Exhibit 10.9 Superstat Distribution Agreement
DISTRIBUTOR AGREEMENT
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between
SUPERSTAT CORPORATION
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and
EMERGENCY FILTRATION PRODUCTS
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SUPERSTAT CORPORATION, hereinafter referred to as the "Company" and
Emergency Filtration Products, hereinafter referred to as the "Distributor," in
consideration of the promises made herein and intending to be legally bound,
agree as follows:
ARTICLE 1. RECITALS
Legal Status of Company
Section 1.01. The Company is a Corporation duly organized, validly
existing and in good standing under the laws of the State of California, with
corporate power to own property and carry on its business as it is now being
conducted. Company has its principal officer and place of business at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Legal Status of Distributor
Section 1.02. The Distributor is a corporation duly organized, validly
existing, and in good standing, with corporate power to own property and carry
on its business as contemplated by this agreement. The distributor has its
principal office and place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
Purpose
Section 1.03. The purpose of this Agreement is to appoint a distributor
for the sale of certain of the company's products.
Facilities, Ability, and Desire to Be Distributor
Section 1.04. (a) The Distributor represents that it possesses the
facilities and ability to promote the sale of certain or the products
manufactured by the Company and is desirous of developing demand for and selling
such products in the territory hereinafter described.
(b) The Company is desirous of having the Distributor develop demand
for and sell certain of its products in such territory on the terms and
conditions set forth herein.
Article 2. Distributorship
Appointment
Section 2.01. (a) The Company appoints the Distributor for the sale of
certain of its products within the following territory: See Exhibit B. The
territory so described, and as may be subsequently enlarged, reduced, or
otherwise changed in area with the mutual consent of the parties hereto, is
hereinafter referred to as the "territory".
Products Covered
Section 2.02. The products of the Company covered by this Agreement are
Modified Collagen Surgical Hemostatic Products hereinafter referred to as the
"products". See Exhibit A. Forecasts would form part of our agreement from
January 25, 1998.
Best Efforts
Section 2.03. In consideration of this appointment, the Distributor
shall exert its best efforts to promote the sale of the products, and in
furtherance thereof, shall not handle any products of any other person, firm, or
corporation which compete with, or are of the like nature to, the products named
above.
Duration of Agreement
Section 2.04. Unless sooner terminated as hereinafter provided, this
Agreement shall continue in force for one year from the date of execution and,
providing the provisions of the Agreement have been complied with shall
automatically renew for one year periods at the expiration of each period.
Article 3. OPERATIONS
Acceptance of Orders; Filling
Section 3.01. (a) All orders the Company receives for its products from
the Distributor are subject to acceptance by the Company.
(b) The Company will use its reasonable best efforts to fill the
accepted orders as promptly as practical, subject, however, to delays caused by
transportation conditions, labor or material shortages, strikes, riots, fires,
or any other cause beyond the Company's control. In all cases, the Company will
use its reasonably best efforts to advise the Distributor the status of any
products which the Distributor has previously ordered.
Payment
Section 3.02. (a) The Distributor shall pay the Company for the
products which the Distributor purchases in accordance with the prices shown in
Schedule C attached hereto and made a part hereof (and as may be revised by the
Company from time to time) except that for orders requiring specifications that
the Company determined cannot be met at the prices in Schedule C, Distributor
shall pay the Company in accordance with Section 3.02. (b).
(b) The Distributor shall set out the specifications of products
ordered. If these specifications cannot be met at the prices shown in Schedule C
for the respective products, the Company shall promptly give notice to the
Distributor and both parties shall negotiate in good faith to establish a
mutually acceptable price.
Price Changes
Section 3.03. The Company shall advise the Distributor of all
contemplated price changes ninety (90) days prior to establishing prices.
Regulatory Approval for Sale
Section 3.04. The Company represents and warrants that it has filed
with the Food and Drug Administration (FDA) the appropriate regulatory documents
to enable the lawful manufacture, distribution and sale of the Products. The
Distributor shall be responsible for all additional registrations or approvals
necessary to market the Products in the Territory. The Company shall cooperate
and assist with any of the Distributor's regulatory filings required subsequent
to the date of this Agreement.
Rights of Inspection
Section 3.05. The Company shall allow representatives of the
Distributor to inspect the manufacturing site as needed pursuant to the
Distributor's auditing procedures. The Distributor shall provide the Company
with as much advance notification as possible prior to such inspections,
however, it shall have the right of inspection at any time during normal
business hours. Consummation of this Agreement can be subject to a satisfactory
preliminary inspection by the Distributor of manufacturing facilities at which
Products are produced.
Terms of Purchase
Section 3.06. (a) The Distributor shall pay the Company for its purchases
within sixty (60) days of delivery to Distributor.
(b) A separate billing will be provided for each shipment.
Order Specifications / Warranty
Section 3.07. The Company warrants that the Products which it sells to
the Distributor are free from defects in materials, fabrication or workmanship
and shall meet the Product specifications and the specifications in the
respective order. In the event that any Products shall not meet the required
specifications, the Company's liability under this Agreement shall be limited to
replacing the Products at no charge and indemnify Distributor for unrecoverable
importation costs. The Company shall not be liable in any event for
Distributor's loss of profits, business, good will or other consequential damage
or of breach of any other warranty express or implied.
Warranty and Responsibility
The Company hereby indemnify and hold harmless the Distributor from and
against liability for claims, damages, costs and expenses incurred by
Distributor in respect of any claims made against Distributor by users of the
Company's goods alleging any loss occasioned by an inherent defect created or
caused by the Company, in the goods or any commodity, article or thing
manufactured or supplied by the Company when used in accordance with
instructions supplied by the Company subject to the following conditions:
1. Distributor shall make no admission of liability or compromise with
claimants.
