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Exhibit 10.1
AMENDED FORM OF U.S. MANUFACTURER'S REPRESENTATIVE
AGREEMENT
This agreement is effective ___________and is by and between Gliatech Medical,
an Ohio corporation, having offices at 00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxx
00000, (hereinafter "Gliatech"), and [CompanyName] a corporation, having
offices at [CorrAddress], [Expr2] (hereinafter "Manufacturers
Representative").
WHEREAS, Gliatech markets and sells a medical device, ADCON(R)-L Anti-Adhesion
Barrier Gel (the "Product") to the medical industry; and
WHEREAS, Manufacturers Representative promotes sales of products, including
medical devices such as instruments, implants and supplies, to the medical
industry; and
WHEREAS, Gliatech desires to appoint Manufacturers Representative as an
independent representative for promoting sales of the Product manufactured and
distributed by Gliatech, and Manufacturers Representative desires to be an
appointed independent representative for promoting sales of the Product;
NOW, THEREFORE, in consideration of the premises and covenants herein contained,
the parties hereto agree as follows:
1. APPOINTMENT OF MANUFACTURERS REPRESENTATIVE
Gliatech hereby appoints, and Manufacturers Representative hereby
accepts, the appointment as the exclusive, independent representative
of Gliatech for the promotion of sales of the Product for the Territory
(as defined below) designated. Gliatech shall have the right to amend,
from time to time, the Territory as defined in Appendix 2, upon 30 days
written notice to the Manufacturers Representative. Manufacturers
Representative shall not sell or solicit sales of products or otherwise
represent companies selling or otherwise distributing products
competitive to Gliatech's products without prior written approval from
Gliatech. Gliatech shall have the sole right to make the determination
of those products which are competitive to Gliatech's products. Subject
to the terms of this Agreement, Manufacturer's Representative is free
to engage in any other activities it wishes.
2. TERRITORY
The Territory specified hereunder within which the Manufacturer's
Representative shall solicit sales of the Product shall be the
geographical area shown in Appendix 2 attached hereto (the
"Territory").
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3. MANUFACTURERS REPRESENTATIVE'S DUTIES AND OBLIGATIONS
A. Manufacturers Representative shall promote the Product and
solicit orders for sales of the Product within the Territory.
Promotional activity shall include, but not be limited to,
Product display advertising and promotion at medical doctor or
hospital meetings and exhibitions, such as conventions and
trade shows, and state and regional medical or hospital
meetings. Manufacturers Representative shall appoint employee
sales representatives (the "Sales Representatives") to assist
in the promotion and sale of the Product. The Sales
Representative shall be the sole responsibility of
Manufacturer's Representative who shall (i) ensure the filing
of all appropriate business registrations, (ii) compliance
with the requirements of tax withholding and reporting
occasioned by the engagement of such Sales Representatives and
(iii) compliance by such Sales Representatives with all
obligations of Manufacturers Representative hereunder.
B. Manufacturers' Representative shall be responsible for
assuring its Sales Representatives are thoroughly trained to
promote and sell the Product consistent with the training
guidelines provided by Gliatech.
C. Manufacturers' Representative sole compensation for services
provided hereunder shall be compensation in the form of a
commission on the sale of the Product in the Territory.
D. In order to comply with applicable law and in order to protect
Gliatech from claims and liabilities, Manufacturers
Representatives communications and representations to
customers shall be true, accurate, complete and consistent
with the labeling of the Product. Manufacturers Representative
shall under no circumstances modify, repackage, adulterate,
misbrand, alter or add labels to or remove labels from the
Product.
E. All advertising and all participation by Manufacturers
Representative in public exhibitions, relating to the Product
and the use of Gliatech's name and trademarks, shall be
subject to prior written approval of Gliatech, which approval
shall not be unreasonably withheld.
F. Manufacturers Representative's sales quota for the
______________________ are set forth in Appendix 1 attached
hereto. Manufacturers Representative shall receive its
proposed sales quota for any subsequent year no later than
December 1. Achievement of the annual and quarterly sales
quotas is a material obligation of this Agreement.
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G. Except as otherwise agreed, Manufacturers Representative shall
be responsible for providing its own equipment, offices,
working facilities and such other facilities and services as
may be required at its own expense. Manufacturers
Representative shall maintain an inventory of demonstration
equipment, and deliverable Product (the "Inventory") to
promote and solicit orders for Product. Manufacturer's
Representative shall be responsible for the risk of loss or
damage of such Inventory whether or not held at Manufacturers
Representatives business location. Manufacturers
Representative will be charged for each lost unit of Product
at the average selling price per unit for its Territory for
that year, less its commission. Upon termination of this
Agreement, Inventory of Product shall be returned to Gliatech.
