1
EXHIBIT 10.1
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
DISTRIBUTORSHIP AGREEMENT
This Agreement, made and entered into to be effective as of the 1st day of
December, 2000 by and between:
GENETRONICS, INC.
00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
a corporation organized under the laws of the state of California, hereinafter
referred to as SUPPLIER; and
XXXXXX SCIENTIFIC COMPANY L.L.C.
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
a limited liability company organized under the laws of the state of Delaware,
hereinafter referred to as DISTRIBUTOR.
W I T N E S S E T H
WHEREAS, SUPPLIER desires to sell and/or market its products through the use of
a non-exclusive DISTRIBUTOR; and
WHEREAS, DISTRIBUTOR desires to purchase the SUPPLIER's products for resale to
customers; and
WHEREAS, the parties desire to enter into a Distributorship agreement governing
their relationship;
NOW, THEREFORE, in consideration of the mutual terms and conditions set forth
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PRODUCT
1.1 Products: The Products covered by this Agreement are those
products set forth and attached hereto in Exhibit A ("Products"),
manufactured by or for SUPPLIER, and any improved or updated
versions thereof, together with accessories, parts and components
necessary for their maintenance and repair, to the extent such
maintenance and repair compositions are otherwise made available
by SUPPLIER to the public. Exhibit A may be amended from time to
time by mutual consent of the parties.
1.2 In the event SUPPLIER develops any new product during the term of
this Agreement that is similar or related to a product in Exhibit
A, as it may be amended, SUPPLIER shall offer DISTRIBUTOR, in
writing, the right to distribute the similar or new product on the
same terms as set forth in this Agreement.
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1.3 In the event DISTRIBUTOR intends to distribute a private-label
electroporation cuvette product, it shall notify SUPPLIER in
writing.
2. GRANT OF RIGHTS
2.1 Distribution Rights: SUPPLIER hereby appoints DISTRIBUTOR and
DISTRIBUTOR accepts the appointment as a non-exclusive DISTRIBUTOR
of the Products during the term and pursuant to the provisions of
this Agreement; provided, however, that SUPPLIER shall not add any
"National Laboratory DISTRIBUTOR" of the Products beyond
DISTRIBUTOR, ISC-BioExpress, and VWR Scientific Products during
the initial term of this Agreement. The term National Laboratory
DISTRIBUTOR shall be understood to be comprised of DISTRIBUTOR,
VWR Scientific Products Corporation, Allegiance, Sigma Xxxxxxx,
Xxxx-Xxxxxx, Xxxxxx Scientific, SciQuest, ChemDex/Ventro and their
affiliates and any successors in interest to any such entities.
2.2 Territory: The territory in which the DISTRIBUTOR has such right
to sell and distribute the Products shall be the United States and
Puerto Rico.
2.3 SUPPLIER Distribution Rights: SUPPLIER reserves the right to sell
the Products in the Territory either directly to end-users or
through other dealers who are not within the above definition of
National Laboratory Distributors, upon written notification of
SUPPLIER.
3. ORDERS; SHIPPING AND DELIVERY
3.1 Orders: DISTRIBUTOR shall make purchases by submitting firm
purchase orders to SUPPLIER.
3.2 Shipping: SUPPLIER shall ship all Products F.O.B. Destination,
collect. SUPPLIER shall ship Products to DISTRIBUTOR or
DISTRIBUTOR's customers, at DISTRIBUTOR's election, via a carrier
selected by DISTRIBUTOR. SUPPLIER reserves the right to charge
DISTRIBUTOR, after notice to distributor, a [...***...]
administrative fee for direct-to- customer shipments if the
requests to do so become excessive.
3.3 Overstocked Inventory: DISTRIBUTOR shall review its inventory at
least once per year and identify those Products which it
considers, in its reasonable discretion, to be excess inventory.
DISTRIBUTOR shall notify the SUPPLIER in writing, describing such
Products, and SUPPLIER shall, at DISTRIBUTOR 's election, either:
(i) credit DISTRIBUTOR with the full purchase price paid by
DISTRIBUTOR for each such Product upon return of the
Product; or
(ii) exchange, at SUPPLIER's expense, all such Products for
Products which are selected by DISTRIBUTOR and, in the
aggregate, are equivalent in value to the returned Products
3.4 Obsolete Inventory: Any Products owned by DISTRIBUTOR and rendered
unsalable, in DISTRIBUTOR's reasonable opinion, due to: (i) a
material change in any Product specification, (ii) discontinuation
or elimination by SUPPLIER of any Product from its
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product offering, (iii) release by SUPPLIER of any improved or
updated version of any Product, or (iv) any other cause outside of
DISTRIBUTOR 's control, shall be repurchased from DISTRIBUTOR by
SUPPLIER within thirty (30) days following DISTRIBUTOR 's request
therefor at the price paid for such Product(s) by DISTRIBUTOR.
SUPPLIER shall additionally pay for return freight and related
transportation and insurance charges for all such Products.
3.5 Delivery: SUPPLIER shall ship all Products for which it has
received a firm purchase order within [...***...] days of order
receipt. SUPPLIER agrees that time is of the essence regarding its
delivery of Products. Most Products should ship within [...***...]
hours of receipt of a firm purchase order.
