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EXHIBIT 10.9
SUPPLY AGREEMENT
ENTERED INTO AND SIGNED ON THIS 25 DAY OF MARCH, 2004
BY AND BETWEEN: OMRIX
BIOPHARMACEUTICALS LTD,
whose address for the purposes hereof is:
MDA Blood center
Tel Hashomer Hospital
Kiryat Ono, Israel
(Hereinafter referred to as: "OMRIX")
OF THE FIRST PART;
AND
PLASTMED LTD.
a company registered in the______________________________,
whose address for the purposes hereof is
at____________________________________________________
(Hereinafter referred to as: "PLASTMED")
OF THE SECOND PART;
WHEREAS:
Omrix wishes to contract PlastMed for the manufacture and
supply
exclusively for and to Omrix of Quixil applicator devices, as
denned
and described in ANNEX A' to this Agreement (hereinafter: "THE
DEVICES"); and
WHEREAS:
PlastMed has agreed to exclusively manufacture by
sub-contracting
the Devices for Omrix and supply the Devices exclusively to
Omrix,
according to the quantities, the timetables and the quality
indicated in this Agreement: and
WHEREAS:
The parties wish to set in writing their mutual rights and
obligations and all according to this Agreement;
NOW THEREFORE IT IS AGREED DECLARED AND STIPULATED BETWEEN THE
PARTIES AS
FOLLOWS:
PORTIONS
OF THIS EXHIBIT MARKED BY AN *** HAVE BEEN OMITTED PURSUANT
TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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2
1.
PREAMBLE AND APPENDICES:
The Preamble to this Agreement and its appendices constitute an
integral part hereof and shall be read jointly herewith.
2.
INTERPRETATION:
2.1
This Agreement
shall be governed by the law of Israel and it's
sections shall be interpreted by it.
2.2
The headings of
the sections of this Agreement are intended for
convenience only and shall not be used to interpret the sections
of
the Agreement and/or shall not affect the content thereof.
2.3
In this
Agreement the terms set forth below will have the meanings
set out beside them unless the context shall require otherwise:
"THE AGREEMENT"
This Contract;
"THE PARTIES" "A PARTY"
Omrix and/or PlastMed.
"THE DEVICE"
Quixil applicator
device, as defined in
Annex A attached herewith
to this Agreement.
3
PERIOD OF THE AGREEMENT:
3.1
This Agreement
is entered into for a period of Five (5) years,
commencing on the date of signing of the Agreement
(hereinafter:
"THE TERM").
3.2
It is agreed
that the Term is determined in view of the Parties
commitments and in light of their mutual representations
herein.
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3
3.3
At the end of
the Term, should Omrix desire to order the manufacture
and supply from another supplier(s), it shall first offer
PlastMed
to supply the new order(s) for the Device, at such price and
under
such timetable, terms of payment and other terms as offered to
Omrix
by such other supplier in good faith, provided however that
PlastMed
has fulfilled all of its obligations herein, including without
limitations, manufacture of the Devices in accordance with the
specifications and quality requirements setforth herein. In the
event PlastMed shall exercise the above right of first refusal,
the
applicable terms of this Agreement shall apply to the
manufacture
and supply of the new order by PlastMed Mutatis Mutandis.
3.4
The parties
hereby agree and undertake that in this case, if
PlastMed shall accept this offer to continue and supply the
Devices,
then the Terms of this Agreement shall be renewed automatically
for
an additional period of 1 year.
4.
PLASTMED'S OBLIGATIONS:
PlastMed hereby undertakes to:
4.1
Manufacture the
Devices, control the quality thereof and supply the
Devices to Omrix in strict compliance with the requirements of
the
US FDA and the European Community Authorities and in accordance
with
the instructions of Omrix, the technical specifications and
quality
standards detailed in ANNEX A' attached hereto (collectively
the
"TECHNICAL SPECIFICATIONS").
4.2
The Devices
shall be manufactured by PlastMed or by reliable sub
contractor(s) of PlastMed. For avoidance of doubt. PlastMed shall
be
solely and fully responsible for the quality of the Devices and
for
their timely delivery to Omrix.
4.3
It is agreed
that the prices stated in Section 5.5 to this
Agreement, include all works involved and/or related to the
manufacture and supply of the Devices, including without
limitation,
planning, production, supervision, assembly of the Devices'
various
components, and delivery to Omrix of the Devices, as agreed
herein.
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4
4.4
It is stipulated
that the prices for the device as set in this
Agreement includes PlastMed's expenses due to stock management,
warehouse services and printing/labeling (including without
limitation, the box and 3 sizes of tray lids but exclude
sterilization and additional requirements or development of
similar
products such as long catheter or any other additions to the
Devices
as detailed in ANNEX
A'. At the request(s) of Omrix, PiastMed shall
change the printing on the Device/s boxes and/or on the tray
lids.
