Distribution Agreement Between Genetronics, Inc. (BTX Instrument Division) and Merck Eurolab Holding GmbH
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Genetronics, Inc. (BTX Instrument Division) appoints Merck Eurolab Holding GmbH and its affiliates as the distributor of its products in specified European countries. Merck receives exclusive distribution rights in Denmark, Norway, and Sweden, and non-exclusive rights elsewhere in the territory. Merck is responsible for promoting, stocking, and selling the products, while Genetronics provides support, training, and marketing materials. The agreement includes sales targets, rewards for meeting sales plans, and conditions for pricing and payment. Both parties agree to maintain records and cooperate to ensure effective product distribution.
EX-10.1 2 ex10-1.txt EXHIBIT 10.1 1 EXHIBIT 10.1 *** Text Omitted and Filed Separately Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4), 200.83 and 240.24b-2 DISTRIBUTION AGREEMENT Between Genetronics, Inc. and its BTX Instrument Division, a California corporation having its principal place of business at 11199 Sorrento Valley Road, San Diego, CA 92121-1334, hereafter referred to as "Supplier" and Merck Eurolab Holding GmbH, Belgian Branch of Woluwedal 28, 1932 Zaventem, Belgium ("Merck") acting for itself and on behalf of the Merck companies listed in Appendix 2, ("the Affiliates") each of whom is bound by the terms and conditions of this Agreement and, for the purpose hereof, Merck and the Affiliates are hereafter referred to collectively as "the Merck Group". 1 DEFINITIONS "Product(s)" shall mean those Products of Supplier listed in Appendix 1 and including future developments of such Products and new products. "Territory" shall mean the countries listed in Appendix 2. "Affiliate" shall mean any corporation in which Merck owns, directly or indirectly, at least thirty (30) percent of the voting capital and is listed on Appendix 2. 2 APPOINTMENT Supplier hereby appoints the Merck Group as a distributor of Products in the Territory and grants the Merck Group the right to sell and distribute Products in the Territory pursuant to the terms and conditions of this Agreement. The Product sale and distribution right shall be exclusive between Supplier and the Merck Group in Denmark, Norway, and Sweden, and shall be non-exclusive in the remaining countries within the Territory. Merck and/or the Affiliates may purchase direct from Supplier. The Merck Group shall not itself, and shall not assist others to, sell, distribute, or otherwise exploit the Products in any country or jurisdiction outside the Territory. With respect to those exclusive rights granted in Denmark, Norway, and Sweden, the Merck Group shall not sell or distribute any third party products substantially similar to Products in such countries, and Supplier shall not supply Products to any third party for sale or distribution in such countries. 3 PRICES AND CONDITIONS Supplier will supply Products at the prices, and pursuant to the terms, listed in Appendix 3 and Section 6. Prices listed in Appendix 3 are valid for not less than twelve months. Prices for following periods will be agreed upon not less than three (3) months before the beginning of any new price period. In the event an Affiliate does not pay a proper invoice for Product, within the time prescribed in Appendix 3, Merck shall be ultimately responsible to Supplier for the payment of such invoice upon proper notice of same. Supplier shall pay an annual reward to the Merck Group pursuant to the conditions set forth in this 1 2 paragraph. In the event an Affiliate achieves it sales plan ("Affiliate Plan") for the preceding year, Supplier shall pay that Affiliate a reward for its success ("Affiliate Reward"). In the event the Merck Group achieves the sales plan ("Merck Plan") established for the entire Merck Group as a whole for the preceding year, Supplier shall pay the Merck Group a reward for its success ("Merck Group Award"). The sales plans for the Affiliates and the Merck Group shall be mutually agreed upon by Supplier and the Merck Group. The determination of whether an Affiliate Reward is earned and whether the Merck Group Award is earned shall be determined independent from each other and, if earned, shall be paid independent of each other. An Affiliate Reward shall be made by Supplier to the Affiliate; a Merck Group Award shall be made by Supplier to Merck. The amount, type (e.g., cash, product, rebate), and computation of the Affiliate Reward and the Merck Group Award shall be determined by Supplier and Merck during the first year of this Agreement and shall be added to this Agreement by amendment. The first Affiliate Reward and the first Merck Group Award shall be due, if earned, at the end of each annual period beginning with the period that begins April 1, 2001 and ends April 1, 2002. The Merck Group shall use its best efforts to achieve Minimum Annual Sales growth (defined as purchases from Supplier) of [...