Pre-Effective Amendment to Registration Statement (General Form) · Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Anendment to S-1 152 629K
2: EX-5.1(D) Opinion of Gary B. Wolff 1 9K
3: EX-10.66 10.66 Authorized Distributor Agreement 19 72K
4: EX-10.76 Agreement With Hitachi 23 89K
5: EX-10.80 Subscription Agreement February , 2000 23 75K
6: EX-10.81 Registration Rights Agreement Feb. 11, 2000 12 50K
7: EX-10.82 Consulting Agreement With Liviakis 8 39K
8: EX-10.83 Agreement With Romania 18 35K
9: EX-23.3(D) Consent of Feldman Sherb Horowitz 1 7K
10: EX-27 Financial Data Schedule 1 8K
EX-10.83 · Agreement With Romania
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AGREEMENT No.
Concluded between:
Swissray Medical AG hereinafter to be called SELLER,
Turbistrasse 25-27,
CH-628 Hochdorf,
Switzerland
And
MINISTRY OF HEALTH hereinafter to be called
1-3 , Ministerului St., Sector 1 PURCHASER respectively
Bucharest ROMANIA Beneficiary
Whereas
The Ministry of Health of Romania has invited Companies to offer High Technology
Digital Radiology Equipment through a tender procedure.
Swissray's offer (Annex I) was accompanied with a financing proposal from ABN
AMRO Bank N.V. to enable the Purchaser to extend the payment of the involved
equipment.
Swissray has been granted the order for Lot 4; Direct Digital Radiology,
it has now been agreed between parties as follows:
ART. 1 OBJECT OF THE AGREEMENT:
PURCHASE OF DIGITAL RADIOLOGY EQUIPMENT
1.1 The Goods: 32 units of ddRMulti-System to be supplied are
described in Annex I which is part of this Agreement.
The following changes are made to Annex I:
- environmental temperature of functioning: +10-+40grd.C
- the 80 kW X-ray Generator can be set-up to 65kW or 50kW
by software programming.
ART. 2 TOTAL VALUE OF THE AGREEMENT
2.1 The total value of the Agreement is 13'856'000.00 USD
(thirteen million eight hundred fifty six thousand
United States dollars).
32 units X 433'000.- USD = 13'856'000.- USD
ART. 3 PRICE CLAUSE
3.1 The prices are firm and no variations will be made
during the validity of the Agreement The prices
include cost for installation, warranty-service,
transportation, related insurance, commissioning and
training and exclude all taxes, state charges and fees
whatsoever payable in Romania as well as customs
clearance costs.
ART. 4 PAYMENT CONDITIONS
4.1. Payment to be made by Purchaser to Seller in USD as follows:
o 15% of the order amount by advance payment within 30
days from entering into force of the present Agreement
and of the Loan Agreements between Purchaser and ABN AMRO
Bank N.V., by presentation of the following documents:
- commercial invoice over 15% of the total agreement amount
- copy of the performance bond over 10% of the total
agreement amount
- copy of the present agreement
- copy of the loan agreement
o 85% of the order amount against shipping documents
and a copy of the loan agreement over 85%, payable
under an Irrevocable Letter of Credit (see ANNEX
II),
Seller will hold full title to all equipment until
full and unencumbered payment has been received.
Payments to be made to Seller within the framework of
Export Finance Agreements to be concluded between the
Purchaser and ABN AMRO Bank N.V.
4.2 The Seller guarantees the good execution of the
present agreement with a Performance Bond over 10% of
the total amount of this agreement, issued by ABN AMRO
Bank N.V., with a validity period of 30 days after the
installation of the 32nd equipment.
The Performance Bond will be reimbursed partially in
an amount of 50% of its total value, within 30 days
after presentation of the Acceptance Certificates
(Annex V) for the first 16 units delivered and
installed. After opening of the Performance Bond, the
Romanian Ministry Of Health will immediately return
the Bid Bond over 600'000.- USD to the issuing bank.
