<PAGE>
EXHIBIT 10.17
SALES AGENCY AGREEMENT
BETWEEN
BIOPURE CORPORATION
"BIOPURE"
AND
(ABAZALI BIO VENTURES (PTY) LTD)
"ABAZALI"
[**] = Portions of this exhibit have been omitted pursuant to a
confidential
treatment request. An unredacted version of this exhibit has been
filed
separately with the commission.
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2
TABLE OF CONTENTS
<TABLE>
<S> <C>
<C>
1
Definitions
2
Appointment
2.1
Appointment
3
Abazali's Duties
3.1
Sales Promotion
3.2
Sales Outside Territory
3.3
Product Registration
3.4
Product Complaints and Product Inquiries
3.5
Safety Surveillance and Adverse Events
3.6
Abazali's Indemnity
3.7
Trademarks and Trade Names
3.8
Promotional Material
3.9
Marketing Plan
4
Biopure's Duties
4.1
Remuneration of Abazali
4.2
Catalogues and Information
4.3
Biopure's Indemnity
5 Term of
Agreement
5.1
Term of Agreement
5.2
Breach of Agreement
5.3
Insolvency of a Party
5.4
Change in Abazali's Ownership
6
Miscellaneous
6.1
Force Majeure
6.2
Trade Secrets and Confidential Information
6.3
Relationship Between Parties
6.4
Non-Disclosure of Agreement
6.5
Legal
Compliance
6.6
Anti-Bribery Laws
6.7
Books and Records
6.8
English Language Controls
6.9
Assignment
6.10
Waiver
6.11
Severability
6.12
Entire Agreement
6.13
Choice of Law and Jurisdiction
</TABLE>
[**] = Portions of this exhibit have been omitted pursuant to a
confidential
treatment request. An unredacted version of this exhibit has been
filed
separately with the commission.
<PAGE>
3
SALES AGENCY AGREEMENT
AGREEMENT made between Biopure Corporation, 11 Hurley Street,
Cambridge, MA
02141 USA, a US corporation, whose principal place of business is
11 Hurley
Street, Cambridge, MA 02141 USA ("Biopure"), and Abazali Bio
Ventures, a South
African company, whose principal place of business is Building E,
La Rocca, 321
Main Road, Bryanston 2010, SA ("Abazali").
WITNESSETH
WHEREAS, the Biopure Corporation, is a developer and manufacturer
of oxygen
therapeutics; and
WHEREAS, Biopure wishes to sell in the territory hereinafter
defined certain
products and Abazali wishes to market and promote the sale of said
products;
NOW, THEREFORE, Biopure and Abazali agree as follows:
1
DEFINITIONS
As used in this Agreement, the following initially capitalized
terms, whether
used in the singular or plural, shall have the respective meanings
set forth
below.
<TABLE>
<CAPTION>
TERM
DEFINITION
<S>
<C>
Confidential Information the confidential information
set forth in Section 6.2
Products
the product(s) set forth in Appendix A
Territory
the country/countries set forth in Appendix B
</TABLE>
2
APPOINTMENT
2.1
APPOINTMENT. Biopure hereby appoints Abazali as its exclusive
Agent to promote and market the Products in the Territory.
Abazali
shall not use a third party to perform its activities pursuant
to
this Agreement without Biopure's written consent.
3 ABAZALI'S
DUTIES
3.1
SALES
PROMOTION. Abazali shall at all times use its best efforts
to promote, develop, and increase the sales of the Products
throughout the Territory. For such purposes, Abazali shall:
3.1.1 At its sole
expenses, maintain a sales organization and
generally do all such things as may be necessary or useful
for the performance of its duties and obligations
hereunder, including but not limited to hiring
appropriately qualified and trained personnel, traveling,
personal representation etc.
[**] = Portions of this exhibit have been omitted pursuant to a
confidential
treatment request. An unredacted version of this exhibit has been
filed
separately with the commission.
<PAGE>
4
Abazali shall maintain at all times a minimum of two
qualified and trained sales agents solely
representing the Product and, in addition, necessary
or appropriate operational support.
3.1.2 Survey the
market in the Territory and inform Biopure of
all opportunities of selling the Product and more generally
to report on the
needs of the local customers, prevailing
prices, products distributed by competitors and on whatever
may be relevant to the development of Biopure's sales
within the Territory.
3.1.3 Create and
maintain the best possible relations with the
local customers, participate in negotiations and do its
best to ensure the successful conclusion of each
transaction.
3.1.4 Provide
Biopure's staff visiting the Territory with the
necessary assistance in establishing contacts with the
appropriate organizations and customers in the Territory.
3.1.5 Disseminate
information provided by Biopure regarding the
Product among the appropriate customers, registration
institutes and governmental agencies in keeping with
national laws and regulations of the Territory.
3.1.6 Give written
notice to Biopure of all acts of unfair
competition or counterfeiting and imitations of Biopure's
trade-marks of Products and give reasonable assistance to
Biopure in taking action against imitations, counterfeiting
and unfair competition by others.
3.1.7 Market and sell
the product under Biopure's trademarks and
trade names.
3.2
SALES
OUTSIDE TERRITORY. Abazali shall not solicit orders for the
Products from any purchaser with a view to their sale outside
of
the Territory or within the Territory with a view to their
exportation.
