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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, DC 20549
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FORM 8-K
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CURRENT REPORT Pursuant
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to Section 13 or 15(d) of the
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Securities Exchange Act of 1934
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Date of report (Date of earliest event reported):
March 6, 2018
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Bionik
Laboratories Corp.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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000-54717
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27-1340346
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Commission File Number)
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(IRS Employer Identification No.)
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483 Bay Street, N105
Toronto, ON
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M5G 2C9
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s Telephone Number, Including
Area Code: (416) 640-7887
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (
see
General Instruction
A.2. below):
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¨
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Item
1.01
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Entry Into A Material Agreement.
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On March 6, 2018, Bionik Laboratories Corp.
(the “Company”), entered into a Distribution Agreement (the “Agreement”) with Curexo Inc. (“Curexo”).
Pursuant to the Agreement, Curexo will
act as the exclusive distributor of the Company’s InMotion robotic systems in South Korea, and the Company will act as
the exclusive distributor of Curexo’s Morning Walk lower body rehabilitation technology in the United States. For the
first year of the Agreement, each party is required to purchase a minimum number of the other’s product(s).
The term of the Agreement is for three years,
and shall be automatically extended for successive one year terms, unless earlier terminated in accordance with the terms of the
Agreement.
Each party to the Agreement, as a distributor
of the other’s products, agreed to indemnify the other for any and all claims and damages for injury to or death of any person
and for damage to or loss of property, arising out of or attributed to the conduct, operations or performance of the party as distributor.
The foregoing description of the Agreement
does not purport to be complete and is qualified in its entirety by reference to the copy of the Agreement, which is attached hereto
as Exhibit 10.1, and which is incorporated herein by reference.
The Company issued a press release on March
7, 2018 in connection with the Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein
by reference.
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Item 9.01
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Financial Statements and Exhibits.
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(d) Exhibits
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*
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Portions of this document have been omitted and submitted
separately with the Securities and Exchange Commission pursuant to a request for “Confidential Treatment.”
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SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: March 7, 2018
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BIONIK LABORATORIES CORP.
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By:
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/s/ Leslie Markow
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Name:
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Leslie Markow
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Title:
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Chief Financial Officer
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Exhibit 10.1
DISTRIBUTION AGREEMENT
This Distribution Agreement (this “Agreement”),
made and entered into as of the 6
th
day of March, 2018, by and between:
Bionik Laboratories Corp.
, a Delaware
corporation (“
Bionik
”), having its principal office at 483 Bay Street, Toronto, Ontario, Canada.
and
Curexo
Inc., a Republic of Korea corporation
(“Curexo”) having its principal office at 4
th
FL, 577, Gangnam-daero, Seocho-gu, Seoul, 06530, South Korea.
Curexo and Bionik shall sometimes hereinafter
be referred to individually as “Party” and collectively as the “Parties”. Certain capitalized terms used
herein are defined in Article 1 below.
WITNESSETH:
WHEREAS, each Party (as such, the “Supplier”)
desires to appoint the other Party (as such, the “Distributor”) as the exclusive distributor for the sale of the Products
of the Supplier in the Territory, and the Distributor desires to be so appointed.
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements contained herein, the parties hereto agree as follows:
Article 1 (Definitions)
In this Agreement except where the context
otherwise requires, the following terms and expressions shall be understood to have the precise meaning as follows:
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1.1
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“Products” shall mean the products of the type
and specification manufactured and packed under the Trade Marks and listed in Schedule 1 and any other products developed by the
Supplier and which the Supplier may permit the Distributor, by express notice in writing, to distribute in the Territory. Notwithstanding
the foregoing, the Supplier may modify the design and type of the Products or parts thereof (provided the modification does not
adversely affect the Products or discontinue any Products at any time if the production of such Products is permanently discontinued
for any reason, in its sole discretion).
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1.2
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“Territory” shall mean, with respect to each
of the Distributors, the countries or areas specified in Schedule 2, as the parties may from time to time vary upon mutual agreement.
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1.3
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“Trademarks” shall mean the trademark registrations
and applications listed in Schedule 3 and any further trademarks that the Supplier may, by express notice in writing, permit or
procure permission for the Distributor to use in the Territory in respect of the Products of Supplier.
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Article 2 (Appointment and Acceptance)
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2.1
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During the term and subject to the conditions herein set
forth,
each Supplier
hereby appoints the
Distributor
as the sole and exclusive distributor to import, market and
distribute the Products in the Territory, and the
Distributor
hereby accepts such appointment.
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2.2
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The
Distributor
shall not, directly or indirectly
through another party, purchase, import, export, sell, distribute, manufacture or otherwise deal in products competitive with
or similar to the Products of the Supplier in the Territory.
