Exhibit 10.16


 


CONFIDENTIAL TREATMENT REQUESTED


 


INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED IS OMITTED

AND NOTED WITH “****”.


AN UNREDACTED VERSION OF THIS DOCUMENT HAS ALSO BEEN
PROVIDED TO THE

SECURITIES AND EXCHANGE

COMMISSION.


 


DISTRIBUTION AGREEMENT


 


This distribution agreement (this “Agreement”) is
entered into as of October 31, 2001 by and between Bristol-Myers Squibb Pharma
Company, a general partnership organized under the laws of the State of
Delaware (“BMS”) and Medi-Physics Inc., doing business as Amersham Health, a
corporation organized under the laws of the State of Delaware (“NA”).


 


RECITALS:


 


BMS has developed
and is the manufacturer of certain terminally
sterilized Technetium (Tc-99m) generators, Gallium Citrate Ga-67 Injection, and
Xe-133 gas products and possesses certain unique and valuable technology,
know-how and other information relating to the manufacture and sales of such
products.


 


NA is, among other things, presently engaged in the
business of marketing and selling various radiopharmaceutical products and has
substantial experience with respect thereto.


 


BMS desires to grant, and NA desires to obtain,
under the terms and conditions of this Agreement, the right to purchase from
BMS and the non-exclusive right to market, distribute and sell such generators,
Gallium Citrate Ga-67 Injection, Xe-133 gas products and related accessory
products in the territory as hereinafter defined.


 


NOW, THEREFORE, in consideration of the convenants
and agreements hereinafter set forth, the parties hereto agree as follows:


 


ARTICLE 1. Appointment as
Distributor


 


BMS hereby grants, to NA, under the terms and
conditions of this Agreement, the non-exclusive right to market, distribute and
sell the terminally sterilized Technetium (Tc-99m) generators, Gallium Citrate
Ga-67 Injection and Xe-133 gas products and accessory products


 


1

















 


hereafter identified on Exhibit A attached hereto (“Products”)
in the ****, to include the ****. In addition BMS agrees to supply to NA
Radiopharmacies in ****, solely for unit dose preparation in ****, those Tc-99m
Generators, Ga-67 and Xe-133 Products listed on Exhibit A. NA Radiopharmacies
in **** are defined as those entities in which NA has at least a ****% ownership
position. In addition, BMS
agrees to supply Products to those NA non-radiopharmacy accounts that are under
contract on the date of this Agreement and listed on Exhibit F, until the
expiration of such contract with the NA non-radiopharmacy account. Hereinafter,
the term “Territory” shall refer to both **** and **** so described above.


 


ARTICLE 2. Supply of
Products


 


2.1           (a)
BMS agrees to manufactures and sell to NA **** of NA’s requirements for
Products and NA agrees to purchase **** of its requirements for Products from
BMS.


 


(b) The parties are aware that BMS utilizes a ****
source for supply of Mo-99, and that BMS is required to purchase ****% of its requirements of Mo-99m from that
source. BMS agrees to use commercially reasonable efforts to find an
established backup sources for Mo-99 in the event BMS’s supplier fails to
provide BMS’s  requirements.


 


2.2           All
orders for purchases of Products by NA shall be submitted on NA’s standard
purchase order form as from time to time in use by NA (“Purchase Order”). A
copy of NA’s current form of Purchase Order is attached hereto as Exhibit B.
The terms of this Agreement shall take precedence over any standard terms of any Purchase Order where in conflict.


 


2.3           Upon
the Effective Date (as defined in Section 9.1 hereof) and no later than **** (****)
days prior to each **** during the term of this Agreement, each **** NA shall
provide BMS with a written forecast of the numbers and type of Products which
NA expects to purchase from BMS during the forthcoming calendar year, as the
case may be (the “Annual Forecast”).


 


2

















 


2.4           NA
shall place firm Firm Orders, setting forth the quantities, delivery schedules
and dates, and its shipping instructions on the Wednesday prior to the
following Monday through Saturday shipping cycle. Once placed by NA, such Firm
Orders may be increased or decreased only with prior BMS approval. Subject to NA’s limited right to adjust Firm
Orders set forth in the previous sentence, such Firm Orders shall constitute
binding contractual obligations of NA.


