Exhibit 10.6
Confidential Treatment Requested.
Confidential portions of this document
have been redacted and have been
separately filed with the Commission.
DISTRIBUTION AGREEMENT
THIS AGREEMENT is effective as of the last date of signature set forth herein
and is by and between ANGIODYNAMICS(R), Inc., (hereinafter "ANGIODYNAMICS"), a
Delaware Corporation having a principal place of business at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000, and Medical Components Inc., (hereinafter
"MEDCOMP"), a Pennsylvania corporation, having a principal place of business at
0000 Xxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
IN CONSIDERATION of the mutual promises contained herein, the parties agree as
follows:
1. DEFINITIONS
1.1 "Territory" as used herein shall mean the entire world except where
specifically indicated otherwise.
1.2 Products" as used herein shall mean those products as set forth in
Exhibits A, B, C, D, E ("hereinafter Exhibits A-E") attached hereto.
Exhibits A-E may be modified from time to time, during the effective
period of this Agreement, by the mutual written consent of the
parties.
1.3 "Know-how" as used herein shall include all technology and trade
secrets necessary for the manufacture, sale, research and development,
and marketing of the Products.
1.4 "Patent Rights" as used herein shall include any U.S. patent, reissued
patent or patent re-examination certificate and any foreign
counterparts which have a claim that covers the Products which are or
will be licensed and/or assigned to MEDCOMP including pending U.S.
Patent Applications, as well as any and all patent rights which are
related thereto, and any patent rights acquired in the future by
MEDCOMP for any improvements, adaptations, modifications or derivative
inventions having a claim that covers the Products, provided that for
any such rights which are licensed to or will be licensed to MEDCOMP,
MEDCOMP has been granted or will be granted a right to sublicense
under such license or a right to assign or otherwise convey the
license agreement to third parties.
1.5 "Trademarks" as used herein includes all trademark(s) and trade
name(s) pertaining to the Products and any related trade dress rights.
1.6 "Intellectual Property Right" as used herein shall include any and to
all rights in and to the Products in the form of Know-how, Patent
Rights, Trademarks, and copyrights which are owned, licensed or
otherwise possessed by MEDCOMP.
1.7 "Specifications" shall mean the specifications for each of the
Products and attached herewith in Exhibits A-E, as they are modified
during the effective period of this Agreement by the mutual written
consent of the parties.
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2. APPOINTMENT
2.1 As designated on each of the Exhibits A, B, and E, MEDCOMP hereby
grants to ANGIODYNAMICS the sole and exclusive distributorship,
together with the. right to appoint others, for the Products in
Exhibits A, B, and E throughout the Territory. MEDCOMP shall not sell,
either directly or indirectly, any of the Products in Exhibits A, B,
and E to any other person or entity.
2.2 As designated on Exhibit C, MEDCOMP hereby grants to ANGIODYNAMICS the
sole and exclusive distributorship, together with the right to appoint
others, for the Products listed in Exhibit C throughout the United
States, and a non-exclusive distributorship for the Products listed in
Exhibit C, together with the right to appoint others, throughout the
Territory, except for the United States which shall remain exclusive.
In the United States, MEDCOMP shall not sell, either directly or
indirectly, any of the Products in Exhibit C to any other person or
entity.
2.3 As designated on Exhibit D, MEDCOMP hereby grants to ANGIODYNAMICS a
non-exclusive distributorship for the Products listed in Exhibit D
throughout the Territory, together with the right to appoint others.
2.4 For each of the appointments in paragraphs 2.1-2.3, ANGIODYNAMICS
shall inform MEDCOMP of its selection of any appointees and MEDCOMP
shall have the right to reasonably object to any such appointment.
3. PRICE, PAYMENT, AND ORDERlNG
3.1 The price of the Products shall be as set forth in Exhibit A-E
attached hereto, as such price is indicated next to each Product. This
price includes the cost of sterilization and packaging. Such prices
shall be firm for the initial Twelve (12) month period of this
Agreement, and thereafter, such prices may be adjusted upon Thirty (3)
days notice to ANGIODYNAMICS by no more than Two percent (2%) per year
or the US. consumer price index which ever is greater. The price of
the Products as set forth in Exhibit A-E does not include any
applicable sales and use taxes, which MEDCOMP has the legal obligation
to pay.