ART. 5. DELIVERY TERMS
5.1. Delivery schedule is specified in Annex I.
Delivery time begins from the moment this Agreement
is in force according to Art. 14 hereafter.
5.2 The date of delivery is the day when transportation
documents are issued.
5.3 Delays due to custom clearance in Romania will
not be considered as late delivery caused by the
Seller.
5.4 The Seller undertakes to pack the Goods in adequate
packing materials, suitable to the Goods and the means
of transportation.
5.5 The seller through his representative in Romania
"Swissray Romania s.r.l." will fulfil the custom
formalities in Romania on behalf of the Purchaser.
5.6 The Seller will deliver to the Beneficiary together
with each delivered unit following documents and
manuals:
- Copy of the invoice
- Packaging list with contents
- EUR I certificate
- Certificate of origin
- User manuals in English and Romanian
- Technical manuals in English and Romanian
ART. 6. PLACE OF DELIVERY AND RECEPTION
6.1. Delivery of Goods: C.l.P. Beneficiary Warehouse
Romania, on condition the place of destination will be
communicated by Purchaser to Seller latest at the
start of the delivery according to schedule
(see Annex I).
6.2 Benefit and risk will be passed to the Beneficiary
after the Goods have been delivered to the place of
destination (Beneficiary warehouse in Romania).
6.3 . Reception of Goods will be acknowledged by
Beneficiary and Seller representatives after each part
delivery of Goods by issuing a Hand Over Protocol
(Annex IV).
Purchaser irrevocably accepts Beneficiary's signatures
on the Hand Over Protocol as having been given in his
name and on his behalf with legal effect.
6.4 Swissray Romania s.r.l. will present till the first
delivery all legal requested authorizations for
functioning (CNCAN and MoH.)
ART. 7. GUARANTEE / INSTALLATION / SERVICE.
7.1. Product Warranty:
Seller herewith guarantees that the Goods to be
supplied under the Agreement meet the specifications
of the aforesaid Tender. The Goods are new, unused, of
the most recent or current models and incorporate all
recent improvements in design and materials unless
provided otherwise in the Agreement. Seller guarantees
that the Goods supplied under the Agreement shall have
no defect arising from design, material or workmanship
or from any act or omission of the Supplier, that may
develop under normal use of the supplied Goods. The
Warranty for each single item shall remain valid 12
months from date of issue of Acceptance Certificate
(Annex V) or 16 months after date of issue of Hand
Over Protocol (Annex IV) whichever comes first.
7.2. The Beneficiary shall promptly notify the Seller's
representative in writing or by phone of any claims
arising under this Warranty. Upon receipt of such
notice, Seller shall, within 15 days repair or replace
the defective Goods or Parts thereof, without costs to
the Purchaser.
The reaction time (visit to beneficiary) will be 12
hours for Bucharest and 24 hours for the rest of the
country, 7 days per week. Delays in reaction time or
repair time over 72 hours will be added to the
warranty period. A finding protocol will be signed by
both parties.
7.3. The warranty is not valid for systems, options or
spare parts which have been subject to misuse,
accident or incorrect wiring or servicing by third
parties. Defects caused by improper installation by
third parties or incorrect use of written
recommendations such as installation, operation and
service manuals are not covered by Product Warranty.
Seller shall not be liable for, and Beneficiary
assumes responsibility for, all personal injury and
property damage resulting from the handling,
possession, use or resale of the Products. In no event
shall Seller be liable for incidental or consequential
damages, whether Beneficiary's claim is in contract,
negligence or otherwise.
7.4. Service after Warranty:
Till the first delivery the Seller will establish in
Romania an authorized service organization which will
ensure the well functioning of each unit delivered to
the Beneficiary. In this sense the Seller will supply
in advance a detailed maintenance and service
equipment proposal for the period required by the
beneficiary.
The effect of unfulfilment of this clause will be the
corresponding extension of the warranty period. The
Seller will cover the expenses representing Buyer's
interest for the credit of the delayed period.
