AGREEMENT AND ASSIGNMENT OF
DISTRIBUTION RIGHTS
THIS AGREEMENT AND ASSIGNMENT OF DISTRIBUTION RIGHTS (the "Assignment") is
made and entered into as of the 31st day of August, 1998, by and among GEDA
International Marketing Company Limited ("GIMCO") ▇▇▇▇▇▇ Darbar ("Assignor"),
Empyrean Diagnostics, Inc. ("Assignee") and Empyrean Diagnostic Ltd. as to
paragraph 3 only.
WITNESSETH:
WHEREAS, Assignor is the owner of certain rights to two products as
described on the attached Exhibit "A" of the GIMCO Agreement, conveyed to
Assignor by GIMCO pursuant to that certain agreement for distribution dated
April 29, 1997 (the "Distribution Agreement"),which is attached to this
Assignment as Attachment "A" and made a part of it; and
WHEREAS, Assignor desires to sell and assign, and Assignee desires to
purchase and accept, all of Assignor's interest in the Distribution Agreement
(hereinafter, the "Interest"); and
WHEREAS, GIMCO wishes to consent to this Assignment and to the transfer of
Assignor's rights in the Interest.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows;
1. ASSIGNMENT OF INTEREST. Assignor hereby sells and assigns to Assignee,
and Assignee hereby buys and accepts from Assignor, the Interest. Assignee
agrees to be bound by the terms of the Distribution Agreement and to assume the
obligations of the Assignor thereunder.
2. CONSENT OF GIMCO. By executing this Assignment, GIMCO hereby consents to
the Assignment and to the transfer of Assignor's rights in the Interest and the
assumption of its obligations pursuant hereto.
3. CONSIDERATION FOR ASSIGNMENT. In consideration for the rights which
Assignee shall receive pursuant to this Assignment: (a) Empyrean Diagnostics,
Ltd, shall transfer to Assignor one hundred thousand (100,000) shares of its
restricted common stock (the "Stock"); and (b) Assignee shall pay to Assignor
five percent (5%) of all net sales of the products in Canada pursuant to the
Distribution Agreement. Royalties to be paid quarterly, 30 days after the end of
each quarter. "Net sales" shall be defined as the total gross sales of the
products to be sold pursuant to the Distribution Agreement at the invoice
selling price, net of normal and reasonable cash, trade and quantity discounts
and returns for credit, and without deductions for costs incurred in
manufacturing, selling, distributing or advertising or for uncollectible
accounts.
4. STOCK ACQUIRED FOR INVESTMENT PURPOSES. Assignor understands that the
Stock which shall be issued pursuant to this Assignment is being issued pursuant
to an exemption from registration under the Securities Act of 1933, as amended.
Assignor warrants and represents that the Stock is being acquired by Assignor
solely for Assignor's own account, for investment purposes only, and is not
being purchased and accepted with a view to or for the resale, distribution,
subdivision or fractionalization thereof. Assignor shall execute a subscription
agreement in a form substantially similar to the subscription agreement attached
hereto as Attachment "B" for the purpose of documenting Assignor's status as an
investor in the Stock.
5. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors and assigns.
6. ARBITRATION. Any action or proceeding arising out of or relating to this
Assignment shall be submitted by the parties to binding arbitration before the
American Arbitration Association in the County of Los Angeles. The arbitrator
shall have the authority to permit discovery upon request of a party and shall
render his decision in accordance with the law of the state of California. The
cost of the arbitration shall be shared equally. The arbitration award issued by
the arbitrator may be enforced in any court having jurisdiction over the subject
matter of the controversy.
7. NOTICES. All notices, demands, requests, consents, approvals or other
communications ("notices") given hereunder shall be in writing, and shall be
given by personal delivery or by express mail, Federal Express, DHL or other
similar form of recognized airborne/ overnight delivery service (which forms of
Notice shall be deemed to have been given upon delivery), or by telex or
facsimile transmission (which forms of Notice shall be deemed delivered upon
confirmed transmission), or by mailing in the mail by registered or certified
mail, return receipt requested, postage prepaid (which forms of Notice shall be
deemed to have been given upon the fifth (5th) business day following the date
mailed). Notices shall be addressed to the parties at the addresses set forth in
the signature section of this Assignment or to such other address as to which
any party hereto may have notified the others in writing.
