Agency Agreement - Biopure Corp. and The Butler Co.
BIOPURE CORPORATION
AGENCY AGREEMENT
This "Agency" Agreement is made as of March 29, 1999, by and between
Biopure Corporation, a Delaware corporation (the "Company") and the Agent named
on the signature page hereof (the "Agent").
WHEREAS, the Company is preparing to manufacture and sell Oxyglobin(R)
brand veterinary products ("Products") enumerated on the Company's veterinary
products agency price list (Exhibit A)(as such list may be changed by the
Company from time to time, the "Price List"); and
WHEREAS, the Agent and the Company wish to enter into an arrangement
wherein the Agent would promote, sell, and collect payment for, such Products
for the Company as a representative ("Agent") of the Company within the United
States of America to duly licensed veterinarians (the "Customers") on the terms
provided herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants contained herein, the parties hereby agree as follows:
1. APPOINTMENT AND ACCEPTANCE.
1.1. Appointment. Subject to the terms and conditions of this Agreement,
the Company hereby appoints the Agent, and the Agent hereby accepts appointment,
as an authorized distributor agent within the Territory, (Territory as outlined
in section 1.2), for the promotion, sale and collection of payment for, the
Products to Customers. The Company has appointed a limited number of Agents;
however, the Company retains the right to itself, and/or appoint others to,
promote, sell, and collect payment for, and distribute, the Products to
Customers in the Territory.
1.2. Territory. The Territory is defined as that geographical area in
which said Agent is represented by a full time field sales representative, and
of which assigned Distributor agrees to be responsible for mutually agreed upon
quarterly and annual sales objectives as described in the "Business Plan".
Compensation by the Company to the Agent will be limited to the area stated as
follows:
The 48 Continental United States (including DC) plus Alaska
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No compensation will be earned by the Agent for sales generated from customers
in geographical areas not indicated in this section 1.2.
1.3. Business Plan. The Company and the Agent will jointly develop a
written business plan for the promotion, distribution and sale of the Products
to Customers in the Territory for each year (Nov 1 - Oct 31) during the term of
this Agreement (a "Contract Year") and, on a nonbinding preliminary basis, for
the next succeeding Contract Year (a "Business Plan"). Each Business Plan will
include, among other things, sales and marketing strategies, advertising and
promotion plans, financial projections (including projected sales, expenses and
other customary items) and Agent performance criteria (including, but not
limited to, market penetration, sales promotion execution, Product
availability/accessibility and trade support). In the event of any conflict
between this Agreement and a Business Plan, this Agreement will govern. The
Business Plan relating to Contract Year ending Oct 31, 1999 will be agreed upon
at least thirty (30) days after the Agent Launch Date (as defined below) or at a
mutually agreed upon date and location. The Business Plan relating to all
Contract Years thereafter will be agreed upon not less than sixty (60) days (or
at a mutually agreed upon date and location) prior to the start of the Contract
Year to which it relates. The Company and the Agent will negotiate the terms and
conditions of each Business Plan in good faith, using their respective best
efforts to agree upon such terms and conditions. The parties will review each
then-current Business Plan quarterly and update such Business Plan from time to
time as may be mutually agreed upon in writing. For purposes of this Agreement,
"Agent Launch Date" means the date specified by the Company to the Agent in
writing upon which the Agent is to begin promotion, sale, and collection of
payment for, the Products to Customers in the Territory (which date is currently
anticipated to be March 29, 1999).
