printer-friendly

Sample Business Contracts

Framework Agreement and Security Agreement [Amendment No. 1] - Novoste Corp. and BEBIG Isotopentechnik und Umweltdiagnostik GmbH

Sponsored Links


             AMENDMENT TO FRAMEWORK AGREEMENT AND SECURITY AGREEMENT

                                     between

                               Novoste Corporation
                        4350 / C International Boulevard
                             Norcross, GA 30093/3027

            represented by its Chief Operating Officer David N. Gill

                    - hereinafter referred to as "NOVOSTE" -

                                       and

                 BEBIG Isotopentechnik und Umweltdiagnostik GmbH
                   Robert-Rossle-Stra(beta)e 10, 13125 Berlin

             represented by its managing director Dr. Andreas Eckert

                                          - hereinafter referred to as "BEBIG" -

                                    Preamble

1.      NOVOSTE produces medical devices and has developed a catheter for the
        inhibition and prevention of restenosis of a blood vessel after
        interventional therapy (hereinafter referred to as "Restenosis
        Device").

2.      BEBIG manufactures radioactive sealed Strontium-90 sources (BEBIG
        Product Code SrO.SO 3) in units called seed-trains usable in the
        Restenosis device (hereinafter referred to as "Seed-Trains").


<PAGE>

3.      On November 24th, 1994 the parties hereto concluded an agreement under
        the term "RESTENOSIS THERAPY PROJECT DEVELOPMENT AND SUPPLY AGREEMENT",
        amended by the "FRAME AGREEMENT CONTAINING PURCHASE ORDER PROVISION AND
        INVESTMENT GRANT" dated November 15, 1996 (hereinafter referred to as
        the "Framework-Agreement"), dealing et. al. with the supply of
        Seed-Trains to NOVOSTE.

        Additionally, BEBIG granted NOVOSTE an option to purchase all of BEBIG's
        tangible and intangible assets required for the production of
        Seed-Trains under an agreement called the "OPTION TO PURCHASE ASSETS
        AGREEMENT" dated September 1st, 1995 (hereinafter referred to as the
        "Purchase Option Agreement").

4.a)    In August 1997, BEBIG started building a new automated seed production
        line. It turned out that the line was more expensive than expected.
        Also, BEBIG decommissioned the earlier (contaminated) Strontium-90
        prototype line and had to absorb substantial cost.

b)      At the same time both parties realized that there are desirable changes
        in the design of the Seed Trains that may increase their technical life
        time and improve their quality.

c)      Furthermore, both parties see a need to address the issue of recycling
        and disposal of used radioactive trains.

5.      The parties hereto mutually agree that

        (i)    the Framework Agreement shall be adapted for recent developments,

        (ii)   the Purchase Option Agreement shall be altered by a special
               security agreement leaving the contractual framework of the
               Purchase Option Agreement in other respects unchanged.


<PAGE>

                                       A.
                      Amendment of the Framework Agreement

I.      Para. 1 of the Framework Agreement shall be revised as follows:

                                     "ss. 1
                                Payment Liability

1.      The customer now pays an additional investment grant to the supplier
        amounting to an aggregate of DM 1,000,000.00 (in words: German Marks one
        million) in the following installments:

        -   DM 700,000.00 within one week after the initial delivery of "active"
            Seed-Trains (XXXXX);

        -   DM 300,000.00 within one week after delivery of the XXXXX active
            Seed-Train (XXXXX).

2.      The aforementioned installments are to be paid free of charge to the
        account no. 0000424648 at the Commerzbank Berlin, code number
        (Bankleitzahl) 120 400 00."

                                      ss. 2
                         Changing in the Pricing Formula

a)      BEBIG and NOVOSTE agree to a new pricing formula that will take into
        account the time Seed Trains are used. For any trains that are delivered
        after the execution of this agreement, NOVOSTE will pay to BEBIG US$
        XXXXX for any XXXXX period a train is in use. The US$ XXXXX price is
        exclusive of freight and packaging.