8. HEADINGS. The section and paragraph headings contained in this
Assignment are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Assignment.
9. FACSIMILE SIGNATURES/COUNTERPARTS. For the convenience of the parties to
this Assignment, this document may be executed by facsimile signatures and in
counterparts which shall together constitute the agreernent of the parties as
one and the same instrument.
10. ENFORCEABILITY. If any provision of this Assignment or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Assignment and application of such provision
to the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law.
11. ENTIRE AGREEMENT. This Assignment, including the Attachments hereto,
embodies the entire agreement and understanding among the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings related thereto. The parties hereto recognize and agree that no
representations or warranties have been made except as set forth in this
Assignment and the Attachments hereto. This Assignment may be modified only by a
written instrument signed by each of the parties.
IN WITNESS WHEREOF, this Assignment is executed as of the day and year
first above written.
"GIMCO"
GEDA International Marketing Company Limited
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Address:
"ASSIGNOR"
▇▇▇▇▇▇ Darbar
By: /s/ ▇▇▇▇▇▇ Darbar
------------------------------------
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
"ASSIGNEE"
Empyrean Diagnostics, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Empyrean Diagnostics, Ltd., as to paragraph
3 only
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
REQUIREMENTS AGREEMENT
This Requirements Agreement (the "Agreement") is entered into on the 29 day
of April 1997 by and between Geda International Marketing Co., Ltd., c/o
Pindling & Co., Wave Crest House, West Bay Street, Nassau, Bahamas (the
"Seller"), Empyrean Diagnostics Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), and, as to section 15 only, Empyrean
Diagnostics, Ltd. (the "Parent") based upon the following:
RECITALS
A. The Seller is the manufacturer of the products which are included on
Exhibit "A' to this Agreement and made a part of it by this reference
(hereinafter, the "Products").
B. The Purchaser wishes to exclusively market the Products in markets not
already assigned by the Seller and the Seller wishes to gain access to these
markets through the Purchaser.
THEREFORE, the Seller and the Purchaser agree as follows:
AGREEMENT
1. TERM.
The term of this Agreement shall begin on the date of its execution and
shall continue for a period of ten (10) years (the "Initial Term"). The
Purchaser shall have the option to renew this Agreement for one 10 year period,
provided that the Purchaser has, during the second year of the Initial Term,
purchased the Minimum Requirement, as defined in section 3 below, for each
Region.
2. TERRITORY.
2.1 REGIONS. The Purchaser shall be entitled to exclusively sell and
distribute the Products in the following Regions: Region I shall consist of
Russia and all of the countries of the former Soviet Union; Region 2 shall
consist of Argentina, Uruguay, Chile and Peru, so long as a joint venture agreem
ent for the sale of the Products is entered into by and among Seller, Purchaser
and BICI Internacional S.A. de C.V.; Region 3 shall consist of India; Region 4
shall consist of Germany, Switzerland, Austria and Liechtenstein; Region 5 shall
consist of China, and Region 6 shall consist of Indonesia. If the Products must
be approved or qualified for sale in any place or country included in a Region,
then the Purchaser, at its sole cost and expense, shall obtain from the proper
authorities of the country or place included in the Region all registrations,
licenses and approvals required for the import, sale and distribution of the
Products. In that regard, the Seller shall allow the Purchaser access and use of
any and all data collected regarding the testing and use of the Products. If an
approval or qualification for sale is not obtained for the place or country
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within 24 months from the date of this Agreement, then Seller may, upon written
notice to Purchaser, remove the country or place from the definition of the
Region; PROVIDED, HOWEVER, that if the Minimum Requirement for the Region (as
defined in section 3 below) has been purchased by the Purchaser during the
second year of the Initial Term, then the Seller shall not be entitled to remove
the country or place from the definition of the Region.