H. Manufacturer's Representative and all sales representatives
shall attend one national sales meeting per year for the
purposes of training related to the promotion of the Product.
I. Manufacturer's Representative shall submit an annual
comprehensive Business Plan as set forth in Appendix 4,
attached hereto.
J. The authorized person executing this Agreement on behalf of
the Manufacturer's Representative shall be personally, as an
individual, liable to see that the Manufacturer's
Representative meets all of its obligations herein.
K. Manufacturer's Representative shall not make any
representation or statement, written or otherwise, concerning
prices, terms of delivery, terms of payment or conditions of
sale except and to the extent that the same is specifically
authorized by Gliatech. Manufacturers Representative shall
have no right or authority to make any price guarantees, offer
or agree to any discounts and/or accept any orders on
Gliatech's behalf or return any products to Gliatech without
prior written approval by Gliatech.
4. GLIATECH DUTIES AND OBLIGATIONS
A. Gliatech shall sell and deliver the Product with respect to
orders solicited by Manufacturer's Representative in
accordance with published price lists in effect. Gliatech may
accept or refuse any order for the Product and will not be
bound by any order until it is finally accepted by Gliatech.
Gliatech shall not be liable for any loss or damage caused by
non-acceptance of orders or delays in making shipments.
B. Gliatech shall pay a commission to Manufacturer's
Representative on orders solicited within and delivered to the
Territory as set forth in Appendix 3 attached hereto (which
may be from time to time amended).
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Commissions shall be deemed earned by Manufacturer's
Representative upon invoicing of Product sales by Gliatech to
customers. Commissions earned by Manufacturers Representative
shall be computed on the net amount of the invoices rendered
(less credit memos) in accordance with published price lists
for each order or part of an order, exclusive of all freight
and transportation costs (including insurance), normal and
recurring bona fide trade discounts having Gliatech's prior
written approval and any applicable sales or similar taxes.
Commissions earned by the Manufacturers Representative shall
be due and payable on or before the 25th day of the month
immediately following the month during which invoices are
issued for orders received by Gliatech.
C. Gliatech shall forward to Manufacturers Representative those
inquiries for the Product which are reasonably identifiable as
having been generated through the advertising or sales
promotion efforts of Manufacturers Representative or any of
its Sales Representatives.
D. Subject to reasonable charges as determined by Gliatech,
Gliatech shall supply Manufacturers Representative with
reasonable quantities of descriptive literature, promotional
and other materials (the "Promotional Literature") relating to
the Product.
E. Gliatech shall indemnify Manufacturers Representative, its
employees and Sales Representatives against any and all third
party claims and demands for losses, damages and injuries,
including legal expenses and attorneys fees, arising out of
any claim of a defect in the manufacture or design of the
Product or written representation or omission in Gliatech's
Promotional Literature concerning the Product. This indemnity
shall not extend to any malfeasance, nonfeasance or other
negligent conduct of Manufacturers Representative, its
employees or Sales Representatives in connection with any acts
related to the Manufacturers Representative's activity
hereunder. Except as otherwise expressly provided,
Manufacturers Representative is liable for all its own
expenses and all claims made against it.
F. Gliatech shall make a good faith effort to collect monies owed
on invoices from orders solicited by Manufacturers
Representative and shall provide Manufacturers Representative
with a monthly statement of past due accounts in the
Territory. In the event that Gliatech has not received payment
from any customer upon which a commission was paid within one
hundred twenty (120) days from the date on which any payment
was due, Gliatech reserves the right to charge back to the
Manufacturers Representative the full amount of the commission
paid on such sale.
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Upon subsequent receipt of the outstanding monies, Gliatech
will pay the original commission amount.
5. CONFIDENTIALITY, IMPROVEMENTS, PATENTS AND TRADEMARKS
A. Manufacturers Representative shall take all reasonable steps
to do those things reasonably necessary to ensure that
confidential information relating to the Product and to the
technology and business of Gliatech is not disclosed or made
use of outside the business of Manufacturers Representative
and Gliatech including, without limitation, causing such Sales
Representative to maintain the confidential information;
provided, however, that the foregoing shall not apply to
information (a) which be can shown to be in writing and known
to Manufacturers Representative prior to disclosure by
Gliatech; (b) which is or becomes public knowledge through no
fault of Manufacturers Representative; or (c) which is
disclosed to Manufacturers Representative by a third party
with the lawful right to make such disclosure. Manufacturers
Representative's obligation of confidentiality shall survive
the termination of this Agreement until and unless such
confidential information shall have become, through no fault
of the Manufacturers Representative, generally in the public
domain.
