Exhibit 10.1


 


WHEREVER CONFIDENTIAL
INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED BY AN ASTERISK), SUCH
CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.


 


AGREEMENT


 


BETWEEN


 


AMERSHAM HEALTH AS


 


(Enterprise No. NO 914 829 674 MVA)


 


AND


 


Organichem Corporation


 


 


For Supply of :  ABA


 


 


CONFIDENTIAL TREATMENT REQUESTED


 





















 


CONTENTS:


 


	
  1

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
  THE TERM BUYER SHALL MEAN
  AMERSHAM HEALTH AS

  	
   

  
	
  1.2

  	
  THE TERM SELLER SHALL MEAN
  ORGANICHEM CORPORATION

  	
   

  
	
  1.3

  	
  THE TERM PRODUCT SHALL MEAN AMINOBISAMIDE
  HCL (“ABA”) MEETING THE SPECIFICATIONS SET FORTH IN EXHIBIT A

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  TERM AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
  TERMINATION OF PRIOR
  AGREEMENT

  	
   

  
	
  2.2

  	
  TERM

  	
   

  
	
  2.3

  	
  TERMINATION
  OF AGREEMENT

  	
   

  
	
  2.4

  	
  EFFECT OF
  TERMINATION

  	
   

  
	
  2.5

  	
  SURVIVAL

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  PRODUCTS AND PRICES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
  SPECIFICATIONS

  	
   

  
	
  3.2

  	
  PRODUCTION SITE

  	
   

  
	
  3.3

  	
  PRICES AND
  QUANTITIES

  	
   

  
	
   

  	
  3.3.1

  	
  Buyer’s
  Obligation to Purchase

  	
   

  
	
   

  	
  3.3.2

  	
  Independent
  Audit

  	
   

  
	
   

  	
  3.3.3

  	
  Seller’s
  Obligation to Manufacture

  	
   

  
	
  3.4

  	
  INFLATION
  ADJUSTMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  DELIVERY TERMS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
  DELIVERY OF PRODUCTS

  	
   

  
	
  4.2

  	
  REJECTIONS

  	
   

  
	
  4.3

  	
  INSPECTION
  AND REJECTION

  	
   

  
	
  4.4

  	
  QUALITY
  ASSURANCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  TERMS OF PAYMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  FORECASTS AND INVENTORY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
  FORECASTS

  	
   

  
	
  6.2

  	
  SAFETY
  INVENTORY

  	
   

  
	
   

  	
   

  	
   

  
	
  7

  	
  PACKAGING

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  TECHNICAL SUPPORT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  MEETINGS AND REPORTING

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
  MEETINGS

  	
   

  
	
  9.2

  	
  REPORTING

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
  INDEMNIFICATION
  BY SELLER

  	
   

  
	
  10.2

  	
  INDEMNITY BY
  BUYER

  	
   

  
	
  10.3

  	
  ASSERTION OF
  CLAIMS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.1

  	
  ENTIRE
  AGREEMENT

  	
   

  
	
  12.2

  	
  WAIVERS

  	
   

  
	
  12.3

  	
  COMPLIANCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13

  	
  CRISES MANAGMENT

  	
   

  



 





















 


	
  13.1

  	
  COMMUNICATIONS

  	
   

  
	
  13.2

  	
  BUSINESS CONTINGENCY PLAN
  (“BCP”)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14

  	
  OTHER
  TERMS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.1

  	
  BUYER’S
  PROPERTY

  	
   

  
	
  14.2

  	
  SELLER’S INFORMATION

  	
   

  
	
  14.3

  	
  BUYER’S INFORMATION

  	
   

  
	
  14.4

  	
  IMPORT/EXPORT COMPLIANCE

  	
   

  
	
  14.5

  	
  COUNTRY OF ORIGIN

  	
   

  
	
  14.6

  	
  CUSTOMS-TRADE PARTNERSHIP
  AGAINST TERRORISM

  	
   

  
	
  14.7

  	
  HEALTH AND
  SAFETY

  	
   

  
	
  14.8

  	
  AUDIT RIGHTS

  	
   

  
	
  14.9

  	
  INTELLECTUAL PROPERTY

  	
   

  
	
  14.10

  	
  PUBLICITY

  	
   

  
	
  14.11

  	
  INSURANCE

  	
   

  
	
  14.12

  	
  DISPUTE RESOLUTION

  	
   

  
	
  14.13

  	
  GOVERNING LAW

  	
   

  
	
  14.14

  	
  LIMITATION OF DAMAGES

  	
   

  
	
  14.15

  	
  REMEDIES

  	
   

  
	
  14.16

  	
  COUNTERPARTS

  	
   

  
	
  14.17

  	
  RELATIONSHIP

  	
   

  
	
  14.18

  	
  PUBLICITY

  	
   

  
	
  14.19

  	
  SEVERABILITY

  	
   

  
	
  14.20

  	
  ASSIGNMENT

  	
   

  
	
  14.21

  	
  HEADINGS

  	
   

  
	
  14.22

  	
  FORCE MAJEURE

  	
   

  
	
  14.23

  	
  CURRENCY

  	
   

  
	
   

  	
   

  	
   

  
	
  15

  	
  SIGNATURE AND APPROVAL

  	
   

  



 





















 


THIS SUPPLY AGREEMENT, executed
on August 31st. 2005 (the “Effective Date”) between AMERSHAM HEALTH AS, a
Norwegian company (“Buyer”) and ORGANICHEM
CORPORATION, a Delaware corporation (“Seller”).