3.2 Orders for the Products shall be initiated by a written purchase order
sent or faxed to MEDCOMP. To facilitate MEDCOMP's production schedule,
ANGIODYNAMICS shall submit purchase orders to MEDCOMP at least
Forty-five (45) days prior to the requested date of delivery.
3.3 ANGIODYNAMICS purchase orders, submitted to MEDCOMP with respect to
the Products, shall be governed by the terms and conditions of this
Agreement.
3.4 Full payment of the purchase price of the Products shall be net
Forty-five (45) days and payment shall be made by check, or other
instrument agreed to by both parties. Payment by ANGIODYNAMICS' rights
under Paragraph 6 or as acceptance of the Products delivered.
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4. MINIMUM SALES
4.1 ANGIODYNAMICS agrees to purchase from MEDCOMP the minimum yearly
number of Product units for each set of Products as set forth in
Exhibit A-E attached hereto. In the event that ANGIODYNAMICS fails to
purchase at least 90% of the annual minimum as set forth on each
Exhibit or the adjusted minimums if this contract is extended as set
forth in Section 4.3, MEDCOMP, at its sole discretion, may convert the
distributorship for those Products set forth as exclusive on that
Exhibit for either the Territory or that portion of the Territory that
was exclusive to a non-exclusive distributorship. Such remedy shall be
MEDCOMP's sole and exclusive remedy in the event that ANGIODYNAMICS
fails to purchase at least 90% of minimums as set forth above.
4.2 It shall not be considered a material breach by MEDCOMP if they supply
at least 90% of the minimum requirements set forth herein.
4.3 If this Agreement is extended for an additional five-year term
pursuant to Section 13.6, the minimum yearly number of Product units
for each set of products will be 10% higher than the previous years'
sales of each set of the Products:
5. PACKAGING AND SHIPPING
5.1 All Products shipped pursuant to this Agreement shall be packaged,
labeled, and shipped in accordance with ANGIODYNAMICS' instructions.
All freight, insurance, and other shipping expenses, as well as
applicable taxes and duties, shall be borne by ANGIODYNAMICS. Each
shipping container must be marked to show quantity, order, number, lot
number, contents, and shipper's name. A packing slip showing this
information shall be included with the shipment. A Certificate of
Compliance shall accompany each lot within the shipment.
5.2 Title to and risk of loss of the Products shall pass to ANGIODYNAMICS
from MEDCOMP at the point of destination, ANGIODYNAMICS' receiving
dock.
5.3 MEDCOMP agrees to ship the Products with not less than three years
remaining on its stated expiration date.
6. SPECIFICATIONS
6.1 The Products shall meet the Specifications attached herewith in
Exhibits A-E. ANGIODYNAMICS reserves all right to return, at MEDCOMP's
sole expense, any Product not meeting said Specifications.
ANGIODYNAMICS must inform MEDCOMP within Forty Five (45) days of
receipt of Product if it believes that any Product fails to meet the
Specification. In the event that MEDCOMP is unable to replace such
returned Product with an acceptable Product within Forty-Five (45)
days, such failure shall be considered a material breach of this
Agreement.
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7. REGULATORY
7.1 MEDCOMP shall produce all Products in accordance with all applicable
regulatory laws, rules, and regulations. MEDCOMP will permit
ANGIODYNAMICS, or its designated representative, to perform vendor
audits of MEDCOMP's facilities and procedures. MEDCOMP will notify
ANGIODYNAMICS of any FDA inspections, observations, and/or'483's. Any
observations/483's shall be given to ANGIODYNAMICS in writing within
30 days of the inspection. Further, MEDCOMP will provide ANGIODYNAMICS
with a Certificate of Compliance, a Sterilization Certificate, and
certification of non-pyrogenicity for each batch/lot of Products
shipped. MEDCOMP will allow ANGIODYNAMICS, or its designated
representative, subject to the confidentiality provisions herein, to
inspect the Products' Design History Files and will also allow
confidential access to all technical documentation necessary to
demonstrate compliance with the European Medical Device Directive.