B. During the term of this agreement Manufacturers Representative
shall be permitted to use Gliatech's servicemark, trademarks
and identification solely on or in connection with the
solicitation of orders for the Product during the term of this
Agreement. It is the obligation of the Manufacturers
Representative to notify Gliatech of any infringement of
Gliatech's trademarks and identification. Manufacturers
Representative shall discontinue the use of all such marks
upon the termination of this Agreement. All goodwill generated
hereunder in the use of such trademarks shall accrue to the
benefit of Gliatech. The Manufacturers Representative hereby
disclaims any rights in Gliatech's trademarks and
identification other than the aforementioned use.
6. TERMS AND TERMINATION
A. This Agreement shall continue in full force and effect
beginning on April 1, 2000 and continuing through December 31,
2000. This Agreement shall thereafter automatically renew for
additional yearly periods unless written notice is made by
either party 30 days prior to expiration, provided however
that as of December 1, the parties hereto have agreed to a
sales quota per Section 3 (F) hereto.
B. Gliatech shall have the right to terminate this Agreement if
the sales quota as determined by Gliatech and specified in
Appendix 1 is not achieved. In
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this case, Gliatech will provide Manufacturers Representative
30 days written notice prior to termination.
C. Gliatech shall have the right to terminate this Agreement upon
notice of Manufacturers Representative's (i) commission or
suffering of any act of bankruptcy or insolvency, (ii) failing
to cure any material breach in the provisions of this
agreement within thirty (30) days after written notice of such
breach, except as otherwise provided by Section 6(B), (iii)
conviction in any court of a felony under applicable city,
state, or federal laws.
D. If this Agreement shall terminate for any reason whatsoever,
the Manufacturers Representative shall be entitled to receive
commissions as determined in accordance with the above
provisions with respect to orders solicited prior to the
effective date of such termination, regardless of when such
orders were accepted by Gliatech (provided such orders can be
demonstrated to be orders that were solicited prior to the
effective date of such termination) and regardless of when
such shipments are made and invoices rendered.
E. Goods returned according to Gliatech's Customer Returns Policy
as set forth in Appendix 5 hereto, shall be charged against
Manufacturers Representative commission payable. Ninety days
(90) after termination of this agreement, the commission
account shall be closed and all proceeds over the uncollected
accounts receivable shall be paid to the Manufacturers
Representative.
7. FORCE MAJEURE
Obligations of either party to perform under this Agreement shall be
excused and, in Manufacturers Representative's case, sales quotas
addressed in Section 3(F) hereof will be reduced proportionately during
such period of delay caused by matters such as strikes, shortages of
power or raw materials, government orders, or Acts of God, which are
reasonably beyond the control of the party obligated to perform.
8. NOTICES
Any notice required by this Agreement shall be deemed sufficient if
sent by certified mail, postage prepaid, facsimile transmission or
overnight courier to the party to be notified at the address set forth
below, until a different address is supplied in writing.
In the case of Gliatech, such notice shall be sent to:
Gliatech Inc.
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00000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Ph.D.
Fax: 000-000-0000
In the case of Manufacturers Representative, such notice shall be sent
to:
Fax:
9. ENTIRE AGREEMENT
This document and the Appendices attached hereto and incorporated
herein by reference thereto represent the entire agreement between the
parties hereto, and supersede all prior agreements regardless of their
terms or cancellation provisions, and this Agreement shall be modified
only by a written agreement signed by Gliatech and the Manufacturers
Representative.
10. APPLICABLE LAW
This Agreement shall be governed by the laws of the State of Ohio as
applicable to contracts made and to be performed in that state.
11. ASSIGNABILITY
This agreement shall not be assigned either by the parties or by
operation of law without prior written consent of the other party;
however, in the case of Gliatech, Gliatech may, without obtaining the
consent of the Manufacturers Representative, assign its rights and
obligations under this Agreement to any corporation with which Gliatech
may merge or consolidate or to which Gliatech may transfer
substantially all of its assets.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the First day of April 2000.
GLIATECH MEDICAL INC. [CompanyName]
By:__________________________________ By: ____________________________
Xxxxxx X. Xxxxxxxxxx, Ph.D. Name:___________________________
Chairman and Chief Executive Officer
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