 


RECITALS


 


WHEREAS, Buyer and
Seller desire to terminate and replace the Product Supply Agreement dated December 21,
1999 with a new agreement; and


 


WHEREAS, Buyer
desires to purchase and receive Product (as herein defined) from Seller;


 


WHEREAS, Seller
agrees to manufacture, sell and deliver to Buyer the Product on the terms and
conditions set forth in this Agreement; and


 


WHEREAS, Seller has
the requisite experience and resources to manufacture and deliver the Product,


 


NOW, THEREFORE, in
consideration of the premises and the mutual agreements and covenants set forth
in this Agreement, Buyer and Seller hereby agree as follows:


 


1                 DEFINITIONS


 


1.1       The term Buyer
shall mean Amersham Health AS.


 


1.2       The term Seller
shall mean Organichem Corporation.


 


1.3       The term Product
shall mean Aminobisamide  HCl
(“ABA”) meeting the
specifications set forth in Exhibit A.


 


2                 TERM AND TERMINATION


 


2.1       Termination
of Prior Agreement


 


The Parties hereby
agree to terminate the Product Supply Agreement between the Parties dated December 21,
1999, effective immediately.  However,
nothing in this Agreement shall affect the Asset Purchase Agreement dated December 17,
1999 between the Parties.


 


2.2       Term


 


This Agreement is valid from January 1,
2005 and will remain in effect until December 31, 2010 (the “Initial Term”)
unless earlier terminated in accordance with Article 2.3.


 





















 


The parties agree to meet not later than June 30,
2008 to discuss an extension of this Agreement.


 


2.3       Termination of Agreement


 


In addition to any right to terminate this
Agreement elsewhere provided herein, either party has the right to terminate
the Agreement with immediate effect in the following cases:


 


•      If
the other Party becomes insolvent, or enters into any arrangements or
composition with creditors.


 


•      If
the other Party commits a material breach of any of the provisions in the
Agreement and the breach is not remedied within 90 (ninety) days after written
notice has been given.


 


2.4       Effect of Termination


 


Neither Party shall have any further obligation
to the other, except for the obligations that by their own terms are to be
performed after the termination of this Agreement, and any obligations or
liabilities arising prior to, or in connection with, such termination,
including the right to damages for breach, Supplier’s obligation to fulfil any
orders for Product placed by Purchaser prior to such termination and Purchaser’s
obligation to pay any unpaid invoices issued or to be issued by Supplier with
respect to orders placed by Purchaser prior to such termination.


 


Upon termination, Buyer shall be obligated to
purchase from Seller any remaining inventory of Product, work in process and/or
raw materials manufactured or purchased by Seller based on forecasts provided
by Buyer.


 


Purchase of such remaining inventories shall
be, in the case of Product, at the price then in effect under the Agreement; in
the case of work in process, at a price prorated based on the percentage
completion of the work in process; or, in the case of raw materials, at the
prices paid by Organichem to its suppliers plus *
percent.


 


2.5  Survival


 


The obligations of the Parties under Articles
10 and 12 hereof shall survive the termination of the Agreement.


 





















 


3                 PRODUCTS AND PRICES


 


3.1  Specifications


 


Product shall be
produced in accordance with product specifications approved by the Buyer and
attached hereto as Exhibit A.


 


3.2  Production Site


 


Producer of the
Product in this Agreement shall be Organichem
Corporation, 33 Riverside Avenue, Rensselaer, NY
12144, USA.  The production site may not
be changed without prior written consent of Buyer which consent shall be
entirely Buyer’s decision.


 


3.3  Prices
and Quantities


 


The agreed prices and anticipated quantities in
the Agreement period are:


 


	
  Year

  	
   

  	
  2005

  	
   

  	
  2006

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009

  	
   

  	
  2010

  	
   

  
	
  Vol. (MT)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  Price ($US/Kg)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 


The aforementioned prices shall remain in
effect unless the volume of Product sold in any calendar year varies by greater
than * percent from the quantities shown in the table above. For quantities of
Product purchased above the * percent threshold amount only, the prices shall
be adjusted as follows:


 


	
  % of Forecast Volume

  	
   

  	
  Discount from Base Price
  (%)

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  



 


For example:  In 2006, if Amersham
purchases *, the price for Product would be:    First *


 


Next   
* MT *


Next   
* MT *


Next    *
MT *


 


For volumes less than * percent of those shown
in the table above, the Parties shall negotiate in good faith a mutually
acceptable price for such volumes.  In the event that the Parties cannot
agree to an amended price for such lower volumes, the price shown in the table
shall remain in effect until such time that a new price is mutually agreed upon
by the Parties.


 





















 


3.3.1                   Buyer’s Obligation to Purchase


 


The quantities shown in the table above are a
good faith estimate of Buyer’s purchases from Seller for the term of the
Agreement.  In order to accommodate
potential fluctuations in Buyer’s total annual requirement for Product, the
parties agree to the following:


 


1) 
Declining Demand:  Buyer hereby
agrees that it shall purchase * percent of Buyer’s total annual requirement for
Product during each calendar year of the Agreement or the amounts shown in the
table shown in Section 3.3 above whichever is less.