3.3
PRODUCT
REGISTRATION. Product shall be registered in the name of
Biopure or its nominee. Abazali understands and agrees as
follows:
The Product is registered in South Africa only. No sales shall
be
made in any other part
of the Territory unless or until the
Product is registered or otherwise may be sold in accordance
with
the law of the applicable jurisdiction. Nothing in this
Agreement
shall be deemed to require Biopure to obtain marketing approval
in
any country in the Territory.
3.4
PRODUCT
COMPLAINTS AND PRODUCT INQUIRIES. Abazali shall report in
writing to Biopure or its designee in accordance with the
procedure outlined
from time to time by Biopure or its designee in
writing (i) all complaints including product quality complaints
and medical complaints related to the Products; and (ii) all
inquires about the Products, including but not limited to,
relating to the medical description of the Product, medical
claims
for the Product, contra-indications of the Product.
[**] = Portions of this exhibit have been omitted pursuant to a
confidential
treatment request. An unredacted version of this exhibit has been
filed
separately with the commission.
<PAGE>
5
3.5
SAFETY
SURVEILLANCE AND ADVERSE EVENTS. The parties agree to use
their best reasonable efforts to establish a process document
regarding compliance with all regulations and obligations
related
to safety surveillance and adverse event reporting
responsibilities for the Products promptly upon signing of this
Agreement.
3.6
ABAZALI'S
INDEMNITY. Abazali shall hold Biopure harmless with
respect to any claims by other persons who allege injury or
loss
as a result of Abazali's activities in violation of its
covenants
under this Agreement. Notwithstanding anything to the contrary
in
this Agreement, in no event shall Abazali be liable to Biopure
for
any incidental, indirect, exemplary, special or consequential
damages whatsoever (including, but not limited to, lost
profits,
loss of goodwill, or interruption of business) that may be
suffered or incurred by Biopure as a results of Abazali's
violation of its covenants under this Agreement.
3.7
TRADEMARKS
AND TRADE NAMES.
3.7.1 Abazali shall
use Biopure's trademarks or trade names only
to identify and advertise the Products and shall not use
said trademarks or trade names as part of Abazali's own
name or trademarks or in any other manner.
3.7.2 It is understood
and agreed that this right to use
Biopure's trademarks and trade names is revocable at will
by Biopure and does not constitute, in any manner, a direct
or implied license or assignment of such trademarks or
trade names.
3.7.3 Upon the
expiration or termination of the Agreement for any
reason whatsoever, Abazali shall immediately cease using
Biopure's trademarks and trade name and shall return to
Biopure all promotional and advertising material carrying
Biopure's name or trademarks.
3.8
PROMOTIONAL MATERIAL. Abazali shall use solely advertising and
promotional material approved by Biopure. Abazali undertakes
that
it will submit to Biopure or its designee for prior written
approval all written materials which Abazali proposes to use
for
the purpose of marketing, selling, distributing or advertising
the
Products.
3.9
Marketing
Plan. The parties shall agree annually upon a marketing
plan for sales of the Product. The marketing plan will take
into
account needs in the Territory, past experience, Biopure's
manufacturing capacity and other information deemed relevant.
The
first marketing plan shall be for the 6-month period beginning
six
months from the effective date of this Agreement. In preparing
the
first marketing plan the parties will review the first six
months
of experience under this Agreement. At the same time the
parties
will prepare a marketing plan for the subsequent six months,
i.e.,
the six months beginning on the first anniversary of this
Agreement. (It is understood that all dates may be adjusted for
convenience to begin on the first day of a month.) Thereafter,
prior to the end of the second six-months marketing plan and
prior
to the end of each year of this Agreement, the parties will
agree
upon a business plan for the 12 months beginning on the day
after
the last day of the previous marketing plan. Marketing plans
will
be detailed by month.
[**] = Portions of this exhibit have been omitted pursuant to a
confidential
treatment request. An unredacted version of this exhibit has been
filed
separately with the commission.
<PAGE>
6
4 BIOPURE'S
DUTIES.
4.1
REMUNERATION OF ABAZALI.
4.1.1 In respect of
all orders from customers within the
Territory accepted by Biopure during the term of this
Agreement, Abazali shall receive a payment of:
[**] per unit for the first 500 units sold;
[**] per unit above 500 units sold and up to 1000 units
sold;
[**] per unit above 1000 units sold.
The foregoing amounts will be subject to adjustment in the
event of a change in the "Single Exit Price" for the
Product. No amounts shall be owing in respect of orders
placed prior to the start of sales activities by the two
individuals hired and trained pursuant to Section 3.1.1.
4.1.2 A fixed amount
of [**] (excluding VAT) per month for the
maintenance of a sales organization as per 3.1.1. above.
4.1.3 Biopure will be
responsible for all agreed upon costs for
all activities set forth in Appendix C.
4.1.4 All amounts
owing to Abazali shall be invoiced on a monthly
basis. Notwithstanding the above, it is specified that the
amounts shall only be considered to be earned by Abazali
when full and unconditional payment has reached Biopure.
4.1.5 Upon expiry or
termination of this Agreement, Biopure shall
be obligated to pay amounts to Abazali in respect of
amounts accepted by Biopure prior to the effective date of
termination.
4.2
CATALOGUES
AND INFORMATION. Biopure will provide Abazali with such
information, catalogues, promotional material and
documentation,
as Biopure shall from time to time consider necessary. The
aforesaid material shall be used solely for the purpose of
soliciting sales of the