***...] over previous annual period. In the event any Affiliate fails to meet its Affiliate Plan, Supplier shall have the right to decrease Supplier Support, as set forth in Section 4, to that Affiliate. Each Affiliate shall maintain demonstration units of the Products to solicit interest and for display at trade and product shows, and shall stock sufficient Products to meet customer orders. The parties shall mutually agree on the number of demonstration units and the level of stocking that is necessary. In addition, each Affiliate shall stock sufficient electrodes and accessories (including BTX electroporation cuvettes) to meet one month customer demand. Within 60 days of the Effective Date, and prior to training of the Merck Group sales personnel and product launch, the Merck Group shall place orders for the agreed upon demonstration units and stocking Products. The parties' agreement with respect to cuvettes is set forth in Appendix 3. The Merck Group shall maintain in a professional and workmanlike manner such books and records as are reasonably needed to comply with its responsibilities hereunder, including, without limitation, accurate data and reports of all sales, and data supporting the calculation and payment of all amounts due or payable hereunder. Supplier (or its designated agent) shall be entitled at its own expense to audit and inspect such books and records at least annually and upon termination of this Agreement during normal business hours after giving reasonable advance notice. 4 SUPPLIER SUPPORT Supplier shall give the Merck Group all reasonable assistance in its efforts to introduce and sell the Products in the Territory. This includes, free of charge, the supply of promotional materials and other marketing instruments in reasonable quantities, some training of the sales staff of the Merck Group and the supply of information and data requested by Merck which is reasonably necessary to establish the Products and to promote an effective Product launch. Such information and data include, but is not limited to, the Launch Package and the Material Master Standard Data Structure. The Launch Package is attached as Appendix 4; the Material Master Standard Data Structure will be compiled by the parties after the Effective Date and attached to Appendix 4, by way of written and executed amendment. Supplier shall be solely responsible for the protection of its intellectual property rights in Property and retains sole and exclusive ownership of all such intellectual property. No rights regarding the Products, except those expressly stated in this Agreement, are transferred to the Merck Group under this Agreement. 5 MERCK GROUP SUPPORT The Merck Group will promote Products through country catalogues and sales forces. The Merck Group represents it has the personnel, sales force, facilities, marketing and technical skill required to act as the distributor for the Products in the Territory and agrees to maintain appropriate sales *Confidential Treatment Requested 2 3 and service offices within the Territory during the term of this Agreement. The Merck Group shall use its best efforts to sell and promote the sale of Products within the Territory. Merck and the Affiliates shall conduct all of their business in their own name. The Merck Group agrees that the terms in Appendix 5 shall govern all transactions between the Merck Group and its customers regarding Products and agrees it will communicate the terms to its customers. Supplier acknowledges that the terms in Appendix 5 if used by the Merck Group as provided herein will be subject to the legislation on the use of general terms and conditions of sale in certain countries within the Territory, and that certain terms, in particular with regard to the limitation of warranties and liability, may be invalid or unenforceable under local law. Moreover, the Merck Group shall not make representations or guarantees concerning Products other than as contained in Supplier's written material pertaining to the Products. The Merck Group shall follow good business practices to assist Supplier in the promotion and preservation of its trademarks, which shall include useage of the trademarks in the proper manner to preserve trademark status. Under no circumstances shall the Merck Group remove, cover, or alter the Supplier's identification or trademarks on the Products or in the literature. 