 


2) 
Increasing Demand:  Buyer shall be
obliged to purchase from Seller a minimum of * percent of the difference
between Buyer’s total annual demand and Buyer’s good faith forecast of its
total annual demand as of the Effective Date up to a maximum of * percent of
the amounts shown in Section 3.3 above. 
Such good faith forecast shall be prepared and sealed (the “Sealed
Forecast”) and provided to the independent audit firm mutually agreed upon by
the Parties and operating in accordance with the procedures described in Section 3.3.2
below.


 


3) 
Demand Above 120% of the Volumes in Section 3.3:  Buyer shall have the obligation to solicit
from Seller and Seller shall have the right to submit a bid for any quantities
Buyer purchases above one hundred twenty (120) percent of the quantities shown
in Section 3.3 but Buyer shall be under no obligation to accept such bid.


 


3.3.2                         Independent Audit


 


The Parties may select an independent external
audit firm to assist the Seller in verifying Buyer’s compliance with its
minimum purchase obligations hereunder.   
Such audit firm must be acceptable to both parties and shall be a recognized
major audit firm. The independent auditor shall be bound by the terms of a
confidentiality agreement between itself and Buyer.  In any of the above circumstances, Seller
shall have the right, upon prior written notice, to verify Buyer’s total annual
demand for Product by means of an audit of Buyer’s records.  Under any circumstance, the independent audit
firm shall disclose to Seller only whether Seller’s share of Buyer’s total
annual requirement and Buyer’s total purchases of Product from Seller are
consistent with the terms of this Agreement and, in the case that Buyer is not
in compliance with its minimum purchase obligations, the extent to which it is
non-compliant.  The cost of such audit
shall be borne by Seller unless it is determined as a result of such audit that
Buyer has failed to materially comply with its obligations hereunder.


 





















 


3.3.3                Seller’s
Obligation to Manufacture


 


Seller shall be required to manufacture up to *
percent of the quantities shown in Section 3.3 or Buyer’s subsequent good
faith forecasts provided that such forecasts are delivered to Seller in
accordance with the provisions of Section 6.1.  Notwithstanding the requirements of this Section 3.3.3,
Seller shall make commercially reasonable efforts to accommodate Buyer’s requests
for Product greater than * percent of Buyer’s forecast.  In the event that Seller is unable to supply
Product in accordance with Buyer’s forecasts, Buyer shall be relieved of its
obligation to purchase as set forth in Section 3.3.1 only to the extent
that is required to meet Buyer’s needs in the current calendar year for Product that cannot be supplied
by Seller.


 


3.4       Inflation Adjustment


 


The prices shown in the table
in Section 3.3 shall be adjusted for inflation only in the event that the
Consumer Price Index for Urban Consumer (“CPI”) issued by the Bureau of Labor Statistics, U.S. Department of Labor
increases or decreases by more than four (4) percent for the most recent
twelve (12) month period ended prior to the period for which pricing is being
determined for which such index is available. 
If such index is not available, a comparable index shall be mutually
agreed upon by the Parties.  In the event
that the price for Product is adjusted, such adjustment shall remain in effect
for all subsequent years under the Agreement. 
All prices are exclusive of all import duties and taxes including VAT.


 


4                 DELIVERY TERMS


 


4.1       Delivery of Products


 


The Products shall be delivered DDU (Incoterms 2000)  Kristiansand
Norway by common carrier specified by Supplier and reasonably satisfactory to
Buyer.  Any risk of damage to or loss or
delay of Products shall pass to Buyer upon their delivery to the aforementioned
DDU point. 
Supplier shall be responsible for obtaining all export licenses, permits
and approvals as may be required to export Product into Norway.


 


4.2       Rejections


 


BUYER HEREBY OBJECTS TO AND REJECTS THE PROVISIONS OF
ANY ACKNOWLEDGMENT, ORDER ACCEPTANCE OR INVOICE WHICH IS INCONSISTENT WITH OR
IN ADDITION TO THE PROVISIONS OF THIS AGREEMENT.  THIS AGREEMENT SHALL BE THE COMPLETE AND
EXCLUSIVE


 





















 


CONTRACT BETWEEN THE PARTIES WITH RESPECT TO THE
PRODUCTS AND MAY BE MODIFIED ONLY IN WRITING SIGNED BY THE PARTIES
AUTHORIZED REPRESENTATIVE.  NO PRIOR
PROPOSALS, QUOTATIONS, STATEMENTS, FORECASTS, COURSE OF DEALING OR USAGE OF
TRADE WILL BE PART OF THE CONTRACT BETWEEN THE PARTIES.


 


4.3       Inspection and Rejection


 


Products are subject to Buyer’s right of inspection
and rejection.  Buyer’s making of any
payment to Seller does not constitute Buyer’s acceptance of Products and Buyer
reserves Buyer’s rights with respect to defects in Products.  Seller agrees to provide and maintain
inspection and process control systems acceptable to Buyer with respect to the
manufacture of Products, and Seller agrees to keep and make available complete
records of all of Seller’s inspection work and process control work for the
life of the Products as defined by the Buyer. 
Buyer may inspect the Products at any place of manufacture during
production without waiving Buyer’s right subsequently to reject or revoke
acceptance for undiscovered or latent defects. 
Seller agrees to furnish, at Seller’s expense, facilities and assistance
reasonably necessary to ensure the safety and convenience of Buyer’s
personnel.  Buyer’s failure to inspect
and accept or reject Products will not relieve Seller from any of Seller’s
obligations.  If any Products are found
at any time not to conform with the requirements of the Agreement (or any
applicable samples, drawings or specifications), or to be defective in design,
material or workmanship, Buyer may, at Buyer’s option and Seller’s expense,
require Seller to inspect the Products, and remove, and replace non-conforming
Products with conforming Products.  If
Seller fails to do so on a timely basis, Buyer may
elect to take one or more of those actions and charge Seller for all such
costs.  These rights are in addition to
any other rights that Buyer may have under the Agreement or applicable law.