Additionally, MEDCOMP will notify ANGIODYNAMICS of any proposed'
changes in raw materials, components, processes, or labeling, at least
Ninety (90) days prior to such action and must obtain ANGIODYNAMICS'
written approval for such changes, which shall not be unreasonably
withheld. MEDCOMP guarantees that no Products sold pursuant to this
Agreement are adulterated or misbranded within the meaning of The
Federal Food, Drug and Cosmetics Act (hereinafter the "Act"), and
further guarantees that no Products sold pursuant to this Agreement
are barred from introduction into inter-state commerce under the
provisions in Sections 404, 505 or 512 of the Act.
7.2 All customer complaints for the Products will be processed through
ANGIODYNAMICS' Customer Service Department. Once a complaint has been
received, it is the responsibility of ANGIODYNAMICS to forward a copy
of the complaint within five (5) working days to MEDCOMP. If MEDCOMP
receives such a complaint, MEDCOMP will notify ANGIODYNAMICS within
five (5) working days. MEDCOMP agrees to perform an investigation of
each customer complaint and forward complaint results in writing to
ANGIODYNAMICS within a reasonable time considering the nature of the
complaint. ANGIODYNAMICS agrees to complete the complaint file and
respond to the customer. MEDCOMP agrees to comply with all applicable
regulatory laws, rules and regulations for reporting of customer
complaints by manufacturers. ANGIODYNAMICS agrees to comply with all
applicable regulatory laws, rules and regulations for the reporting of
customer complaints by distributors.
7.3 Recalls. Each party agrees to notify the other party promptly if any
of the Products are the subject of a recall, market withdrawal or
correction and the parties shall cooperate in the handling and
disposition of such recall, market withdrawal or correction. MEDCOMP
shall be responsible for the costs of such recall, market withdrawal
or correction, except to the extent that such recall, market
withdrawal or correction is due to ANGIODYNAMICS' improper storage,
handling, distribution or marketing of the Products in which case
ANGIODYNAMICS shall be responsible for the costs of such recall,
market withdrawal or correction.
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8. LABELS AND LABELING
8.1 MEDCOMP shall have the obligation to design and produce all labels,
labeling, and inserts for the Products, other than the pouch and box
labels
8.2 ANGlODYNAMICS shall have the obligation to design and produce the
pouch and box labels for the Products.
8.3 ANGIODYNAMICS may waive the obligation to design and produce the pouch
and box labels for the Products, if both parties agree in writing that
MEDCOMP labels are to be used.
8.4 Each party shall obtain the other party's prior written approval for
the labels if they have designed, prior to production of the same.
8.5 MEDCOMP shall have the responsibility to apply all labels, including
the pouch and box labels to the Products
8.6 MEDCOMP agrees that the labeling may include the ANGIODYNAMICS'
trademark.
8.7 ANGIODYNAMICS agrees that the Products and/or their packaging shall
bear, where appropriate, MEDCOMP's trademarks, and a statutory
indication of the patent number or the legend "US. patent pending" or
"U.S. xxx. pending" in the U.S. and any required foreign patent
marking where foreign patent rights exist.
8.8 MEDCOMP shall allow the addition of the ANGIODYNAMICS trademark to all
currently published literature and educational materials associated
with the Products.
9. WARRANTIES
9.1 MEDCOMP warrants that the (i) title to all Product conveyed hereunder
is good, (ii) the Products delivered hereunder are free from any
security interest or other lien or encumbrance, (iii) the Products
shall be delivered free of the rightful claim of any third party by
way of infringement of any patent or trademark, and (iv) the Products
will be manufactured in accordance with the product specifications,
(v) the Products are fit for the purposes described in the
instructions for use and shall be free any defects that may effect the
intended use, (vi) the Products shall be manufactured, produced, and
delivered to ANGIODYNAMICS in accordance with all applicable laws,
rules, and regulations, (vii) MEDCOMP agrees to indemnify, defend and
hold harmless ANGIODYNAMICS, its customers, and users of the Products
from all loss, damages, cost, or expense, including reasonable
attorney's fees, arising from the breach by MEDCOMP of the
aforementioned warranties.