6 ORDERING, DELIVERY & RETURNS Purchase orders by the Merck Group may be made in writing or verbally. Verbal orders require written confirmation within three (3) business days. All orders shall conform to agreed lead times for all deliveries together, with accurate documentation and invoicing. Lead times shall be detailed in Appendix 4. Merck affiliates may return to Supplier during any one year period, ending on the anniversaries of the Effective Date, up to [...***...] of the Products purchased by the Merck Group affiliate during the prior year, provided the Products have little or no demand by customers or have been discontinued by Supplier, and provided the Products are in a resaleable condition. Products shall be construed to have little or no demand if there have not been any unit sales in any continuous [...***...] period for that affiliate. Supplier will not be obligated to accept any such return unless it is accompanied by a pre-approved Supplier return goods authorization form ("RGA") in writing. Upon receipt of a permitted Product return, Supplier shall reimburse Merck for either the invoiced price of the returned Product if it is new (i.e., never used) or for the current fair market value if the Product is used (i.e., Product was used for demonstration or otherwise). The reimbursement shall not be subject to a restocking fee and shall not be affected by whether a replacement Product is available. No Products shall be returned to Supplier, for any reason, including for repair, by any party other than the Merck Group, which will have first obtained a written RGA from Supplier, the issuance of such RGA not to be unreasonably withheld. The parties acknowledge that the Merck Group may obtain an RGA on behalf of a customer, after which the customer may send Product to Supplier directly from the customer's site. 7 WARRANTY AND LIABILITY The Products are governed by the terms and warranty set forth in Appendix 5. The Products shall conform to Supplier's specifications and shall meet all the specific standards and regulations applicable in the Territory in particular with regard to hygiene, environmental, industrial and work place safety. In the event of any changes to these standards and regulations Supplier will ensure compliance of the Products to the new standards and regulations as of their date of application. Due to the presence of Affiliates in the Territory, the Merck Group shall be responsible for providing Supplier notice of any relevant specific standards and regulations applicable to Products, and changes thereto, which may require Supplier to alter Product specifications. Supplier shall control the Products prior to shipment to the Merck Group and hereby certifies that the Products delivered shall meet the Supplier's specifications and shall be free from defects in design, *Confidential Treatment Requested 3 4 materials and workmanship. Supplier further certifies that packaging is sufficient for the purpose of protection of Products in transit through to final customer and during storage in an appropriate manner by the Merck Group, without the need for inspection of Products. In this respect, Supplier shall replace or repair, at Supplier's sole discretion, free of charge to the Merck Group any and all damaged or defective Products received by the Merck Group or its customers, which damage or defect was caused by manufacture or shipment by Supplier. In the event Supplier determines that replacement or repair is not economically or technically feasible, it shall compensate Merck for the Product according to the invoiced amount. Supplier's obligation to replace, repair, or compensate the Merck Group pursuant to this paragraph shall be limited to defective or damaged (i) Product equipment returned within [...***...] of invoice and (ii) Product electrodes and accessories returned within [...