PiastMed shall bear the costs of the first two changes. Any
additional printing changes shall be charged as shall be agreed
between the parties in advance.
4.5
Without
prejudice to anything herein and in addition thereto,
PiastMed shall provide the services listed in ANNEX A.
4.6
During the Term
and for a period of 36 months thereafter, PiastMed
shall not manufacture devices similar to the Devices for
anybody
other than Omrix.
5. OMRIX'S
OBLIGATIONS:
5.1
Subject to the
performance by PlastMed of all its obligations, Omrix
will order from PiastMed, after a running period, which will end
on
December 31st, 2004, at least 80% of all of its requirements for
the
Devices during the Term. Omrix shall be entitled to order no
more
than 20% of all of its requirements for the Devices during the
Term
from their current supplier or from any other manufacturer.
Subject
to such limit of 20% PlastMed shall be the exclusive supplier
to
Omrix with regard to the Device.
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5
5.2
Omrix will
finance the cost of the molds required for the
manufacture of the Devices. The molds shall be designed and
planed
by PlastMed and ordered by PlastMed, from a reliable mold
maker.
PlastMed shall be solely and fully responsible for the quality
of
the molds and their suitability for their purpose.
The molds will be ready no later than 7 months as of the signing
date
of this Agreement. The molds will be held by PlastMed or its
subcontractors, as the case may be, in trust and on behalf of
Omrix,
provided however, that Omrix shall not be entitled to take
physical
possession of the molds until the payment by Omrix in full of
the
amount of *** EURO which shall be paid in the following manner:
***
Euro in advance at the date of signing this Agreement. *** Euro
shall
be paid within 12 months thereafter, the remaining *** Euro shall
be
paid in 4 equal installments during the second year of this
Agreement
i.e. at: February 1st, at May 1st, at August 1st and at November
1st.
The molds shall be deigned and planed for 1.000.000 guaranteed
shots,
all maintenance and repair costs after 1.000.000 shots shall be
paid
by Omrix up to *** from the original cost of the molds. PlastMed
will
be responsible to store, keep and maintain the molds up to 1 M
shots.
PlastMed will be responsible for storing and keeping the molds
under
good conditions and will assure that no damage theft etc will
happened
to the molds.
5.3
Prices per one
Device packed in printed box are DDP (Delivered all
Duties Paid with the exception of VAT) Cure Medical Warehouse
at
Emek Hefer Industrial Area, Israel (INCOTERMS 2000), according
to
the quantities ordered and are as stated in the following
chart.
Quantity ordered: Price per Device in USD:
Up to 60,000 ***
Devices
60,001-120,000 ***
120,001-200,000
***
200,001 and more
***
5.4
Omrix shall pay
during each calendar year an amount corresponding
with the above chart, in accordance with the quantities
forecasted.
At the end of the year the parties will carry an adjustment in
accordance with the actual quantities ordered, and an
appropriate
credit
note or debit note shall be issued by PlastMed to Omrix. In
the event that a debit note was issued, Omrix shall pay the
amount
specified therein within 21 working days of the receipt of such
debit note.
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6
5.5
It
is agreed that in addition to every payment aforementioned
(which incorporates all duties that are the responsibility of
PlastMed as per delivery terms DDP at Cure Medical's warehouse
at Emek Hefer Industrial area. Israel INCOTERMS 2000). Omrix
shall bear any additional tax, including but notwithstanding
V.A.T., or any other tax the Israeli law shall require from
Omrix.
Such taxes shall be
added to any sum aforementioned, at the date
of payment.
5.6
In
the event that PlastMed will fail to deliver the first order
within 8.5 months from the date of signing this agreement (the
"FIRST SUPPLY DATE"), Omrix shall be entitled to receive to
it's
possession, free of any liens, encumbrances and/or charges the
mold/s that have been manufactures by sub-contractors for
PlastMed, for the purpose of manufacturing the Device, provided
that Omrix paid PlastMed the entire cost of the molds as
detailed in Section 5.2., Such 8.5 month period shall be
extended by Omrix, if it shall be apparent that the extension
is
not required due to PlastMed's gross negligence or malice.
5.7
Omrix shall transfer the agreed upon payments by a Bank
Transfer
directly to PlastMed's Bank Account or to any other bank
account
as instructed in writing by PlastMed.
5.8
In
case PlastMed shall instruct Omrix to transfer any of the
aforementioned payments to an Israeli bank account then any
such
transfer shall be made according to the exchange rate at the
date of payment.