10. OPTION FOR FUTURE LICENSE OR TECHNOLOGY TRANSFER
10.1 In the event that MEDCOMP elects not to continue manufacturing the
Products, or in the event that this Agreement is terminated for a
failure to supply as set forth in this Agreement, or due to MEDCOMP's
insolvency or bankruptcy, MEDCOMP agrees to negotiate in good faith a
royalty-bearing non-exclusive license or sublicense to make, use or
sell Products under the Patent Rights to ANGIODYNAMICS, provided such
ability and right to license or sublicense is available to MEDCOMP.
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10.2 In the event that MEDCOMP ceases manufacturing the Products, to the
extent such cessation is within MEDCOMP's control, MEDCOMP will
provide ANGIODYNAMICS with written notice, Six (6) months in
advance of the. anticipated date of cessation of manufacture.
10.3 In the event a license or sublicense is successfully negotiated in
accordance with Paragraphs 10.1, MEDCOMP agrees to cooperate with
ANGIODYNAMICS and to train ANGIODYNAMICS' personnel on manufacture,
design, assembly, quality control and packaging of the Products for
a period of Six (6) months at no cost to ANGIODYNAMICS, and to
transfer any manufacturing Know-how.
11. IMPROVEMENTS
11.1 ANGIODYNAMICS shall have the right to develop design improvements
for the Products, and if developed solely by ANGIODYNAMICS any
associated Intellectual Property rights shall belong solely to
ANGIODYNAMICS and such Products shall become part of this Agreement
asset forth in paragraph 11.2.
11.2 In the event that such design improvements are developed by
ANGIODYNAMICS, the parties agree to amend this Agreement to add
such improvements to the Products as set forth on Exhibit A-E.
11.3 ANGIODYNAMICS and MEDCOMP shall have the right to cooperate in
development of design improvements for the Products. In the event
ANGIODYNAMICS and MEDCOMP jointly develop design improvements for
the Products, any associated Intellectual Property rights shall
belong to ANGIODYNAMICS and MEDCOMP jointly and shall become part
of this Agreement and shall be added as improvements to the
Products as set forth on Exhibit A-E.
11.4 MEDCOMP shall have the right to develop design improvements for the
Products and in the event that such design improvements are
developed solely by MEDCOMP, MEDCOMP shall solely own all
Intellectual Property rights to such improvements. The parties
agree to amend this Agreement to add such improvements to the
Products on Exhibit A-E.
12. INTELLECTUAL PROPERTY
12.1 MEDCOMP shall retain all of its rights, title and interest in and
to its patents, copyrights, trademarks, trade names, and all other
industrial and intellectual property. Except as otherwise expressly
provided in this Agreement, ANGIODYNAMICS shall have no right,
title or interest in any industrial or intellectual property
relating to the Products, except to marketing and promotional
materials and reports and all marketing data and all intellectual
property relating thereto. Nothing herein shall be construed as a
license or other grant of rights in any of the Intellectual
Property of either party.
12.2 Validity and Infringement of MEDCOMP's Patents:
12.2.1. In the event ANGIODYNAMICS or MEDCOMP become aware of any actual or
threatened infringement of any MEDCOMP patents, that party shall
promptly notify the other.
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12.2.2. MEDCOMP shall have the first and exclusive right, but not the
obligation, to bring and control any infringement action against any person or
entity materially infringing any MEDCOMP Patent Rights directly or
contributorily and shall have the first right, but not the obligation, to defend
any MEDCOMP Patent Rights against any challenge to the validity and
enforceability of that patent in the Courts of the United States or in the
United States Patent and Trademark Office or in any foreign jurisdiction. At the
request of MEDCOMP, ANGIODYNAMICS agrees to cooperate with MEDCOMP, at MEDCOMP's
sole cost, in any lawsuit on any of the Patent Rights, including being named as
a party, if necessary.
12.2.3. MEDCOMP shall bear the full cost of any action brought by MEDCOMP
regarding its Patent Rights and shall be entitled to all recovery from such
lawsuit.
