fuel shortage;
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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6.1.1.6 strike, lockout, or other labor troubles which
interfere with the manufacture, sale or
transportation of the goods covered hereby or with
the supply of raw materials necessary for their
production;
6.1.1.7 fire, flood, explosion, earthquake, tornadoes or
other natural events.
6.1.2 If a party incurs force majeure conditions that will result
in its non-performance it shall immediately notify the
other party in writing of the existence of such conditions
and the anticipated period of non-performance.
6.1.3 If the actual period of non-performance by either party
because of force majeure conditions exceeds three (3)
months from the date of such written notice of force
majeure conditions, the other party shall be entitled to
terminate this Agreement as of the end of such three (3)
month period or at any time thereafter during the
continuance of the force majeure conditions based on thirty
(30) days written notice to the non-performing party.
Neither party shall owe to the other any damages,
reimbursement, or indemnification as a result of such
termination.
6.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION.
6.2.1 Abazali and Biopure acknowledge that during the term of
this Agreement either party may acquire, either from the
other party or otherwise Confidential Information. For the
purposes of this Agreement, Confidential Information shall
mean all information regarding or belonging to a party,
including but not limited to, (i) know-how, data,
documents, techniques, processes, materials, product
samples, business plans or other information disclosed
directly or indirectly; (ii) information furnished by any
representative of the party; (iii) information acquired by
observation or otherwise, during a visit to a party's
facilities; (iv) information or other work product
developed in connection with this Agreement; and (v)
information which a party is under an obligation to third
parties to maintain as confidential. Such disclosures shall
be subject to the following obligations of confidentiality
and non-use:
6.2.1.1 The receiving party shall hold in strict confidence
Confidential Information received from the
disclosing party, and shall not distribute,
disclose or disseminate Confidential Information to
any third party, or anyone not authorized
hereunder;
6.2.1.2 The receiving party shall not use the disclosing
party's Confidential Information for any purpose
other than to facilitate the authorized purpose of
this Agreement;
6.2.1.3 The receiving party shall not use the disclosing
party's Confidential Information in its own
operations and/or for its own benefit, without the
prior written consent of the disclosing party;
6.2.1.4 The receiving party shall restrict use of the
disclosing party's Confidential Information to
those of its directors, officers and employees who
have a definable need to know in order to
facilitate the authorized purpose of this
Agreement. The receiving party may disclose
Confidential Information to members of a parent or
affiliate company who have a definable need to
know, provided such entity
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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agrees, prior to disclosure to be bound by the
terms of this Agreement. The receiving party shall
be responsible to the disclosing party for any
improper disclosure or use of Confidential
Information by such persons.
6.2.1.5 Abazali and Biopure each shall use its best efforts
to see that each of its employees to whom
confidential information, know-how or trade secrets
are imparted do not disclose such information,
during or subsequent to his or her employment by
Abazali or Biopure as the case may be, to any
person who is not entitled to have access to such
information.
6.2.2 Upon expiry or termination of this Agreement, howsoever
caused, upon request, Abazali and Biopure shall each
forthwith return to the other any physical manifestations
of such information, secrets, or know-how, then or
thereafter in its possession or control.
6.2.3 These obligations of confidentiality and non-use shall
expire ten (10) years from termination or expiration of
this Agreement. The foregoing obligations of
confidentiality and non-use shall not apply to information
that the receiving party can demonstrate:
6.2.3.1 was known to the receiving party prior to its
receipt from the disclosing party as demonstrated
by written records; or
6.2.3.2 was known to the general public prior to its
receipt from the disclosing party or subsequently
becomes known to the public through no fault of the
receiving party; or
6.2.3.3 is obtained by the receiving party from a third
party who is not under an obligation of
confidentiality and has a lawful right to make such
disclosure.
6.2.3.4 Is required to be disclosed by law, provided,
however, the disclosing party shall promptly notify
the other party and shall not disclose any
information without the other party's prior written
consent or until the other party has exhausted any
legal actions it may take to prevent or limit the
requested disclosure.
6.3 RELATIONSHIP BETWEEN PARTIES. Nothing in this Agreement or in the
activities engaged in by Biopure or Abazali hereunder create a
partnership, employment, or joint venture relationship between the
parties.
6.4 NON-DISCLOSURE OF AGREEMENT. Unless required by law or judicial
process, neither party shall release any information to any third
person with respect to the terms of this Agreement without the
prior written consent of the other party. This prohibition
includes, but is not limited to, press releases, educational and
scientific conferences, promotional materials, governmental
filings, public officials, and the media.