 


4.4       Quality Assurance


 


Seller shall apply, maintain and document a quality
system that complies with ISO or a comparable standard for guaranteeing that
the Products comply with the agreed quality. 
The product shall be produced and tested in accordance with the Quality
Agreement (Exhibit B).


 


5                 TERMS OF PAYMENT


 


The terms of payment are 30 days net after
delivery to Kristiansand, Norway.


 





















 


6                 FORECASTS AND INVENTORY


 


6.1       Forecasts


 


Buyer shall provide to Seller a non-binding
annual forecast of its expected purchases of Product from Seller to be issued
on or before September 15th of each year under the
Agreement.  Buyer shall update this
forecast at the beginning of each calendar quarter with a forecast of its
anticipated purchases of Product from Seller for the next twelve (12) months
(Rolling Forecast).  Buyer shall submit a
binding purchase order at least sixty (60) days in advance of any requested
shipment date.


 


6.2       Safety Inventory


 


Seller shall maintain at its own expense an
inventory of Product equal to at least one month supply (1/12 of a year’s
volume) of Product based on purchases made by Buyer in the preceding calendar
year. Upon termination of this Agreement, Buyer agrees to purchase any such
safety inventory.


 


7                 PACKAGING


 


Product shall be packaged in accordance with
the packaging specifications shown in Exhibit C.  In the event that Buyer changes the packaging
specification, Buyer shall be responsible for any increase in cost associated
with such change.  Any increase in cost
associated with a change to the packaging specification shall be in addition to
the prices specified in Section 3.


 


8                 TECHNICAL SUPPORT


 


Upon notification to Supplier that Buyer has received a complaint or
inquiry regarding the safety or efficacy of Product, Supplier shall, upon
request of Buyer and within a reasonable period, consistent with its own
policies, supply Buyer with a chemical analysis of retained samples of any lot
that is subject of such complaint or inquiry. 
Supplier shall retain all records and samples with respect to the
Product in accordance with its own record retention policies.


 





















 


9                 MEETINGS AND REPORTING


 


9.1       Meetings


 


Seller and Buyer
shall meet in person or by telephone conference at least once each year during
the Term of the Agreement to review each Party’s performance hereunder.


 


9.2       Reporting


 


Communication with
respect to significant events, such as change in ownership or technical
production-related circumstances shall be conveyed as soon as possible. The
Seller shall prepare annual reports (product, amount and value) on total
amounts produced and delivered.  Such
reports shall be delivered to Buyer by January 31 of each year of the
Agreement.  All such required reports and
communication shall be at a minimum conveyed to the following representatives:


 


	
  Buyer:

  	
   

  	
  Seller:

  
	
  Purchasing Manager

  	
   

  	
  General Manager

  
	
  Amersham Health AS

  	
   

  	
  Organichem
  Corporation

  
	
  Lindesnes Plant

  	
   

  	
  33 Riverside Avenue

  
	
  Spangeried 4521

  	
   

  	
  Rensselaer, NY 12144

  
	
  Norway

  	
   

  	
  USA

  



 


10          INDEMNIFICATION


 


10.1     Indemnification by
Seller


 


Seller agrees to defend,
indemnify and hold the Parties and Buyer’s customers harmless from and against
any and all claims (including without limitation claims for infringement of
intellectual property, breach of contract, death or injury to a person or
injury to property, or other tort claims), liabilities, damages (whether direct
or indirect, incidental or consequential) and expenses (including court costs
and attorneys’ fees) arising out of or relating to the breach by Seller of any
covenant, representation or warranty contained in this Agreement, or from any
act or omission of Seller or Seller’s agents, employees or subcontractors.  Buyer will notify Seller of any such claim,
suit or proceeding and will assist Seller (at Seller’s expense) in the defense
of the same.


 


10.2     Indemnity
by Buyer


 


Buyer will defend, indemnify and hold harmless
Seller, each affiliate of Seller, and their respective officers, directors and
employees against any Claim that may be brought, instituted or arise against or
be incurred by Seller or any such affiliate, officer, director or employee
(including without limitation product liability claims) to the extent such
Claim is based on or arises out of the use or sale by Buyer of Product
manufactured by Seller, including, without limitation, any investigation by a
government agency or any claim for


 





















 


personal injury or property damage asserted by
any user of such Product; provided, however, that Buyer does not indemnify and hold
harmless Seller, each affiliate of Seller, and their respective officers,
directors and employees from any Claim to the extent such Claim is based on or
arises out of Seller’s negligence, breach of this Agreement, wilful misconduct
in the manufacture, storage or shipment of the Product, or to the extent such
Claim is subject to Seller’s obligation to indemnify Buyer pursuant to Section 10.1
hereof.


 


10.3     Assertion
of Claims


 


Each indemnified
Party agrees to give the indemnifying Party prompt written notice of any Claim
or discovery of fact upon which such indemnified Party intends to base a
request for indemnification under Sections 10.1 or 10.2.