13. TERM AND TERMINATION
13.1 Subject to earlier termination as provided in this Section 13,
this Agreement shall be for a term of Five (5) years.
13.2 Either party shall have the right to terminate this Agreement by
written notice to the other party immediately upon the occurrence
of the following:
13.2.1. The bankruptcy or insolvency of the other party, or the
commencement of any proceedings by or against the other party
seeking receivership, trusteeship, bankruptcy, reorganization,
assignments for the benefit of creditors or similar proceedings.
13.2.2. Failure of the other party to cure any material breach (a failure
by AngioDynamics to purchase the minimum requirements of each
Product shall not be deemed a material breach for purposes of this
Agreement) of this Agreement within Sixty (60) days after written
notice of such breach. In the event ANGIODYNAMICS purchases Sixty
percent (60%) or less of its minimum requirement for any Product,
ANGIODYNAMICS shall lose its exclusivity rights, if any, to that
Product. Furthermore, in the event ANGIODYNAMICS purchases Forty
percent (40%) or less of its minimum requirement for any product,
MEDCOMP shall have the right, upon written notice to
ANGIODYNAMICS, to cancel this Agreement as to such Product and
make any arrangements MEDCOMP believes is appropriate, in its sole
and absolute discretion, to sell such Product through other
individuals or entities.
13.2.3. Upon the mutual written consent of both parties.
13.3 ANGIODYNAMICS may terminate this Agreement immediately, if
MEDCOMP, for any reason, is unable to supply Products that meet
the product Specifications to ANGIODYNAMICS for a period of Ninety
(90) days.
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13.4 Upon termination of this Agreement, for any reason other than
ANGIODYNAMICS' failure to pay for the Products, MEDCOMP shall
honor ANGIODYNAMICS' orders that were placed prior to the
effective date of termination and ANGIODYNAMICS shall pay for such
orders and make any other payments due to MEDCOMP pursuant to the
terms of this Agreement. Notwithstanding that ANGIODYNAMICS'
rights to purchase the product for distribution and sale have
ceased, ANGIODYNAMICS shall be entitled to sell or otherwise
dispose of the Products then remaining in its inventory.
13.5 Termination of the Agreement shall not relieve, nor be construed
as relieving either party of any obligation or liability to the
other party arising out of, or in connection with, such party's
breach of, or failure to perform, any covenant, agreement or duty
contained in or pursuant to this Agreement. It is expressly agreed
that Paragraphs 7 and 9 shall survive until all products are sold
from inventory by ANGIODYNAMICS, paragraph 15 shall survive in
accordance with the terms of that paragraph, and paragraphs 14, 16
and 18 hereof shall survive the termination of this Agreement.
13.6 If all minimums are met per this Agreement the terms of this
contract will be extended for an additional five-year term.
14. CONFIDENTIALITY
14.1 Each party acknowledges and agrees that information of a
confidential nature ("Confidential Information") may be disclosed
by one party ("disclosing party") to the other party ("receiving
party") pursuant to this Agreement. The receiving party agrees
that, except as required by law, it will retain such Confidential
Information in confidence and will not disclose, publish or make
use of all or any part of such Confidential Information given to
it by the disclosing party for any purpose other than those
specified in this Agreement, without first obtaining the
disclosing party's written consent. Notwithstanding the foregoing,
the obligations specified herein shall not apply to any
Confidential Information that is demonstrated to fall within any
of the following categories: (a) to any Confidential Information
which now is or hereinafter becomes publicly known or available
otherwise than through unauthorized disclosure by the receiving
party, and (b) to any Confidential Information which the receiving
party received in good faith from a third party who is not under a
similar restriction of confidentiality and having a right to
disclose the information, and (c) to any Confidential Information
that was already in the receiving party's possession or can be
proven to have been independently developed by the receiving
party, after disclosure hereunder, without the aid, application or
use in any way of the Confidential Information received from the
disclosing party under this Agreement, and (d) to any Confidential
Information which is required by law or judicial order should be
disclosed.
14.2 The receiving party represents that it has procedures designed to
protect Confidential Information and agrees that it shall impose
upon its employees and agents the same obligations with respect to
the other disclosing party's Confidential Information as it
imposes upon them with respect to its own Confidential
Information.