4. SALES AND MARKETING SUPPORT
4.1 Training: SUPPLIER shall provide to DISTRIBUTOR 's sales
personnel, at DISTRIBUTOR 's premises or such other location as
the parties may agree, such training in the demonstration and use
of the Products as may be reasonably requested by DISTRIBUTOR, and
for such training purposes shall make available, at SUPPLIER 's
expense, all necessary instructors, training material and Products
for demonstration. DISTRIBUTOR shall provide transportation and
lodging expenses for DISTRIBUTOR personnel for the training of
DISTRIBUTOR representatives by SUPPLIER. It is the expectation of
the parties that such training shall be provided, minimally, on an
annual basis.
4.2 Technical Support: SUPPLIER shall provide technical support to
DISTRIBUTOR 's sales personnel and customers, and promptly provide
to DISTRIBUTOR such additional technical information developed or
acquired by SUPPLIER from time to time as may reasonably be
expected to be of assistance to DISTRIBUTOR in fulfilling its
obligations hereunder. SUPPLIER shall provide at its own expense a
toll free long-distance telephone service for sales and customer
support.
4.3 Literature: SUPPLIER shall provide, at its expense, reasonable
quantities of such instruction manuals and point of sale
literature as may, from time to time, be requested by DISTRIBUTOR
for use in connection with the marketing, sale and distribution of
the Products. Subject to DISTRIBUTOR 's prior written approval,
DISTRIBUTOR's name may be incorporated in SUPPLIER's advertising
literature intended for distribution by DISTRIBUTOR's
representatives. If requested to do so by DISTRIBUTOR, SUPPLIER
shall furnish DISTRIBUTOR with suitable copy and photographs for
use by DISTRIBUTOR in cataloging the Products.
4.4 DISTRIBUTOR Promotion: DISTRIBUTOR will promote Products through
catalogs, website, and sales forces.
4.5 Demonstration Units SUPPLIER shall provide to DISTRIBUTOR Products
to be used for demonstration purposes and training during the term
of this Agreement. The number of demonstration Products to be
provided under this provision shall be calculated as follows:
Seventeen (17) ECM 830, seventeen (17) ECM 630, five (5) ECM 399,
five (5) Enhancer 400, and one (1) ECM 2001. DISTRIBUTOR agrees to
purchase this equipment after a nine (9) month period, at a
[...***...] discount off the direct-to-customer pricing, as
outlined in Exhibit A. DISTRIBUTOR has the option to purchase the
equipment ninety (90) days earlier, after a [...***...] period, at
the same discount. Upon sale of this equipment by
* Confidential Treatment Requested
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DISTRIBUTOR, SUPPLIER agrees to provide replacement product as
needed, under the same terms of purchase.
Upon termination or non-renewal of this Agreement, DISTRIBUTOR
shall, at its election either: (i) return all or any part of such
demonstration Products to SUPPLIER in substantially the same
condition as received, reasonable wear and tear excluded, and pay
the return freight therefor; or (ii) purchase all or any part of
such demonstration Products from SUPPLIER at SUPPLIER's discount
of [...***...] off direct-to-customer pricing as outlined in
Exhibit A.
4.6 Rebate and DISTRIBUTOR Plan: DISTRIBUTOR shall develop a sales
plan ("DISTRIBUTOR Plan") for Territory for each "Sales Period".
"Sales Period" is defined as the calendar year. The DISTRIBUTOR
Plan shall, among other things, specify annual sales objectives
and goals for the Territory in question for the Sales Period,
which shall be approved by SUPPLIER prior to finalization. In the
event DISTRIBUTOR achieves the stated, approved goals and
objectives in the DISTRIBUTOR Plan during the relevant Sales
Period, SUPPLIER shall pay DISTRIBUTOR a rebate for the successful
Distribution Plan ("DISTRIBUTOR Rebate"). SUPPLIER and DISTRIBUTOR
shall mutually agree upon the DISTRIBUTOR Plan and DISTRIBUTOR
Rebate, no later than December 15, 2001 for the Sales Period
starting January 1, 2001, and at least 90 days prior to the start
of each successive Sales Period.
4.7 Stocking Levels: DISTRIBUTOR shall stock sufficient Products to
meet customer orders. The parties shall mutually agree on the
number of demonstration units and the level of stocking that is
necessary, and shall include this information in the DISTRIBUTOR
Plans. In addition, DISTRIBUTOR shall stock sufficient electrodes
and accessories (including BTX electroporation cuvettes) to meet
one month customer demand. Before January 5, 2001, and prior to
training of the DISTRIBUTOR sales personnel and product launch,
DISTRIBUTOR shall place orders for the agreed upon demonstration
units and stocking Products
4.8 Sales Reports: DISTRIBUTOR shall submit to SUPPLIER monthly sales
reports as are customarily provided to other SUPPLIER's similarly
situated.