2.2 RIGHT OF FIRST REFUSAL. The Seller hereby grants to the Purchaser a
right of first refusal to supply the Products to any place or country not
included in the Regions, with the exception of Canada, Mexico, Dominican
Republic, South America (except for those countries included in Region 2),
Africa, Spain, Italy, United States, Taiwan, Hong Kong and the Philippines, if
the Seller decides to transfer, sell, license or assign such rights. The Seller
shall not transfer, sell, license or assign, or in any other way dispose of the
right to sell the Products in any such place or country unless the Seller shall
first have given written notice to the Purchaser of its intention to do so
(hereinafter "Notice") and follows the procedures hereinafter set forth.
2.3 NOTICE OF PURCHASE OR TRANSFER. The Notice shall be accompanied by a
copy of any proposed purchase, license, assignment or transfer document, or if
none, a summary of the purchase, license, assignment or transfer proposal
(hereinafter the "Acquisition Documents") which documents must name the proposed
transferee and specify the price and the terms of payment.
2.4 OPTION TO ACQUIRE. For 30 days following the receipt of the Notice and
Acquisition Documents by the Purchaser, the Purchaser shall have the option to
acquire the rights proposed to be transferred at the greater of. (i) the price
stated in the Notice and Acquisition Documents, or (ii) U.S.$50,000, or at any
other price agreed to by the Purchaser and the Seller. If the Purchaser does not
elect to acquire the rights during the 30 day period following the Purchaser's
receipt of the Notice and Acquisition Documents, then, the Seller may transfer
the rights to the proposed transferee on the terms and conditions set forth in
the Acquisition Documents.
3. MINIMUM REQUIREMENT
The Seller and the Purchaser anticipate that it will take approximately 12
months to obtain approvals or qualifications to sell the Products in the various
countries or places within the Regions. Therefore, the Purchaser shall not be
required to purchase the Minimum Requirement during the first year of the
Initial Term. Beginning with the second year of the Initial Term, the Purchaser
shall purchase from the Seller and the Seller shall supply to the Purchaser, on
a monthly basis, at least one container lot of each of the Products per Region.
One container lot shall be equal to seventy-two 55 gallon drums.
4. SHIPPING.
4.1 SHIPMENT UPON RECEIPT OF PURCHASE ORDER. Within 30 days of receipt of a
purchase order from the Purchaser, the Seller shall ship the Products to the
Purchaser in container lots, FOB Toronto. The Purchaser shall be responsible for
the payment of loading, freight, shipping, insurance, duties, forwarding and
handling charges, taxes, storage and all other charges applicable to shipment of
the Products after they are delivered by the Seller to Toronto. The Purchaser
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shall assume all risk of loss for the Products upon safe delivery by the Seller
to Toronto, except any such loss which is directly attributable to any act or
omission on the part of the Seller prior to delivery to Toronto.
4.2 LICENSE TO MANUFACTURE IF FAILURE TO SHIP. If for any reason, including
force majeure as discussed in section 14 below, the Seller is unable to ship the
Products within 30 days of receipt of a purchase order from the Purchaser, then
the Seller shall license the manufacture of the Products for a term agreeable to
the parties and shall receive, in exchange for such license, an agreed upon
royalty amount which shall be computed on the net sales of the Products in the
Regions.
5. PRICE.
The price paid by the Purchaser to the Seller for the Products shall be
U.S.$3.60 per liter F.O.B. Toronto. This price shall be firm for a period of 24
months, beginning with the second year of the Initial Term, and may not be
increased after that period unless mutually agreed to by the Seller and the
Purchaser. If the price is increased after the above-referenced 24 month period,
it shall not be increased by more than 2% per year. All prices exclude VAT and
federal, state or local taxes which are properly attributable to the Products
and which shall be added to the price or billed separately to the Purchaser
where the Seller has the legal obligation to collect the taxes or fees. Unless
otherwise agreed to in writing by the Seller, terms of payment for the Products
shall be by letter of credit, 50% of the invoice price to be paid at the time
the letter of credit is placed and the remaining 50% to be paid at the time the
order is delivered for shipment.