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2.3
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The Distributor shall refrain from making active sales
of the Products of Supplier to customers outside of the Territories. For these purposes, “active sales” shall be understood
to mean actively approaching or soliciting customers, directly or indirectly, including, but not limited to, the following actions:
(a) visits; (b) direct mail, including the sending of unsolicited emails; (c) advertising in media, on the internet or other promotions,
where such advertising or promotion is specifically targeted at customers outside of the Territories; (d) online advertisements
addressed to customers outside of the Territories and other efforts to be found specifically by users outside of the Territories,
including the use of territory based banners on third party websites and paying a search engine or online advertisement provider
to have advertisements or higher search rankings displayed specifically to users outside of the Territories; and (e) advertising
or promotion in any form, or translation of the Distributor’s website into a language other than an official language of
any country forming part of the Territory, that the Distributor would not reasonably carry out but for the likelihood that it
will reach customers outside of the Territories. The Distributor shall not establish, or maintain any branch, sales outlet or
distribution depot in any area outside of the Territories for the sale of the Products of the Supplier.
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Article 3 (Orders and Shipment)
In placing orders with the Supplier, the
Distributor
shall clearly describe the Products of Supplier and quantity required, and shall include precise instruction for packing, invoicing
and shipping. The orders shall not be binding unless and until they are in compliance with Articles 4 and 5 .
Article 4 (Price and Payment)
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4.1
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The prices to be paid by the Distributor to the Supplier
for the Products or spare parts of Supplier are to be the Supplier's list prices as notified to the Distributor by the Supplier
from time to time. The Supplier shall give the Distributor sixty (60) calendar days notice in writing of any rises in the prices
for the Products or spare parts of Supplier. The discount of the price list to the distributor is to be determined.
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4.2
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The Distributor shall pay the full amount invoiced to it
by the Supplier in United States Dollars within ten (10) calendar days of the date of invoice. Within ten (10) calendar days after
receipt by the Distributor of Supplier’s confirmation of order, the
Distributor
shall have an irrevocable letter
of credit be issued in favor of the Supplier or its nominee by a first class, international bank satisfactory to the Supplier.
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4.3
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Unless otherwise agreed between the parties, currency of
payment shall be in USD (United States Dollars)
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4.4
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As between the Supplier and the Distributor, the Distributor
shall be liable for and shall pay any tax, duty, charge or any other impost of a similar nature imposed upon the Supplier or the
Distributor
, in respect of the purchase, sale, importation, lease or other distribution of the Products of the Supplier.
The Distributor shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments
and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or
other distribution of the Products of the Supplier.
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4.5
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The Distributor shall be free to fix its own resale prices
for the Products but shall not set those prices so high as may make them uncompetitive in the Territory including any trade discounts
or rebates and shall promptly advise the Supplier of any subsequent changes.
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4.7
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Except as specifically set forth in this Agreement, the
Distributor shall pay for any and all expenses, costs and charges incurred by it in the performance of its obligations under this
Agreement as a Distributor (including but not limited to promotion and marketing costs in the Territory), unless the Supplier
as such has expressly agreed in advance in writing to pay such expenses, costs and charges.
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4.8
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Notwithstanding anything to the contrary herein, Curexo
(as Supplier) and Bionik (as Distributor), shall share equally in the cost to Bionik for the creation, operation and maintenance
of the mobile showroom for the promotion of the Morning Walk in the Territory. The terms and conditions of said cost sharing of
Curexo and Bionik is to be determined by separated contract.
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4.9
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Neither Party may withhold payment of any amount due to
the other because of any set-off, counter-claim, abatement, or other similar deduction.
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Article 5 (Minimum Purchase)
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5.1
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No later than thirty (30) calendar days prior to (a) each
Contract Year as specified below and (b) the six–month anniversary of the commencement of each Contract Year, the Distributor
shall notify the Supplier in writing of its forecast of the quantities of each type of Product of Supplier that it expects to
buy from the Supplier for delivery during the ensuing six (6) month period.
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The First Contract
Year minimums shall be as follows: (a) Curexo shall purchase a minimum of
[Subject
to a request for confidential treatment; Separately filed with the Commission]
of
the InMotion Arm at the price per unit of $
[Subject to a request for confidential
treatment; Separately filed with the Commission]
USD FOB Origin; and (b) Bionik shall
purchase a minimum of
[Subject to a request for confidential treatment; Separately
filed with the Commission]
of Morning Walk at a price per unit of $
[Subject to
a request for confidential treatment; Separately filed with the Commission]
USD FOB
Origin. All such minimum orders shall be made as of the date of this Agreement.