7.5. Spare Parts and Consumable:
Seller guarantees the availability of the spare parts
and consumable materials for a period of 10 years
after the closing of manufacturing concerning this
type of equipment, but not less than 15 years after
the expiration of warranty period.
7.6. Installation:
Purchaser grants that site of installation meets the
requirements according to Annex I. Performance of
on-site installation of the supplied Goods shall be
carried out under supervision of technical staff of
Seller or his local representative. The works will
include:
o Communication of pre-installation requirements
to the beneficiary,
o Unpacking,
o Assembling,
o Furnishing, installation,
o Start-up and commissioning.
o Interfacing with the work station Easy
Vision/Philips where necessary. Seller shall furnish
materials required for assembly, installation of the
Goods and connection of equipment to main supplies
within the normal range of the equipment supplied and
in accordance with the pre-installation requirements.
During the period of installation the hospitals will
assure easy access to the equipment from Monday to
Saturday from 8.h till 22.h.
7.7. Acceptance Certificate
7.7.1 When installation of an item is completed this item
will be commissioned by both parties on which occasion
a written Acceptance Certificate as per Annex V of
this Agreement will be signed by Parties.
In the event that the above mentioned Acceptance
Certificate will not have been 7.7.2 signed by the parties of
the present Agreement within a period of 120 Calendar
days (in line with present policy of ERG) after the
date of issue of the Hand Over Protocol as per Annex
IV of this Agreement, Acceptance will automatically be
considered as having been made by the Purchaser with
legal effect.
7.8. Seller guarantees to submit to Purchaser any
technical and quality documentation requested by the
competent Romanian Authorities.
ART. 8. CLAIMS
8.1. The Beneficiary shall proceed the quantitative
take-over of delivered Goods immediately after
receipt, in the presence of the representative of the
Carrier and Seller and will issue a Hand Over Protocol
settling the possible shortage in comparison with
shipping documents and the events that have occurred
during the transportation.
8.2. Seller should replace the missing, damaged and
deteriorated Goods on his own charge and expenses
within a reasonable time or at the latest before
installation.
8.3. Any quality claim which arises during the warranty
period must be made in writing or Phone by Beneficiary
to Seller representative. If Seller or its
representative determines that any such claim is
justified, Seller will replace the product at no cost
to Beneficiary.
ART. 9 TRAINING
9.1. User/Technical training
The training for selected and qualified hospital staff
will be performed, under the following conditions:
o Initial training will be performed by the
manufacturer's qualified engineers/specialists
or by engineers of Seller or his local
representative, at the Time of installation,
o The training will be organized differently for
specialized radiological staff and hospital
technicians. The goal of the training is to give
complete user knowledge for the radiological
staff and sufficient technical background in case
of trouble shooting for the technicians.
o The topic of the training will take into account
the knowledge level of each participant.
o Purchaser will inform Seller in writing about the
names of the qualified training participants;
o The training will be conducted in English and all
attendants need to have reasonable knowledge of
the English language. In case the participants do
not have this knowledge the hospital will arrange
at own cost a professional translator during the
training.
o The training will take place during normal
working hours on normal working days, and
hospitals will assure accessibility to the
equipment during office hours.
9.2. Purchaser makes available the necessary infrastructure
for training purposes.
ART. 10. FORCE MAJEURE
10.1. The Parties shall not be liable for loss or damage due
to delay or failure resulting from any case beyond
their reasonable control or due to compliance with
regulations, orders, acts, instructions or priority
requests of any governmental or regulatory department
or agency, civil or military authority, or due to acts
of God, fires, floods, inclement weather, strikes,
lockouts, factory shutdowns or alternations, embargo's
wars or riots.