6. PRODUCT ACCESSORIES/LABELING.
6.1 ACCESSORY SUPPLIERS. The Seller shall provide to the Purchaser a list
of suppliers to provide accessories for use with the Products, such as tubes,
applicators and boxes. The Seller may, but is not required to, purchase the
accessories from the list of suppliers provided.
6.2 LABELING AND PACKAGING. The Purchaser shall develop all artwork for
labeling and packaging the Products. Except as provided in this Agreement,
neither party shall use any trademark, trade name or logo belonging to the other
party or any confusingly similar trademark, trade name or logo during or after
the term of this Agreement. Upon termination of this Agreement, each party shall
cease any and all use of the trademarks, trade names and logos of the other
party.
7. NOTICE OF DEFECTIVE PRODUCTS.
The Purchaser shall notify the Seller of any claimed defect in a shipment
of the Products within 30 days after the discovery of such defect by the
Purchaser. The notice shall include the lot number of the Products, as well as
the number and date of the invoice and shall be accompanied by samples of the
shipment. The Purchaser shall be entitled, at the expense of the Seller, to
obtain a replacement of the defective Products. If the Seller wishes to have the
Purchaser return the defective Products, the Seller shall be solely responsible
for the cost of such return.
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8. INDEMNITY.
8.1 SELLER'S INDEMNITY. The Seller shall indemnify and hold the Purchaser
harmless from any and all claims, liabilities, judgments, losses, damages, costs
and expenses (including reasonable attorney's fees) incurred by or asserted
against the Purchaser by any person or entity as a result of any injury,
illness, death, property damage or other loss or damage arising from a defect in
the Products or resulting from the negligence, fault or wrongful activity of the
Seller. The Purchaser shall give the Seller written notice of any such claim,
action, suit or proceeding immediately upon the Purchaser's receipt of notice
thereof The Purchaser shall cooperate fully and promptly with the Seller in
defending or otherwise resolving any such claims, actions, suits and
proceedings.
8.2 PURCHASER'S INDEMNITY. The Purchaser shall indemnify and hold the
Seller harmless from any and all claims, liabilities, judgments, losses,
damages, costs and expenses (including reasonable attorney's fees) incurred by
or asserted against the Seller by any person or entity as a result of any
injury, illness, death, property damage or other loss or damage arising from
negligent or willful misconduct by the Purchaser, its employees, agents or
representatives. Without limiting the generality of the foregoing, the Purchaser
shall indemnify, defend and hold the Seller harmless from and against any
liability, cost and expense of any nature caused by the Purchaser's improper
storage, alteration, handling or uses of the Products or any statements,
representations, warranties, or advertisements concerning the Products which
exceed in scope or are different in meaning from the statements made by the
Seller in its own literature.
9. INSURANCE.
The Seller shall maintain insurance coverage issued by one or more
insurance companies, with Best Rating B+ or higher, adequate to cover the
claims, liabilities, judgments, losses, damages, costs and expenses (including
reasonable attorney's fees) indemnified in section 8. In no event shall the
amount of insurance coverage be less than U.S. $2,500,000. Subject to the Seller
maintaining such insurance, the Seller shall have full control of any such
claims, actions, suits and proceedings, and the Purchaser shall promptly tender
defense thereof to the Seller and the Purchaser shall not settle or compromise
any such claim, suit, action or proceeding without the prior consent of the
Seller.
10. TERMINATION.
10.1 RIGHTS TO TERMINATE. Except as otherwise provided herein, either party
may terminate this Agreement immediately upon written notice to the other party
if the other party (i) shall become insolvent, make a general assignment for the
benefit of its creditors, have a receiver or manager appointed or otherwise
commence or become the subject of, any action relating to bankruptcy,
insolvency, reorganization, dissolution or winding up; (ii) ceases to function
as a going concern or conduct its operations in the normal course of business as
currently conducted; (iii) is convicted of or pleads guilty or no contest to a
charge of violating any law relating to its business or engages in any act which
materially impairs the goodwill associated with the Products or with the
Seller's trademark, trade name or logo; or (iv) either ▇▇▇▇▇ shall fail to
substantially perform its obligations under this Agreement. In the event a party
fails to substantially perform its obligations under this Agreement, the
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non-breaching party shall give notice of termination in writing to the breaching
party and the breaching party shall have thirty (30) days in which to correct
the breach. If the breaching party fails to correct the breach within such
thirty (30) day period, this Agreement shall terminate.