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Contract
Year
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Contract Term
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First Contract Year
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From March 1, 2018 to February 28, 2019
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Second Contract Year
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From March 1, 2019 to February 29, 2020
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Third Contract Year
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From March 1, 2020 to February 28, 2021
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5.2
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The Supplier undertakes to use all reasonable endeavors
to meet all orders for the Products forwarded to it by the Distributor in accordance with the Supplier's terms of delivery to
the extent the orders do not exceed the forecast for each type of Product given under Section 5.1. The Distributor shall buy the
Products for its own account for resale under this Agreement.
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For the
purpose of this Article, the Contract Products shall be considered to be purchased when shipped by the Supplier, excluding the
sales returned to
the Supplier
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Article 6 (Technical Assistance)
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6.1
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The Supplier is obligated to supply the
Distributor
with reasonably necessary technical assistance, which may include information and illustrated material, and to send advertising
material suitable for the promotion and advertising of the Products of Supplier, in the reasonable opinion of the Supplier.
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6.2
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The Supplier shall train technical personnel of
Distributor
to permit the Distributor to satisfy its obligations under this Agreement, including to the extent it becomes necessary due
to the introduction of any new Products of Supplier, or to achieve better installation and maintenance standards. Costs for round
trips, meals, lodging, and other expenses of the
Distributor’s
personnel dispatched for training shall be borne by
the
Distributor
, and the Supplier shall bear the above costs and expenses for Supplier personnel who will train the
Distributor’s
personnel.
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6.3
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The above technical assistance and materials shall be implemented
in the English language.
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Article 7 (Spare Parts)
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7.1
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The
Distributor
shall keep a sufficient level of
spare parts in order to provide efficient after-sales service. The Supplier shall also advise the
Distributor
of the required
spare parts. Any stock will be discussed and mutually agreed upon before orders are placed.
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7.2
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The Supplier shall supply to the
Distributor
spare
parts for the Products of Supplier as long as the
Distributor
continues to purchase the Products pursuant to the terms
and conditions of this Agreement and, in the absence of breach by the
Distributor
of this Agreement, for 5 years after
the last shipment of the Products of Supplier to the
Distributor
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7.3
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With the prior written consent of the Supplier, the
Distributor
may purchase standard spare parts from the Supplier’s suppliers directly for 5 years after the last shipment of Products.
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Article 8 (Inspection and Warranty)
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8.1
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Promptly after the receipt of the Products, the
Distributor
shall inspect or shall cause its qualified agent to inspect the Products at the Distributor’s cost, to insure that the
quality standards have been met as agreed to in writing by the parties. If, upon receipt of the Products after proper and thorough
inspection to be performed no later than fourteen (14) days after receipt, any of the Products is found not to be in compliance
with the quality standards set by the Supplier, the Supplier shall replace the Products or the part of a Products not meeting
the quality standards, and shall indemnify the
Distributor
against any direct damage incurred actually by the
Distributor
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8.2
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The Supplier
warrants that the Products of Supplier
shall be free from defects in material and workmanship for a period of one (1) year from installation of the Product. This warranty
does not extend to any of the said Products which have been: (1) subjected to misuse, neglect, accident or abuse, (2) improperly
repaired, or altered or modified in any way, and (3) used in violation of instructions furnished by the Supplier.
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8.3
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Claims by the
Distributor
in regard to any defect
in the Products shall be in writing and be dispatched by the
Distributor
with full particulars within 30 days after the
receipt of the Products.
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8.4
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The parties agree that the implied warranties of merchantability
and fitness for a particular purpose and all other warranties or guarantees, express or implied, are excluded from this transaction
and shall not apply for the Products.
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Article 9 (Distributor’s Responsibility)
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9.1
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The
Distributor
agrees and undertakes to diligently
and conscientiously, use all reasonable efforts to promote and expand the distribution and sale of the Products of the Supplier
in the Territory, including but not limited to regularly and at its own expense distributing promotional literature, conducting
multi media advertising and carrying out market surveys.
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9.2
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The
Distributor
shall maintain adequate stocks and inventory of the Products throughout the Territory to meet its customer’s
demand in time, and to support the effective demonstration of Products to targeted customers for future sales. The
Distributor
shall maintain adequate stocks and inventory of replacement parts, facilities and qualified mechanics throughout the Territory
and shall provide reasonable after-sales service to its customers
[
in
accordance with the terms of the service and maintenance manual provided by the Supplier] during the Term and for [six] months
after termination, however terminated.
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9.3
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The
Distributor
shall take all reasonable steps
to ensure that the Products of the Supplier are properly transported, handled, stored and secured so as to prevent any damage
or theft thereto or thereof.
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9.4
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The Distributor shall insure at its own cost with a reputable
insurance company all stocks of the Products of the Supplier as are held by it against all risks which would normally be insured
against by a prudent businessman to at least their full replacement value and promptly produce to the Supplier on demand full
particulars of that insurance and the receipt for the then current premium. The
Distributor
shall indemnify and save the
Supplier harmless from any claims which may be initiated against the Supplier as a result of any such damage to the Products of
the Supplier to the extent that such are not covered by the said insurance.