 


2.5           Although
an Annual Forecast or Quarterly Forecast shall not constitute a binding
obligation upon NA to order the quantities specified therein, NA agrees to use
all reasonable efforts to make each Annual Forecast and Quarterly Forecast a
reasonably accurate prediction of the number and mix of Products NA will
actually order for delivery in the relevant period pursuant to its Firm Orders.


 


2.6           BMS
shall use commercially reasonable efforts to ship Products pursuant to NA’s
Firm Orders. Tc-99m generators shall be made available for shipment ****  BMS facility, Billerica, MA each day of
manufacture. Days of manufacture of Tc-99m generators are currently ****, ****,
****, **** and ****. Any BMS initiated, permanent changes in the manufacturing schedule
shall be mutually agreed upon, prior to implementation. Xe-133 gas products
shall be made available for shipment ****  BMS
facility, Billerica, MA each **** calibrated for the following ****. Gallium
Citrate Ga-67 Injection products shall be made available ****, calibrated for
the following ****. In the event BMS is unable to deliver all product
requirements on a given day, BMS will allocate product to Nycomed in proportion
to Nycomed’s share of total demand. In the event that delivery of a Product is
delayed more than **** hours past the agreed upon local delivery time, BMS will
reduce the price NA pays for such Product by ****%. However, after **** (****)
hours delay, NA shall not be required to accept such Product and may make arrangements
with BMS to return unopened Product for **** credit. The foregoing shall not apply to delays caused by Force Majeure events such as  weather conditions, effecting
transportation of components or Products, for which there will be no price
reduction. Following the **** hour period outlined above, in the


 


3

















 


event that NA is required to find an alternate source of Product, BMS
shall pay the difference between BMS’s price under this Agreement and the price
NA is required to pay to obtain such Product, up to a limit of ****% of BMS’s
original price.


 


2.7           The
purchase prices to be charged NA for calendar year 2001 are shown in Exhibit Cl
and the mechanism to calculate future pricing for each Product is set forth in
Exhibit C2. Included in the prices of the Products are:


 


(a)   **** (****)
external generator shields per initial generator standing order (A25);


(b)   **** (****)
elution shields per initial generator standing order (A14);


(c)   **** (****)
packs of any combination of saline and evacs (A15, A17 or A3) per each received
generator standing order.


(d)   BMS
assures that the prices charged to NA for each Product shall recognize NA’s
proportion of total BMS volume for each product.


 


2.8           Delivery
of Products to NA hereunder shall be made by BMS via Federal Express, Priority
Overnight Service from BMS’s manufacturing facility located at 331 Treble Cove
Road, North Billerica, Massachusetts. If so requested by NA, BMS will arrange
for alternative shipment of Products in accordance with NA’s shipping
instructions contained in a Firm Order. NA shall reimburse BMS for the
difference between Federal Express and any payments made to such alternative
carriers by BMS on behalf of NA at the actual cost of such payments. BMS shall
incur no liability of any nature whatsoever with respect to its performance of
shipping duties on NA’s behalf other that because of BMS’s gross negligence.


 


2.9           All
payments for Products by NA shall be made within **** (****) days after receipt
of invoice.


 


ARTICLE 3. Distribution
and Sale of Products


 


3.1           NA
shall be responsible for compliance with all federal and state rules and regulations
which relate to the sale, promotion, distribution, use and final disposition of
Products


 


4

















 


in the Territory. All communications that NA, its subdistributors,
dealers, agents, or affiliates make about the Products in promotional materials
or otherwise shall be consistent with the New Drug Applications or other
governmental registrations for the Product, fully truthful, based on documented
facts, and fairly balanced. NA, its subdistributors, dealers, agents, and
affiliates shall not under any circumstances state or imply in promotional
materials or otherwise that the Xenon gas vials purchased by NA hereunder can
be used with Xenon gas delivery systems other than those purchased by NA
hereunder. BMS agrees to supply **** **** (****) Xenon gun per new customer.