1.4. Agent Obligations. Except as otherwise expressly provided in the
Business Plan, the Agent will at its sole expense:
(a) meet the Agent's performance criteria set forth in the Business
Plan;
(b) use its reasonable best efforts to market and promote the sale
of the Products to Customers throughout those portions of the Territory in
which the Agent has field sales representatives on and after the Agent
Launch Date, through direct sales calls, advertising and other appropriate
means (all such marketing and promotional activities to be in accordance
with the Business Plan or as otherwise expressly proposed by the Agent and
approved in writing by the Company);
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(c) immediately forward to the Company's Technical Service
Department for response, in accordance with any procedures described in
the Business Plan and in a mutually agreed upon format, (i) all complaints
and inquiries relating to the Products (including, but not limited to,
Product safety, quality and packaging, Customer satisfaction and Customer
services) received by the Agent from Customers and consumers within the
Territory except inquiries relating solely to Product availability,
pricing, billing and/or delivery and (ii) all other inquiries relating to
the Products received by the Agent from outside the Territory;
(d) maintain a suitable staff in the Territory to enable the Agent
for the proper promotion, sale, and merchandising of the Products and for
seeking to assure Customer and consumer satisfaction with the Products;
(e) not solicit or accept orders for the Products other than from
Customers within the Territory after the Agent Launch Date; and not
knowingly, or knowingly permit others to, distribute or resell Products
outside the Territory or for end use by other than duly licensed
veterinarians;
(f) meet with the Company at least once each quarter (starting with
the quarter in which the Agent Launch Date occurs), at a mutually
agreeable time and place to discuss and review the Agent's activities
hereunder, at which meeting the Agent will make available to the Company
information concerning the Agent's sale and marketing of the Products in
the Territory during the quarter and year-to-date, such information to
include details of sales efforts, Product sales volume and such other
information as may be mutually agreed upon in each Business Plan;
(g) at least thirty (30) days prior to use or distribution of any
sales, promotion or training materials relating to the Products (other
than materials provided to the Agent by the Company for such purpose),
submit such materials to the Company for review, give due consideration to
any comments received from the Company with respect to such materials, and
not use or distribute any such materials without the express prior written
consent of the Company (which consent will not be unreasonably withheld or
delayed); and
(h) make all field sales personnel of the Agent available for at
least four (4) hours, and telesales personnel available for at least one
(1) hour, of initial Products sales and marketing training by the Company,
and for such supplemental training by the Company as the Company may deem
appropriate from time to time, in each case, at such times and locations
as may be mutually agreed upon by the Company and the Agent.
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(i) make all field sales representatives of the Agent available to
work with field sales representatives of the Company at least two (2) full
business days per agreement year.
(j) maintain sales and promotion of the Company's Products so as to
meet or exceed the previous years annual sales within the same competitive
environment.
(k) cooperate and participate in any national or area promotional
program offered by the company for any Products covered by this agreement.
(l) follow the Company's credit policy (See Paragraph 2.3 Payment
Terms) or program terms promptly in payment of goods shipped to the
Customer. Product(s) shipped to the Customer will be billed to the Agent
at the price stated on a current price list or according to the current
price program minus a ten (10) percent discount as outlined in Paragraph
1.5(d). It is the responsibility of the Agent to evaluate the credit
worthiness of the Customer. Upon transmitting an order for shipment to the
Company, the Agent accepts full responsibility for payment of the product
from the Customer.
(m) transmit all orders, taken from the Customer for Product(s), a
minimum of once daily basis, by either fax, electronic mail, or other
agreed upon means of transmission so as to afford the Company time to
process and ship said orders in an expediant manner.
(n) sell products only at the Company's current stated list or
promotional price.
1.5 Company Obligations. Except as otherwise expressly provided in the
Business Plan, the Company will at its sole expense:
(a) use its reasonable best efforts to fill and ship all accepted
orders for Products received from the Agent on a daily basis so as to be
shipped no later than the next business day. Orders received on Fridays or
the day before holidays will not be shipped until the next business day
unless special arrangements have been made at the customers expense. The
Company will supply a list confirming such order shipments to the Agent by
the end of the next business day. If orders exceed the available inventory
levels, the Company will use reasonable efforts to inform the Agent and
ship the remaining inventory in a manner that the Company deems as being
fair and equitable. If product becomes available during a backorder, the
Company will ship orders on a first-come, first-serve basis, but can, at
its
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own discretion, give partial shipments to large orders. In no event will
the Company be obligated to provide Products to the Agent in excess of one
hundred and twenty percent (120%) of any maximum quantity specified in the
applicable Business Plan;
(b) provide to the Agent's field sales personnel at least four (4)
hours of initial Products sales and marketing training, and Agent
telesales personnel at least one (1) hour of initial Product sales and
marketing training, and such supplemental training, if any, as the Company
may deem appropriate, in each case, at such times and locations as may be
mutually agreed upon by the Company and the Agent.