5. PRICE AND PAYMENT TERMS
5.1 Price and Price Increases SUPPLIER shall supply and ship Product
at the prices and discounts from SUPPLIER's published list prices
for PRODUCTS as shown in Exhibit A through March 31, 2001 Prices
for the subsequent period beginning April 1, 2001 and ending March
31, 2002 will be established no later than January 1, 2001 and
will be valid during that period. Prices for subsequent periods
will be established at least six (6) months before the beginning
of any new price period. Such prices may be reduced by SUPPLIER,
but may be increased only according to the terms hereof. In no
event shall SUPPLIER decrease any discount to DISTRIBUTOR without
DISTRIBUTOR's prior written consent. Upon notification of
DISTRIBUTOR by Supplier of price changes, SUPPLIER shall provide
showing the new list price for each Product and the new
DISTRIBUTOR cost, based on the percentage discounts, by product
category, of Exhibit A. Such price increases shall be as
negotiated by the parties, and in the event any price increase
shall exceed the increase in the Producer Price Index for the
then-current calendar year, justification will be provided.
Shipments shall be billed at the price in effect at time of order
placement.
* Confidential Treatment Requested
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Notice of price changes shall be sent to:
PURCHASING DEPARTMENT
Xxxxxx Scientific
0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
With a copy to: STRATEGIC SOURCING.
(same address)
5.2 DISTRIBUTOR Pricing: SUPPLIER represents and warrants that the
prices and terms at which the Products are and will be sold to
DISTRIBUTOR pursuant to this Agreement shall be no less favorable
than those made available to the SUPPLIER's most favored
DISTRIBUTOR(s)in the DISTRIBUTOR's agreed to territory.
5.3 The prices set forth in Exhibit A are exclusive of any sales, use,
gross receipts, value-added or other taxes and levies that may
from time to time be applicable to the Products. DISTRIBUTOR shall
in a timely manner collect and remit to appropriate governmental
authorities and shall indemnify and hold SUPPLIER harmless from
any applicable sales, use, gross receipts, value-added or other
tax or levy now existing or hereafter enacted (other than income
tax of SUPPLIER), and any interest or penalties imposed thereon,
applicable to any sale of Product.
5.4 Payment Terms: Payment terms shall be [...***...] days;
[...***...] days; [...***...] days from the date of receipt of an
accurate invoice. DISTRIBUTOR shall pay [...***...] late penalty
charges if payment is received after 90 days post invoice date.
DISTRIBUTOR shall not be in breach of this Agreement unless
payment from the DISTRIBUTOR is more than sixty (60) days overdue.
5.5 Special Pricing: SUPPLIER shall negotiate in good faith with
DISTRIBUTOR to provide special pricing (i) where required for
DISTRIBUTOR to meet competition, and (ii) on any large quantity
order for Products which may be requested by DISTRIBUTOR's
customers. Notwithstanding the foregoing, SUPPLIER is not
obligated to provide special pricing so long as it is negotiated
in good faith with DISTRIBUTOR for same.
5.6 Information Exchange: All price changes and additions of new
products accepted by DISTRIBUTOR shall be sent to DISTRIBUTOR at
the address set forth in Section 5.3 hereof in an electronic
format acceptable to DISTRIBUTOR.
6. PACKAGING
6.1 Packaging: SUPPLIER shall supply Products in sizes and packaging
configurations corresponding to those set forth in Exhibit A, as
it may be amended from time to time. SUPPLIER further agrees to
prepare and xxxx all outer packaging with DISTRIBUTOR's catalog
numbers.
6.2 Bar Coding: SUPPLIER agrees to evaluate the implementation of bar
coding for the Products, and if reasonable, bar code some or all
the Products within one year of the effective date of this
agreement at the lowest salable unit using symbology 3 of 9 in
accordance with HIBC (Health Industry Bar Code). Additionally,
where applicable, Products shall be bar coded to include standard
unit, alternate unit, lot number and expiration date.
7. TERM AND TERMINATION
* Confidential Treatment Requested
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7.1 Term: The initial term of this Agreement shall be from the
effective date first set forth above through December 31, 2002.
The term shall then continue for successive twelve-month periods
unless either party gives written notice to the other of its
intention not to renew, at least ninety days prior to the then
current expiration date.
7.2 Termination: Notwithstanding the foregoing, this Agreement may be
terminated for cause at any time as follows:
(i) In the event of default or material breach of the terms of
this Agreement by either party, written notice thereof may
be given to the defaulting party. Thereafter, the
defaulting party shall have thirty (30) days to cure said
breach. In the event that said breach has not been cured
within said thirty (30) day period, the non-defaulting
party may terminate this Agreement on or within a thirty
(30) day period after the expiration of the cure period.
(ii) In the event of nationalization, expropriation, liquidation
or bankruptcy of, or an assignment for the benefit of
creditors or insolvency of either party.
8. PROCEDURES ON TERMINATION
8.1 Procedures: On the termination of this Agreement, except for cause
pursuant 7.2(ii), SUPPLIER shall continue to honor DISTRIBUTOR's
orders for Products up to the effective date of termination and
for a period of sixty (60) days thereafter, provided such orders
are no greater than [...***...] above the quantities established
during the sixty (60) days prior to the date of the notice of
termination, and DISTRIBUTOR shall pay for all such Products on
the terms and conditions of this Agreement.
8.2 Survival: The rights and duties of each party under this Agreement
and the Exhibits hereto in respect of performance prior to
termination shall survive and be enforceable in accordance with
the terms of this Agreement.