2. Distributor shall immediately upon becoming aware of any such claim,
advise the Company of all relevant details.
3. Distributor shall allow the Company to take over and conduct any
lawsuit or claim and to challenge, settle or compromise any such
action as the Company may in their absolute discretion deem
appropriate.
4. Distributor shall cooperate in all respects with the Company in the
Company's investigations, actions and settlement of any such claim.
Samples
Section 3.08. The Company shall from time to time provide the
Distributor free of charge with a reasonable number of samples of products for
use in testing and sales efforts in the territory. In no event will samples
exceed 2% of invoiced sales to the Distributor.
Minimum Purchases
Section 3.09. In the event that the Distributor purchases from the
Company are less than the minimum purchases thereafter set forth, the Company
shall have a right to adjust the discounts or terminate the Agreement as
provided in section 4.01. The minimum purchases are: See Exhibit D.
ARTICLE 4. TERMINATION
Grounds
Section 4.01. The Company may terminate this Agreement for failure of
the Distributor to meet provisions of this Agreement. If the Company elects to
terminate, it shall give written notice of such election within forty five (45)
days after which the Distributor has not met the provisions of this Agreement.
The Distributor may terminate this Agreement by giving written notice within
forty five (45) days of the close of any calendar year.
Additional Right of Company to Terminate
Section 4.02. In case of a disagreement of any nature shall arise
between the officers or managers of the Distributor whereby the Company deems
its interest may be imperiled or, in the case of their incapacity, death, sale
merger, insolvency of the Distributor, or in case an application is made to have
the Distributor declared bankrupt, or in case a receiver trustee is appointed
for the Distributor, then the Company may, at its option, terminate this
Agreement by giving the Distributor thirty (30) days written notice.
Effective Date
Section 4.03. In case of termination by either the Company or the
Distributor, the termination shall be effective as of the end of the forty-five
(45) day period, except for termination by the Company as provided under Section
4.02.
ARTICLE 5. INTERPRETATION AND ENFORCEMENT
Notices
Section 5.01. Any Notice, request, demand, or other communication
required or permitted hereunder shall be deemed to be properly given when
deposited in the United States mail, postage prepaid or deposited with any
express delivery service:
1. In the case of the Company, to an officer or such other person or
address as the Company may from time to time furnish to the Company.
2. In the case of the Distributor, to any officer or to such other
person or address as the Distributor may from time to time furnish the Company.
Distributor Not an Agent
Section 5.02. This Agreement does not constitute the Distributor as an
agent or legal representative of the Company, or the Company as the agent or
legal representative of the Distributor for any purpose whatsoever. Neither
party is granted any express or implied right or authority by the other party to
assume or to create any obligation or responsibility on behalf of or in the name
of the other party, or to bind the other party in any manner whatsoever.
No Implied Waivers
Section 5.03. The failure of either party at any time to require
performance by the other party of any provision in this Agreement shall not
affect in any way the full right to require such performance at any time
hereafter. Nor shall this Agreement be taken or held to be a waiver of the
provision itself.
Assignment
Section 5.04. The Distributor shall not assign any of its rights or
obligations under this Agreement. Any voluntary assignment or assignments by
operation of law of any rights and obligations of Distributor shall be deemed a
default under this Agreement allowing the Company to exercise all remedies
available to it under the law.
Choice of Law and Forum
Section 5.05. (a) The formation, interpretation and performance of this
Agreement shall be governed by the law of the State of California excluding its
conflict of laws rule.
(b) No lawsuit pertaining to any matter arising under or growing out of
this contract shall be instituted in any place other than California.
Entire Agreement
Section 5.06. This Agreement sets forth the entire Agreement between
the parties, and supersedes all other oral or written provisions. This Agreement
may be modified only in writing signed by all parties.
Executed on February 2, 1998 at Rancho ▇▇▇▇▇▇▇▇▇, California.
SUPERSTAT CORPORATION
\S\▇▇▇▇ McKonic
▇▇▇▇ McKonic
C.E.O. 2-2-98
EMERGENCY FILTRATION PRODUCTS
\S\▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President 1-25-98
EXHIBIT A
PRODUCTS
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Superstat 2"x 2" 3% and 1.5% Concentrations (in boxes of 10 units)
CATALOG DESCRIPTION
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1.5% 9105-00
3% 9106-00
Superstat 4" x 4" 3% and 1.5% Concentrations (in boxes of 5 units)
CATALOG DESCRIPTION
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1.5% 9101-00
3% ▇▇▇▇-▇▇
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Military Medial Installations.
Military Medical Installations of other National Governments not in conflict
with United States restrictions or other legal restrictions.
Revised April 2001
SUPERSTAT CORPORATION
By:\S\▇▇▇▇ McKonic
▇▇▇▇ McKonic
Title: C.E.O. Date: April 13, 2001
EMERGENCY FILTRATION PRODUCTS
By:\S\▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Date: April 13, 2001
EXHIBIT C
DISTRIBUTOR PRICES
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Superstat 2" x 2" (in boxes of 10 units) $9.80/per unit/$98.00 per box (U.S.D.)
$98.00/per case (10 bxs./case)
Superstat 4" x 4" (in boxes of 5 units) $15.75 per unit/$78.75 per box (U.S.D.)
$787.50 per case (10 bxs./case)
EXHIBIT D
MINIMUM PURCHASES
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Minimum purchases will be formatted after the six months of this contract and
will be calculated by potential and expected penetration based on historical
performance of comparable markets.