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9.5
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The Distributor shall arrange at its own expense, advertisement
and sales promotion of the Products and devote its best efforts, but in any case at a minimum to meet minimum sales quantities,
toward obtaining the largest sales volume of the Products in the Territory. If necessary, the Supplier supports cooperative advertising
executed by the Supplier’s Cooperative Advertising Agreement in a separate contract. The form and nature of advertisement
and sales promotion of the Products shall be submitted to the Supplier for the prior approval before publication and unless the
Supplier notifies the Distributor that it does not approve of any advertising or sales literature within 7 days of receipt by
the Supplier of details of the same the Supplier shall be deemed to have approved such advertisement or sales promotion.
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9.6
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Whenever
the Supplier
shall indicate to the
Distributor
any complaint concerning the activities of the
Distributor
as required under this Agreement, the
Distributor
shall promptly make investigation and take proper action, if any.
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9.7
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The Distributor shall not: (a) represent itself as an agent
of the Supplier for any purpose; (b) pledge the Supplier's credit; (c) give any condition or warranty on the Supplier's behalf;
(d) make any representation on the Supplier's behalf; (e) commit the Supplier to any contracts; or (f) otherwise incur any liability
for or on behalf of the Supplier. The Distributor shall not, without the Supplier's prior written consent, make any promises or
guarantees about the Products of the Supplier beyond those contained in the promotional material supplied by the Supplier.
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9.8
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The Distributor shall send at its own reasonable expense
to the premises of the Supplier or make available at the Distributor's premises at a time or times convenient to the Supplier,
competent employees for instruction by the Supplier in the use, installation, sale, maintenance, repair and application of the
Products of the Supplier. If those employees leave the employment of the Distributor, or it appears that any of them will be unavailable
to the Distributor for assisting it in performing its duties under this Agreement for more than one month then the Distributor
shall send or make available to the Supplier at its own reasonable expense one or more other competent employees for instruction.
If there is additional instruction required, the Parties will mutually discuss sharing this additional cost or the other party
covering the additional cost.
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9.9
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During the term of this Agreement, the Distributor shall
not distribute, sell or market in the Territory any product which competes with any Product of Supplier.
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Article 10 (Request of Information)
The
Distributor
shall cooperate with
Supplier’s
request on the sales of the Products of Supplier, and the
Distributor
shall send to the Supplier:
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(a)
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a written quarterly report on its activities in the Territory,
such reports to include sales by product including both the value and units, sales by country, recommended retail price lists,
advertising and promotion plans for the future and a commentary on the marketing, sales and distribution performance and plans,
matters affecting pricing policies and achievements and proposals in respect of major customers.
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(b)
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A written monthly report on the stocks of the Products
and parts thereof held by the
Distributor
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(c)
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Any other information relating to the performance of its
obligations under this Agreement that the Supplier may reasonably require from time to time.
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(d)
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Monthly online updating via SalesForce of all sales opportunities
in the respective territory. This shall include the name, address and phone number of each particular sales opportunity and the
key decision makers at each such sales opportunity.
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The Distributor shall keep full and proper
books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to the Products of
Supplier;
The Distributor shall allow the Supplier, on
reasonable notice, access to its accounts and records relating to the Products of Supplier for inspection.
Article 11 (Trademark)
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11.1
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The Supplier hereby grants to the Distributor the non-exclusive
right, in the Territory, to use the Trademarks in the promotion, advertisement and sale of the Products of Supplier, subject to,
and for the duration of, this Agreement. The Distributor acknowledges and agrees that all rights in the Trademarks shall remain
in Supplier, and that Distributor has and will acquire no right in them by virtue of the discharge of its obligations under this
Agreement, except for the right to use the Trademarks as expressly provided in this agreement. The Distributor shall market and
sell the Products of Supplier only under the Trademarks, and not in association with any other trade mark, brand or trade name,
except as permitted in any branding manual issued by the Supplier. The Distributor shall ensure that the appropriate Trademarks
shall appear on all Products of Supplier, containers and advertisements for the Products of Supplier, followed by the symbol ®,
or the letters [TM], as appropriate.
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11.2
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When the
Distributor
uses the Trademark under paragraph
11.1, prior to use, the
Distributor
shall, inform the Supplier of the manner of such use and submit a sample of any materials
including but not limited to, catalogues, leaflets, posters, newspapers, bearing the Trademark for prior inspection and approval
by the Supplier. When the
Distributor
wishes to change the approved use of the Trademark, prior to change the
Distributor
shall inform the Supplier of the desired change and submit a sample of the materials bearing the altered use of the Trademark
for prior inspection and approval by the Supplier. In any event, the manner of use of the Trademark or any change thereof shall
be subject to the Supplier’s prior approval and the
Distributor
shall not use the Trademark in any other manner than
approved in advance by the Supplier. The Distributor shall comply with all rules for the use of the Trademarks issued by the Supplier
(including those set out in any branding manual issued by the Supplier) and shall not, without the prior written consent of the
Supplier, alter or make any addition to the labeling or packaging of the Products of Supplier displaying the Trade Marks. The
Distributor shall not alter, deface or remove any reference to the Trade Marks, any reference to the Supplier or any other name
displayed on the Products of Supplier or their packaging or labeling.