10.2 ACCEPTANCE OF ORDERS NOT RENEWAL. In the event of the termination or
expiration of this Agreement, acceptance by the Seller of any orders from the
Purchaser after termination of this Agreement shall not constitute a renewal of
this Agreement or a waiver of the right of either party to treat this Agreement
as terminated.
10.3 CONDUCT AFTER TERMINATION. The Seller shall deliver all Products
ordered by the Purchaser and accepted by the Seller prior to termination, and
the Purchaser shall accept and pay for all Products ordered by it under purchase
orders issued by it and accepted by the Seller prior to the date of termination.
Termination shall not relieve and release either party from its obligations to
make any other payment which may be owing to the other party under the terms of
this Agreement or from any other liability which either may have to the other
arising out of this Agreement or breach of this Agreement.
11. INFRINGEMENT.
The Seller warrants that, to the best of its knowledge, the Purchaser's
offer for sale and the sale of the Products as they exist on the date of this
Agreement does not infringe any patent or other intellectual property right of
another. In the event an infringement claim is commenced or threatened against
the Seller or the Purchaser in any country or place in any Region, the Seller
shall indemnify and hold the Purchaser harmless from any and all losses,
damages, costs and expenses awarded against or incurred by the Purchaser arising
from the infringement claim. The Purchaser shall give to the Seller written
notice of an infringement claim immediately upon the Purchaser's receipt of
notice thereof The Purchaser shall cooperate fully and promptly with the Seller
in defending or otherwise resolving any such claims, actions, suits and
proceedings. The Seller may elect to have full control of any litigation
relating to any infringement claims, and the Purchaser shall promptly tender
defense thereof to the Seller. The Purchaser shall not settle or compromise any
such claim, suit, action or proceeding without the consent of the Seller.
12. CONFIDENTIAL INFORMATION.
12.1 AGREEMENT TO KEEP INFORMATION CONFIDENTIAL. The Purchaser and the
Seller each acknowledge that during the terms of this Agreement, such party will
learn information that the other party considers confidential and secret,
including, but not limited to, inventions, research and development technology,
formulations, methods and procedures, price lists, marketing plans, discount
sheets, trade secrets, technical information, physical specimens, models and
technical specimens and specifications related to the Products (collectively,
the "Confidential Information"). Each party shall keep the other party's
Confidential Information secret and confidential and agrees not to disclose,
furnish, communicate or make such Confidential Information accessible to any
third party or to use it in any way for such party's own or another's benefit,
or permit the Confidential Information to be used in competition with the other
party. Specifically, but not by way of limitation, the Purchaser agrees that
during the Initial Term of this Agreement (and any renewals thereof) and for a
5
period of two years following the expiration of this Agreement, it will keep
confidential the Seller's confidential information relating to the formulation
of the Products and any other proprietary information which the Seller may
reveal to the Purchaser, unless such information is generally known or has been
published or released for circulation to the public or unless the Purchaser is
required to disclose such confidential information under law, subpoena or
regulatory process, in which case such disclosures shall not breach this
Agreement. Furthermore, during the Initial Term of this Agreement (and any
renewals thereof) and for a period of two years following the expiration of this
Agreement the Purchaser shall not manufacture the Products (except pursuant to a
license from the Seller) nor shall the Purchaser, any subsidiary of the
Purchaser or any individual, partnership, corporation or other entity related to
or associated with the Purchaser, manufacture, purchase or market any similar or
competing product. Both the Seller and the Purchaser shall require its agents
and employees to agree to be bound by the terms of this section 12. Each party
shall refrain from all actions and omissions that would reduce the value of the
other party's Confidential Information.