 


11          WARRANTIES


 


Seller represents and
warrants that the Products will:  (i) conform strictly to all express or implied
specifications, drawings, plans, instructions, samples or other
descriptions;  (ii) be fit and
sufficient for the purpose(s) for which they were manufactured; and (iii) be
free from defects in material and workmanship, whether latent or
otherwise.  Seller represents and
warrants that neither the Products nor use of the Products will infringe any
patent, copyright, trade secret, trademark or other property right of a third
party.    Seller represents and warrants
that any service Seller may provide will be performed in a competent manner and
be fit for any purpose for which Seller knows or has reasons to know Buyer or
Buyer’s customers intend to use such service. 
Seller agrees that these warranties: 
(x) survive the inspection, acceptance and use of the Products by the
Parties and Buyer’s customers; (y) are for the benefit of the Buyer and Buyer’s
successors, and assigns; and (z) are in addition to any warranties and remedies
to which Buyer may otherwise agree or which are provided by law.  Seller agrees to extend to Buyer (and to
enforce) any warranties received from Seller’s suppliers.  Subject to the Quality Agreement, Seller warrants that all Product
delivered under this Agreement shall conform to the release specifications at
the time of delivery, and shall conform to the Specifications, that Seller
shall employ cGMPs in the production of the Product;
and that Seller shall comply with all other applicable statutes and regulations
in the manufacturing of the Product at the time of production (including
without limitation, those relating to the generation, storage, shipment and
disposal of waste).


 


12          GENERAL PROVISIONS


 


12.1     Entire
Agreement


 


This Agreement (including the Exhibits A, B and C)
constitutes the entire agreement between the Parties with respect to the
matters set forth herein.


 





















 


12.2     Waivers


 


The failure of either
Party to insist, in any one or more instances, upon the performance of any of
the terms, covenants or conditions of this Agreement or to exercise any right
hereunder, shall not be construed as a waiver or relinquishment of the future performance of any
such term, covenant or conditions or the future exercise of such right, and the
obligation of the other Party with respect to such future performance shall
continue in full force and effect.  No
item or provision of this Agreement may be altered, amended or waived except by
a writing signed by both Parties expressly referring to this Agreement.


 


12.3     Compliance


 


a) Seller represents,
warrants, certifies and covenants that Seller’s performance under this
Agreement will comply with all applicable national, European Union,
state/provincial and local laws and regulations, including, without limitation,
those prohibiting bribery or similar payments or practices, and those related
to environmental protection, health and safety, and minority owned businesses,
specifically including, 48 C.F.R. Sections 52.219-8
and 52.219-9.  Seller further represents,
warrants, certifies and covenants that: (i) Seller
and Seller’s suppliers will not use child, forced or prison labor, the labor of
persons in violation of the minimum working age in the country of manufacture,
or labor in violation of minimum wage, hour of service, or overtime laws in the
country of manufacture or in any jurisdiction in which services are provided
under this Agreement in connection with the manufacture and supply of Products (ii) Seller
and Seller’s employees will not offer gifts, bribes, kickbacks, free travel or
other cash or non-cash incentives to Buyer’s employees; (iii) Seller and
Seller’s suppliers are in full compliance with the Immigration Reform Control
Act of 1986, as amended, including compliance with the Immigration and
Naturalization Services’ I-9 regulations, 
and ( iv) Seller’s delivery of Products constitutes Seller’s
certification that Seller has complied with all applicable requirements.


 


b) Seller further
represents, warrants, certifies and covenants that Seller will take appropriate
actions to provide a safe and healthy workplace and to protect local
environmental quality in all of Seller’s activities.


 


c) Seller further
represents, warrants, certifies and covenants that each chemical substance
constituting or contained in goods sold or otherwise transferred to Buyer
hereunder is on the list of chemical substances compiled and published by (a) the
Administrator of the Environmental Protection Agency pursuant to: the Toxic
Substances Control Act (15 USC Section 2601 et
seq.) as amended; or (b) the European Inventory of Existing Commercial
Chemical Substances (EINECS) or the


 





















 


d) European List of Notified
Chemical Substances (ELINCS); or (c) any
equivalent lists in any other jurisdictions to which Buyer informs Seller the
goods will likely be shipped.


 


e) Seller further
represents, warrants, certifies and covenants that none of the goods supplied
under this Agreement contains any: (a) lead, mercury, cadmium, hexavalent chromium, polybrominated
biphenyls (PBB), polybrominated
diphenyl ethers (PBDE) or
any other hazardous substances the use of which is restricted under EU Directive 2002/95/EC (27 January 2003)(RoHS Directive), as amended (b) arsenic, asbestos,
benzene, polychlorinated biphenyls (PCBs), or carbon tetrachloride (c) any
chemical restricted under the Montreal Protocol on ozone-depleting substances;
or (d) any other chemical the use of which is restricted in any other
jurisdictions to which Buyer informs Seller the goods are likely to be shipped;
unless Buyer expressly agrees otherwise in writing as an addendum to this
Agreement.


 


f) Unless exempt, Seller
will comply with the equal opportunity clause in 41 CFR
60-1.4; the affirmative action clause regarding disabled veterans and veterans
of the Vietnam Era in 41 CFR 60-250.4; the
affirmative action clause regarding handicapped workers in 41 CFR 60-741.4; any other provisions required by the Office
of Federal Contract Compliance Programs as set forth in 41 CFR
Chapter 60 the clauses relating to small businesses, small disadvantaged
businesses and women-owned small businesses in 48 CFR
52.219-9 and 52.219-13; Executive Order 11141 concerning age discrimination;
and any other applicable Executive Orders. 
Executive Order 13201 Compliance: Seller also agrees to comply
with the provisions of 29 CFR  part
470.