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11.3
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The
Distributor
recognizes that any of the Trademarks,
trade names, designs, copyrights and other proprietary rights, used on or embodied in the Products (“Proprietary Rights”)
shall remain the exclusive property of
the Supplier
. The
Distributor
shall not have or acquire any right, title
or interest in Proprietary Rights.
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11.4
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During the terms of this Agreement and thereafter, the
Distributor
shall not:
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(a)
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Use the Trademark or similar trademark on any products
that is not a Supplier Product, nor let any third party use the Trademark.
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(b)
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Directly or indirectly apply for the registration of the
Trademark or any similar trademark with respect to the Products or any other materials in any country or jurisdiction.
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11.5
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The
Distribution
may, with the prior written consent
of
the Supplier
, indicate that it is an authorized distributor of the Products.
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11.6
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When the
Distributor
finds that a third party infringes
or impairs the Trademark or the Supplier’s goodwill involved therein, or when a third party brings a claim, suit or action
against the Supplier or the
Distributor
on the ground that the
Distributor’s
use of the Trademark may infringe
on the third party’s rights, the
Distributor
shall promptly inform the Supplier thereof and reasonably co-operate
with the Supplier to address the problem. In respect of any such matter, the Supplier shall in its absolute discretion decide
what action to take in respect of the matter (if any), and the Supplier shall conduct and have sole control over any consequent
action that it deems necessary.
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11.7
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Upon termination of this Agreement for any cause, the
Distributor
shall cease holding itself out as a distributor of the Products and cease using, in any way, the Supplier’s name, or
its Proprietary Rights or any material similar thereto. The Distributor shall not at any time sub-license, transfer or otherwise
deal with the rights of use of the Trademarks granted under this Agreement.
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11.8
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The Supplier, at its discretion, shall have the right to
record the existence of the license hereunder, or require the
Distributor
to register as a registered user within the Territory.
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11.9
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The
Distributor
shall not alter, deface, remove,
cover or mutilate in any manner the Trademark, serial or model number, brand, or Supplier’s name attached or affixed to
any of the Products, without the prior written consent of the Supplier.
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11.10
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Notwithstanding anything to the contrary in this Article
11, the parties shall negotiate in good faith terms to permit the co-branding of Products in the Territories.
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Article 12 (Status of Distributor)
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12.1
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This Agreement does not in any way create the relationship
of principal and agent between
the Supplier
and the
Distributor
; and under no circumstances shall the
Distributor
be considered to be the agent of
the Supplier
. The
Distributor
shall not act or attempt to act, or represent
itself, directly or by implication, as an agent of
the Supplier
or in any manner assume or create, or attempt to assume
or create any obligation, liability, representation, warranty or guarantee on behalf of, or in the name of
the Supplier
.
The
Distributor
shall conduct its business in the purchase and resale of the Products as a principal for its own account
and at its own expense and risk.
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12.2
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The
Distributor
shall, at all times, comply with
all applicable laws, regulations, and orders of any government of the Territory or political subdivisions thereof, relating to
or in any way affecting this Agreement and the
Distributor’s
performance hereunder, including the obtaining of any
required licenses, permits or approvals. The Distributor shall at all times comply with all applicable laws, statutes, regulations,
and codes relating to anti-bribery and anti-corruption in the Territory or political subdivisions thereof.
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12.3
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The
Distributor
shall not disclose to any third
party, without the prior written consent of
the Supplier
, or use for any purpose other than the performance of its obligations
under this Agreement, any confidential information concerning the Product or business affairs or technologies of
the Supplier
(including, but not limited to, prices, discounts, terms and conditions of sale, customers, business affairs, Products or
Product specifications) which it acquires or develops in the course of its transactions with
the Supplier
. Notwithstanding
the foregoing, the parties may make such public disclosures as are required under applicable securities laws or the rules and
regulations of any stock exchange or interdealer quotation system on which the parties’ capital stocks are then traded or
listed.
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Article 13 (Term)
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|
13.1
|
This Agreement shall become effective upon signing, and
shall continue in full force and effect for a period of three (3) years from the date hereof, unless earlier terminated pursuant
to Article 14.
|
|
|
13.2
|
This Agreement shall be automatically extended for successive
1 year terms, unless three months prior to the expiration of the term or any extension thereof, a notice of intention to finally
terminate is given in writing by one party to the other.