 


3.2           NA
shall ensure that BMS receives a copy of the license renewals or amendments of
each NA customer to which Products are to be shipped directly by BMS
authorizing their receipt and use of the Products in order to keep current
BMS’s present file of such licenses (other than in cases where the relevant
regulatory authorities permit shipment notwithstanding the failure to supply or
provide such copies). BMS shall not be obligated to ship to such NA customers
and shall, immediately upon receiving the order from NA, verify the NA
customer’s licensed status and notify NA immediately if such inability to ship
exists so NA may take such steps as are available to it to remedy the position.
Such refusal to ship to a customer, whose license file in BMS’s custody is not
current and which defect is not remedied by NA, shall not be deemed an
inability or failure on BMS’s part to deliver Product in a timely fashion in
order to meet NA’s required deadlines.


 


3.3           NA
agrees to provide to BMS copies of NA’s  initial promotional literature related
to Products for BMS to transmit to FDA. BMS will play no role in obtaining
approval of that material other than taking any administrative action necessary
because of BMS’s ownership of the registration.


 


3.4           NA
shall have the sole right to determine the resale price, discount and any other
terms and conditions for NA’s
resale of Products. NA shall have complete control over the manner and methods
of the marketing, distribution and sale of Products, and NA may distribute and
sell Products directly or through subdistributors, dealers, agents or its
affiliates and may hire


 


5

















 


or retain marketing or other experts to advise and assist NA in the
distribution and sale of Products. Except as specifically stated herein, BMS shall play no role in NA’s
marketing, distribution and sale of Products.


 


3.5           Prior
to use of any label, labeling, advertising or promotional item related to the
Products (hereinafter referred to collectively as “Product Information”) by NA,
its subdistributors, dealers, agents, or affiliates, including but not limited
to any
package insert, product label, detail aid, direct mail piece,
file card, journal article, or reminder advertisement, NA shall submit a sample
of the Product Information to BMS for review. Provided, however that:


 


(a) NA shall not submit any information about
pricing of Products to BMS. If a sample of Product Information contains pricing
information, NA shall redact that information from the sample prior to
providing it to BMS; and


 


(b) BMS shall review the Product Information solely
for the following purposes: (1) to ensure compliance with the terms of BMS’s
New Drug Applications or other governmental registrations for the Products; (2)
to ensure that the Product Information is within the terms of the labeled
indications for the Products and is otherwise consistent with the approved
package inserts for the Products; and (3) to ensure that the Product
Information is not likely to give rise to any formal or informal action,
complaint or comment by or from the United States FDA or the Canadian HPB
regarding the Product Information or the Products; and


 


(c) Review by BMS of a sample of Product Information
shall not serve as admission, a representation.
or evidence thereof,
by BMS, that the Product Information: (1) is correct, accurate, or complete; or
(2) is within the scope of or consistent with the Product claims made by BMS;
or (3) is in compliance with the terms of this Agreement. Review of Product
Information by BMS shall not in any way alter or affect the indemnity given by
NA pursuant to Section 6.5 hereunder.


 


(d) NA shall provide BMS a sample of all Product
Information and BMS shall have fifteen (15) working days after receiving the
sample within which to review and comment on the Product Information. All
comments made by BMS shall be binding on NA, its


 


6

















 


subdistributors, dealers, agents and affiliates; which shall implement
and incorporate into the Product Information all comments made by BMS. If BMS
does not respond within fifteen (15) working days, NA, its subdistributors,
dealers, agents, or affiliates may use the Product Information unchanged.


 


3.6           As
market considerations dictate, BMS and NA will consider the implementation of
depleted Uranium shielded Technetium-99 Generators.


 


ARTICLE
4. Trademarks


 


4.1           BMS
hereby grants to NA and NA hereby accepts the right to resell the Products supplied
by BMS to NA in packages bearing the trademarks listed in Exhibit D
(“Trademarks”) and in promotional materials related to such Products. The
rights granted NA hereunder to use the Trademarks shall in no way affect BMS’s
ownership of such Trademarks. No other right, title or interest in the
Trademarks is established hereby, and nothing herein shall be construed to
grant any right or license to NA to use the BMS logo or the BMS trade name,
other than as specifically set forth herein. The parties agree and understand
that this Section 4.1 does not expand the rights granted to NA under Article 1.