12.2 INFORMATION THAT IS NOT CONFIDENTIAL. The definition of Confidential
Information shall exclude information that: (1) is in the public domain at the
time of disclosure to the other party or, without a breach of this section 12 by
such party, later becomes part of the public domain-, (ii) the receiving party
can verify by written records kept in the ordinary course of business was in its
lawful possession prior to its disclosure by the other party; or (iii) is
received by one party from a third party without a breach of confidentiality
owed by the third party to the other party to this Agreement
12.3 SURVIVAL OF TERMINATION OF AGREEMENT. The obligation of the parties to
keep the other party's Confidential Information confidential shall survive the
termination or expiration of this Agreement. Each of the parties shall
immediately return all copies of any written Confidential Information received
by it upon expiration or termination of this Agreement.
12.4 BREACH CAUSES IRREPARABLE HARM. Each party acknowledges that its
failure to maintain the other party's Confidential Information confidential may
result in immediate and irreparable damage to the other party. Therefore, each
party shall be entitled to such equitable relief, in addition to any damages, as
any court of competent jurisdiction may deem proper to enforce the provision of
this section 12.
13. RIGHT TO ACQUIRE.
13.1 RIGHT OF FIRST REFUSAL. The Seller hereby grants to the Purchaser a
right of first refusal to purchase or license the rights to own and/or
manufacture the Products if the Seller decides to transfer, sell, license or
assign such rights. The Seller shall not transfer, sell, license or assign, or
in any other way dispose of the formula for the Products or any right or
interest in the Products unless the Seller shall first have given written notice
to the Purchaser of its intention to do so (hereinafter "Notice") and follows
the procedures hereinafter set forth.
13.2 NOTICE OF PURCHASE OR TRANSFER. The Notice shall be accompanied by a
copy of any proposed purchase, license, assignment or transfer document, or if
none, a summary of the purchase, license, assignment or transfer proposal
(hereinafter the "Acquisition Documents") which documents must name the proposed
transferee and specify the price and the terms of payment.
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13.3 OPTION TO ACQUIRE. For 30 days following the receipt of the Notice and
Acquisition Documents by the Purchaser, the Purchaser shall have the option to
acquire the rights proposed to be transferred at the price and on the terms
stated in the Notice and Acquisition Documents. If the Purchaser does not elect
to acquire the rights during the 30 day period following the Purchaser's receipt
of the Notice and Acquisition Documents, then, the Seller may transfer the
rights to the proposed transferee on the terms and conditions set forth in the
Acquisition Documents.
14. FORCE ▇▇▇▇▇▇.
Neither party shall be deemed to be in breach of this Agreement or
otherwise be liable to the other by reason of any delay in performing or failure
to perform any obligations hereunder to the extent that such delay or failure
was due to any force majeure of which it has notified the other party, and the
time of performance of that obligation shall be extended accordingly. If the
force majeure in question prevails for a continuous period in excess of 30 days,
the parties shall enter into bona fide discussions with a view to alleviating
its effects or to agree to such alternative arrangements as may be fair and
reasonable. Without prejudice to the generality of the foregoing, the following,
without limitation, shall be regarded as force majeure: acts of God, explosions,
floods, tempest, fires or accidents, war or threat of war, acts, restrictions or
regulations of any government or governmental agency, import or export
regulations or embargoes, strikes or other labor troubles, difficulties in
obtaining raw materials, power failure or breakdowns in machinery or any other
cause beyond the control of, or occurring without the fault of, the party
asserting the force majeure.
15. CONSIDERATION.
The Seller is aware that the Purchaser may not be able to obtain the
registrations, licenses and approvals required in a Region (or from one or more
countries comprising a Region) for the import, sale and distribution of the
Products. The Seller, therefore, agrees that the Purchaser shall pay to the
Seller, for the rights transferred pursuant to this Agreement, the following:
(i) upon execution of this Agreement, the Purchaser shall pay to the
Seller, in cash, the sum of U. S. $33,333 per Region, for an aggregate
of U. S. $199,998;
(ii) upon the Purchaser receiving a valid registration, license or approval
to import, sell and distribute the Products in a Region, the Parent
shall issue to the Seller, from its capital stock, 14,900 shares. If a
Region is comprised of more than one country, the Purchaser must have
received a valid registration, license or approval to import, sell and
distribute the Products to at least one country comprising the Region.