10.2. The Force Majeure which hinders one of the Party to
fulfill the obligations resulting from this Agreement
may be submitted to the other Party, provided that
it should be advised within 15 days, by a registered
letter to which a confirmation is enclosed from a
qualified authority certifying the beginning and
the end of Force Majeure and the circumstances of its
occurrence. The case of Force Majeure, which have been
communicated to the other Party, as mentioned above,
extend the obligation of both Parties with the
duration of the Force Majeure. As a consequence of
Force Majeure no Party can claim for delay and
failure in the fulfillment of the Agreement
obligations, delay charges, interests or of any other
indemnities or participation in the damages caused by
Force Majeure.
ART. 11. ARBITRATION AND GOVERNING LAW
11.1. All disputes arising out of this Agreement or in
connection with this Agreement shall solely and
finally be settled by a court of arbitration
consisting of three arbitrators in accordance with the
rules of Swiss International Private Law (Chapter 12,
"International Arbitration"). Each Party shall be
entitled to appoint one arbitrator. The place of
arbitration shall be Zurich. The court of arbitration
shall conduct the proceedings in English.
11.2. This Agreement shall be subject to and governed by
Swiss Law. The UN-Agreement governing Provisions on
International Agreement of Sales ("Wiener Kaufrecht"),
dated April 11 1980, is not applicable.
ART. 12. TRANSFER OF AGREEMENT AND NON-APPLICABILITY
12.1. In the event that individual provisions of this
Agreement should prove to be inapplicable or
unenforceable under law, the two Parties shall agree
on alternative provisions which most nearly equate to
the economic purpose of the inapplicable provisions.
This shall not affect the applicability of the
remainder of the Agreement.
Art. 13 FORM OF ALTERATIONS OF AGREEMENT
13.1. Any amendments or additions of the present Agreement
are valid only if they were made in written form and
signed by both Parties. The present Agreement is
concluded and signed in English and Romanian, in 2
copies each, two copies for each Party.
The English version prevails.
ART. 14 EFFECTIVE DATE OF AGREEMENT
14.1 This Agreement will become valid and effective
as soon as the following contracts and financial
instruments have entered into force:
o Export Finance Agreements between Purchaser or
any other responsible Ministry or Institution of
Romania and ABN AMRO Bank N.V.,
o L/C in favor of Seller according to Annex II,
Signed on ............... 1999 Signed on .............. 1999
SELLER: PURCHASER::
Swissray Medical AG MINISTRY OF HEALTH
R. G. Laupper
President and Chairman, CEO
ppa. Thomas Laupper
Export Manager
The following documents form an integral part of the Agreement:
ANNEX I Offer of September 1 1999, adjusted in number of units
(32 instead of 45), according to Award of Ministry of
Health of Romania (no. 43402), dated of September 16 and 17
1999
ANNEX II Letter of Credit
ANNEX III Performance Bond
ANNEX IV Hand Over Protocol
ANNEX V Acceptance Certificate
ANNEX I
Offer of September 1 1999, adjusted in number of units (32
instead of 45), according to Award of Ministry of Health of
Romania (no. 43402), dated of September 16 and 17 1999
Already in Purchaser's Possession
ANNEX II
Letter of Credit
Irrevocable documentary credit L/C No. of issuing bank L/C No. of advising bank
-----------------------------------------------------------------------------
Advising bank Beneficiary
ABN AMRO Bank N.V Swissray Medical AG
Zurich Branch Turbistrasse 25-27
Beethovenstrasse 33
CH-8022 Zurich CH-6280 Hochdorf
--------------------------------------------------------------------------------
Amount: Expiry date: ..............................
USD: ..................... with / in Zurich at sight
Applicant
Ministry of Health of Romania
Ministerului Street Sector 1
Bucharest / Romania
--------------------------------------------------------------------------------
We hereby issue in your favor this documentary credit which is available against
presentation of the following documents:
1. Signed commercial invoice in triplicate
2. Copy of Forwarding Certificate of Receipt FCR
3. Hand Over Protocol
4. Certificate of Origin
5. Weight list
THE PRESENT LETTER OF CREDIT FORMS AN INTEGRAL PART OF THE LOAN AGREEMENT DATED:
...................... BETWEEN THE
MINISTRY OF HEALTH OF ROMANIA AND ABN AMRO BANK N.V., ZURICH BRANCH
DELIVERIES MADE WITHIN THE FRAMEWORK OF THIS LETTER OF CREDIT LEAD TO
CORRESPONDING ADVANCES UNDER THE LOAN AGREEMENT.