 


4.2           NA
shall not make any use or take any action with respect to the Trademarks to
prejudice or infringe BMS’s rights thereto including the use of any confusingly
similar trademark and shall forthwith, upon objection by BMS, desist from any
use thereof or action therewith which is in violation of this Agreement.


 


4.3           NA
will only market the Products using the relevant Trademarks during the term of
this Agreement. Upon termination or expiration of this Agreement, NA will cease
all use of the Trademarks and the license to use any such Trademarks granted
hereunder shall immediately cease and be deemed canceled.


 


7

















 


4.4           NA
will use the Trademarks in strict accordance with the instructions given by BMS,
and shall not make any changes in connection therewith without first obtaining
BMS’s written consent. NA further agrees that at all times the Trademarks shall
be used in accordance with good trademark practice, including notation of the
fact that they are trademarks belonging to BMS and use of the appropriate
notice of registration. BMS reserves the right to unilaterally determine the
adequacy of the use and protection given the Trademarks by NA as set forth
herein.


 


4.5           NA
shall promptly notify BMS, in writing, of any conflicting use of, and applications or
registrations for, any of the Trademarks, or any acts of infringement, or acts
of unfair competition involving the Trademark, after such matters are brought
to its attention or it has knowledge thereof. NA further agrees to assist BMS,
at BMS’s expense, in registering or perfecting BMS’s rights to the Trademarks
in the Territory.


 


4.6           In
the event of any claim or litigation by a third party against NA alleging that
any of the Trademarks imitates or infringes a trademark of such third party or
is invalid, NA shall promptly give notice of such claims or litigation to BMS
and BMS shall assume responsibility for and control of the handling, defense,
or settlement thereof. NA shall cooperate fully with BMS during the pendency of
any such claim or litigation. BMS shall keep NA notified of the current status
of any trademark claim, litigation or infringement of any of the Trademarks and
shall permit NA to assume the handling, defense or settlement thereof if BMS
declines to do so.


 


ARTICLE 5. Quality
Control and Governmental Approvals


 


5.1           All
Products delivered to NA hereunder shall be manufactured in accordance with Current
Good Manufacturing Practices as required by the United States Federal Food,
Drug and Cosmetic Act and pursuant to applicable rules and regulations of the
United States Food and Drug Administration (“FDA”) when applicable. BMS shall
manufacture and supply the Products in accordance with the Quality Document
attached here as Exhibit E. Each product lot of


 


8

















 


Products shall be inspected and tested by BMS prior to shipment to NA
or its customers. A certificate of Compliance will be forwarded to NA after
each manufactured lot is completed.


 


5.2           As
further set forth herein; NA shall have the right to replacement of or refund
for Products, up to the expiration date of such Products, if such Products fail
to meet BMS’s specifications as set forth in BMS’s NDA for such Products or are
not of merchantable quality. NA will promptly notify BMS by telephone and
telecopy of NA’s request for replacement or refund. Such notice shall specify
with particularity the nature of the nonconformance and NA will have the
Product returned promptly to.BMS for examination at BMS’s expense. Provided that NA promptly returns
the Products to BMS, BMS will promptly replace the Products in question if
requested by NA, determine any nonconformance of the returned Products and
report back to NA.


 


In the event that BMS disagrees with NA regarding
whether the Products are nonconforming and the parties are unable to resolve
the dispute, the Products or samples thereof will be submitted to a qualified
independent laboratory agreed upon by the parties. The laboratory will analyze
the Products or samples in a manner agreed upon by the parties and the results
of that analysis will be a binding determination of whether the Products were
or were not nonconforming. If it is determined that the Products were
nonconforming, BMS shall bear the cost of the analysis, as well as either
providing a refund or replacement Products to NA. If it is determined that the
Products were not nonconforming NA shall bear the cost of the analysis, shall
not be entitled to any refund on the Products and shall pay BMS for any
replacement Products provided by BMS.


 


5.3           All
materials and components used in the fabrication of Products shall be traceable
by lot number and purchase order invoice number.