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Article 14 (Termination)
|
|
14.1
|
This Agreement may be terminated at the option of either
Party, effective immediately upon giving written notice of termination to the other Party, in each of the following events;
|
|
|
(a)
|
Should the other Party become bankrupt or insolvent, or
have its business placed in the hand of a receiver, assignee or trustee, whether by voluntary act or otherwise; or
|
|
|
(b)
|
Should the other Party attempt to assign this Agreement
or any rights hereunder to a third party without the terminating Party’s prior written consent; or
|
|
|
(c)
|
If the other Party ceases to function as a going concern
or to conduct its operations in the normal course of business voluntarily or otherwise; or
|
|
|
(d)
|
If the other Party commits a material breach of any agreement
or conditions herein contained, and shall not have remedied such breach within 30 days of a notice requiring the remedy of such
breach.
|
The Supplier may
immediately terminate this Agreement should the
Distributor
be acquired by, or should itself acquire, in whole or in part,
a manufacturer of products which in the reasonable judgment of
the Supplier
competes with the Products;
|
|
14.2
|
Notwithstanding anything contained in this Agreement, either
party may terminate this Agreement by a written notice served on the other, effective 3 months from the date of such notice if
the objectives of the parties are not being met.
|
|
|
14.3
|
[Intentionally Omitted]
|
|
|
14.4
|
All payments owed to
the Supplier
upon termination
shall become immediately due and payable and no cancellation or termination of this Agreement shall serve to release the
Distributor
or its successors or assignees from any obligations under this Agreement.
|
|
|
14.5
|
In cases of termination of this Agreement by either party
for any reason,
the Supplier
may at its sole option repurchase from the
Distributor
, at the FOB loading port price
paid by the
Distributor
to the Supplier, plus actual freight paid by the
Distributor
, any or all Products of Supplier
or parts thereof in the possession of the
Distributor
. If the Supplier chooses not to exercise its option to so repurchase
the Products, or purchases only part of the Distributor's stocks of Products, the Distributor may for a period of six (6) months
following termination of this Agreement, sell and distribute any stocks of the Products that it may have in store or under its
control at the time. At the end of this period, the Distributor shall promptly return all remaining stocks of the Products to
the Supplier at the expense of the Distributor, or dispose of the stocks as the Supplier directs. In any event of expiration or
termination, the Distributor shall at the Supplier's option promptly destroy or return all samples, technical pamphlets, catalogues,
advertising materials, specifications and other materials, documents or papers that relate to the Supplier's business that the
Distributor may have in its possession or under its control (other than correspondence between the parties)
|
|
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14.6
|
Termination or expiry of this Agreement shall not affect
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including
the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
|
Article 15 (Indemnities)
Distributor
shall indemnify
the Supplier
and hold
the Supplier
harmless from and against, and shall defend against, any and all claims and damages of every kind
for injury to or death of any person or persons and for damage to or loss of property, arising out of or attributed, directly or
indirectly, to the conduct, operations, or performance of
Distributor
.
Article 16 (Governing Law and Arbitration)
|
|
16.1
|
This Agreement shall be interpreted and governed by the
laws of the laws of the State of New York.
|
|
|
16.2
|
All disputes, controversies or differences which may arise
between the parties out of or in relation to or in connection with this Agreement, or for the breach thereof, shall be settled
by arbitration in accordance with the Rules of Arbitration of the I.C.C. by one (1) arbitrator appointed in accordance with said
Rules. The proceedings shall be seated and located in New York County, New York and conducted in English. The arbitration award
shall be final and binding immediately upon the
Parties
and shall not be subject to appeal.
|
Article 17 (Miscellaneous Provisions)
|
|
17.1
|
This Agreement constitutes the entire understanding of
the Supplier
and the
Distributor
with respect to the subject matter hereof.
|
|
|
17.2
|
No amendment, modification or alteration of any terms of
this Agreement shall be binding on either party unless the same shall be made in writing, dated subsequent to the date hereof
and executed by or on behalf of the parties hereto.
|
|
|
17.3
|
This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
|
|
|
17.4
|
No assignment of this Agreement shall be valid without
the prior written consent of the other party hereto.
|
|
|
17.5
|
All waivers hereunder shall be in writing, and the failure
of any party at any time to require the other party's performance of any obligations under this Agreement shall not affect the
right subsequently to require performance of the obligation. Any waiver of any breach of any provision of this Agreement shall
not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver or modification of the provision.
|
|
|
17.6
|
This Agreement may be executed in English and in other
languages (including Korean). In the event of any difference or inconsistency among different versions of this Agreement, the
English version shall prevail over in all respect.