--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this page of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "XXXXX". The portions
omitted have been filed separately with the Securities and Exchange Commission
pursuant to such request for confidential treatment.


<PAGE>

b)      For the first XXXXX trains delivered to NOVOSTE after the execution of
        this Agreement, the XXXXX period shall commence with the day of the
        first clinical use of the train. At the end of the XXXXX period NOVOSTE
        has one month time to test each train and either (1) return it to BEBIG
        for recycling or (2) XXXXX. Novoste will provide Bebig with true and
        accurate information about the date of first clinical use.

c)      For any Seed-Trains delivered thereafter, the XXXXX period shall
        commence with the date of manufacture, as evidenced by the
        manufacturer's certificate, provided that:

        (1)    BEBIG has delivered XXXXX Seed-Trains, which pass NOVOSTE's
               specifications on P.O. 970381 to NOVOSTE prior to XXXXX or over
               any consecutive XXXXX period once deliveries commence.

        (2)    No more than 10 days transpire between date of manufacture and
               receipt by NOVOSTE (just in time delivery),

        (3)    The date of manufacture cannot predate the desired delivery date
               in NOVOSTE's purchase order by 30 days (should BEBIG decide to
               build on a speculative basis prior to a NOVOSTE purchase order).

II.     Any other provisions under the Framework remain unchanged as far as they
        are not (i) amended, or replaced by the aforementioned clauses or (ii)
        settled otherwise (e. g. expiry of time, performance).

--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this page of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "XXXXX". The portions
omitted have been filed separately with the Securities and Exchange Commission
pursuant to such request for confidential treatment.


<PAGE>

                                      ss. 3
              Recycling of radioactive Seed Trains/Decommissioning

        a)     BEBIG will accept free of charge, for the period until August 22,
               2002, returned radioactive Seed-Trains from NOVOSTE, as long as
               the following conditions are met:

               (1)    The number of returned trains in any given year that are
                      unfit for recycling ("Disposal Trains") does not exceed 20
                      % of the total number of returned trains in that year.

               (2)    The sum of returned trains for any given year is not
                      larger than the sum of new trains shipped out during that
                      period.

        b)     Both parties will work together in good faith to find an economic
               solution for trains that do not meet these conditions.

                                       B.
             Chattel Mortgage and Assignment for Security Agreement
                (Sicherungsubereignungs- und -abtretungsvertrag)

                                      ss. 1
                                 Security Object

1.1     Under the Framework Agreement NOVOSTE committed itself to pay to BEBIG
        monthly investment grants of DM 100,000.00 each for a period of 15
        months, starting in November 1996. This investment obligation has been
        increased by an additional amount of DM 1,000,000.00 by the foregoing
        Agreement under A.

        With a view to these investment grants BEBIG committed itself to a
        series of obligations in favor of NOVOSTE. For further reference see
        Para. 2 through 6 of the Framework Agreement.


<PAGE>

        Furthermore, BEBIG promised an annual delivery of XXXXX Seed-Trains
        under Para. 8 through 10 of the Framework Agreement.

1.2     For the purpose of safeguarding all claims of NOVOSTE deriving from the
        Framework Agreement and this Agreement BEBIG transfers to NOVOSTE all
        assets required for the production of Seed-Trains according to the
        following provisions.

                                      ss. 2
                              Security Collaterals

2.1     The following items shall serve as security collateral:

        a)     all assets situated in room 27 of BEBIG's premises,
               Robert-Rossle-Stra(beta)e 10, 13125 Berlin, which are used in the
               production of Strontium 90 Seed-Trains for NOVOSTE and which are
               listed and attached as Exhibit 2.1 a to this Agreement
               (hereinafter referred to as the "Premises") at the date hereof or
               at any later point of time during the duration of the Framework
               Agreement (hereinafter referred to as the "Security Collateral
               A"). At a minimum these assets include the full production line
               used to produce the Strontium 90 Seed Trains and do not include
               assets which are also used in the production of other isotopes.

        b)     all intangible assets which are required for the production of
               Seed-Trains and (i) are listed in Exhibit 2.1 b to this contract
               or (ii) will be acquired by BEBIG during the duration of the
               Framework Agreement (hereinafter referred to as the "Security
               Collateral B").