 


ARTICLE 6. Warranties.
Indemnities and Insurance


 


6.1           BMS
warrants to NA that all Products purchased by NA under this Agreement:


 


9

















 


(a) shall be free and clear of all liens, claims,
encumbrances, pledges, security interests or other adverse interests of third
parties,


 


(b) shall be manufactured, supplied and delivered by
BMS with all necessary skill and expertise using qualified personnel so as to
comply with all applicable regulatory requirements,


 


(c) shall be of good and merchantable quality, and
free from defects in material and workmanship;


 


(d) shall be manufactured in accordance with the
specifications set forth in BMS’s NDA, and


 


(e) shall be manufactured in accordance with the
Current Good Manufacturing Practices and other applicable FDA rules and
regulations.


 


6.2           (a)
BMS shall defend, indemnify and hold NA, its subdistributors, dealers, agents or
affiliates, harmless from any and all demands, claims, actions, suits,
judgments, decrees, proceedings, liabilities, costs, losses, damages and
expenses, including, without limitation, court costs and attorneys’ fees, at
any time resulting to any of them as a result of or in connection with (a) any
Products which were nonconforming, damaged, or defective at time of delivery to
NA whether claimed by or established in favor of any third parties, including
purchasers, and (b) any breach by BMS of the warranties provided for herein.


 


(b) NA shall promptly notify BMS upon receipt by NA
of any claim or demand which NA has determined has given or could give rise to
a right of indemnification under this Agreement. If such claim or demand
relates to a claim or demand asserted by a third party against NA, BMS shall
have the right to employ such counsel as is reasonably acceptable to NA to
defend any such claim or demand asserted against NA, and BMS shall have control
over the conduct of the defense of the claim or demand, provided, however, that
BMS shall not settle such claim or demand without the consent of NA unless such
settlement requires no more than a monetary payment for which NA is fully
indemnified under this Agreement or involves other matters not binding upon NA.
NA shall have the right to participate at its cost in the defense of any said
claim or demand. So long as BMS is defending in good faith any such claim or
demand,


 


10

















 


NA shall not settle such claim or demand. NA shall fully cooperate with
BMS during the pendency of the claim or demand and shall make available to BMS
and its representatives all records and other materials reasonably required by
them for their use in contesting any claim or demand asserted by third party
against NA. Whether or not BMS  so elects to defend any such claim
or demand, NA shall not have any obligation to do so and NA shall not waive any
rights it may have against BMS hereunder with respect to any such claim or
demand by electing or failing to elect to defend any such claim or demand. NA’s
subdistributors, dealers, agents or affiliates shall also be bound by this
section.


 


6.3           The
obligation of BMS to indemnify and defend shall not extend to claims or demands
to the extent they are attributable to the independent negligence or
intentional malfeasance of NA, its subdistributors, dealers, agents, or
affiliates, nor to any claims or demands to the extent that they are attributable
to or arising out of statements or actions made by NA, its subdistributors,
dealers, agents or affiliates with respect to the Products. The obligation to
BMS to indemnify and defend shall also not apply to any claims or demands to
the extent that they are attributable to any breach by NA of the terms of this
Agreement.


 


6.4           BMS
represents that it is self-insured for the activities to be carried out under
this Agreement and that it maintains sufficient reserves covering these
activities.


 


6.5           (a)
NA shall defend, indemnify and hold BMS, its directors, officers, agents, affiliates,
and employees, harmless from any and all demands, claims, actions, suits,
judgments, decrees, proceedings, liabilities, costs, losses, damages and
expenses, including, without limitation, court costs and attorneys’ fees, at
any time resulting to any of them, as a result of or in connection with (a) any
negligence or intentional malfeasance by NA, its subdistributors, dealers,
agents, or affiliates, and (b) any representation made or other action taken by
NA, its subdistributors, dealers, agents, or affiliates related to marketing,
selling, or distributing the Products, which are outside the scope of or
inconsistent with any Product claims made by BMS, and (c) any breach by NA of
the terms of this Agreement. This obligation of NA to indemnify


 


11






 










 


and defend shall not apply to the extent that claims are attributable
to the independent negligence or intentional malfeasance of BMS.