(c) supply such literature, ad reprints and other promotional aids
and furnish Agent with other information that in the opinion of the
Company may be helpful in the sale of listed Product(s).
(d) compensate the Agent through a discount of eight (8) percent off
of the current price of the Product times the total monthly units shipped
at that price to the Customer in the Agent's Territory excluding any
taxes, and/or shipping and handling charges incurred by the Company. The
Company will compensate the Agent an additional two (2) percent through a
discount off of the current price or promotional price of the Product
times the total monthly units shipped at that price to the Customer
excluding any taxes, and/or shipping and handling charges incurred by the
Company, so as to compensate the Agent's sales representatives. Therefore,
a total of ten (10) percent discount off of the current price list or
promotional price times the total monthly units shipped at that price to
the Customer will be applied as payment for services from the Agent
including, but not limited to, the promotion, sales, and collection of
payment from the Customer for Product shipped by the Company. In addition
the Company will compensate the Agent quarterly an additional two (2)
percent commission (incentive), exclusive of taxes, and /or shipping and
handling charges incurred by the Company, based upon the attainment of
mutually agreed upon quarterly goals. One (1) percent of this incentive is
additional compensation for the Agent, and one (1) percent is for
additional compensation of the Agency sales force. In the event the Agent
fails to achieve these goals during any given quarter yet is able to
achieve the overall annual goals, then the Agent will receive the
incentive commission for that quarter at the conclusion of the fiscal
year. These goals are outlined in exhibit B.
(e) will replace, any unit of Product to the Customer which has
outdated (provided the Product is not outdated more than ninety (90) days)
with equal Product.
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2. PRODUCTS PURCHASE AND SALE.
2.1. Orders. Each order for Products taken by the Agent from the Customer
will be subject to acceptance by the Company and will not be binding upon the
Company unless and until so accepted. The Company reserves the right, in its
sole discretion, to accept or reject, in whole or in part, any Product order.
All orders will be shipped to the Customer in minimum quantities of one box (two
(2) bags).
2.2. Prices. Prices for the Products will be as set forth on the Price
List. The current Price List is attached hereto as Exhibit A. Any deviation from
current pricing as indicated by the Company is a violation of this contract. All
prices are F.O.B. the Customer's facility and are exclusive of any federal,
state or local sales, use, privilege, excise or similar taxes or duties levied
upon any party. The Company will give the Agent at least ten (10) days prior
written notice of any price change. In the event of a price change, orders will
be invoiced at the prices in effect at the time of the Company's receipt of the
order.
2.3. Payment Terms. Terms of payment by the Agent to the Company for
Products shipped to the Customer will be net thirty (30) days from the date of
statement unless the Agent chooses to pay the Company via electronic funds
transfer in which case the terms of payment will be net forty-five (45) days.
All payments will be made in United States Dollars without set-off or
counterclaim, free and clear of (and without deduction for) any taxes, duties,
charges, withholdings, restrictions or conditions of any nature imposed or
levied by any political, taxing or other authority.
2.4. Taxes. The Customer will bear all taxes and duties which may be
levied with respect to the purchase of the Products by the Agent (excluding any
taxes on the Company's income therefrom), and the Company will bear all taxes
and duties which shall be levied upon any of the Products if incidental to the
Company's production of such Product or any component thereof. The Company will
supply the Agent with such reasonable and necessary documents as may be required
to carry out these provisions.
2.5. Claims. Any claim for shortage in Product delivery must be made
within ten (10) business days after the Customer's receipt of shipment. See
attachment "C", "General Information", for specific sales, shipping, and return
policies.
2.6. Warranty. The Company hereby warrants that all Products sold to the
Customer hereunder, at the time of shipment to the Customer, (a) will be
merchantable and of generally commercially salable quality; and (b) will have a
then remaining shelf life of at least twelve (12) months. The Company further
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warrants that the Products have been manufactured, labeled and packaged, and
when in the Company's possession or under its control, have been handled, stored
and shipped, in compliance with all applicable federal, state and local laws.
The Customer's exclusive remedy for a breach of any of the foregoing warranties
will be the replacement, at the delivery point thereof, freight prepaid, of any
Product furnished hereunder that fails to meet the foregoing standards. In no
event will the Company be liable for incidental or consequential damages. All
claims by the Customer and/or Agent under this Paragraph 2.6 must be submitted
in accordance with the Company's published bulletins concerning such claims, as
such bulletins may be amended by the Company from time to time and furnished to
the Agent.