8.3 Existing Inventory: Upon termination of this Agreement by
SUPPLIER, SUPPLIER shall repurchase from DISTRIBUTOR, at
DISTRIBUTOR's request and at DISTRIBUTOR's current cost therefor,
all or a portion designated by DISTRIBUTOR of such Products as are
then owned by DISTRIBUTOR. Delivery of Products repurchased from
DISTRIBUTOR hereunder shall be F.O.B. origin, freight collect.
9. WARRANTIES, INDEMNITY, RECALL, AND INSURANCE
9.1 Warranties: In addition to the warranties of SUPPLIER set forth in
this Agreement and in the Continuing Guaranty which is attached
hereto as Exhibit B, SUPPLIER warrants that the Products will
conform to the specifications set forth in SUPPLIER's product
literature and Exhibit C (SUPPLIER TERMS AND WARRANTY); that they
will comply and be manufactured, packaged, sterilized (if
applicable), labeled and shipped by SUPPLIER in
* Confidential Treatment Requested
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compliance with all applicable federal, state and local laws,
orders, regulations and standards; and that they will be
merchantable and fit for their intended purpose.
All Products shall include SUPPLIER's warranty statement
containing the customer's warranty. All SUPPLIER Equipment shall
be warranted to DISTRIBUTOR's customer against defects in
materials and workmanship, including parts and labor, under normal
use for a period of two (2) year(s). All SUPPLIER Accessories and
Electrodes shall be warranted to DISTRIBUTOR's customer against
defects in materials and workmanship, including parts and labor,
under normal use for a period of ninety (90) days. SUPPLIER
warrants that the Products have been thoroughly tested before
shipment and that, if applicable, they are free of mechanical and
electrical defects. The warranty period becomes effective at the
earlier of installation or fifteen (15) days from date of shipment
to the DISTRIBUTOR's customer. DISTRIBUTOR shall request customers
to present reasonably acceptable documentation verifying the
effective warranty date.
SUPPLIER will develop a Service Plan within 90 days of the
effective date of this agreement and will communicate this plan to
DISTRIBUTOR. If this plan involves any repairs or service by
Xxxxxx Service Division ("FSD"), SUPPLIER will provide at no
charge the necessary training.
9.2 Product Improvement Reports: SUPPLIER shall promptly respond to
all Product Improvement Reports (PIR) submitted by DISTRIBUTOR,
and take all necessary and appropriate corrective action.
9.3 Continuing Guaranty: SUPPLIER shall execute and abide by the terms
of DISTRIBUTOR 's Continuing Guaranty, a copy of which is attached
hereto as Exhibit B and incorporated herein by reference. The
terms and provisions of the Continuing Guaranty shall survive the
termination of this Agreement.
9.4 Insurance: On or prior to execution of this Agreement, SUPPLIER
shall provide DISTRIBUTOR with a Certificate of Insurance which
meets the requirements of paragraph D of the Continuing Guaranty.
SUPPLIER shall provide DISTRIBUTOR with renewal insurance
certificates in the form mandated by paragraph D of the Continuing
Guaranty during the term of this Agreement, without demand
therefor by DISTRIBUTOR.
10. TRADEMARKS
10.1 Trademarks and Trade Names: SUPPLIER recognizes that DISTRIBUTOR
is the owner of the trademarks and trade names connoting
DISTRIBUTOR or DISTRIBUTOR products which it may elect to use in
the distribution and sale of the Products, and that SUPPLIER has
no right or interest in such trademarks and trade names.
10.2 Trademark License: SUPPLIER hereby grants to DISTRIBUTOR the
royalty-free right to use SUPPLIER's trademarks on SUPPLIER's
Products during the term of this Agreement, it being expressly
understood that if DISTRIBUTOR elects to use SUPPLIER's trademarks
during the term of the Agreement, DISTRIBUTOR shall properly do so
and shall discontinue the use of such trademarks in any new
published material following the termination hereof. Following the
termination of this Agreement, SUPPLIER grants DISTRIBUTOR the
right to continue to use its trademarks in connection with sale or
service
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of Products purchased by DISTRIBUTOR during the term of this
Agreement. DISTRIBUTOR disclaims any rights to SUPPLIER's
trademarks other than the said license.
11. CONFIDENTIALITY
The parties expressly agree to hold as confidential ("Confidential Information")
any information which is designated in writing by the disclosing party as
confidential, provided such information is clearly marked as confidential, and
the disclosing party obtains a signed receipt or agreement from the receiving
party acknowledging that such information is confidential. In the event
Confidential Information is exchanged according to these guidelines, such
information will be retained by the other party in confidence for a period of
two (2) years following the termination of this Agreement. The transmittal of
such information is and shall be upon the express condition that the information
is to be used solely to effectuate this Agreement; and the receiving party shall
not use, publish, or disclose said information, in whole or in part, for any
purpose other than that stated herein. SUPPLIER expressly acknowledges and
agrees that DISTRIBUTOR's customer names, address and key contacts are and shall
be the Confidential Information of DISTRIBUTOR. Notwithstanding the foregoing,
the above restrictions on disclosure and use shall not apply to any information
which the party can show by written evidence, was known to it at the time of
receipt, or which may be obtained from third parties who are not bound by a
confidentiality agreement, or which is in the public domain.