***...] of invoice, wherein the invoice is the later of the sale of Product from Supplier to the Merck Group or the sale of Product from the Merck Group to a customer. The Merck Group agrees to indemnify and hold Supplier harmless for any costs incurred by Supplier in addressing issues arising from business dealings between the Merck Group and customers of the Merck Group, which shall include but not be limited to addressing issues or complaints related to Product raised by customers of the Merck Group directly to Supplier. Notwithstanding the foregoing, and the terms and warranty in Appendix 5, in the event a third party suffers any damages as a result of Product, and the cause of such damages results from a breach of Supplier's warranties given hereunder, Supplier shall indemnify and hold Merck harmless from any such third party claim for damages, including but not limited to claims being made on the grounds of product liability, subject to the following limitation: REGARDLESS OF THE CAUSE OF ACTION, THE SUPPLIER SHALL NOT BE LIABLE FOR ANY AMOUNT THAT, WHEN AGGREGATED WITH ALL OTHER SUCH AMOUNTS WHICH SUPPLIER HAS PAID MERCK PURSUANT TO ITS OBLIGATIONS OF INDEMNITY HEREUNDER, EXCEEDS 100 % OF THE AMOUNT OF COMPENSATION ACTUALLY RECEIVED BY SUPPLIER HEREUNDER AS OF THE DATE THE THIRD PARTY CLAIM AT ISSUE WAS FIRST MADE AGAINST ANY MEMBER OF THE MERCK GROUP. . IN NO EVENT SHALL SUPPLIER BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFIT OR BUSINESS INTERRUPTION EVEN IF THE SUPPLIER IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES HEREBY EXPRESSLY ACKNOWLEDGE THAT THE FOREGOING LIMITATION HAS BEEN NEGOTIATED BY THE PARTIES AND REFLECTS A FAIR ALLOCATION OF RISK. THE FOREGOING LIMITATION SHALL NOT APPLY TO THE EXTENT THAT RESPECTIVE LIMITATIONS CONTAINED IN APPENDIX 5 CANNOT BE EFFECTIVELY PASSED ON BY THE MERCK GROUP TO ITS CUSTOMERS UNDER APPLICABLE LAW IN THE TERRITORY. During the term hereof, Supplier shall maintain with reputable insurers product liability insurance coverage for a minimum of [...***...] per claim. If Merck so requests, Supplier will promptly furnish evidence of such insurance to Merck. In the event an Affiliate breaches a material provision of this Agreement, and fails to cure the breach after appropriate notice, Merck shall be responsible to Supplier for the breach and further actions or inaction of the Affiliate. 8 TERM OF AGREEMENT The Agreement shall commence on April 1, 2000 and shall remain in force for an initial period of three (3) years. If not terminated at the end of the initial three year term by giving prior written notice by at least April 1, 2002, the Agreement shall, after the expiry of the initial period, be extended automatically for successive one year terms unless and until either party gives at least nine (9) months prior written notice to the other to terminate the Agreement. In the event either party fails to fulfill its contractual obligations to the other, the non-defaulting party shall have the right to terminate the Agreement earlier than set forth in the immediately preceding *Confidential Treatment Requested 4 5 paragraph, provided it gives notice to the defaulting party of such failure and provides a period to cure the default. In the event such failure is nonpayment of an invoice within the agreed upon period, termination shall be effective twenty (20) business days after the defaulting party receives notice of such failure and fails to make full payment by that date. In the event default is due to failure of any other contractual obligation, termination shall be effective sixty (60) days after the defaulting party receives notification of the failure and fails to remedy its default by that date. In the event an Affiliate breaches a material term of this Agreement, and fails to cure the breach after appropriate notice, Supplier shall have the right to terminate this Agreement as to that Affiliate. Such termination shall be effective upon notice to the Affiliate of the breach, failure of the Affiliate to cure the breach within the permitted time, and notice to Merck of termination of this Agreement as to that Affiliate. This Agreement may be terminated earlier than its natural expiration or termination date by either party in the event either party ceases business operations (other than through sale of that portion of its business related to this Agreement), becomes insolvent, makes an assignment for the benefit of creditors, or if a receiver is appointed or a petition for bankruptcy is filed with respect to the other party and such proceeding is not dismissed within thirty (30) days of filing. Upon early termination of this Agreement by Supplier, or natural expiration of the Agreement, Merck will be entitled to sell its remaining stock of Products on hand for a period of [...***...] after termination, or return such Product to Supplier, provided Products are in a resaleable state. In the event Merck chooses to sell its remaining stock to customers, any Product unsold after the [...