THE COMPANY MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR ANY OTHER WARRANTIES RELATING TO THE PRODUCTS, WHETHER
EXPRESS OR IMPLIED, OTHER THAN THE WARRANTIES EXPRESSED IN THIS PARAGRAPH 2.6.
ANY STATEMENTS MADE BY REPRESENTATIVES OF THE COMPANY WITH RESPECT TO THE
PRODUCTS DO NOT CONSTITUTE WARRANTIES AND SHOULD NOT BE RELIED UPON BY THE
AGENT.
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3. COVENANTS.
3.1. Purchaser Guarantees, Instructions. The Agent will not furnish to any
purchaser or user of the Products, or to any other third party, any guarantee or
warranty with respect to the Products or any instructions for their use or
maintenance, except as expressly approved in writing by the Company or as
expressly stated on the Products' labeling and/or in materials provided by the
Company to the Agent for such purpose.
3.2. Trademarks. The Agent will promote and sell the Products to Customers
in the Territory only under such trademarks, copyrights, brand names and product
names as the Company may have registered, or as the Company has otherwise
requested be used on or in respect of Products sold within the Territory
(together, the "Trademarks"). The Agent will use the Trademarks only in such
fashion as has been expressly authorized by the Company in writing. Such use
will not give the Agent any interest in the Trademarks, except the right to
display the Trademarks as expressly provided herein. The Agent will not use any
Trademark in connection with any products other than the Products. Upon the
expiration or any termination of this Agreement, the Agent will immediately
cease all use of the Trademarks.
3.3. Insurance. The Company and the Agent will each maintain, at their own
expense, insurance with reputable insurers, such insurance to be in such form
and amounts as are customary in the case of entities of established reputation
engaged in the same or similar businesses and similarly situated, provided that
such insurance will in any event include commercial general liability and
umbrella liability insurance (including product liability coverage) for property
damage, bodily injury and personal injury in an amount not less than Five
Million Dollars ($5,000,000) combined single amount per occurrence and in the
aggregate. Each such liability insurance policy of the Agent will name the
Company (as its interest may appear) as an additional insured under the policy
and provide for at least thirty (30) days prior written notice to the Company of
any cancellation, modification or amendment of the policy. Each product
liability insurance policy of the Company will name the Agent (as its interest
may appear) as an additional insured under the policy and provide for at least
thirty (30) days prior written notice to the Agent of any cancellation,
modification, or amendment of this policy. Each party will furnish to the other
upon request a Certificate of Insurance or other documentation reasonably
satisfactory to the other evidencing compliance with this Paragraph 3.3.
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3.4. Notice of Certain Events. The Agent will promptly notify the Company
in the event the Agent becomes aware of any of the following events: alleged
infringement of the Trademarks by any third party; alleged infringement of the
trademark or proprietary rights of others in connection with actions taken
hereunder; liability claims relating to the Products and any other event that
may reasonably be expected to have a material adverse effect upon the sale or
distribution of the Products in the Territory.
3.5. Indemnification.
(a) Subject to Subparagraph (c) below, the Agent will indemnify the
Company (and its officers, directors, employees, agents and affiliates)
and hold it (and them) harmless from and against all loss, damage,
liability, cost or expense of any nature whatsoever, including, without
limitation, any and all reasonable attorneys fees and court costs
(together, a "Loss"), arising out of or in connection with (i) the
inaccuracy or breach of any representation, warranty or obligation of the
Agent hereunder and/or (ii) the activities of the Agent in connection with
the promotion, sale or collection of payment of the Products in violation
of this Agreement, law or any other duty or obligation of the Agent. In no
way should the Agent be liable for incidental or consequential damages.
(b) Subject to Subparagraph (c) below, the Company will indemnify
the Agent (and its officers, directors, employees, agents and affiliates)
and hold it (and them) harmless from and against any Loss arising out of
or in connection with the inaccuracy or breach of any representation,
warranty or obligation of the Company hereunder.
