EXHIBIT 10
SUPPLY AGREEMENT
----------------
Clotalyst Thrombin Product
THIS
AGREEMENT,
made and entered into this 29th day of March 2005
("Effective Date"), by and between Cell
Factors Technologies,
Inc. ("CFT"), an
Indiana corporation, and affiliate of
Biomet, Inc., having its principal offices
at 56 East Bell Drive, Warsaw, Indiana 46582, and ThermoGenesis
Corp., ("TGC"),
a Delaware corporation having its principal
offices at 2711 Citrus Road, Rancho
Cordova, California 95742.
WITNESSETH:
WHEREAS,
TGC sells thrombin processing disposables and reagent, has
expertise and intellectual property relating to autologous
thrombin
production
devices, and has the capability to
manufacture certain OEM products;
WHEREAS,
CFT develops,
manufactures and
distributes products that process
autologous human cells, such as contained in blood, to produce therapeutic
products;
WHEREAS, CFT
desires to have TGC manufacture an autologous thrombin device,
incorporating TGC's Thrombin technology (as
defined below) for sale by CFT under
the trademark Clotalyst(TM) device (as
defined below);
NOW, THEREFORE,
in consideration of the above recitals and in consideration
of the mutual agreements and undertakings set forth below, and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as
follows:
ARTICLE I
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Definitions
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1.1 "Clotalyst" means CFT's autologous clotting factor device and
blood
processing disposables.
1.2
"Confidential Information" means all non-public information,
whether in
written, oral or any other form, including, without limitation, data,
documentation, specifications, know-how, technical information, designs,
drawings, plans, blueprints, business plans, customer lists, pricing
information, forecasts, projections, analyses,
and manufacturing processes that
the disclosing party (the "Disclosing
Party") disclosed to
the other party (the
"Receiving Party") or allowed the Receiving
Party to observe, in
the course of
the activity under this Agreement, which
information is indicated at the time of
disclosure or observation as being
confidential
or proprietary in some
manner;
provided, however, that if such information
is not or cannot be so marked at the
time of disclosure or observation, the information shall still qualify as
Confidential Information if the Disclosing
Party designates such information as
confidential to the Receiving Party in writing within thirty (30) days of
disclosure or observation. Notwithstanding the foregoing, Confidential
Information shall not include information that the Receiving Party can
demonstrate (a) was known to the Receiving
Party on a
non-confidential
basis
prior to the disclosure by the Disclosing Party, (b) has become publicly
available without fault of the Receiving Party, or (c) was independently
developed without the use of Confidential
Information by
representatives of the
<PAGE>
Receiving Party who did not have
access to the Confidential Information as
established by contemporaneous written
records.
1.3 "FDA" means
the U.S. Food and Drug
Administration,
or any successor
agency thereto.
1.4
"Intellectual
Property" means
collectively, Patents,
Trade Secrets,
Copyrights, Trademarks, moral rights, trade
names, rights in trade dress and all
other intellectual property rights and
proprietary rights, whether arising under
the laws of the United States or any other
state, country or jurisdiction in the
world, including all rights or causes of action for infringement or
misappropriation of any of the foregoing.
For purposes of this
Agreement: (a)
"Patents" shall mean all patent rights and
all right, title and
interest in all
letters patent or equivalent rights and applications, including provisional
applications, for letters patent or rights, industrial and utility models,
industrial designs, petty patents, patents
of importation,
patents of addition,
certificates of invention and other government issued or granted indicia of
invention ownership, including any reissue,
extension, division, continuation or
continuation-in-part applications throughout the world; (b) "Trade Secrets"
shall mean all right, title and interest in all trade
secrets and trade
secret
rights arising under common law, state law, federal law or laws of foreign
countries; (c) "Copyrights" shall mean all copyrights,
and all other
literary
property and authorship rights, and all right, title, and interest in all
copyrights, copyright registrations,
certificates of
copyright and copyrighted
interests throughout the world; and (d)
"Trademarks" shall mean all right, title
and interest in all trademark, service mark, trade name and trade dress
rights
arising under the common law, state law, federal laws and laws of foreign
countries, and all right, title, and interest in all
trademark, service
mark,
trade name and trade dress applications and
registrations
interests
throughout
the world.