 


g) If any goods or other
materials sold or otherwise transferred to the Parties hereunder contain
hazardous materials, Seller shall provide all relevant information required
pursuant to applicable requirements, such as the:  (a) Occupational Safety and Health Act (OSHA) regulations 29 CFR
1910.1200, including a completed Material Safety Data Sheet (OSHA Form 20) and mandated labeling information; or (b) similar
EU  MSDS/labeling requirements;
or (c) any similar requirements in any other jurisdictions to which Buyer
informs Seller the goods are likely to be shipped.


 


h) As applicable and without
limiting the generality of the foregoing, Seller represents, warrants,
certifies and covenants that the Products and their manufacture will comply
with all applicable drug and medical device laws and regulations, including
regulations promulgated by the Food and Drug Administration (“FDA”), the
Nuclear Regulatory Commission (“NRC”), the good manufacturing practices as set
forth in 21 CFR Part 820, and any other relevant
state and federal laws.


 


i) Seller further
represents, warrants, certifies and covenants that Seller has established an
effective program to ensure that the activities of any suppliers Seller
utilizes to provide any goods or services that will be incorporated into the
goods supplied under this


 





















 


Agreement will be conducted
in conformance with the above-stated warranties and representations.


 


j) From time to time, at
Buyer’s request, Seller shall provide certificates to the Parties relating to
any applicable legal requirements or to update any of the representations,
warranties, certifications or covenants contained in this Agreement, such
certificates to be in form and substance satisfactory to the Parties.


 


13          CRISES
MANAGMENT


 


13.1     Communications


 


Seller must maintain the
ability to contact the Parties on a 24 hour a day, 7 day a week basis in order
to communicate and manage crisis situations that threaten to or interrupt the
Supply Chain.  Likewise, Seller must be
available if Buyer wishes to contact Seller on a 24/7 basis.  Means of communication may include, but are
not limited to, phone, mobile phone or pager and interaction via email and the
Internet.


 


13.2     Business Contingency Plan (“BCP”)


 


At Buyer’s request, Seller
must share with the Parties a BCP that includes
Seller’s plan for 24/7 communication with the Parties.  The BCP will also
include basic information on Seller’s upstream Supply Chain.  For instance, this information will include
who Seller Tier 1 and Tier 2 suppliers are, where they are located and the
means of transportation for this Supply Chain.


 


14          OTHER TERMS


 


14.1     Buyer’s Property


 


All materials, technology,
secrets or other proprietary information, and all intellectual property rights
in the foregoing, which Buyer furnishes to Seller, or which is developed or
acquired at Buyer’s expense in the performance of work hereunder, shall be
Buyer’s property.  Seller hereby assigns
and agrees to assign to the Parties, and to cause Seller’s employees to assign
to the Parties, in each case without additional compensation, all such
property.


 





















 


14.2     Seller’s Information


 


Unless expressly agreed in
writing to the contrary, any knowledge or information which Seller discloses to
the Parties will not be considered confidential or proprietary information, and
Buyer may use it free from any restrictions. 
Seller acknowledges that Buyer will use and rely upon information Seller
furnishes to the Parties and that Seller will indemnify and hold the Parties
harmless from any and all costs and damages suffered by the Parties as a result
of any inaccuracies in such information.


 


14.3     Buyer’s Information


 


Seller
agrees to keep confidential any materials or information furnished by the Parties
to Seller.  Seller will not disclose or
use, directly or indirectly, such materials or information for any purpose
other than the purposes of this Agreement. 
Seller will return to the Parties, at Seller’s expense, all such
materials and information upon completion of work, termination of this
Agreement or Buyer’s request.


 


14.4     Import/Export Compliance


 


Seller represents and warrants that Seller will comply
with all applicable export laws, regulations and rules administered by the
United States Customs Service, the Bureau of Industry and Security, and the
FDA, as well as all other applicable federal, state or local laws, regulations,
or requirements of the United States and any other nation.  Seller will also obtain all applicable
permits and licenses necessary to perform Seller’s obligations under this
Agreement, and upon Buyer’s request, Seller will provide the Parties with
copies of such permits and licenses.  
Where Products contain the Parties’ components, Seller will also provide
the Parties with details of the U.S. content value as a percentage of the
Product price upon Buyer’s request. 
Additionally, Seller will provide ECCN and
Harmonized Tariff numbers assigned to Seller’s Products upon request.


 


14.5     Country of Origin


 


At Buyer’s request,
Seller will state the country of origin on products, packaging or Seller
invoices, and provide acceptable documentation establishing the country of
origin, including without limitation, certifications of origin for Products
subject to the NAFTA preferential duty provisions.


 


14.6     Customs-Trade Partnership Against Terrorism


 


Seller agrees that Seller will review the requirements
of the Customs-Trade Partnership Against Terrorism (“C-TPAT”) for Warehouses and Manufacturers, Licensed Customs


 





















 


Brokers, Air Carriers, Sea Carriers, Air Freight
Consolidators, Ocean Transportation Intermediaries and NVOCC’s,
and Rail Carriers, as applicable, and that within ninety (90) days Seller will
develop and implement a plan to enhance security procedures (“Security
Improvement Plan”) in accordance with the recommendations of the United States
Customs Service, as outlined in
http://www.customs.gov/xp/cgov/import/commercial_enforcement/ctpat/, including
such modifications as may on occasion be prescribed by the United States Customs
Service or by the Parties.  Seller agrees
that Seller will make reasonable efforts to become a member of C-TPAT in a timely manner if Seller is eligible to do so.