5.9
Money transfer shall not be deemed accepted until such time as
Omrix shall provide PlastMed with a suitable endorsement
confirming the transfer.
6. ORDERS
AND DELIVERY:
6.1
ANNUAL
FORECAST
6.1.1
Omrix shall deliver to PlastMed an annual purchasing forecast
for each calendar year (hereinafter: "THE ANNUAL FORECAST").
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6.1.2 The
Annual Forecast for each year shall be delivered in
writing, no later than October 1st of the preceding calendar
year, and shall be updated as of April 1st of such calendar
year, as long as the Annual Forecast remains in the limits of
the Annual Commitment as defined in 6.1.3.
6.1.3
Omrix shall be obliged to purchase in each and every
calendar
year a quantity, which is not less than 75% and
not more than 125% of the Annual Forecast for such
calendar year (hereinafter: "THE ANNUAL COMMITMENT"). Any
difference between the amount actually purchased during a
calendar year and the Annual Forecast shall be purchased
during the following calendar year.
6.1.4
PlastMed shall be prepared to supply Omrix all the quantity of
Devices detailed in the Annual Forecast, according to the
dates of delivery therein. Without prejudice to the above, in
the event Omrix shall order quantities of the Devices
exceeding 125% of the Annual Forecast, PlastMed will use its
best endeavors in order to supply the entire quantity ordered.
6.2
6.2.1 To
the extent possible in view of existing orders placed with
Omrix and subject to section 6.2.2, Omrix shall place with
PlastMed quarterly orders not later then December 1st for the
quarter beginning January 1st of the next year), March 1st
(for the quarter beginning on April 1st.), June 1st (for the
quarter beginning on July 1st.) and September 1st (for the
quarter beginning on October 1st) of each calendar year
(hereinafter: an "Quarterly Order").
6.2.2 Each
Quarterly Order shall include purchase of not less than
25% of the Annual Commitment for Devices.
6.2.3 Each
Order shall include the required quantity of Devices, and
the exact intended date of delivery, which shall be at least
60 (sixty) working days following the date of the Order
(hereinafter: the "DELIVERY DATE").
6.2.4
PlastMed shall confirm its acceptance of the Order in writing,
no later than 7 (seven) days of receipt of the Order."
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6.2.5
Payment terms shall be net + 30 days of the delivery date of
each consignment.
6.4
DELIVERY:
6.4.1
PlastMed will supply the Devices to Omrix DDP (Delivered all
Duties Paid with the exception of VAT) Cure Medical Warehouse
at Cure Medical's warehouse, Israel (INCOTERMS 2000), at the
prices indicated in section 5.5 above. PlastMed warrants that
the Devices, which shall be purchased by Omrix from PlastMed,
shall be manufactured in accordance with the terms of this
Agreement and shall be free from any defects.
6.4.2
After Omrix or it's representative collects the Devices in
accordance with the terms of section 6.4.1 above, the
responsibility, for the Devices shall fully transfer and lie
with Omrix.
6.4.3
Following collection of the goods by Omrix, Omrix shall have a
twenty one working days period to file any claim with PlastMed
for any defective Device, unless Omrix will notify PlastMed
that the Devices are being held in inventory, in which case
the twenty one days shall only commence on the date when the
Devices would be delivered to Omrix's customer(s), but in any
event no later then 4 months from the date when the Devices
were delivered by PlastMed (hereinafter the "DEFECTIVE CLAIM
PERIOD").
After the expiry of said Defective Claim Period, Omrix shall
be deemed to have received the Devices at its full
satisfaction. Notwithstanding the above, PlastMed shall be
responsible for any defective Device(s), including if the
defect and/or incompatibility with the Technical
Specifications has been discovered after the Defective Claim
Period, provided that a reasonable check of the Device(s) by
Omrix during the Defective Claim Period did not reveal any
defect and/or incompatibility of the Device(s) and further
provided that Omrix informed PlastMed of the defective
Device(s) within 21 twenty one working days period of the
defect and/or incompatibility.
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6.4.4
PlastMed shall replace, at its sole cost and expense, any and
all defective Device(s) (provided such defect occurred prior
to delivery to Omrix) and/or Device(s) not complying with the
Technical Specification, provided that Omrix has notified
PlastMed thereof within the time limit set in section 6.4.3
above.
6.4.5 If
Omrix, for any reason, is unable to accept the Device(s)
at the time it is due and ready for delivery, PlastMed shall
store the Device(s) free of charge for an additional period of
six months, safeguard it and take all reasonable steps to
prevent its deterioration during this period.
6.4.6
PlastMed acknowledges that it is aware of the fact that supply
of the Devices to Omrix in complete comp