1.5 "Product(s)"
means TGC's Thrombin disposable and Reagent that meets the
performance specification in Appendix A and will be sold under the CFT
trademark, Clotalyst
1.6 "Territory"
means all countries of the world.
1.7 "TGC Point of
Shipment" means as TGC's manufacturing facilities as
defined in the Uniform Commercial Code.
1.8 "Thrombin
Technology" means
TGC's thrombin
disposables and reagent as
specified in U.S. Patent No. 6,472,162:
6,274,090 and other patents pending.
ARTICLE II
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Terms and Conditions of Sale
----------------------------
2.1 Purchase.
TGC shall supply
Product and CFT shall
purchase Product
at
the transfer price according to the terms
and condition of sale set forth below.
2.2 Development
Fee. As an advance
payment for engineering and development
of the Product, CFT shall pay TGC a one-time
payment in the sum of ^Removed
pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934^ within 30 days
after Agreement execution.
<PAGE>
EXHIBIT 10
2.3 Forecast.
Within thirty (30)
days after the Agreement is executed, CFT
shall provide TGC with a rolling 12
month estimated
forecast with a purchase
order for two-quarter (six-month) delivery forecast. The
delivery forecast will
be updated each calendar quarter, and provided to TGC within thirty
days after
the end of each calendar quarter. Both quarters of each six (6)
month delivery
forecast shall be binding, and the second six (6) months of
the rolling annual
forecast shall be non-binding.
2.4 Transfer Price. All prices for Products
purchased by CFT
hereunder
shall be F.O.B., TGC Point of Shipment. The transfer price for the Products
manufactured by TGC shall be the sum of
^Removed pursuant to Rule 24b-2 under
the Securities Exchange Act of 1934^.
2.5 Minimum
Purchases.
CFT shall purchase
from TGC the following
minimum
volumes of Products based on years after
the Agreement Effective Date:
Minimum Purchases
Year
Without FDA Clearance
------------------------------- -------------------------------
1
2,500
2
5,000
3
10,000
4
15,000
5
20,000
Upon FDA
clearance,
the minimum volume of
Product will increase to 20,000
Products for each full year, beginning on
the date of FDA clearance, through the
term of the Agreement. If CFT does not purchase the
applicable minimum
volumes
of Products, TGC shall invoice and CFT shall pay the applicable penalty of
^Removed pursuant to Rule 24b-2 under the
Securities Exchange
Act of 1934^ for
each Product that was not purchased from
the applicable minimum
volume, i.e.,
(Product minimum volume - Products
purchased) x ^Removed
pursuant to Rule 24b-2
under the Securities Exchange Act of
1934^.
2.6 Samples.
In order to assist CFT
with the introduction
of the Products
into the market, TGC agrees to provide CFT with a
reasonable number of
Product
sample units, labeled as such, at a cost of ^Removed pursuant to Rule 24b-2
under the Securities Exchange Act of 1934^
of the applicable transfer price.
2.7 Purchase
Order. All orders for the Products
shall reflect delivery
forecast amounts and be by means of a written
purchase order which shall be
submitted to TGC at TGC's address for
notice purposes set
forth in Article 8.1,
and shall request a delivery date. Orders may be placed by facsimile
transmission or, upon the parties' agreement, on TGC's website or by e-mail;
provided, however, that a confirming
purchase order is received by TGC ten (10)
business days after such order.
It is understood that
CFT and TGC may use their
standard purchase order and sales agreement
forms during the performance of this
Agreement. Any purchase order, sales
agreement or other form used by CFT or TGC
shall be for convenience only and any terms or provisions contained therein
which are in addition to or inconsistent
with those contained
herein shall have
and be of no force and effect; provided, however, that the terms on such
documents shall be effective to the extent
they set forth quantities, scheduled
delivery dates and, as applicable, mode of
shipment.
