*** Certain information (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
EXHIBIT 10.2
EXCLUSIVE DISTRIBUTOR
AGREEMENT
BETWEEN
***
AND
AMERICAN BIOGENETIC
SCIENCES, INC.
Human Vaccines
Page 1
EXCLUSIVE DISTRIBUTOR AGREEMENT
This Agreement, effective this 15th day of January, 2002, by and between
American Biogenetic Sciences, Inc. ("Distributor"), a Delaware Corporation, and
*** ("Manufacturer"), located in the Russian Federation. The Distributor and the
Manufacturer are referred herein together as the "Parties", and each separately
as a "Party".
WHEREAS, the Manufacturer has the ability to produce and export
vaccine for smallpox, a vaccine for human use;
WHEREAS, the Distributor wishes to acquire such vaccine from the
Manufacturer and to use reasonable commercial efforts to promote the sale and
the distribution of such vaccine in the Territory (as defined below); and
WHEREAS, the Distributor must obtain all necessary approvals and
authorizations of any governmental agency or other body which are necessary for
the import and sale of vaccine for smallpox in each country within the Territory
and therefore has to bear all costs associated therewith.
IT IS HEREBY MUTUALLY AGREED THAT:
1. Definitions.
(A) Products. The terms "Product" and "Products", as used in this
Agreement, mean vaccines for smallpox, a vaccine for human use.
(B) Territory. The term "Territory" as used in this Agreement shall be
defined as the world, except for the countries which, as of the date of this
Agreement, form the Commonwealth of Independent States.
2. Subject of the Agreement. Subject to the terms and conditions of this
Agreement, Manufacturer hereby appoints the Distributor on an exclusive basis to
promote and sell the Products in the Territory, and Distributor accepts such
appointment upon the terms and conditions herein stated. Distributor will be the
exclusive Distributor of the Products, and Distributor shall retain the right to
assign sub-Distributors or sales agents for the sales of the Products in the
Territory.
3. Exclusivity. In recognition of the Distributors' efforts to obtain all
necessary approvals and authorizations from the governmental and regulatory
authorities of the countries within the Territory for the import, sale and
distribution of the Products, the Distributor shall have the exclusive right to
promote, sell and distribute the Products in the Territory for the 10 (ten) year
period from the date of the execution hereof, and for such countries in which
the Distributor has obtained all necessary approvals and authorizations from the
governmental and regulatory authorities the Distributor shall have the exclusive
right to promote, sell and distribute the Product for the entire duration of the
Agreement. The Manufacturer agrees not to enter into or continue discussions
with any person other than the Distributor regarding the import, sale and
distribution of the Products in the Territory during the aforementioned
exclusivity periods.
------------------
*** Certain information (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
Page 2
4. Approvals and Authorizations. The Manufacturer shall be responsible for the
application and for obtaining of all necessary approvals and authorizations of
any governmental agency or other body of the Russian Federation in connection
with the production, sale and export of the Products from the Russian Federation
and all and any costs associated therewith.
The Distributor shall be responsible for the application and for obtaining
of all necessary approvals and authorizations of any governmental agency or
other body which are necessary for the import and sale of the Products in each
country within the Territory and all and any costs associated therewith;
provided, that the Distributor shall not have an obligation to apply for
approvals and authorizations of any governmental agency or other body in any
country within the territory unless and until the Distributor shall have been
satisfied at its sole discretion about the sales potential of the Products in
the relevant country taking into account the costs and expenses associated with
obtaining the aforementioned approvals and authorizations.
The Parties agree to assist each other in obtaining abovementioned
approvals and authorizations by all possible means, including, without
limitation, (i) the Manufacturer - by providing all necessary documentation
concerning the Products, as may be requested by the Distributor, and samples of
the Products for testing purposes, and (ii) the Distributor by requesting any
such information from the Manufacturer in a timely and accurate manner.
5. Product Purchase.
(A) Product Prices. The price of the Products that Manufacturer
manufactures or has manufactured, for the Distributor shall be negotiated by the
parties not less than one times at 3 months. Vaccines for the Products shall be
delivered in dispensing units as needed by Distributor.
(B) Point of Shipment. All of the prices for the Products sold to the
Distributor are the Manufacturer, ***, Russia. Title to the Products passes to
the Distributor at the time of the issue of the Products with storehouse of the
Manufacturer. The Distributor shall be responsible for the payment of all import
arrangements including taxes, duties, import licenses and appropriate import
documents. The Manufacturer shall be responsible for the payment of all export
arrangements including taxes, duties, export licenses, and appropriate export
documents.
(C) Specifications. Parties shall agree to specifications as to quality,
packaging and labeling for the Products.
(D) Payment. Invoices are due and payable on or before the sixty (60) days
following the date Manufacturer invoices and delivers Products to the
Distributor. Outstanding debt for shipped goods shall not exceed 4 000 000,00
(four million) USD. Distributor must give Manufacturer first-class bank warranty
on amount shipped to Products. The period of the performance to warranties must
be an equal period of the delay of the payment (60 days).
------------------
*** Certain information (indicated by an asterisk) has been omitted from
this document pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.
Page 3
(E) Purchase Order Acceptance. Purchase contracts between the Distributor
and Manufacturer are binding when Manufacturer provides its notice of acceptance
of Distributor's purchase order within ten (10) days by facsimile (▇▇ ▇▇▇ ▇▇▇
1661) or e-mail (▇▇▇▇@▇▇▇▇▇.▇▇▇). On each party of goods in one country is
arranged separate agreement with Distributor, where is indicated name, amount,
delivery date, price to product, due date as well as other term required for
export-import.