--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this page of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "XXXXX". The portions
omitted have been filed separately with the Securities and Exchange Commission
pursuant to such request for confidential treatment.


<PAGE>

2.2     Security Collateral A

2.2.1   As far as BEBIG is the owner or the co-owner of the Security Collateral
        A, BEBIG transfers to NOVOSTE the ownership or the co-ownership. As far
        as BEBIG holds an expectant right (Anwartschaftsrecht) in the Security
        Collateral A, this is also transferred to NOVOSTE.

        Expectant right, ownership and co-ownership in the Security Collateral A
        are transferred at the date hereof; expectant right, ownership and
        co-ownership in those parts of the Security Collateral A being brought
        into the Premises later on are transferred at the time of the actual
        deposit. A further explicit act of transfer is redundant. As far as an
        expectant right is transferred, NOVOSTE becomes the owner of the
        respective asset at that point of time the supplier's reservation of
        title (Eigentumsvorbehalt) expires.

2.2.2   BEBIG guarantees that it holds the ownership, the co-ownership or an
        expectant right in the Security Collateral A, has not mortgaged them or
        assigned them and that it is entitled to dispose of these rights. BEBIG
        also guarantees that it will pay all supplier invoices related to the
        strontium 90 production line so that suppliers' liens to the assets will
        expire quickly.

2.2.3   The handing over of the Security Collateral A is replaced by BEBIG's
        commitment to keep the Security Collateral A in safe custody for NOVOSTE
        free of any charges, provided that BEBIG either receives (a) an annual
        revenue from seed manufacturing of more than US$ XXXXX or b) a flat
        storage charge of US-$ 120,000 per year

2.2.4   BEBIG's right to make use of the Security Collateral A in the ordinary
        course of its business remains unaffected subject to the regulation
        under Para. 5 hereunder.

--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this page of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "XXXXX". The portions
omitted have been filed separately with the Securities and Exchange Commission
pursuant to such request for confidential treatment.


<PAGE>

2.3     Security Collateral B

        BEBIG herewith assigns all of its rights in the Security Collateral B to
        NOVOSTE. As far as an assignment is impossible due to legal or actual
        reasons, BEBIG transfers to NOVOSTE the right of every possible use,
        including the use of trademark, patents, licensing rights BEBIG has as
        regards the Security Collateral B. BEBIG's right to make use of the
        Security Collateral B in the ordinary course of its business remains
        unaffected subject to the regulation under Para. 5 hereunder.

        BEBIG guarantees that it is unrestrictedly entitled to dispose of the
        Security Collateral B to the aforementioned extent.

                                       ss. 3
                                 Duties of BEBIG

3.1     BEBIG shall refrain from any disposal of the Security Collateral A and B
        except with (i) NOVOSTE's explicit prior consent not unreasonably
        withheld and (ii) limited to disposals due to normal wear, repair and
        replacement.

        BEBIG warrants that it will maintain its premises and the assets in such
        a state to ensure compliance with all regulatory and licensing
        requirements as long as doing so costs less than DM 50,000. The parties
        will discuss how to handle issues on any capital investments mandated by
        regulatory authorities which exceeding DM 50,000.

3.2     BEBIG will inform NOVOSTE without undue delay about any damage, pledge,
        German regulatory body actions or other enforcement measures which might
        be detrimental to NOVOSTE's legal position according to Para. 2
        hereunder. As far as pledges occur, BEBIG has to submit to NOVOSTE all
        documents and information necessary for an intervention. BEBIG shall
        furthermore inform all of its bank creditors of NOVOSTE's rights under
        this Agreement.

3.3     NOVOSTE shall have the right to inspect the Security Collateral A and B
        at any time after giving BEBIG one week's notice.


<PAGE>

        BEBIG shall give all necessary information to NOVOSTE and shall grant to
        NOVOSTE the right of inspection of all relevant documents through
        appointment by NOVOSTE of a certified public accountant or lawyer
        together with an engineer subjected to the same rules as to
        confidentiality as applicable to a certified public accountant or
        lawyer.