Covering: the supply of 32 ddR Direct Digital Radiology Equipment units with
accessories, as per the delivery
contract no. ........ dated ..............
--------------------------------------------------------------------------------
From Hochdorf to Bucharest Partial shipment allowed Transshipment prohibited
--------------------------------------------------------------------------------
Special conditions:
The advising bank is not requested to add its confirmation to this credit.
Payment to be effected under the loan agreement mentioned above.
ANNEX III
BANK'S NAME, AND ADDRESS OF ISSUING BRANCH OR OFFICE
Beneficiary:................................................ Date:.............
(name and address)
PERFORMANCE GUARANTEE No. ....................
--------------------------------------------------------------------------------
We have been informed that_____________________(hereinafter called the
Principal), has entered into contract No. ____________ dated _____________ with
you for the supply of (description of Goods and/or services)
Furthermore, we understand that, according to the conditions of the contract, a
performance guarantee is required.
At the request of the Principal, we (name of the bank) _____________________
hereby irrevocably undertake to pay you any sum or sums not exceeding in total
an amount of USD 1.385.600.00 (say: one million three hundred eighty five
thousand and six hundred USD) upon receipt by us of your first demand in writing
and your written statement stating;
i) that the Principal is in breach of his obligation(s) under the
underlying contract; and
ii) the respect in which the Principal is in branch.
Your demand for the payment must also be accompanied by the following document
(s): (specify document(s) if any, or delete)
This guarantee shall expire on _______________ at the latest
Consequently, any demand for payment under it must be received by us at this
office on or before that date.
--------------------------------------------------------------------------------
This guarantee is subject to the Uniform Rules for Demand Guarantees,
--------------------------------------------------------------------------------
ICC Publication No. 458.
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Signature(s)
ANNEX IV
Hand Over Protocol
Agreement No. __________________________ dated __________________
Between Swissray Medical AG and Romanian Ministry of Health
HAND OVER PROTOCOL
Shipment ___ /____
The undersigned, representatives of the Purchaser respectively Beneficiary and
Seller present, confirm herewith that the shipment no. ______ of total _________
has been handed over to the consignee on (date)____________ in conformity with
the packing list. All packages have been acknowledged damage free.
Representative of Purchaser Representative of Seller
resp. Beneficiary'
----------------------- --------------------
----------------------
Place and date
ANNEX V
ACCEPTANCE PROTOCOLL
--------------------------------------------------------------------------------
Seller: Swissray Medical AG Agreement No.
Turbistrasse 25-27 _______________
CH-6280 Hochdorf Dated
---------------
Equipment: ddRMulti-System
Serial No.
Hospital/Clinique address
1. Installation Equipment's completeness
The system has been handed over complete and damage free.
Yes No
If no please specify hereunder: Loss/ Damage/ Missing parts
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. Functionality
--------------------------------------------------------------------------------
Installation and put into operation performed by:
--------------------------------------------------------------------------------
Company Swissray Medical AG
Turbistrasse 25-27
CH-6280 Hochdorf
Engineer's name
Signature
Controlling and acceptance of Hospital Administration
Name
Signature
Date
3. Users training
Training performed: _______________ Date:_____________________
Trainees` list
Name: Signature
Name: Signature
Name: Signature
Name: Signature
4. Engineers training (If necessary)
Training performed: _______________ Date:_____________________
Trainees` list
Name: Signature
Name: Signature
5. User Manuals and Service Manuals
Handing over Date:_____________________
Hospital's Administration Final Acceptance Date:_____________________
Name:
Signature:
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