12. MISCELLANEOUS
12.1 Force Majeure: The obligations of either party to perform under
this Agreement shall be excused during each period of delay if
such delay arises from any cause or causes which are reasonably
beyond the control of the party obligated to perform, including,
but not limited to, the following: acts of God, acts or omissions
of any government, or any rules, regulations or orders of any
governmental authority or any officer, department, agency or
instrumentality thereof; failure of the Internet; fire, storm,
flood, earthquake, insurrection, riot, invasion or strikes. The
affected party shall use its best efforts to remedy the effects of
such force majeure. Any force majeure shall not excuse performance
by the party, but shall postpone performance, unless such force
majeure continues for a period in excess of ninety (90) days. In
such event, the party seeking performance may cancel its
obligations hereunder.
12.2 Assignment: Neither this Agreement nor any right or obligation
hereunder is assignable or transferable by either party in whole
or in part without the prior written consent of the other party
which shall not be unreasonably withheld, and any such purported
assignment without such consent shall be void, except that either
party shall have the right to assign this Agreement and its rights
and obligations hereunder, without obtaining the prior written
consent of the other party, to any entity (other than a competitor
of the other party hereto) with which the assigning party (a)
merges, (b) sells a substantial part of its assets or businesses,
or (c) sells a substantial part of its assets or business relating
to the Products.
12.3 Notices: Any notice required by this Agreement shall be in writing
and shall be deemed sufficient if given personally or by
registered or certified mail, postage prepaid, or by any
nationally recognized overnight delivery service, addressed to the
party to be notified at the address set forth in the initial
paragraph of this Agreement. Either party may, by notice to the
other, change its address for receiving such notices.
12.4 Entire Agreement: This Agreement, including exhibits, constitutes
the entire agreement between the parties relating to the subject
matter hereof and cancels and supersedes all prior
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agreements and understandings, whether written or oral, between
the parties with respect to such subject matter.
12.5 Existing Obligations: SUPPLIER warrants that the terms of this
Agreement do not violate any existing obligations or contracts of
SUPPLIER. SUPPLIER shall protect, defend, indemnify, and hold
harmless DISTRIBUTOR from and against any claims, demands,
liabilities or actions which are hereafter made or brought against
DISTRIBUTOR and which allege any such violation.
12.6 Modifications, Waiver: No amendment, modification or claimed
waiver of the terms of this Agreement shall be binding on either
party unless reduced to writing and signed by an authorized
officer of the party to be bound. In ordering and delivery of the
Products, the parties may employ their standard forms, but nothing
in those forms shall be construed to modify or amend the terms of
this Agreement.
12.7 Relationship of the Parties: This Agreement does not constitute
either party as the agent or legal representative of the other for
any purpose whatsoever.
12.8 Public Announcements: SUPPLIER shall not issue or cause to be
issued any press release or public announcement or otherwise
disclose the existence of this Agreement or the transactions
contemplated hereby except as and to the extent that Xxxxxx and
its parent jointly agree, in writing except to comply with law or
rules, including rules of security exchanges.
12.9 Governing Laws: This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives.
GENETRONICS, INC.
/s/ Xxxxxx Xxxx
---------------------------------------------
By: Xxxxxx Xxxx
--------------------------------------
Title: CEO
--------------------------------------
Date: 12/08/00
--------------------------------------
XXXXXX SCIENTIFIC COMPANY L.L.C.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: Vice President Strategic Merchandising
--------------------------------------
Date: 01/09/01
--------------------------------------
Rev. 12/8/00
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EXHIBIT A
See attachment.
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BTX Direct
Model No. Product Name Sell Price Transfer Price
----------------------------------------------------------------------------------------
ECM(R) 399 ELECTROPORATION SYSTEM
399S (Mammalian and Bacteria) [...***...] [...***...]
----------------------------------------------------------------------------------------
6300 ECM(R) 630 ELECTROPORATION SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
8300 ECM(R) 830 ELECTROPORATION SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
2001EP ECM(R) 2001 ELECTROPORATION SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
ECM(R) 2001 ELECTROPORATION SUPER
2001EPS1 SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
ECM(R) 2001 EMBRYO MANIPULATION
2001EM SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
ECM(R) 2001 EMBRYO MANIPULATION
2001EMS1 SUPER SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
2001EF ECM(R) 2001 CELL FUSION SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
ECM(R) 2001 CELL FUSION SUPER
2001EFS1 SYSTEM [...***...] [...***...]
----------------------------------------------------------------------------------------
GENERATORS
----------------------------------------------------------------------------------------
ECM 399 ECM(R) 399 Generator [...***...] [...***...]
----------------------------------------------------------------------------------------
ECM 630 ECM(R) 630 Generator [...***...] [...***...]
----------------------------------------------------------------------------------------
ECM(R) 2001 Embryo Manipulation
ECM 2001 Generator [...***...] [...***...]
----------------------------------------------------------------------------------------
ECM 830 ECM(R) 830 Generator [...***...] [...***...]