 


(b) BMS shall promptly notify NA upon receipt by BMS
of any claim or demand which BMS has determined has given or could give rise to
a right of indemnification under this Agreement. If such claim or demand
relates to a claim or demand asserted by a third party against BMS, NA shall
have the right to employ such counsel as is reasonably acceptable to BMS to
defend any such claim or demand asserted against BMS and NA shall have control
over the conduct of the defense of the claim or demand; provided, however, that
NA shall not settle such claim or demand without the consent of BMS unless such
settlement required no more than a monetary payment for which BMS is fully indemnified
under this Agreement or involves other matters not binding upon BMS. BMS shall
have the right to participate at its costs in the defense of any such claim or
demand. So long as NA is defending in good faith any such claim or demand, BMS
shall not settle such claim or demand. BMS  shall fully cooperate with NA
during the pendency of the claim or demand and shall make available to NA and
its representatives all records and other materials reasonably required by them
for their use in contesting any claim or demand asserted by third party against
BMS. Whether or not NA so elects to defend any such claim or demand, BMS shall
not have any obligation to do so and BMS shall not waive any rights it may have
against NA hereunder with respect to any such claim or demand by electing or
failing to elect to defend any such claim or demand. BMS’s subdistributors,
dealers, agents, or affiliates shall also be bound by this section.


 


(c) NA represents that it is self-insured for the
activities to be carried out under this Agreement and that it maintains
sufficient reserves covering these activities.


 


6.6           NA
will notify BMS of any adverse drug experience associated with the Products of
which NA, its subdistributors, dealers, agents, or affiliates become aware.
Such notifications will be made in writing, in a manner reasonably agreed by
the parties, by means which afford the sender evidence of receipt by BMS within
three (3) working days of initial receipt of the report by NA, its
subdistributor, dealer, agent, or employee. Such means of notification may
include Express Mail, Electronic Mail, courier, or facsimile, but are not
so-limited. Advance notification of any fatal or immediately life-threatening
experience will be given by telephone. NA is


 


12

















 


responsible for insuring prompt follow-up, as necessary to provide BMS
with reasonably complete information on each such adverse drug experience, by
the same means and within the same time frame of receipt.


 


Any communication to BMS under the terms of this
Section 6.6 shall be directed to the attention of the following individual or
to his designee or successor:


 


Regulatory Affairs


Bristol-Myers Squibb Pharma Company


331 Treble Cove Road


North Billerica, Massachusetts 01862


Telephone: 978-671-8361


Telecopy: 978-663-6897


 


“Adverse drug experience” shall mean any unfavorable
and/or unintended change in the structure (signs), function (symptoms), or
chemistry (laboratory data) of the body temporally associated with the use of
Product or of a derivative thereof in humans, whether or not considered drug
related, including the following: an adverse experience occurring in the course
of the use of a drug in professional practice, an adverse experience occurring
from drug overdose, whether accidental or intentional, an adverse experience
occurring from drug withdrawal, and any significant failure of expected
pharmacological action. (Failure of a radiopharmaceutical product to localize
as expected is not regarded by BMS as an adverse experience, but rather as a
complaint, which is referred to BMS’s Marketing and Technical Services
personnel for further investigation.)


 


ARTICLE 7. Representation
and Warranties.


 


7.1           BMS
hereby represents and warrants to NA as follows:


 


(a) BMS has the full power, authority and legal
right to enter into this Agreement; this Agreement has been duly authorized,
executed and delivered by BMS; and this Agreement constitutes a legal, valid
and binding obligation of BMS, enforceable against BMS in
accordance with its terms.


 


13

















 


(b) BMS has executed no agreement in conflict
herewith.


 


(c) The distribution and sale of the Products by NA
will not infringe the patents or intellectual property rights of any third
party.


 


7.2           NA
hereby represents and warrants to BMS that NA has the full power, authority and
legal right to enter into this Agreement; this Agreement has been duly
authorized, executed and delivered by NA; this Agreement constitutes a legal,
valid and binding obligation or NA enforceable against NA in accordance with
its terms; and NA has executed no agreement in conflict with the terms of this
Agreement.