                                       ss. 4
                               Retransfer of Title

4.1     Except for (i) NOVOSTE's rights under Para. 5 hereunder or (ii) an
        extension of this Agreement by the parties hereto NOVOSTE shall
        retransfer the title in Security Collateral A and B to BEBIG on
        September 1st, 2002 unless it exercises its option to acquire said
        assets according to Para. 4.2.

4.2     Except for the provision under Para. 4.1 hereunder, NOVOSTE shall
        retransfer title in the Security Collateral A and B upon BEBIG's written
        request if NOVOSTE is in default with the payment of the two subsequent
        investment grants per Paragraph 1 of this Agreement for more than one
        month.

                      Option to Acquire Unrestricted Title

5.1     The Security Object agreed upon in Para. 1 hereunder and BEBIG's claim
        for retransfer of title according to Para. 4.1 hereunder are subject to
        the condition subsequent that NOVOSTE submits a written notice to BEBIG
        that all rights in the Security Collateral A and B shall finally be
        forfeited in favor of NOVOSTE (hereinafter referred to as the "Notice").
        NOVOSTE's right to acquire unrestricted title in the Security Collateral
        A and B by submitting the Notice to BEBIG shall be hereinafter referred
        to as the "Option". The Option may be exercised at any time until
        September 1st, 2002 subject to an extension of the term of the Option by
        a mutual written agreement of the parties hereto (hereinafter referred
        to as the "Option Period") for the amount of US-$ 4,019,400 Million
        (four million nineteen thousand four hundred US-dollars) (see Para. 8).


<PAGE>

5.2     In the Notice NOVOSTE shall specify a date for closing the acquisition
        (hereinafter referred to as the "Closing Date") which shall occur at
        least ninety (90) days but no more than two hundred seventy (270) days
        subsequent to the date of the Notice.

                                       ss. 6
                          Non-Assumption of Liabilities

NOVOSTE shall not assume, discharge or be liable for any debts, liabilities or
obligations of BEBIG including, without limitation, any (a) liabilities or
obligations of BEBIG to its creditors or equity owners; (b) liabilities or
obligations of BEBIG with respect to any transactions; (c) taxes or other
liabilities or obligations of BEBIG incurred in connection with the grant of the
Option pursuant to this Agreement; or (d) contingent liabilities or obligations
of BEBIG. If NOVOSTE is subjected to any claims that arise from BEBIG's
operations to its mere possession of security ownership, BEBIG promises to hold
NOVOSTE harmless from any such claims.

However, if (1) NOVOSTE exercises the Option and wishes to move the assets to
another location, or (2) NOVOSTE does less than US$ XXXXX in seed business with
BEBIG from August 1, 1998 to August 31, 2002, then NOVOSTE agrees to pay BEBIG
the costs to decontaminate the strontium 90 line assets, up to a maximum of DM
500,000.

--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this page of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "XXXXX". The portions
omitted have been filed separately with the Securities and Exchange Commission
pursuant to such request for confidential treatment.


<PAGE>

                                      ss. 7
                                  Facilitation

Appurtenant to the transfer of the Security Collateral A and B in connection
with the exercise of the Option and covered by the Purchase Price, BEBIG shall
assign at its expense such personnel bearing the necessary technical and
operational expertise to spend up to three (3) months at NOVOSTE (or its
assignee or successor) facilitating the transfer of the Security Collateral A
and B and training personnel as to the operation of the Security Collateral A
and B as a Seed-Train producing business. BEBIG shall also assign at its expense
for up to three (3) months such personnel bearing essential administrative and
regulatory expertise to guide NOVOSTE (or its assignee or successor) in
licensing and approval processes with which BEBIG has relevant experience.

                                       ss. 8
                                 Purchase Price

8.1     The purchase price (hereinafter referred to as the "Purchase Price") for
        the Security Collateral A and B to be acquired upon exercise of the
        Option shall be 4,019,400 Million dollars (four million nineteen
        thousand four hundred US dollars).