|
|
|
17.7
|
It is the Parties’ intention to issue a joint news
release disclosing the creation of this Agreement in form and substance mutually agreeable to the Parties in good faith .
|
|
|
17.8
|
Subject to the express provisions set forth in this Agreement,
in no event shall either Party be liable to the other Party for consequential damages, including but not limited to lost profits,
lost market or business opportunities, or lost revenues, or incidental, special, or punitive damages arising under, related to,
or resulting from the breach of this Agreement, regardless of legal or equitable theory, and despite timely notice of the possibility
of such damages.
|
IN WITNESS WHEREOF, the parties hereto have
authorized this Agreement to be executed by their respective duly authorized officers.
|
Signed
by:
|
|
|
|
|
|
|
|
|
|
/s/
E
. Dusseux
|
|
Date
:
|
06
March 2018
|
|
Eric
Dusseux
|
|
|
|
|
CEO
|
|
|
|
|
Bionik
Laboratories Corp.
|
|
|
|
|
|
|
|
|
|
Signed
by:
|
|
|
|
|
|
|
|
|
|
/s/
Jae Jun Lee
|
|
Date
:
|
03/06/2018
|
|
Jae
Jun Lee
|
|
|
|
|
CEO
|
|
|
|
|
Curexo
Inc.
|
|
|
|
SCHEDULE 1
SUPPLIER PRODUCTS AND DISTRIBUTOR PRICING
The Products of Bionik, as the Supplier, and
the pricing extended to Curexo, as the Distributor, as of the date of this Agreement:
1. InMotion Arm™ $
[Subject to a
request for confidential treatment; Separately filed with the Commission]
USD FOB Origin
2. InMotion Arm/Hand™ $
[Subject
to a request for confidential treatment; Separately filed with the Commission]
USD FOB Origin
3. InMotion Wrist™ $
[Subject to
a request for confidential treatment; Separately filed with the Commission]
USD FOB Origin
The Products of Curexo, as the Supplier, and
the pricing extended to Bionik, as the Distributor, as of the date of this Agreement:
1. Morning Walk $
[Subject
to a request for confidential treatment; Separately filed with the Commission]
USD FOB Origin
SCHEDULE 2
TERRITORIES
The Territories of Bionik, as the Distributor
of Curexo’s Products, as of the date of this Agreement:
The United States of America
The Territories of Curexo, as the Distributor
of Bionik’s Products, as of the date of this Agreement:
Republic of Korea (South Korea)
SCHEDULE 3
TRADEMARKS
Exhibit 99.1
Bionik Laboratories Corp. and Curexo Enter
Exclusive
Distribution Agreement for Sale of Robotic
Rehabilitation Systems in U.S. and South Korea
Agreement further expands Bionik’s footprint in Asia though
Curexo’s sales and distribution network in South Korea; Initial orders for each company’s technology to ship in the
coming weeks
TORONTO and BOSTON, March 7, 2018 —
Bionik Laboratories Corp.
(OTCQB:BNKL) (“Bionik” or the "Company"), a robotics company focused on
providing rehabilitation and assistive technology solutions from hospital to home for individuals with neurological and mobility
challenges, today announced it has entered into an exclusive distribution agreement for the sale of its InMotion Robotic Systems
in South Korea with
Curexo
. As part of the agreement, Bionik also becomes the exclusive distributor of Curexo’s Morning
Walk lower body rehabilitation technology within the United States.
The agreement between the two companies will
provide Curexo with the exclusive right to market and sell Bionik’s innovative robotic products in South Korea, including
its InMotion ARM, InMotion HAND, and InMotion WRIST, which
are all
interactive robotic
products that assist the patients’ movement as they progress through their rehabilitation. Extensive clinical data on more
than 1,000 patients has demonstrated that the InMotion robots provide more effective patient outcomes than traditional manual therapy
alone. Initial orders for each company’s technology will ship in the coming weeks.
Curexo is a manufacturer and importer of surgical and medical robots
in South Korea, whose largest shareholders are Korea Yakult Corp. and Hyundai Heavy Industries. The agreement provides Bionik with
the exclusive right to market and sell Curexo’s Morning Walk lower body rehabilitation technology within the United States.
The Morning Walk is a gait training robot designed
for the rehabilitation of people with walking impairments due to injury or illness. The unique body weight support system unloads
the patient using an adjustable saddle seat design, which avoids the need for an uncomfortable and time consuming harness body
weight support system. The end-effector design of the Morning Walk also enables more effective gait training by providing varied
and progressively challenging walking experiences such as floor, ramp, and stair walking. This product can easily accommodate and
effectively treat a large and diverse population of patients; from children to older adults and those with neurological to orthopedic
impairments. Using interactive virtual reality software, therapy activities are designed to be motivating, engaging, and meaningful
for patients undergoing rehabilitation.