----------------------------------------------------------------------------------------
MONITORS
----------------------------------------------------------------------------------------
Enhancer(TM) 400 System with
4001 Printer and Computer Interface [...***...] [...***...]
----------------------------------------------------------------------------------------
XXXXXXXX
ELECTROPORATION
----------------------------------------------------------------------------------------
366 Petri Dish Electrode [...***...] [...***...]
----------------------------------------------------------------------------------------
372 Petri Dish Electrode [...***...] [...***...]
----------------------------------------------------------------------------------------
485 Flatpack Xxxxxxxx [...***...] [...***...]
----------------------------------------------------------------------------------------
486 Flatpack Xxxxxxxx [...***...] [...***...]
----------------------------------------------------------------------------------------
491-1 Single Coaxial Electrode [...***...] [...***...]
----------------------------------------------------------------------------------------
Gold-Plated Xxxx-Xxxxxxx Xxxxxxx,
000 0xx. [...***...] [...***...]
----------------------------------------------------------------------------------------
Gold-Plated Xxxx-Xxxxxxx Xxxxxxx,
000 0xx. [...***...] [...***...]
----------------------------------------------------------------------------------------
610 Cuvettes Plus(TM) [...***...] [...***...]
----------------------------------------------------------------------------------------
620 Cuvettes Plus(TM) [...***...] [...***...]
----------------------------------------------------------------------------------------
640 Cuvettes Plus(TM) [...***...] [...***...]
----------------------------------------------------------------------------------------
Multi - Coaxial Electrode - 8
747 well [...***...] [...***...]
----------------------------------------------------------------------------------------
Multi - Coaxial Electrode - 96
840 well - for use with 96 well plate [...***...] [...***...]
----------------------------------------------------------------------------------------
847 Plastic Cuvettes [...***...] [...***...]
----------------------------------------------------------------------------------------
PP35-2P Electrode, 2mm for Petri Pulser [...***...] [...***...]
----------------------------------------------------------------------------------------
ELECTRO FUSION
----------------------------------------------------------------------------------------
* Confidential Treatment Requested
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450 Microslide 450 [...***...] [...***...]
----------------------------------------------------------------------------------------
450-1 Microslide 450-1 [...***...] [...***...]
----------------------------------------------------------------------------------------
450-2 Microslide 450-2 [...***...] [...***...]
----------------------------------------------------------------------------------------
450-3 Microslide 450-3 [...***...] [...***...]
----------------------------------------------------------------------------------------
453 Microslide 453 [...***...] [...***...]
----------------------------------------------------------------------------------------
453-10 Microslide 453-10 [...***...] [...***...]
----------------------------------------------------------------------------------------
454 Meander Fusion Chamber [...***...] [...***...]
----------------------------------------------------------------------------------------
484 Flat Electrode / Divergent Field [...***...] [...***...]
----------------------------------------------------------------------------------------
ACCESSORIES
----------------------------------------------------------------------------------------
461 Coaxial Connection Cable [...***...] [...***...]
----------------------------------------------------------------------------------------
464 Micrograbber Cables [...***...] [...***...]
----------------------------------------------------------------------------------------
465 Square-post Micrograbber Cables [...***...] [...***...]
----------------------------------------------------------------------------------------
466 Electrode Adapter [...***...] [...***...]
----------------------------------------------------------------------------------------
630B Safety Stand [...***...] [...***...]
----------------------------------------------------------------------------------------
Cuvette Rack - 20 numbered
660 positions [...***...] [...***...]
----------------------------------------------------------------------------------------
719 Tubing [...***...] [...***...]
----------------------------------------------------------------------------------------
1269 Coaxial Cable Adapter [...***...] [...***...]
----------------------------------------------------------------------------------------
1296 Banana Plug Adapter [...***...] [...***...]
----------------------------------------------------------------------------------------
2001F Remote Control [...***...] [...***...]
----------------------------------------------------------------------------------------
Coaxia / Banana Plug connection
5343 Cable [...***...] [...***...]
----------------------------------------------------------------------------------------
PEP(TM)(Personal Electroporation
Pak) cuvette module - for use
PEP-BLU with 399 (blue) [...***...] [...***...]
----------------------------------------------------------------------------------------
PEP(TM) (Personal Electroporation
Pak) cuvette module - for use
PEP-GRY with 399 (xxxx) [...***...] [...***...]
----------------------------------------------------------------------------------------
SPECIAL ORDER
SECTION (CALL FOR
AVAILABILITY)
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FLOW THROUGH
SYSTEMS
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ECM(R) 600F Flow-Through
6000F Electroporation System [...***...] [...***...]
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INSTRUMENTS
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ECM(R) 600F Modified Pulse
600F Generator [...***...] [...***...]
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Peristaltic Pump - includes I/O
717 port and safety stand [...***...] [...***...]
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9000 9000 Electro Flow Porator(TM) [...***...] [...***...]
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IN VIVO
ELECTROPORATION
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384 Caliper Electrode [...***...] [...***...]
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384L Caliper Electrode [...***...] [...***...]
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GENETRODES(TM) 5mm, straight
508 electrode, gold tip [...***...] [...***...]
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GENETRODES(TM) 5mm, SHORT
508S straight electrode, gold tip [...***...] [...***...]