***...] period shall be returned to Supplier at Merck's expense. Supplier shall pay Merck for Product returned under either alternative, as follows: Supplier shall reimburse Merck [...***...] of new Product and [...***...] of used Product. 9 CONFIDENTIALITY Both parties undertake to maintain strict confidentiality for the duration of this Agreement and after it expires, in relation to all business and technical information and data of which they become aware in connection with the contractual negotiations, and will become aware in connection with this Agreement (collectively "Information"), unless otherwise agreed in writing. The parties further agree that neither shall use the Information of the other except in the furtherance of the purpose of this Agreement. The duty of confidentiality and non-use shall not apply to information which can be shown to have come into the public domain from other sources not associated directly or indirectly to the parties to this Agreement. Without limiting the foregoing, and by way of example only, the parties agree that Information of Supplier shall include the names, buying habits, or practices of any of its customers, its marketing methods and related data, the names of any of its vendors or suppliers, costs of materials, the prices it obtains or has obtained or at which it sells or has sold its products or services, manufacturing and sales costs, or other written records used in Supplier's business, compensation paid to representatives, or any other confidential information of, about or concerning the business of Supplier. The parties shall treat all data as to trade secrets and goodwill as Information subject to the terms of this Section 9, and acknowledge that any breach of any term of this paragraph is a material breach of the Agreement. *Confidential Treatment Requested 5 6 10 CURRENCY UNION Should a European currency (Euro) be introduced as legal tender during the term of this Agreement, , as of the effective date of introduction of the new European currency (Euro) the person under obligation to pay shall fulfil the payment in the European currency as sole legal tender. The conversion rate fixed by the legislator at the effective date shall be observed. The same currency provision applies for payment of interest claims. 11 LAW AND LANGUAGE The governing language of this Agreement shall be English and the validity, interpretation and performance of this Agreement shall be controlled by and construed in accordance with the laws of England. The parties shall endeavour to settle amicably any disputes which arise in the course of the application or interpretation of this Agreement. Should the parties fail to reach such an understanding, any disputes shall be submitted to the court of England. 12 FINAL PROVISIONS Merck may assign all of its rights and obligations under this Agreement, in whole or in part, to existing or future Affiliates, provided Supplier gives written authorization for the assignment. Supplier may assign all of its rights and obligations under this Agreement to an affiliate of Supplier, provided Merck gives written authorization for the assignment. Supplier or Merck may assign all of its rights and obligations to a purchaser of substantially all of the business of Supplier or Merck to which this Agreement pertains. An affiliate of Supplier shall mean any corporation in which Supplier owns, directly or indirectly, at least thirty (30) percent of the voting capital. The terms, conditions, obligations, and responsibilities embodied in this Agreements shall be binding upon and inure to the benefit of the parties' successors and assigns. In the event either party assigns this Agreement to another, that party shall immediately notify the other party of the assignment. Neither party will be liable for the effects of any force majeure occurrences. If individual provisions of this Agreement are invalid or become invalid, as judged by a tribunal of competent jurisdiction, the parties hereby agree that invalidity of the party shall not affect validity of the remainder. Any notice required or permitted by this Agreement shall be in writing and may be delivered personally or may be sent by telefax or express mail, to the addresses at the head of this Agreement. Notices shall be effective upon the later of delivery or the stated effective date of notice. Any notice provided by Supplier to an Affiliate, or by an Affiliate to Supplier, shall also be provided to Merck. This Agreement, including Appendices 1-5, constitutes the entire agreement between the parties concerning the subject matter hereof and specifically takes precedence over any Standard Conditions of Sale of Supplier, or Standard Terms of Purchase of Merck and its Affiliates. The headings are for reference and convenience and shall have no substantial effect on interpretation of the Agreement. Alterations and additions must be in writing and signed by authorized representative of both parties. This Agreement may be executed in counterparts, all of which together shall constitute one and the same instrument. 