“We are excited to enter into this agreement
with Curexo, and to expand our global footprint throughout Asia and into South Korea,” said Dr. Eric Dusseux, Chief Executive
Officer of Bionik Laboratories. “Stroke is a tremendous detriment to the Asian community, and there is a great need for innovative
therapeutic rehabilitation technologies to treat patients and help them regain their mobility. We believe Curexo is the right partner
to penetrate the market, and work with to become the standard of care for stroke rehabilitation in South Korea. We also believe
that the coming together of Curexo’s innovative product for lower body rehabilitation empowers us to provide an even wider
array of technology solutions within the United States. We are optimistic about the Morning Walk’s prospects and committed
to creating a long-term partnership with Curexo”
“We are pleased to partner with Bionik
for distribution of our robotics systems in the U.S., as they are a recognized industry leader in the rehabilitation market and
have a history of successful business relationships within the country,” said Jung SH, Chief Technology Officer, Curexo.
“We believe the exclusive opportunity to sell the InMotion Systems in South Korea will also increase our sales pipeline,
as we showcase how innovative the technology is and the care it can provide to the South Korean people.”
Bionik’s robotic solutions are currently
providing effective and affordable patient care with respect to treatment of neurological disorders in 20 countries and in over
200 hospitals. Bionik
has seven robotic products
, of which three are FDA-cleared and in the market globally, and four products
that are in various stages of development. Its
InMotion ARM
,
InMotion HAND
, and
InMotion WRIST
interactive
robotic therapy systems sense a patient’s movement and respond to a patient’s continually-changing ability, all in
real time.
This agreement furthers the Company’s
footprint in Asia; last year it
entered into an exclusive licensing agreement
for the sale of its InMotion technology in
China.
About Bionik Laboratories
Bionik Laboratories
(OTCQB:BNKL) is a robotics company focused on providing rehabilitation and mobility solutions to individuals with neurological
and mobility challenges from hospital to home. The Company has a portfolio of products focused on upper and lower extremity rehabilitation
for stroke and other mobility-impaired patients, including three products on the market and four products in varying stages of
development.
For more information, please visit
www.bioniklabs.com
and
connect with us on
Twitter
,
LinkedIn
, and
Facebook
.
About Curexo
Curexo is a medical robotics
company that develops and sells orthopedic surgical robots, interventional robots, and rehabilitation robots. The company also
imports the world's first artificial joint surgery robot from US affiliates and commercializes it in Korea. Curexo is a leading
medical robot company in Korea and the company has the philosophy of providing differentiated products and medical solutions to
patients with advanced technologies.
Forward-Looking Statements
Any statements contained in this press release
that do not describe historical facts may constitute forward-looking statements. Forward-looking statements, which involve assumptions
and describe our future plans, strategies, and expectations, are generally identifiable by use of the words “may,”
“should,” “would,” “will,” “could,” “scheduled,” “expect,”
“anticipate,” “estimate,” “believe,” “intend,” “seek,” or “project”
or the negative of these words or other variations on these words or comparable terminology. Forward-looking statements may include,
without limitation, statements regarding (i) the plans and objectives of management for future operations, including plans or objectives
relating to the design, development and commercialization of human exoskeletons and other robotic rehabilitation products, (ii)
a projection of income (including income/loss), earnings (including earnings/loss) per share, capital expenditures, dividends,
capital structure or other financial items, (iii) the Company's future financial performance and success in raising capital, (iv)
the market and projected market for our existing and planned products, and success in penetrating those markets and (v) the assumptions
underlying or relating to any statement described in points (i), (ii), (iii) or (iv) above. Such forward-looking statements are
not meant to predict or guarantee actual results, performance, events or circumstances, and may not be realized because they are
based upon the Company's current projections, plans, objectives, beliefs, expectations, estimates and assumptions, and are subject
to a number of risks and uncertainties and other influences, many of which the Company has no control. Actual results and the timing
of certain events and circumstances may differ materially from those described by the forward-looking statements as a result of
these risks and uncertainties. Factors that may influence or contribute to the inaccuracy of the forward-looking statements or
cause actual results to differ materially from expected or desired results may include, without limitation, the Company's inability
to obtain additional financing, the significant length of time and resources associated with the development of our products and
related insufficient cash flows and resulting illiquidity, the Company's inability to expand the Company's business, significant
government regulation of medical devices and the healthcare industry, lack of product diversification, volatility in the price
of the Company's raw materials, and the Company's failure to implement the Company's business plans or strategies. These and other
factors are identified and described in more detail in the Company's filings with the SEC. The Company does not undertake to update
these forward-looking statements.
Media contact:
Matt Bretzius
FischTank Marketing and PR
matt@fischtankpr.com
Investor Relations contact:
Amato and Partners, LLC
Investor Relations Counsel
admin@amatoandpartners.com