(F) Order Fulfillment. Manufacturer agrees that it will use its reasonable
commercial efforts to fill the accepted orders as promptly as practicable.
6. Relationships and Conduct of Business.
(A) It is agreed and understood that the Parties are independent
contractors.
(B) Any expenses or costs which the Parties incur under this Agreement,
and any other expenses incurred by the Parties to operate pursuant to this
Agreement shall be paid and borne by each Party individually.
7. Term and Termination.
(A) This Agreement shall be for a term of ten (10) years from the date
hereof, and shall automatically extend for 1(one) year periods, unless
Manufacturer or Distributor give 1(one) year prior written notice of
termination.
(B) If either party breaches a material term of this Agreement the other
party shall be allowed to terminate this Agreement if an adequate remedy to cure
the breach has not been implemented within 90 (ninety) days after written
notice.
8. Product Evaluation, Quality Assurance Rights and Obligations.
(A) The Sides realize the common efforts necessary modernization and
change existing production, development and review documentation for ensuring
the correspondence to Good Manufacturing Practices for the U.S. Government rules
and regulations. Manufacturer gives Distributor documentation required for
reception of the permits when import the Products on the Territory
(B) Manufacturer manufactures+ and tests+ the Products in accordance with
written procedures, and shall document conformance of the manufacturing with
such written procedures and test each lot for compliance with such written
procedures. Manufacturer shall implement Quality Assurance procedures to assure
that such written manufacturing and testing procedures are followed and that the
manufacturing and testing of each lot of Product are properly documented.
Manufacturer warrants that all Products supplied to Distributor will be free of
defects in material, design and workmanship, and conform to specifications
agreed to between Manufacturer and Distributor. To confirm compliance with these
requirements, Manufacturer will provide to Distributor a certificate of
compliance with each shipment of the Products delivered to Distributor hereunder
and all other documentation requested to obtain governmental approvals for the
Products in various countries of the Territory.
Page 4
(C)++ Manufacturer shall permit, if required, on site inspections from the
regulatory agency of the country for which Distributor has requested
governmental approval of the Product.
9. Notices. All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (i) delivered by hand, (ii) made by telecopy or
facsimile transmission and e-mail, (iii) sent by recognized national overnight
courier service, or (iv) sent by registered mail, return receipt requested,
postage prepaid.
If to Manufacturer:
***
If to Distributor:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and CEO
American Biogenetic Sciences, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇@▇▇▇▇▇.▇▇▇
10. Distributor Manufacturing. Distributor reserves the right to
manufacture, or have manufactured, or have filled, the Products on
terms to be agreed upon.
11. Assignment. Distributor shall have the right to assign or
transfer this Agreement, to one or more third parties upon mutual
agreement of the distributor and manufacturer.
12. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions
contemplated and may only be amended or modified if reduced to writing
and signed by both parties.
13. Captions, Headings, or Titles. All captions, headings or titles in the
sections of the Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement or a limitation of scope of the
particular sections to which they apply.
14. Counterparts. This Agreement may be signed in counterparts and shall become
effective as if executed in a single, complete document as of the date hereof
upon its execution by both parties. Facsimile signatures of the undersigned
parties will have the same force and effect as original signatures if they are
preapproved by telephone and followed by delivery of the original documents by
mail or courier.
------------------
*** Certain information (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
Page 5
15. Governing Law. This Agreement and any modifications and
additions thereto shall be governed in accordance with the laws of the
Russian Federation.
16. Disputes and Arbitration. Any controversy or claim arising out of or
relating to this Agreement shall be settled by binding arbitration by the
International Court of Arbitration of the International Chamber of Commerce (the
"ICC") in accordance with the ICC Rules of Arbitration in effect at the time of
the arbitration. The arbitration proceedings shall be conducted in Geneva,
Switzerland and in the English language. There shall be three (3) arbitrators,
one of whom shall be selected by the Party seeking to initiate the arbitration,
one by the other Party and the third by the two arbitrators so selected. The
arbitration award shall be given in writing and shall be final and binding on
the Parties with respect to the subject matter in controversy. The Parties shall
keep confidential the arbitration proceedings and terms of any arbitration
award, except as may otherwise be required by law. Each Party shall bear its own
legal fees and other costs related to the arbitration, except that the
arbitrators shall determine who shall bear the costs of the arbitrators. The
arbitrators may determine arbitrability but may not award punitive damages or
limit, expand or otherwise modify the terms of this Agreement.
17. Confidentiality The Parties undertake to keep this agreement confidential
and not to disclose without the consent of the other Party any confidential
information concerning specifications of the specified products, their prices,
conditions and standard items, and also destinations, except as may be required
by applicable law or by the rules or regulations of any exchange or
over-the-counter market on which the shares of any such Party are traded.
In Witness Whereof, Manufacturer and the Distributor have duly signed and
executed this Agreement effective as of the date first written above.
American Biogenetic Sciences, Inc. ***
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ***
--------------------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ***
Chairman and CEO ***
AGREEMENT EXECUTED IN BOTH ENGLISH AND RUSSIAN WITH BOTH LANGUAGE
VERSIONS BEING OF EQUAL VALIDITY
------------------
*** Certain information (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
+Note: the word "manufactured" and "test" in Section 8(B) have been
changed to "manufactures" and "tests" in accordance with the Russian
version of this Agreement.
++Note: the "(B)" has been changed to "(C)" in accordance with the
Russian version of this Agreement.
Page 6