<PAGE>
2.8 Acceptance
and Rejection of
Purchase Order.
All CFT purchase
orders
conforming with Article 2.6 above that are
not rejected within thirty (30) days
after the purchase order is submitted shall
be accepted by TGC. TGC shall notify
CFT in writing of any rejected order within thirty (30) days
after the purchase
order is submitted. TGC shall have no liability to CFT
with respect to purchase
orders that are rejected.
2.9 Invoicing; Payment. TGC shall submit an invoice to CFT with each
shipment of the Products ordered by CFT. Each invoice shall be due and
payable
in full within sixty (60) days from the
date of such invoice, and any delinquent
account shall bear interest at the greater
of one and one half percent (1 1/2%)
per month or the maximum legal rate. All
invoices shall be sent to CFT's address
for notice purposes set forth in Article 8.1, without regard to the actual
shipping address for the Products. Each
such invoice shall state CFT's aggregate
and unit purchase price for Products in the
relevant shipment, plus any freight,
taxes or other costs incident to the
purchase or shipment
initially paid by TGC
and to be borne by CFT hereunder.
CFT shall make all
payments to TGC under this
Agreement in United States dollars in immediately available funds to a bank
account designated by TGC in such invoice,
or otherwise
designated by TGC
in
writing. CFT shall not take any credits or
offsets against amounts billed to CFT
by TGC without TGC's prior written
consent.
2.10 Shipping;
Risk of Loss.
(a) All Products
delivered by TGC pursuant to this Agreement shall be
suitably
packed for the designated carrier in TGC's standard shipping
cartons,
marked for
shipment to such location or locations as CFT may
designate,
and delivered to CFT or its carrier, F.O.B., TGC Point of
Shipment.
Risk of loss for the
Products shall pass to CFT upon delivery to
the carrier at
the F.O.B., TGC Point of Shipment.
(b) TGC shall ship all
Products in
accordance
with CFT's
delivery
instructions
specified in CFT's purchase orders; provided, however, that if
CFT does not
provide delivery
instructions with
respect to the carrier to
be used, TGC may use its customary carrier. CFT shall also bear all
applicable taxes
and duties that may be assessed against the Products after
delivery to the
carrier F.O.B., TGC Point of Shipment.
(c) TGC shall use its good faith efforts to ship the Products for
delivery by the
requested date on
CFT's purchase
order for the
Products.
All shipments of Products shall be deemed to conform to the relevant
purchase order
unless TGC receives from CFT, no later than thirty (30) days
after the
receiving date of a given shipment, written notice specifying
the
shipment,
the purchase
order number and exact nature of the
discrepancy
between the
shipment and the
order. If the quantity
of Product
delivered
does not equal
at least 75% of the binding six month forecast (referenced
in item 2.2) as
executed with valid
purchase orders,
then CFT shall
have
the right to
obtain an alternative supply of Product, provided CFT pays TGC
a running
royalty of ^Removed
pursuant to Rule 24b-2
under the Securities
Exchange Act of
1934^ for each
Clotalyst device
during the remaining term
of this
Agreement.
2.11
Cancellation.
CFT may reschedule, redirect or cancel delivery of
Products only upon written notice to TGC sixty (60) days
prior to delivery.
However, if CFT cancels delivery of any
Products within forty-five (45) days of
scheduled shipment, CFT shall pay to TGC a restocking
charge equal to ^Removed
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934^ of the
purchase price for such purchase order.
<PAGE>
2.12
Product Warranty. TGC warrants that the Products delivered to CFT
shall be free from defects in material and
workmanship
and that such
warranty
shall pass through to the customers of CFT. TGC's sole responsibility with
respect to the foregoing warranty is to replace any Product
with a defect for
whic