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15. INSURANCE
15.1 MEDCOMP warrants that it has product liability insurance in the
amount of at least $3,000,000. (Three Million Dollars). MEDCOMP
shall provide ANGIODYNAMICS with a Certificate of Insurance
indicating such coverage, and shall have ANGIODYNAMICS named as an
additional insured under its policy. MEDCOMP agrees to provide
said coverage for the duration of this Agreement and for a period
of three years following the termination of this , contract as
provided in Section 13.
16. INDEMNIFICATION
16.1 MEDCOMP agrees to indemnify and hold ANGIODYNAMICS harmless from
and against any and all costs, losses, liability, damages and
expense claims (including reasonable attorneys' fees) made by any
person or entity arising out of the manufacturing, processing,
marketing, distribution, sale and use of the - Products, where and
to the extent such damages have been cause by the negligence,
recklessness or willful misconduct of MEDCOMP or its employees or
agents, or relate in any way to the Products as set forth in
Exhibit A-E.
16.2 ANGIODYNAMICS agrees to indemnify MEDCOMP from and against any and
all costs, losses, liability and expense claims (including
reasonable attorneys' fees) made by any person or entity arising
out of the marketing, distribution and sale of the Products, where
and to the extent such damages have been caused by the negligence,
recklessness or willful misconduct of ANGIODYNAMICS or its
employees or agents.
16.3 The indemnifying party shall have the right to defend or, at its
option, settle such claims, and if it chooses to exercise such
right, it shall have control over any such claim or settlement
negotiations. The indemnifying party shall be relieved of the
foregoing obligations unless the indemnified party gives prompt
notice in writing of any such claim, suit or proceeding and, at
the indemnifying party's expense, gives the indemnifying party
proper and full information and assistance to settle and/or defend
any such claim, suit, or proceeding.
17. ARBITRATION
17.1 If any dispute or claim arising under this Agreement cannot be
readily resolved by the parties, the parties agree to refer the
matter to a panel consisting of one (1) senior executive from each
party (or an affiliated company of the party) for review and
resolution. The senior executive shall preferably not have been
directly involved in the claim or dispute. A copy of the Agreement
terms, relevant facts, areas of disagreement and a concise summary
of basis of each side's contention will be provided to both
executives who shall review the same, and attempt to reach a
mutual resolution of the issue. The senior executives shall meet
and attempt to resolve the dispute within thirty (30) days of
their appointment. If the dispute or claim cannot be resolved by
the senior executive panel within forty-five (45) days of the date
of the senior executives' conference, a party may refer the matter
to binding arbitration.
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17.2 The parties agree that all disputes, controversies or claims
arising out of or , relating to this Agreement, with the exception
of any disputes concerning the terms governing enforcement of any
of MEDCOMP Patent Rights, shall be finally resolved and/or
otherwise settled by arbitration in accordance with the
arbitration rules of the American Arbitration Association then in
force. The parties will not be asked to take any action that is
illegal in any country. Each party shall bear its own costs and
shall jointly share the costs of the arbitration, except to the
extent that either of the parties shall be found to have acted
maliciously or without justification under the terms of the
Agreement by the arbitrators in which case the losing party shall
bear all expense and legal fees of the other. The award of the
arbitrators shall be final and conclusive and binding on both
parties.
17.3 The number of arbitrators for all arbitration in accordance with
paragraph l7.2 of this Article shall be three (3): one shall be
appointed by ANGIODYNAMICS, one shall be appointed by MEDCOMP, and
a third arbitrator shall be selected jointly by those two
arbitrators and who shall be president of the arbitration panel.
The arbitrators shall be appointed within sixty (60) days
following notification of a dispute requiring resolution by
arbitration. If one party fails to appoint an arbitrator within
such time period, the other party may abandon arbitration and seek
resolution in a court of appropriate jurisdiction or seek
appointment of two (2) objectives, court-approved arbitrators
within thirty (30) days of the failure of the party to initially
appoint an arbitrator, one of such court-approved arbitrators to
act on behalf of the party failing to initially appoint an
arbitrator, and one of whom will act as president of the
arbitration panel. If the party failing to initially appoint an
arbitrator has a reasonable objection for good cause to any such
court-approved arbitrators selected by the other party, the
objecting party shall suggest an alternative arbitrator within
thirty (30) days, or forfeit its right to object to any of the
chosen court-approved arbitrators.