(c) Each party (the "Notifying Party") will promptly notify the
other party (the "Indemnifying Party") of the existence of any third party
claim, demand or other action giving rise to a claim for indemnification
under this Paragraph 3.5 (a "Third Party Claim") and will give the
Indemnifying Party a reasonable opportunity to defend the same at its own
expense and with its own counsel provided that the Notifying Party will at
all times have the right to participate in such defense at its own
expense. If, within thirty (30) days after receipt of a notice of a Third
Party Claim the Indemnifying Party fails to undertake to so defend, the
Notifying Party will have the right, but not the obligation, to defend and
to compromise or settle (exercising reasonable business judgment) the
Third Party Claim for the account and at the risk and expense of the
Indemnifying Party subject to the Indemnifying Party's prior written
approval (such approval not to be unreasonably withheld or delayed). Each
party will make available to the other, at the other's reasonable expense,
such information and assistance as
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the other may reasonably request in connection with the defense of a Third
Party Claim.
3.6. Assistance with Claims. Subject to Paragraph 3.5 hereof, each party
will, at the request and expense of the other, furnish such reasonable
assistance as may be required to enable the other party to defend itself against
third party claims threatened or filed in connection with the manufacture,
distribution, sale or use of the Products.
3.7. Confidential Information and Publicity. From time to time during the
term of this Agreement either party may disclose or make available to the other
Confidential Information (as defined below) in connection with activities
contemplated hereunder. Except as may be required by law or as may be reasonably
necessary to enforce rights hereunder, each party agrees that during the term of
this Agreement and thereafter (a) it will use Confidential Information belonging
to the other solely for the purpose(s) of this Agreement and (b) it will not
disclose Confidential Information belonging to the other to any third party
(other than its employees and/or consultants reasonably requiring such
Confidential Information for purposes of this Agreement who are bound by
obligations of nondisclosure and limited use at least as stringent as those
contained herein) without the express prior written consent of the disclosing
party. Each party further agrees that except as reasonably necessary for
performance hereunder or otherwise expressly required by law, it will not
publicly announce or otherwise disclose any of the terms and conditions of this
Agreement without the express prior written consent of the other. Except as may
be otherwise expressly provided in the Business Plan, or as may be required by
law or reasonably necessary to enforce rights hereunder, neither party will use
the name of the other in any advertising, promotional or sales materials
relating to the Products, in any press release, or in any other manner
whatsoever without the express prior written consent of the other. Each party
will promptly return to the other upon request any Confidential Information of
the other party then in its possession or under its control. The provisions of
this Paragraph 3.7 will survive the expiration or any termination of this
Agreement. For purposes of this Agreement, "Confidential Information" means,
with respect to either party, any and all information (including, but not
limited to, financial data and information concerning products, customers and
business operations) in any form belonging to such party except information
which at the relevant time is (a) known to the public through no act or omission
in violation of this Agreement, (b) furnished to the receiving party by a third
party having the lawful right to do so, (c) known to the receiving party prior
to disclosure hereunder (as established by written documentation thereof) or (d)
independently developed by the receiving party without reference to the
Confidential Information.
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4. TERM AND TERMINATION.
4.1. Term. This Agreement will become effective as of the date first
written above and will continue in effect thereafter until terminated pursuant
to Paragraph 4.2 below.
4.2. Termination. This Agreement may be terminated as follows:
(a) In the event that either party fails in any material respect to
observe or perform any of its obligations under this Agreement (with
respect to the Agent, including but not limited to Agent performance
criteria set forth in each Business Plan), which failure is not remedied
within thirty (30) days (or, in the case of payments due, within five (5)
business days), after receipt of written notice from the other party
specifying such failure, this Agreement shall automatically terminate.
(b) In the event of any material change in the organization,
ownership, management or control of the business of the Agent, the Company
may, at its option, terminate this Agreement upon giving written notice of
termination to the Agent. The Agent will promptly advise the Company in
writing of any event described in this Paragraph 4.2(b).
(c) Either party may, at its option, terminate this Agreement
without cause, effective at any time after January 31, 1999, upon giving
at least ninety (90) days prior written notice of such termination to the
other party.