6.5 LEGAL COMPLIANCE. Each party shall insure that it and its
activities under this Agreement shall at all times comply with all
applicable laws. Each party represents that any funds paid to the
other pursuant to this Agreement are not proceeds of any illegal
activity.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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6.6 ANTI-BRIBERY LAWS. In carrying out their responsibilities under
this Agreement, the parties shall comply with all applicable
anti-bribery laws in the countries where the parties have their
principal places of business and where they conduct activities
under this Agreement. Additionally, the parties understand and
agree to comply with the U.S. Foreign Corrupt Practices Act, as
revised (the "Legislation"), which generally prohibits the
promise, payment or giving of anything of value either directly or
indirectly to any government official for the purpose of obtaining
or retaining business or any improper advantage. For purposes of
this section, "government official" means any official, officer,
representative, or employee of, including any doctor employed by,
any non-U.S. government department, agency or instrumentality
(including any government-owned or controlled commercial
enterprise), or any official of a public international
organization or political party or candidate for political office.
Additionally, Abazali represents that neither it nor any of its
owners, directors, employees, Abazali's, consultants (A) is a
government official, or will directly or indirectly (B) pay or
give or promise to pay or give anything of value to any government
official for purposes of (i) influencing any act or decision of
such government official in his official capacity; (ii) inducing
such government official to do or omit to do any act in violation
of the lawful duty of such official; (iii) securing any improper
advantage; or (iv) inducing such government official to use his
influence with the government or instrumentality thereof to affect
or influence any act or decision of the government or such
instrumentality with respect to any activities undertaken relating
to this Agreement.
6.7 NOTICE. Any notice authorized or required to be given under the
terms of this Agreement shall be given by facsimile transmission,
registered mail, adequately prepaid cable or telegram sent to the
above principal place of business of the addressee (or such other
address as the addressee may previously by notice to the other
party have stipulated) or by hand delivering the same to said
address. Notices shall be deemed to be given in the case of a
facsimile transmission when sent, if during normal business hours
and otherwise on the next business day, provided it is confirmed
by registered mail sent no later than the next business day, in
the case of registered mail upon the receipt by other party, in
the case of a cable or telegram upon the expiration of the
forty-eight (48) hours after lodgment with the official sending
body, and in the case of hand delivery upon the hand delivery of
the notice if during normal business hours and otherwise on the
next business day.
6.8 ENGLISH LANGUAGE CONTROLS. English shall be the official version
for the purpose of interpretation of this Agreement.
6.9 ASSIGNMENT. Neither party may assign this Agreement, in whole or
in part, without the prior written consent of the other. This
Agreement is binding upon the parties, their successors and
permitted assigns.
6.10 WAIVER. The failure of either party in any one or more instances
to insist upon strict performance of any of the terms and
conditions of this Agreement shall not be construed as a waiver or
relinquishment, to any extent, of the right to assert or rely upon
any such terms or conditions on any future occasion.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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6.11 SEVERABILITY. If any provision of this Agreement is or becomes
illegal, void or invalid, this shall not affect the legality and
validity of the other provisions and the parties shall meet and
negotiate in good faith a valid and enforceable replacement for
the severed provision, which replacement shall be designed to
achieve as nearly as possible the same commercial objective as the
original.
6.12 ENTIRE AGREEMENT. This Agreement constitutes the definitive
agreement of the parties on the subject matter hereof and
supersedes all prior agreements, understandings and undertakings
relating to the subject matter hereof. This Agreement shall not be
modified or amended except by a written document signed by a duly
authorized officer of the parties. Except as expressly provided
herein, there are no verbal agreements, warranties,
representations or understandings affecting this Agreement and all
previous or other negotiations, representations, and
understandings between the parties are merged herein.
6.13 CHOICE OF LAW AND JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SOUTH AFRICA. ANY
disputes or controversy ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE SUBMITTED SOLELY TO THE COURTS OF SOUTH AFRICA,
SUBJECT TO AN APPEAL TO THE SUPREME COURT OF SOUTH AFRICA. BOTH
PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives, on the date written below.
Biopure Corporation. Abazali Bio Ventures (Pty) Ltd
Signature: /s/ Xxxxx Xxxxx Signature: /s/ Xxxxxxxxxxx Xxxxxxxxx
Name: Xxxxx Xxxxx Name: Xxxxxxxxxxx Xxxxxxxxx
Title: Vice President Title: CEO
Date: November 11, 2005 Date: November 1, 2005
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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APPENDIX A
PRODUCTS
Hemopure(R)
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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APPENDIX B
TERRITORY
All African Countries excluding Egypt
Including the Indian Ocean Islands
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
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Appendix C
Marketing Costs
Promotional material
Congress and Symposia marketing materials
Peer to Peer meetings comprising multiple doctors
Sponsorship of T & E for pre-approved doctor travel to local and international
meetings
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the commission.