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GENETRODES(TM) 10mm, straight
510 electrode, gold tip [...***...] [...***...]
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510S GENETRODES(TM) 10mm, SHORT [...***...] [...***...]
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* Confidential Treatment Requested
13
straight electrode, gold tip
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GENETRODES(TM) 5mm, bent L-shaped
512 electrode, gold tip [...***...] [...***...]
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GENETRODES(TM) 3mm L-shaped bent
514 L-shaped electrode, gold tip [...***...] [...***...]
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GENETRODES(TM) 1mm L-shaped bent
516 L-shaped electrode, gold tip [...***...] [...***...]
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520 Tweezertrode(TM), 7mm [...***...] [...***...]
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522 Tweezertrode(TM), 10mm [...***...] [...***...]
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531 2NA, 6-pack, 1cm [...***...] [...***...]
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533 2NA, 6-pack, 0.5cm [...***...] [...***...]
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SPECIAL
ELECTRODES
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470 Re-usable Electrodes [...***...] [...***...]
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471 Re-usable Electrodes [...***...] [...***...]
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472 Re-usable Electrodes [...***...] [...***...]
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Re-usable Electrodes / Divergent
473 Field [...***...] [...***...]
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Re-usable Electrodes / Divergent
474 Field [...***...] [...***...]
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EPIZAP(TM) Electrode System -
EPIZAP(TM) Call for Details [...***...] [...***...]
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ACCESSORIES
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PEP(TM) (Personal Electroporation
395-7801 Pak) "plug-in" cuvette module [...***...] [...***...]
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467 Electrode Isolator Safety Stand [...***...] [...***...]
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515 GENETRODE(TM) - Holder with shaft [...***...] [...***...]
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GENETRODE(TM) - Holder without
515B shaft [...***...] [...***...]
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524 Tweezertrode Cable [...***...] [...***...]
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530 Handle, 1cm for 2NA [...***...] [...***...]
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532 Handle, 0.5cm for 2NA [...***...] [...***...]
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650 Flatpack Slider [...***...] [...***...]
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665 Standard Cuvette Slider [...***...] [...***...]
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* Confidential Treatment Requested
14
EXHIBIT B
[XXXXXX SCIENTIFIC LOGO] 0000 Xxxx Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
(000) 000-0000
CONTINUING GUARANTY
A. Genetronics Inc. (hereinafter referred to as "Seller"), having its
principal office and place of business at 00000 Xxxxxxxx Xxxxxx Xx, Xxx
Xxxxx, XX 00000-0000, hereby guarantees that all Products (including their
packaging, labeling and shipping) comprising each shipment or other
delivery hereinafter made by Seller (hereinafter referred to as "Products")
to or on the order of Xxxxxx Scientific L.L.C., a Delaware limited
liability company, having its principal place of business at 0000 Xxxx
Xxxx, Xxxxxxxxxx, XX 00000 or to any of its branches, divisions,
subsidiaries, affiliates, or any of their customers (hereinafter
collectively referred to as "Xxxxxx"), are, as of the date of such shipment
or delivery, in compliance with applicable federal, state and local laws,
and any regulations, rules, declarations, interpretations and orders issued
thereunder, including, without limitation, the Federal Food, Drug and
Cosmetic Act, as amended, and conform to representations and warranties
made by Seller in its advertising, product labeling and literature.
B. Further, with respect to any Product that is privately labeled for Xxxxxx,
Seller agrees to make no change in such Products or the Xxxxxx artwork on
the labeling or packaging relating thereto without first obtaining the
written consent of Xxxxxx. Seller recognizes that Xxxxxx is the owner of
the trademarks and trade names connoting Xxxxxx which it may elect to use
in the promotion and sale of such private label Products and that Seller
has no right or interest in such trademarks or trade names. Seller shall
periodically analyze and review packaging and labeling for any Products
which are private labeled for Xxxxxx to ensure conformity with the
provisions of paragraph A hereof and the adequacy of Product warnings and
instructions.
C. Seller hereby agrees that it will reimburse Xxxxxx for all reasonable
out-of-pocket costs and expenses incurred in connection with any product
corrective action or recall relating to the Products which is requested by
Seller or required by any governmental entity.
D. Seller agrees to procure and maintain on an occurrence form basis product
liability insurance with respect to the Products and contractual liability
coverage relating to this Guaranty, with insurer(s) having Best's rating(s)
of A- or better, naming Xxxxxx as an additional insured (Broad Form Vendors
Endorsement), with minimum limits in each case of $1,000,000. Seller shall
promptly furnish to Xxxxxx a certificate of insurance and renewal
certificates of insurance evidencing the foregoing coverages and limits.
The insurance shall not be canceled, reduced or otherwise changed without
providing Xxxxxx with at least ten (10) days prior written notice.
E. Seller agrees to and shall protect, defend, indemnify and hold harmless
Xxxxxx (and with respect to Subparagraph E. (i) below, Xxxxxx'x customers)
from any and all claims, actions, costs, expenses and damages, including
attorney's fees and expenses arising out of: (i) any actual or alleged
patent, trademark or copyright infringement in the design, composition,
use, sale, advertising or packaging of the Products; (ii) any breach of the
representations or warranties set forth in this Guaranty; (iii) the sale or
use of the Products where such liability results from the act or omission
of Seller (whether for breach of warranty, strict liability in tort,
negligence or otherwise).