8.2     The option agreement will be exercised in the following manner.

  1.    Novoste will pay Bebig an additional US$ XXXXX per train to Novoste in
        the form of a license fee for the use of all tangible an intangible
        assets used in the design and manufacture of the Strontium 90 seed
        trains.

  2.    This license fee will be paid only on the first XXXXX trains delivered
        to Novoste under this agreement; thereafter no license fee will be
        charged.

--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this page of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "XXXXX". The portions
omitted have been filed separately with the Securities and Exchange Commission
pursuant to such request for confidential treatment.


<PAGE>

  3.    As the US$ XXXXX license fee is paid, Novoste's lien on the line's hard
        assets will grow on a proportionate basis (Deutsche Mark for Deutsche
        Mark at the then current exchange rates).

  4.    Once Novoste has paid Bebig an aggregate of $ 4,019,400 towards the
        option purchase price, either in the form of license fees or an
        accelerated cash payment, then the title to all tangible assets used on
        the line will automatically be transferred to Novoste at that time, and
        Novoste will receive a fully-paid license to all intangible assets and
        intellectual property used in the design and manufacture of the seed
        trains.

  5.    Novoste does not guarantee a certain purchase volume in any one year.
        Novoste continues to have until August 31, 2002 to pay for the option in
        full.

                                       C.
                             Common Final Provisions

1.      This Agreement, including this Para. 1., may only be amended or modified
        at any time and in all respects by an instrument in writing executed by
        NOVOSTE and BEBIG.

2.      Any notices or other communications required or permitted hereunder
        shall be sufficiently given if delivered personally or sent by
        registered or certified mail, postage prepaid, addressed to:

        To BEBIG:         BEBIG Isotopentechnik und Umweltdiagnostik GmbH
                          Robert-Rossle-Stra(beta)e 10
                          D-13125 Berlin, Germany
                          Attn: Dr. Andreas Eckert

--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this page of this
exhibit. The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as "XXXXX". The portions
omitted have been filed separately with the Securities and Exchange Commission
pursuant to such request for confidential treatment.


<PAGE>

        To NOVOSTE:       NOVOSTE Corporation
                          4340-C International Blvd.
                          Norcross, GA 30093-3027
                          Attn: David N. Gill

        or to such other address as shall be furnished in writing by a party to
        the other and shall be deemed to have been given as of the date so
        personally delivered or three (3) days after being deposited in the
        United States mail, postage pre-paid, as the case may be.

3.      It is the intention of the parties that the laws of the Federal Republic
        of Germany, both substantive and remedial, should govern the validity of
        this Agreement, the construction of its terms and the interpretation of
        the rights and duties of the parties. Place of jurisdiction shall be
        Berlin, Germany.

4.      Section headings contained in this Agreement are for reference purposes
        only and shall not affect in any way the meaning or interpretation of
        this Agreement.

5.      This Agreement may be executed in counterparts, each of which shall be
        deemed an original, but both of which together shall constitute one and
        the same instrument.

6.      All the terms and provisions of this Agreement shall be binding upon and
        inure to the benefit of, and be enforceable by, BEBIG and NOVOSTE and
        their successors and valid assigns.

7.      This Agreement constitutes the entire agreement between the parties
        hereto, and there are no agreements, understandings, restrictions,
        warranties or representations between the parties other than those set
        forth herein.

8.      BEBIG may not assign this Agreement.

9.      Should any provision of this Agreement be or become invalid or void, the
        remaining provisions will continue to be in effect. Invalid or void
        provisions are to be replaced by such provisions which will fulfill the
        economic purpose of this Agreement in a legally binding form. The same
        applies mutatis mutandis if a gap is found which requires a regulation.


<PAGE>

10.     All the provisions of the Purchase Option agreement mentioned in the
        Preamble remain fully in effect if not expressly changed by the previous
        sections.

11.     This Agreement shall be executed in an English version only.


Norcross, ___________________                 Berlin, _________________


----------------------------                  ------------------------
NOVOSTE                                       BEBIG