 


Within ninety (90)
days after the execution of the Agreement, Seller shall:


 


(a) certify to the Parties in writing that Seller
has completed Seller’s written Security Improvement Plan and that Seller has
put these procedures into place;


 


(b) upon Buyer’s request, provide a written
copy of the Security Improvement Plan;


 


(c) maintain in a single location all manuals, reports and
other records related to the Security Improvement Plan;


 


(d) identify an individual contact (name, title, location and
e-mail/telephone/fax numbers) responsible for Seller’s facility, personnel, and
shipment security measures; and


 


(e) inform the Parties of Seller’s C-TPAT membership status and Seller’s anticipated schedule for
participation in C-TPAT.


 


Where Seller does not exercise control of
manufacturing or transportation of goods destined for delivery to the Parties or
Buyer’s customers in the United
States, Seller agrees to communicate C-TPAT security
recommendations to Seller’s suppliers and transportation providers and to
condition Seller’s relationship to those entities on their implementation of
such recommendations.


 


Upon advance notice by the Parties to Seller and
during Seller’s normal business hours, Seller shall make Seller’s facility
available for inspection by Buyer’s representatives for the purpose of
reviewing Seller’s compliance with the security recommendations of the United
States Customs Service and with Seller’s written Security Improvement
Plan.  Each party shall bear its own costs in relation to such
inspection and review.  All other costs
associated with development and implementation of Seller’s Security Improvement
Plan and C-TPAT membership will be borne by Seller.


 


14.7     Health and Safety


 


Seller’s employees, agents and representatives
visiting any of Buyer’s sites shall be subject to such safety and security
regulations as may be in force on that site.  
Seller shall ensure that all information held by or reasonably available
to Seller regarding any
potential hazards known or believed to exist in the transport, handling or use
of the Products and/or performance of the services shall be received by the
Parties in writing prior to delivery of the Products and/or performance of the
services.  Seller is responsible


 





















 


where relevant for ensuring that tank containers and
other transport equipment are carefully cleaned before filling or loading.


 


14.8     Audit Rights


 


At Buyer’s request, Seller will allow the Parties to
audit and to copy, if applicable, at Seller’s expense, any documents Seller has
relating to the performance of Seller’s obligations under this Agreement or
other applicable legal requirements. 
Additionally, at Buyer’s request, Seller will allow the Parties
reasonable access to the sites where the work under this Agreement is being
performed in order to assess (1) work quality, (2) conformance to
Buyer’s specifications, and (3) conformance with Seller’s representations,
warranties, certifications and covenants under this Agreement.


 


14.9     Intellectual Property


 


No rights are granted
to Seller under any of Buyer’s patents, copyrights, trade secrets or other
property rights except as may be expressly agreed to by the Parties.  Seller will not use or incorporate into
Products any intellectual property of others without their written permission.


 


14.10                  Publicity


 


Seller may not, without Buyer’s prior written consent,
advertise or publish the fact that Buyer has contracted to purchase goods or
services from Seller, disclose information relating to this Agreement, or use
Buyer’s name or trademarks, or the names or trademarks of any of Buyer’s affiliates or customers.  Disclosure of the other Party’s Information
shall not be prohibited if prior notice is given to the other Party and such
disclosure is:  (a) compelled
pursuant to a legal proceeding or (b) otherwise required by law.


 


14.11                  Insurance


 


Seller agrees to maintain such public liability
insurance (including without limitation workers compensation, employer’s
liability, comprehensive general liability, product liability and property
damage insurance) as will adequately protect the Parties in the event of any liability arising under
this Agreement and, upon Buyer’s request, Seller will provide the Parties with
evidence of such insurance.


 


14.12                  Dispute Resolution


 


Any dispute, controversy or claim relating to this
Agreement (a “Dispute”) will be resolved first through good faith negotiations
between the Parties.  If the parties are


 





















 


unable to resolve the Dispute, either party may
submit the Dispute for resolution by mediation pursuant to the Center for
Public Resources Model Procedure for Mediation of Business Disputes as then in
effect.  The mediation shall be conducted
in New York City.  Mediation will
continue for at least thirty (30) days unless the mediator chooses to withdraw
sooner.  At the request of either party,
the mediator will be asked to provide an evaluation of the Dispute and the parties’
relative positions.  Each party shall
bear its own costs of mediation effort. 
If the Dispute cannot be resolved through mediation, either party may
commence an action to resolve the Dispute in the Commercial Division of the New
York State court in New York City, it being agreed that the parties submit to
the jurisdiction of that court.  THE
PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY.


 


14.13                  Governing Law


 


The parties expressly acknowledge that the laws of the
state of New York, except its conflict of law rules, will govern the
relationship between the parties.


 


14.14                  Limitation of Damages


 


IN NO EVENT WILL BUYER BE LIABLE TO SELLER FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO LOST PROFITS
AND LOST BUSINESS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR RELATED TO THIS
AGREEMENT, AND WHETHER OR NOT BUYER HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.


 


14.15                  Remedies


 


The rights and
remedies herein are cumulative and in addition to all other rights and remedies
available at law or in equity.


 


14.16                  Counterparts


 


This Agreement may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.