(d) If after exercise of good faith efforts, the parties fail to
timely agree upon a Business Plan for any Contract Year before the start
of such year (with respect to the Business Plan for Contract Year ending
October 31, 1999, at least thirty (30) days or on a mutually agreed upon
date after the Agent Launch Date), this Agreement may be terminated by
either party upon giving at least thirty (30) days prior written notice of
such termination to the other party.
(e) In the event of any publicity concerning the Agent which the
Company reasonably believes to have a material adverse affect upon the
status or reputation of the Agent and/or the Products, the Company may, at
its option, terminate this Agreement upon giving at least five (5) days
prior written notice of such termination to the Agent.
(f) In the event the Company terminates, sells or otherwise
transfers its veterinary products business in its entirety, the Company
may
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terminate this Agreement upon giving at least ninety (90) days prior
written notice of such termination to the Agent.
4.3. Effect of Termination. Upon the termination of this Agreement for any
reason:
(a) the Agent will immediately discontinue making any
representations regarding its status as an agent for the Company and will
immediately cease conducting any activities with respect to the promotion,
sale or distribution of the Products;
(b) all amounts owed by either party to the other will become
immediately due and payable as indicated in section 2.3;
(c) any then unfulfilled Product orders hereunder may be completed
by the Company or transferred to another Agent in the Company's
discretion. Any termination of this Agreement will be without prejudice to
the settlement of the rights created and obligations incurred hereunder
prior to the time of such termination. In no event will either party be
liable for special or consequential damages arising out of the breach or
the termination of this Agreement. The provisions of this Paragraph 4.3
and of Paragraphs 3.5, 3.6, and 3.7 will survive the termination of this
Agreement.
5. MISCELLANEOUS.
5.1. Notices. All notices and other communications between the parties
given pursuant to this Agreement will be deemed to have been sufficiently given
when delivered by personal service or sent by recognized overnight courier
service, telecommunication or registered U.S. Mail to the recipient at the
address indicated on the signature page hereof. All such communications will be
deemed effective on the earlier of (a) actual receipt or (b) if sent by courier
service, on the next business day following the date delivered to the courier
service (the courier service's receipt being evidence of the date of such
delivery), or (c) if sent by telecommunication on the next business date
(subject to confirmation of receipt in complete readable form), or (d) if sent
by registered U.S. Mail, five (5) business days after delivery to the U.S.
Postal Service, postage prepaid. Either party may give to the other written
notice of change of address, in which event any communication will thereafter be
given to such party at such changed address.
5.2. Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
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Neither party will not assign or otherwise transfer any of its rights or
obligations under this Agreement without the express prior written consent of
the other party.
5.3. Waivers. Any waiver by either party of any rights arising from a
breach of any covenants or conditions of this Agreement must be in writing and
will not be construed as a continuing waiver of other breaches of the same
nature or other covenants or conditions of this Agreement.
5.4. Relationship of Parties This Agreement is not intended to create, nor
should it be construed as creating, a joint venture, partnership or similar
relationship between the parties. The Agent will act solely as an independent
agent and will have no right to bind the Company in any way or to represent that
the Company is in any way responsible for any acts or omissions of the Agent.
5.5. Force Majeure. Notwithstanding any other provision of this Agreement,
if either the Company or the Agent is delayed in or prevented from fulfilling
any of its obligations hereunder by reason of any cause beyond its reasonable
control (including, but not limited to acts of God, fire, third party strike,
flood, delay of transportation or inability to obtain necessary raw materials
through normal commercial channels), then that party will not be liable under
this Agreement for damages resulting from such delay or failure. Each party will
promptly notify the other upon becoming aware of the occurrence of any such
cause and will use its reasonable best efforts to minimize any resulting delay
in or interference with the performance of its obligations hereunder.
5.6. Governing Law; Jurisdiction. This Agreement and all related business
transactions will be governed by the laws of the Commonwealth of Massachusetts
(without reference to principles of conflicts or choice of law which would cause
the application of the internal laws of any other jurisdiction). The courts of
or in the Commonwealth of Massachusetts will have nonexclusive jurisdiction over
any disputes hereunder. Service of any action or proceeding in any such courts
by either party may be made upon the other by registered mail, return receipt
requested, at its address given herein.
5.7. Amendments. Neither this Agreement nor any provision hereof may be
amended except by a writing duly signed on behalf of each party.