 


ARTICLE 8. Confidentiality


 


Any and all proprietary information with respect to
the Products or the business affairs and activities of either party hereto
(“Proprietary Information”) which is furnished or disclosed in connection with
the Agreement by such party (“Disclosing Party”) to the other party hereto
(“Receiving Party”), including, without limitation, the specifications for the
Products, shall remain the property of the Disclosing Party and shall be
treated as confidential. Receiving Party shall not use such Proprietary
Information for its own benefit except as specified in this Agreement and shall
not disclose such Proprietary Information to others, except to those of its
employees whose duties so require, in such event taking all precautions which
are reasonably necessary to prevent the unauthorized disclosure of such
Proprietary Information by such persons. Information shall not be deemed to be
Proprietary Information and such restrictions shall not apply to any such
information (i) which is, or subsequently may become, within the knowledge of the general public,
without the fault of the Receiving Party; (ii) which may be known to the
Receiving party at the time of receipt thereof from the Disclosing Party as
shown by competent written records, (iii) which may be proved to have been
developed by the Receiving Party, independently and wholly without resort to
the Proprietary Information of the Disclosing Party, as shown by competent
written records; or (iv) which may subsequently be rightfully obtained from
sources other than the Disclosing Party and without confidential restriction in
favor of such transmitting party. The parties’ respective obligations under
this Article 8 shall continue after the expiration or termination of this
Agreement for any reason.


 


14

















 


ARTICLE 9. Term and
Termination


 


9.1           Unless
earlier terminated as provided in this Agreement, the initial term of this Agreement
shall commence as of the Effective Date and conclude on December 31, 2005.
Thereafter, this Agreement will automatically renew for three (3) year periods.
Notwithstanding the foregoing, this Agreement
may  be  terminated at any time by BMS on three (3) years written
notice to NA or by NA on six (6) months written notice to BMS.


 


9.2           Upon
the happening of any of the following .events, either party shall have the right to
terminate this Agreement upon written notice of such termination to the other
party:


 


(a) Any material breach by the other party of this
Agreement, which material breach continues for a period of thirty (30) days
after the non-defaulting party shall have given notice thereof to the
defaulting party, or


 


(b) The other party becomes insolvent, is
adjudicated as bankrupt or otherwise seeks or receives protection under the
bankruptcy laws of the United States, has a receiver or trustee appointed for
all or part of its assets and business, executes and delivers an assignment for
the benefit of its creditors or is liquidated, dissolved or wound-up or


 


(c) The continuance of an event of force majeure
for a period of more than sixty (60) days.


 


9.3           The
objective of this Agreement is to realize in an economical and reasonable way
the interests and requirements of both parties. If at any time during the term
of this Ageement, this objective is no longer met due to: ·


 


(a) regulatory changes(s), or economic
circumstances, which could not have been foreseen at the time of execution of
this Agreement causing undue and prolonged hardship; or


 


(b) any substantial increase in Seller’s direct or
indirect cost relating to Uranium targets or radioactive waste disposal;


 


15

















 


(c) changes in the selling price effected by the
entrance into the market of sellers capable of meeting the volume commitments
contemplated under this Agreement; then the parties shall negotiate in good
faith in an effort to modify this Agreement in accordance with any of the
matters described above and such negotiations shall commence within **** (****)
days of one party’s written notice to the other of (a) and/or (b) above. During
any negotiation period, the pricing increments defined in Exhibit C will
continue in effect.


 


In the event the parties are unable to agree upon a
satisfactory modification of this Agreement within **** (****) days of
commencement of negotiations (“negotiation period”), the party requesting the
modification may terminate this Agreement within **** (****) days following
expiry of the negotiation period by providing **** (****) days written notice to
the other party.


 


9.4           The
warranties and indemnities contained in this Agreement shall survive any expiration
or termination hereof, as shall the confidentiality obligations of the parties
pursuant to Article 8 hereof. Otherwise, upon expiration or termination of this
Agreement as provided in this Article 9, except as expressly provided herein,
the parties shall have no further liabilities, duties or obligations under this
Agreement, except for any liabilities, duties or obligations which may have
arisen prior to such expiration or termination.


 


ARTICLE 10. Force Majeure


 


10.1         Neither
party will be liable for any failure to fulfill any term or condition of this
Agreement, nor will such failure constitute a breach of or default under this
Agreement, if fulfillment has been delayed, hindered or prevented by an event
of force majeure, including, without limitation, any war, riot, strike,
lock-out or other industrial dispute, acts of the elements, acts of any
government or agency hereof (including the enactment of any new laws, rules or
regulations), sabotage or industrial accident, plant breakdown or failure of
equipment, inability to obtain equipment, fuel, power, materials or
transportation, or by any similar circumstances beyond its reasonable control.