6 7 13 SIGNATURES For Supplier /s/ Martin Nash, CEO - -------------------------------------------------------------------------------- Date of Signature: 04/04/00 For Merck /s/ Walter W. Zywottek M. Brocke-Benz - -------------------------------------------------------------------------------- Date of Signature: 05/02/00 7 8 Appendix 1 List of Products included in this Agreement See product and pricing spreadsheet following this page for transfer pricing (stocking orders) and direct-to-customer pricing. 8 9 BTX PRICE LIST APPENDIX 1
Page 1 *Confidential Treatment Requested 10 BTX PRICE LIST APPENDIX 1
COMMENTS: BTX Direct to customer price exclusive of VAT, import duties, freight, or other administrative fees. Transfer price is for stocking orders only. There will be a 10% administrative fee for drop ship or non stocking orders. Page 2 *Confidential Treatment Requested 11 BTX PRICE LIST APPENDIX 1
Page 1 *Confidential Treatment Requested 12 BTX PRICE LIST APPENDIX 1
COMMENTS: BTX Direct to customer price exclusive of VAT, import duties, freight, or other administrative fees. Page 2 *Confidential Treatment Requested 13 Appendix 2 List of Merck Companies who will participate in this Agreement --------------------------------------------------------------
- -------------------------------------------------------------------------------- Countries listed below will participate in this agreement subject to local acceptance by the Merck company
14 Appendix 3 Prices, Terms, Discounts and Rebates ------------------------------------ NET PRICE LIST refer to spreadsheet in Appendix 1 SPECIAL PRICES AND/OR TENDER PRICES will be negotiated for agreed accounts or contracts and for selected Products PRICE BASIS (Incoterms) FOB, San Diego NON-STOCKING AND DROP SHIP ORDERS will be charged with a [...***...] administrative fee; the parties will determine whether an order is a stocking, non-stocking, or drop ship order using reasonable business judgement applicable to the scope of this Agreement CURRENCY United States dollar by company check or wire transfer ANNUAL REBATE To be negotiated pursuant to Section 3 of the Agreement LATE PAYMENT [...***...] monthly PAYMENT TERMS Net [...***...] days OTHER TERMS Merck or the Affiliate placing an order shall be the party responsible for paying the invoice for such order, subject to the ultimate responsibility of Merck set forth in Section 3. The Merck Group shall be responsible for any extension of credit to its customers and collections of such accounts shall be the sole responsibility of the Merck Group. All shipping cost, duties and other charges relating to transport or transfer of the Products to the Merck Group or its customers shall be the responsibility of the Merck Group. The Merck Group shall in a timely manner collect and remit to appropriate governmental authorities and shall indemnify and hold Supplier harmless from, any applicable sales, use, gross receipts, value-added or other tax or levy now existing or hereafter enacted (other than income tax of Supplier), and any interest or penalties imposed thereon, applicable to any sale of products covered by the terms of this Agreement. Supplier shall not ship Product until it can be CE-labelled and a "Declaration of Conformity" can be provided. *Confidential Treatment Requested 15 APPENDIX 3 CUVETTE PRICING 1. Introductory Initial Stocking Offer: Initial target cuvette stocking levels have been agreed upon for each Affiliate, as set forth in Table 1, below. In the event an Affiliate meets the initial target cuvette stocking order set for it, 1) that initial cuvette order shall be priced at [...***...]/bag for that Affiliate, and 2) Supplier shall provide that Affiliate with additional cuvettes equal to [...***...] of the cuvettes purchased by that Affiliate in its initial cuvette stocking order, free of charge, for sampling purposes. Table 1: Initial Target Cuvette Stocking Levels for Affiliates --------------------------------------------------------------