17.4 In construing the rights and obligations of the parties to this
Agreement and the other agreements associated herewith, the
arbitrators shall apply the law of the state of New York and the
place of arbitration shall be in the Commonwealth of Pennsylvania
at a neutral location to be agreed to by the parties, but shall
not be in the place of business of either party.
17.5 If insofar as the arbitration award is deemed not to have the
force and validity of a legal judgment, the award nonetheless
shall be binding on the Parties as if agreed between themselves.
17.6 When any dispute occurs and when any dispute is under
arbitration, except for the matters under dispute, the parties
shall, within reason and to the extent practical, continue to
exercise their remaining respective rights, and fulfill their
remaining respective obligations under this Agreement hereunder
during the period of arbitration or dispute.
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18. PROPERTY RIGHTS
18.1 If the parties agree that this Agreement shall not affect
ownership of patents, trademarks, trade names, inventions,
copyrights, know-how, and trade secrets, the use of the other
party's aforementioned property rights is authorized only for the
purposes herein set forth, and upon termination of the Agreement
for any reason such authorization shall cease.
19. FORCE MAJEURE
19.1 No performance of either party shall be excused to the extent that
performance is rendered impossible by strike, fire, flood,
governmental acts, or orders, or restrictions, failure of
suppliers, or any other reason where failure to perform is beyond
the reasonable control of and is not caused by the negligence of
the non-performing party.
20. ASSIGNMENT
20.1 This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and assigns; provided,
however, that neither party shall assign, any of its rights or
delegate any of its duties of performance hereunder without the
prior written consent of the other party, which shall not be
unreasonably withheld; provided that such consent shall not be
necessary to make an assignment to an entity that is, (a) an
organization of which more than fifty (50%) percent of the voting
stock is controlled or owned directly or indirectly by either
party to this Agreement; (b) an organization that directly or
indirectly owns or controls more than fifty (50%) percent of the
voting stock of either party to this Agreement; (c) an
organization, the majority ownership of which is directly or
indirectly common to the majority ownership of either party to
this Agreement.
21. WAIVER
21.1 All waivers hereunder must be made in writing. Course of conduct
between the parties, whether or not contrary to the terms of this
Agreement, shall not be construed as a waiver of any of the terms
of this Agreement. Failure by any party to require the other
party's performance of any obligation under this Agreement shall
not affect, limit, or waive the other party's right to require
strict performance of that obligation any time thereafter. The
waiver of any breach of a provision of this Agreement shall not be
construed in any way as a waiver of any continuing or succeeding
breach of such provision or modification of the provision.
22. CAPACITY
22.1 Both parties warrant that they have the legal capacity to enter
into this Agreement and that they have not signed any other
agreement which could conflict with the terms of this Agreement.
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23. AGENCY
23.1 Nothing contained in this Agreement shall be construed as a
license or create a joint venture or establish any other
relationship of similar nature between the parties.
24. INVALIDITY
24.1 Should any provision of this Agreement be ruled invalid, the
remaining provisions shall not be affected and shall remain in
full force and effect. The parties shall in such an instance
endeavor to replace the invalidated provision by a valid provision
with similar intent
25. ENTIRE AGREEMENT
25.1 This Agreement constitutes the entire Agreement between the
parties hereto, and all prior or other agreements or
representations, whether written or oral, are of no force or
validity and are hereby superseded. The parties specifically
acknowledge and agree that upon the execution of this Agreement,
this Agreement shall supercede and replace all prior agreements
between the parties inc1udingwithout limitation the distribution
agreements dated March 18, 1998, and August 27, 1996. The parties
hereby confirm expressly that the Agreement was freely negotiated
by them.
26. HEADINGS
26.1 The headings in this Agreement are inserted for convenience of
reference only, and shall not affect the interpretation of this
Agreement.