 


16

















 


10.2         Promptly
following the date that any event of force majeure commences, the party
concerned will advise the other party in writing of the date and nature of the
event and the period of time such event is expected to continue. During the
existence of such event, the duties and obligations of the parties under this
Agreement shall be suspended and the parties will take all reasonable action to
assure resumption of normal performance under this Agreement as soon as
possible.


 


ARTICLE 11. Assignment


 


This Agreement and all rights and obligations
arising hereunder may not be assigned or otherwise transferred by either party
whether by operation of law or otherwise, unless the other party has given its
written consent thereto, which consent shall not be unreasonably withheld, and
any such purported assignment or transfer without the other party’s written
consent shall be null and void. Notwithstanding the foregoing, a party hereto
may assign this Agreement and all rights and obligations arising hereunder in
connection with the sale of all or substantially all of its business.


 


ARTICLE 12. General
Provisions


 


12.1         The
relationship of BMS and NA under this Agreement shall be that of independent
seller and purchaser, and nothing contained in this Agreement and no action taken
by either party to this Agreement shall be deemed to constitute either party or
any of such party’s employees, agents or representatives to be an employee,
agents or representative of the other party or shall be deemed to create any
partnership, joint venture, association or syndicate between the parties, or
shall be deemed to confer on either party any express or implied right, power
or authority to enter into any agreement of commitment, express or implied, or
to incur any obligation or liability on behalf of the other party.


 


12.2         Except
as specified in Section 6.6 above, any notice, claim; demand, request or other
communication required or permitted under this Agreement shall be valid and
effective


 


17

















 


only if given by written instrument which is personally delivered, sent
by facsimile, courier or registered or certified mail, postage prepaid to the
addressee as follows:


 


If to BMS, to:


 


Bristol-Myers Squibb Pharma Company 


Radiopharmaceutical Division


331 Treble Cove Road


North Billerica, Massachusetts 01862 


Attention: Vice President, Manufacturing


Telecopy: 978-671-9577


 


If to NA, to:


 


Medi-Physics, Inc.


2636 South Clearbrook Drive 


Arlington Heights, Illinois 60005


Attention: President


Telecopy: 708-593-8010


 


Except as specified in Section 6.6 above, any notice,
claim, demand, request or other communication given as provided in this Section
12.2, if given personally, shall be effective upon delivery; if given by facsimile,
shall be effective one (1) day after transmission; and if given by courier,
shall be effective two (2) days after deposit with the courier; and if given by
mail, shall be effective five (5) days after deposit in the mail. Either party
may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 12.2.


 


12.3       This
Agreement, together with the Exhibits attached hereto, constitutes the entire
agreement, and supersedes all prior agreements and understanding, both written
and oral, between the parties with respect to the subject matter of this
Agreement; and this Agreement may not be modified or amended except by an
instrument in writing executed by the parties hereto.


 


18

















 


12.4         No
waiver, forbearance or failure by either party of its right to enforce any
provision of this Agreement shall constitute a waiver or estoppel of such
party’s right to enforce such provision in the future.


 


12.5         Unless
expressly provided otherwise herein, the remedies set forth in this Agreement
shall not be exclusive but shall be cumulative, and in addition to all other
rights and remedies provided by law.


 


12.6         This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware, excluding the conflict of law provisions
thereof.


 


12.7         If
any provision of this Agreement shall be found invalid or unenforceable, in
whole or in part, by a court of competent jurisdiction, then such provision
shall be deemed to be modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Agreement, as the case may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law, as if such
provision had been originally incorporated herein as so modified or restricted,
or as if such provision had not been originally incorporated herein, as the
case may be, provided that the basic intent of the parties has not thus been
rendered incapable of achievement.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.


 


	
   

  	
  MEDI-PHYSICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRISTOL-MYERS SQUIBB PHARMA COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Donald J. Hayden

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Executive Vice President,
  Health Care Group 

  	
   

  



 


19