*Confidential Treatment Requested 16 APPENDIX 3 2. Discounts Based on Annual Sales: Supplier will sell cuvettes to Affiliates at a discount provided certain annual accumulated volume of cuvette sales occurs. Table 2 sets forth the discount and transfer price for cuvettes based on number of cuvette bags purchased by Affiliate from Supplier per contract year. Table 2: Discount Cuvettes Price Based on Annual Sales ------------------------------------------------------
3. BTX agrees to work with reasonable effort to assist individual distribution Affiliates on volume institutional orders so that these orders do not go to the competition. *Confidential Treatment Requested 17 Appendix 4 Launch Package -------------- See Launch Package following this page. 18 EUROLAB APPENDIX 4 [GRAPHIC] For: [GRAPHIC] 19 EUROLAB APPENDIX 4 1. SUPPLIER INFORMATION - -------------------------------------------------------------------------------- Addresses ( If you have different offices, fulfill 1 supplier form by Office) Company Name:Genetronics, Inc. and its BTX Division Owned by: CORPORATION Core activity: Life Science Product Manufacturing Subsidiaries/Associates: Registration number: SRFH25-783006 Tax / VAT Reg. N degrees 33-0024450 Website: www.btxonline.com Manufacturer XX [ ] or Dealer, Distributor: [ ]
Key Statistics Annual sales: $4M U.S. Number of employees (overall): in Sales: 11 in Production: 7 R&D: 4 Key Contacts
20 EUROLAB APPENDIX 4 Supplier Strategy [...***...] *Confidential Treatment Requested 21 EUROLAB APPENDIX 4 2. QUALITY ASSURANCE & ENVIRONMENTAL MANAGEMENT QUESTIONNAIRE - -------------------------------------------------------------------------------- Quality assurance and environmental management systems are of vital importance in the work of Merck Eurolab. The certification of our companies requires that our suppliers' systems are defined to us. We therefore ask you to answer the following questions. 1. COMPANY DATA Refer Supplier Information in Section 1 2. PRODUCT CATEGORIES (list main categories) Electroporation generators, monitors, electrodes and chambers, accessories, And other supplies --------------------------------------------------------------------------- 3. Products
*Confidential Treatment Requested 22 EUROLAB APPENDIX 4 4. Quality Assurance
*Confidential Treatment Requested 23
*Confidential Treatment Requested 24 EUROLAB APPENDIX 4
*Confidential Treatment Requested 25 EUROLAB APPENDIX 4
*Confidential Treatment Requested 26 EUROLAB APPENDIX 4 3. MEL STANDARD DATA STRUCTURE FOR MATERIAL MASTER - -------------------------------------------------------------------------------- The Merck Eurolab (MEL) Standard Data Structure has been worked out to support the introduction/update of supplier/producer product/article data into the ERP systems of our companies, especially for bulk-loading procedures. Most of our companies use SAP Suppliers/producers will be requested to generate ASCII-files according to this structure. Suppliers/producers will have to be advised as follows: 1. The ASCII-file should contain one string of data for each item no. 2. The first character of each string has to be the first character/number of the suppliers/producers article number. The producer prefix will be automatically added during the upload procedure into our ERP systems. 3. All character/text fields and number field where no information will be available must be left blank (e.g. no filling up with "0"). 4. Supplier/producer have to comply exactly with the designated field lengths. Subsequently each string has to have a length of 1.082 characters. 5. Each string end should be detected by an "CRLF". 6. Prices and purchasing conditions should be stated in EURO currency. 7. Local currencies can be provided as a separate file containing only the item no. and the prices. Please find in Appendix the complete file with example and explanations. 27 EUROLAB APPENDIX 4 4. EUROPEAN BUSINESS DEAL - SUMMARY OF AGREEMENT - -------------------------------------------------------------------------------- SUPPLIER NAME: Refer details in section 1 CONTRACT CONDITIONS Products: See attached product list, appendix 1 in agreement Territories/Geographical Area: See attached appendix 2 in agreement Prices - see appendix 2 in agreement - european price list? No - currency of payment U.S.$ - price basis (EXW FOB etc FOB, San Diego - tender or special prices on request ? To be discussed upon request Bonuses / annual rebates: See section 3 of Agreement; to begin in year 2 Obsolescence policy: See Section 6 of Agreement; return of up to [...***...] of certain products per year Payment terms:Net [...***...] Period of agreement: 3 YEARS BEGINNING FEB 15, 2000 Implementation (for new deal)All to start February 15, 2000 - start dates by country Special provisions of the agreement - Exclusive agreement in Sweden, Denmark, & Norway and a non-exclusive agreement in remaining territory. - Exclusions: None *Confidential Treatment Requested 28 EUROLAB APPENDIX 4 LOGISTICS & PACKAGING