F. Seller agrees to and shall provide to Xxxxxx Material Safety Data Sheets
and other information concerning any Product as required by then applicable
federal, state or local law.
G. Seller agrees to and shall accept, at its facility, all of Xxxxxx'x unsold
or expired Products containing hazardous chemicals, materials or substances
for disposal, recycling or use. Xxxxxx shall be responsible for packing and
transportation costs to Seller. Seller shall be responsible for all other
costs, including, without limitation, any costs associated with Seller's
disposal, recycling or use.
H. If the Products to be furnished by Seller are to be used in the performance
of a U.S. government contract or subcontract, those clauses of the
applicable U.S. Government procurement regulation which are mandatorily
required by Federal Statute to be included in U.S. Government subcontracts
shall be incorporated herein by reference including, without limitation,
the Fair Labor Standards Act of 1938, as amended.
I. The representations and obligations set forth herein shall be continuing
and shall be binding upon the Seller and his or its heirs, executors,
administrators, successors and/or assigns, whichever the case may be, and
shall inure to the benefit of Xxxxxx, its successors and assigns and to the
benefit of its officers, directors, agents and employees and their heirs,
executors, administrators, and assigns.
J. The agreements and obligations of Seller set forth in this Guaranty are in
consideration of purchases made by Xxxxxx from Seller and said obligations
are in addition to (and supersede to the extent of any conflict) any
obligations of Seller to Xxxxxx or Xxxxxx to Seller. This Guaranty shall be
effective upon the first sale to Xxxxxx of any Product by Seller, and the
obligations of Seller under this Guaranty shall survive and be enforceable
in accordance with its terms.
15
SELLER
Genetronics Inc.
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Name Under Which Seller 's Business is Conducted
/s/ Xxxxxx Xxxx
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Signature of Authorized Representative
CEO 12/08/00
Title Date
XXXXXX SCIENTIFIC COMPANY L.L.C.
/s/ Xxxx Xxxxxx
---------------
Signature of Authorized Representative
Vice President Strategic Merchandising 01/09/01
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Title Date
Revised: 12/95
16
EXHIBIT C
Product Policy and Warranty
1) INTENDED USE OF THE BTX PRODUCT LINE
The BTX Product Line has been specifically designed for electroporation (the
application of high voltage electric fields pulses of short duration in order to
create temporary pores or holes in the membrane of cells) and electro cell
fusion (fusing cells to form hybrids by using electricity). This is the sole
intended use of the product.
These products are intended for research use only. These products are not
intended for human clinical applications.
2) SAFETY PRECAUTIONS
When operating any of the BTX Generators extreme caution must be exercised. All
the Generators have the capability of releasing very high voltage. The
Generators should not be operated without a full review and understanding of the
operating manual. EXTREME CARE NEEDS TO BE TAKEN TO ENSURE SAFE OPERATION.
3) ACCESSORIES
Products not manufactured by BTX may not be sold, promoted and/or used as a part
of a BTX System without prior written corporate approval from Genetronics, Inc.
4) WARRANTY
The BTX instruments are guaranteed to be free of defects for a period of two
years from the time of delivery. Xxxxxxxx and accessories are warranted for a
period of 90 days. If any defects covered by this warranty appear within the
above period, Genetronics shall have the option of repairing or replacing the
equipment at its expense. Such repair or replacement shall be the customer's
exclusive remedy for breach of warranty or for negligence.
This warranty does not extend to any instrumentation which has been (a)
subjected to misuse, neglect, accident or abuse, (b) repaired or altered by
anyone other than Genetronics without Genetronics' express and prior approval,
(c) used in violation of instructions furnished by the BTX division of
Genetronics.
Genetronics shall not be liable for any special or consequential damages or for
loss, damage or expense (whether or not caused by or resulting from Genetronics'
negligence) directly or indirectly arising from use of the instrumentation sold
hereunder either separately or in combination with any other equipment or from
any other cause.
The above warranty shall be in lieu of and excludes all other expressed or
implied warranties or merchantability, fitness, or otherwise. Without limiting
the generality of the foregoing, Genetronics shall not be liable for any claims
of any kind whatsoever, as to the equipment delivered or for non-delivery of
equipment, and whether or not based on negligence.
Genetronics will correct any malfunction not caused by operator abuse at no
charge for parts and labor. All service under the warranty will be made at the
Genetronics San Diego, CA facilities. Owner will ship instrument prepaid to San
Diego, CA. Genetronics will return the instrument after servicing, freight
prepaid to owner's address.
17
Warranty is void if the instrument is changed in any way from its original
factory design or if repairs are attempted without written authorisation by
Genetronics.
Warranty is void if parts, connections or electroporation xxxxxxxx not
manufactured by Genetronics are used with a Genetronics instrument.
NOTE: UNDER NO CONDITIONS SHOULD THE INSTRUMENT OR ACCESSORIES BE
RETURNED WITHOUT PRIOR APPROVAL AND A RETURN GOODS
AUTHORIZATION (RGA) NUMBER FROM GENETRONICS