 


14.17                  Relationship


 


Supplier is an
independent contractor engaged by Buyer for the provision of the Products.  Nothing in this Agreement shall constitute
Seller as an employee, agent or general


 





















 


representative of
Buyer.  This Agreement shall not
constitute either Party as the legal representative or agent of the other, nor
shall either Party act as the legal representative or agent of the other, nor
shall either Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, expressed or implied, against, or in
the name of or on behalf of, the other Party.


 


14.18                  Publicity


 


Neither Party shall
use the other’s name to refer to it directly or indirectly in an advertisement,
news release or release to any professional or trade publication
without approval from such Party for such use or release which approval shall
not be unreasonably withheld.


 


14.19                  Severability


 


The invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provision were omitted, except in cases where
such unenforceable provision is a basic prerequisite for any Party or both
Parties to enter into this Agreement.


 


14.20                  Assignment


 


Neither Party may
assign its rights and obligations under this Agreement to any third party
except with the prior written consent of the other Party; provided, that Buyer
may assign its rights and obligations pursuant to this Agreement to any person
who by merger, operation of law, asset purchase or otherwise, acquires Buyer’s
imaging business and agrees in writing with Seller to assume all Buyer’s
obligations under, and to be bound by, this Agreement;  and provided further that either Party may
assign its rights and obligations hereunder to any of its affiliates upon
thirty (30) days prior written notice to the other Party, provided
that the assigning Party shall remain jointly and severally liable with such
affiliates for the performance of its obligation hereunder.  For purposes hereof, an “assignment” shall
include any transaction or series of related transactions (including, without
limitation, any merger, sale of stock or other similar transaction) whereby the
shareholder of a party immediately prior to such transaction owns 50% or less
of the voting capital stock of such party (or any resultant or successor party)
immediately after such transaction or series of related transactions.


 


14.21                  Headings


 


The headings of the
articles and paragraphs used in the Agreement are included for convenience only
and are not to be used in construing or interpreting this Agreement.


 





















 


14.22                  Force Majeure


 


If either of the
Parties is impeded in fulfilling its undertakings in accordance with this
Agreement by forces beyond such Party’s reasonable control, such as, but not
limited to, plant wide labour conflict, lightning striking, acts of God, fire,
war, mobilization or unforeseen military call-up of a large
magnitude, requisition, confiscation, commandeering, public decrees, riots,
insurrections, general shortage of transport, goods or energy and faults or
delays in deliveries from sub-contractors or suppliers caused by any
circumstances referred to in this Article 14.22, the impediment shall be
considered a Force Majeure and the Party shall be
exempted from liability for delays due to such reasons, provided always that it
notifies the other Party thereof without undue delay after such circumstances
have occurred.  Upon such notification,
the Parties shall agree upon a reasonable extension of the delivery time, not
to exceed the period of Force Majeure provided for
herein.  Such other Party shall have the
right to make alternative arrangements during the term of the Force Majeure, and after three (3) months, shall have the
right to terminate the Agreement.


 


14.23                  Currency


 


The term “Dollars” or ($)
shall refer to the Currency of the United States of America.


 


15               SIGNATURE AND APPROVAL


 


This Agreement
has been issued in two (2) copies, of which Buyer and Seller each keep one
copy.


 


	
  AMERSHAM
  HEALTH AS

  	
   

  	
  ORGANICHEM CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Olaf  Stalsberg

  	
   

  	
  By

  	
    /s/
  Thomas E. D’Ambra, Ph.D.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
    Vice
  President

  	
   

  	
  Title

  	
    Chief
  Executive Officer

  	
   

  
								



 





















 


EXHIBIT A


 


AMINOBISAMIDE HCl
SPECIFICATIONS


 


	
  HPLC Analysis

  	
   

  
	
  Assay

  	
  *

  
	
  Mixed amide

  	
  *

  
	
  Nitrobisamide

  	
  *

  
	
  Thin Layer Chromatography

  	
   

  
	
  Identification A

  	
  *

  
	
  Estimated Total Inhomogeneity

  	
  *

  
	
  Color
  of Solution

  	
  *

  
	
   

  	
  *

  
	
   

  	
  *

  
	
  Loss on Drying*

  	
  *

  
	
  Identification B

  	
  *

  
	
  Assay

  	
  *

  
	
  Extraneous Material**

  	
  *

  



 










*Not to be performed on “Heel”


**Test not to be routinely performed


 





















 


EXHIBIT B


 


QUALITY AGREEMENT


 


To Follow


 





















 


EXHIBIT C


 


AMINOBISAMIDE PACKAGING SPECIFICATIONS


 


	
  Unit of Issue

  	
   

  	
  At least one bag from each batch must contain 720.50
  Kilograms &/or 687.5 Kilograms depending on customer requirements.

  
	
   

  	
   

  	
   

  
	
  Outer Container

  	
   

  	
  White Polypropylene Coated Bag,

  40 x 41 x 47” #32000449

  
	
   

  	
   

  	
   

  
	
  Outer Container Closure

  	
   

  	
  One Pull-tight Security Seal

  #32000778; Tie Cord Bag Closure

  
	
   

  	
   

  	
   

  
	
  Liner

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Liner Closure

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
   

  
	
  Labeling

  	
   

  	
  Intermediate

  
	
   

  	
   

  	
   

  
	
  Caution Labelling

  	
   

  	
  Aminobisamide with English & Norwegian
  Text

  
	
   

  	
   

  	
   

  
	
  Recommended Storage

  	
   

  	
  Warehouse Ambient