29 EUROLAB APPENDIX 4 PAYMENT/BANKING DETAILS
SERVICING / WARRANTY Spare parts price list: See attachment 1 to Launch Package Recommended spare parts: See attachment 1 to Launch Package Maintenance training: YES, TO QUALIFIED TECH Warranty period: [...***...] Warranty extension: NOT VALID Payment of the warranty costs by the supplier:All costs exclusive of shipment to service center. Lead times for repairs: 6-8 Weeks Instruction manuals available on website: CD rom xx paper (to be joined with the launch package): % of breakdown during the warranty period: Data not tracked Are you able to provide "consignment "stock: NO RELIABLE DATES OF DELIVERY - What is your policy to guarantee reliable dates of delivery to MEL None - what is your performance against the lead times listed Not tracked. *Confidential Treatment Requested 30 Appendix 5 Product Policy and Warranty 1) INTENDED USE OF THE BTX PRODUCT LINE The BTX Product Line has been specifically designed for electroporation (the application of high voltage electric fields pulses of short duration in order to create temporary pores or holes in the membrane of cells) and electro cell fusion (fusing cells to form hybrids by using electricity). This is the sole intended use of the product. These products are intended for research use only. These products are not intended for human clinical applications. 2) SAFETY PRECAUTIONS When operating any of the BTX Generators extreme caution must be exercised. All the Generators have the capability of releasing very high voltage. The Generators should not be operated without a full review and understanding of the operating manual. EXTREME CARE NEEDS TO BE TAKEN TO ENSURE SAFE OPERATION. 3) ACCESSORIES Products not manufactured by BTX may not be sold, promoted and/or used as a part of a BTX System without prior written corporate approval from Genetronics, Inc. 4) WARRANTY The BTX Products are guaranteed to be free of defects for a period of [...***...] from the time of delivery. Chambers and accessories are warranted for a period of [...***...]. If any defects covered by this warranty appear within the above period, Genetronics shall have the option of repairing or replacing the equipment at its expense. Such repair or replacement shall be the customer's exclusive remedy for breach of warranty or for negligence. This warranty does not extend to any instrumentation which has been (a) subjected to misuse, neglect, accident or abuse, (b) repaired or altered by anyone other than Genetronics without Genetronics' express and prior approval, (c) used in violation of instructions furnished by the BTX division of Genetronics. Genetronics shall not be liable for any special or consequential damages or for loss, damage or expense (whether or not caused by or resulting from Genetronics' negligence) directly or indirectly arising from use of the instrumentation sold hereunder either separately or in combination with any other equipment or from any other cause. The above warranty shall be in lieu of and excludes all other expressed or implied warranties or merchantability, fitness, or otherwise. Without limiting the generality of the foregoing, Genetronics shall not be liable for any claims of any kind whatsoever, as to the equipment delivered or for non-delivery of equipment, and whether or not based on negligence. Any malfunction not caused by operator abuse will be corrected at no charge for parts and labor by Genetronics. All service under the warranty will be made at the Genetronics San Diego, CA facilities. Owner will ship instrument prepaid to San Diego, CA. Genetronics will return the instrument after servicing, freight prepaid to owner's address. Warranty is void if the instrument is changed in any way from its original factory design or if repairs are attempted without written authorization by Genetronics. *Confidential Treatment Requested 31 Warranty is void if parts, connections or electroporation chambers not manufactured by Genetronics are used with a Genetronics instrument. NOTE: UNDER NO CONDITIONS SHOULD THE INSTRUMENT OR ACCESSORIES BE RETURNED WITHOUT PRIOR APPROVAL AND A RETURN GOODS AUTHORIZATION (RGA) NUMBER FROM GENETRONICS