5.8. Remedies. All remedies available to either party for breach of this
Agreement are cumulative and may be exercised concurrently or separately. The
exercise of one remedy will not be deemed an election of such remedy to the
exclusion of other remedies.
5.9. Severability. In the event any provision of this Agreement, in whole
or in part, is invalid, unenforceable or in conflict with the applicable laws or
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regulations of any jurisdiction, such provision will be replaced, to the extent
possible, with a provision which accomplishes the original business purposes of
the provision in a valid and enforceable manner, and the remainder of this
Agreement will remain unaffected and in full force provided, however, that if
without such invalid or unenforceable provision the fundamental mutual
objectives of the parties cannot be achieved, either party may terminate this
Agreement without penalty by written notice to the other.
5.10. Interest. Any overdue amounts payable hereunder will bear interest,
payable on demand (whether before or after judgment), from due date to date of
payment, at an annual rate of two percent (2%) above the prime rate of Citibank,
N.A. in effect on the due date or, if lower, the maximum rate permitted by
applicable law.
5.11. Miscellaneous. Each party will bear its own expenses in connection
with the negotiation, preparation and execution of this Agreement. The headings
of the paragraphs and subparagraphs of this Agreement have been added for the
convenience of the parties and are not be deemed a part hereof. This Agreement
may be executed in any number of counterparts, all of which together constitute
a single agreement. In proving this Agreement, it will not be necessary to
produce or account for more than one counterpart signed by the party with
respect to which proof is sought. This Agreement is the sole understanding and
agreement of the parties with respect to its subject matter and supersedes all
other such prior or contemporaneous oral and written agreements and
understandings.
Signed, sealed and delivered by a duly authorized representative of each
party hereto as of the date first written above.
THE BUTLER COMPANY BIOPURE CORPORATION
By: By:
-------------------------------- --------------------------------
Andrew W. Wright,
Title: Vice President, Veterinary
----------------------------- Products
Address: Address: 11 Hurley Street
--------------------------- Cambridge, MA 02141
Telecopy No.: (617) 234-6507
---------------------------
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EXHIBIT A
BIOPURE CORPORATION
Oxyglobin(R) Brand Products Price List
(Introductory Promotional Pricing*)
Each Box contains two 125 ml bags of Oxyglobin(R) Brand Veterinary Product.
<TABLE>
<CAPTION>
Retail Price Retail Price Per Bag
------------ --------------------
<S> <C> <C>
1 Box of 2 Bags $279.90 $139.95
2 Boxes of 2 Bags $499.80 $124.95
3 Boxes of 2 Bags $749.70 $124.95
4 Boxes of 2 Bags $999.60 $124.95
5 Boxes of 2 Bags $1099.50 $109.95
</TABLE>
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*May be changed with 30 days written notice.
Effective Date:
January 5, 1999
<PAGE> 17
EXHIBIT B
OXYGLOBIN(R) BUSINESS PLAN
FISCAL YEAR 1999
(Nov 1, 1998 through Oct 31, 1999)
AGENT: THE BUTLER COMPANY FY: 1999
QUARTERLY GOALS
<TABLE>
<S> <C>
1st Quarter (Nov 1 - Jan 31): N/A units
2nd Quarter (Feb 1 - Apr 30): 3,500 units
3rd Quarter (May 1 - Jul 31): 7,000 units
4th Quarter (Aug 1 - Oct 31): 8,400 units
Fiscal Year Total: 18,900 units
</TABLE>
Unit = 1 Bag of Oxyglobin Solution 125 ml
PROMOTIONAL ACTIVITIES
Sales Meetings: Anticipated Dates ______________________________________________
________________________________________________________________________________
________________________________________________________________________________
Ride Withs (# Per Quarter) 1st Qtr ____________
2nd Qtr ____________
3rd Qtr ____________
4th Qtr ____________
Total for Year ____________
<PAGE> 18
Conferences with Display of Biopure Product:____________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Agent Monthly Flyer, Catalog, Other ____________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Other Activities (Dinner Meeting Support, Advertising, Mailings, etc)___________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
THE BUTLER COMPANY: BIOPURE CORPORATION:
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Name Name
---------------------------- ----------------------------
Title Title
---------------------------- ----------------------------
Date Date