If, for any reason whatsoever, the Purchaser is unable to obtain permission or
acquire the necessary registration, license or approval to sell the Products in
a Region, the Seller will refund to the Purchaser, after the first 12 months of
the Initial Term and within 30 days of written notice being given by the
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Purchaser, the sum of U.S.$33,333 and the Purchaser shall release to the Seller
all rights it has acquired by this Agreement relating to the sale of the
Products in the Region.
The Seller is aware that, pursuant to the securities laws of the territory
of Vancouver, the stock of the Parent may not be sold or transferred for a
period of one year from the date its issuance is authorized.
16. MISCELLANEOUS.
16.1 GOVERNING LAW. This Agreement shall be deemed to be made in, and in
all respects shall be interpreted, construed and governed by and in accordance
with the laws of California.
16.2 VENUE AND JURISDICTION. Any action or proceeding arising out of or
relating to this Agreement shall be determined by binding arbitration or trial
in such jurisdiction and by such means (arbitration or trial) as shall be
determined by the defendant. Each party shall generally and unconditionally
accept jurisdiction and venue as set forth herein, consents to the service of
process in any such action or proceeding by certified or registered mailing of
the summons and complaint in accordance with the notice provisions of this
Agreement, and waives any defense or right to object to venue based upon the
doctrine of "Forum Non Conveniens". Each party irrevocably agrees to be bound by
any judgement rendered thereby in connection with this Agreement.
16.3 NOTICES. All notices, demands, requests, consents, approvals or other
communications ("Notices") given hereunder shall be in writing, and shall be
given by personal delivery or by express mail, Federal Express, DHL or other
similar form of recognized airborne/overnight delivery service (which forms of
Notice shall be deemed to have been given upon delivery), or by telex or
facsimile transmission (which forms of Notice shall be deemed delivered upon
confirmed transmission), or by mailing in the mail by registered or certified
mail, return receipt requested, postage prepaid (which forms of Notice shall be
deemed to have been given upon the fifth (5th) business day following the date
mailed). Notices shall be addressed to the parties at the addresses set forth in
the introductory section of this Agreement or to such other address as to which
any party hereto may have notified the others in writing.
16.4 SECTION HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement,
16.5 COUNTERPARTS AND FACSIMILES. For the convenience of the parties to
this Agreement, this document may be executed by facsimile signatures and in
counterparts which shall together constitute the agreement of the Parties as one
and the same instrument.
16.6 SEVERABILITY. If any provision of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and application of such provision to
the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law.
8
16.7 ENTIRE AGREEMENT, MODIFICATION. This Agreement including the Exhibits
hereto, embodies the entire agreement and understanding among the Parties hereto
'With respect to the subject matter hereof, and supersedes all prior agreements
and understandings related thereto. The Parties hereto recognize and agree that
no representations or warranties have been made except as set forth in this
Agreement and the Exhibits hereto. This Agreement may be modified only by a
written instrument signed by each of the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed or caused this
Requirements Agreement to be executed as of the date first above written.
"SELLER"
Geda International Marketing Co., Ltd.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D., President,
CEO & Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D. Vice President
& Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, PhD, Chairman &
Director
"PURCHASER"
Empyrean Diagnostics Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
As to section 15 only.
"PARENT"
Empyrean Diagnostics, Ltd.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
9
EXHIBIT A
PRODUCTS
1. Geda Lotion is a microbicide lotion which has Aloe ▇▇▇▇ in it for use with
medical gloves as well as all other pertinent uses of a microbicide for stopping
the transmission of cummunicable diseases, such as chlamydia, trichomonas,
herpes, and hepatitis B, through touch or bodily contact; its remedial ability
is to alleviate and to suppress various types of fungi, bacterial and virus
transmission to the user when applied correctly to all parts of the human body.
2. Geda+ is a vaginal contraceptive gel that destroys various sexually
transmitted microorganisms such as chlamydia, trichomonas, herpes, and hepatitis
B and effectively kills the HIV virus.