27. NOTICES
27.1 Any notice required by this Agreement shall be deemed to have been
given when sent by certified mail, return receipt requested, or by
receipted messenger service, or by Facsimile (with a confirmatory
copy sent by receipted certified mail), to the party to be
notified at the following addresses, or to such other addresses as
is supplied by one party to the other:
If to ANGIODYNAMICS: President & CEO
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile#: (000) 000.0000
If to MEDCOMP: President & CEO
0000 Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile#: (000) 000.0000
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28. GOVERNING LAW
28.1 The validity, construction, interpretation and enforcement of this
Agreement, or any breach thereof, shall be governed by the laws of
the State of New York. However, any arbitration conducted
hereunder shall be conducted in the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have by their duly authorized officers,
executed this Agreement..
ANGIODYNAMICS, Inc. MEDICAL COMPONENTS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ [Illegible]
Title: President and CEO Title: President
Date: 22 March, 2002 Date: March 24, 2002
EXHIBIT A
SchonCath(R)Long Term Catheter
Exclusive World Wide Agreement*
------------------------------------------------------------------------------------------------
PRODUCT PRODUCT UNIT ANNUAL MIN BY YEAR (1/2/3/4/5)
NO. DESCRIPTION PRICE 1 2 3 4 5
------------------------------------------------------------------------------------------------
10800201 SchonCath 14cm $*** *** *** *** *** ***
------------------------------------------------------------------------------------------------
10800202 SchonCath 16cm $***
------------------------------------------------------------------------------------------------
10800203 SchonCath 18cm $***
------------------------------------------------------------------------------------------------
10800204 SchonCath 20cm $***
------------------------------------------------------------------------------------------------
10800205 SchonCath 22cm $***
------------------------------------------------------------------------------------------------
10800206 SchonCath 24cm $***
------------------------------------------------------------------------------------------------
10800208 SchonCath 45cm $***
------------------------------------------------------------------------------------------------
10800209 SchonCath 55cm $***
------------------------------------------------------------------------------------------------
10800301 Cutting Insertion Tray $***
------------------------------------------------------------------------------------------------
10800302 Blunt Insertion Tray $***
------------------------------------------------------------------------------------------------
10800401 Venous Adapters $***
------------------------------------------------------------------------------------------------
10800402 Arterial Adapters $***
------------------------------------------------------------------------------------------------
10800501 Peelaway sheaths $***
------------------------------------------------------------------------------------------------
10800502 Peelaway sheaths-long $***
------------------------------------------------------------------------------------------------
10800601 Tunnelers - Blunt $***
------------------------------------------------------------------------------------------------
10800602 Tunnelers - Sharp $***
------------------------------------------------------------------------------------------------
* AngioDynamics shall purchase the annual minimum number of products
units referenced in the chart above for each respective year from the
list of products on said chart.
Kit
1 - Appropriate Catheter
1 - 13ga Red Compression Collar
1 - 13ga Blue Compression Collar
1 - 10F Tesio Venous Catheter Extension
1 - 10F Tesio Arterial Catheter Extension
2 - Compression Ring
1 - CSR Wrap
1 - #11 Blade Scalpel
1 - 2-0 Silk Suture w/Curved Needle
1 - .038 x 70cm Marked GW (Schon)
1 - 3M Tegaderm Oval
2 - Modified Tunneler
1 - Oval Tearaway Sheath/Dilator
1 - Angio GW Direction Sheet
1 - Angio Adaptor Direction Sheet
1 - Angio Direction Sheet
1 - Oval Sheath Tearaway Clip
2 - Injection Port
1 - 18ga Introducer Needle
1 - Red Robert's Mini Clamp
1 - Blue Robert's Mini Clamp
Catheter
1 - Appropriate Schon Catheter
1 - 13ga Red Compression Collar
1 - 13ga Blue Compression Collar
1 - 10F Tesio Venous Catheter Extension
1 - 10F Tesio Arterial Xxxxxxxx Xxxxxxxxx
0 - XXX Xxxx
0 - Xxxxx Adaptor Direction Sheet
1 - Angio Direction Sheet
2 - Injection Port
1 - Blue Robert's Mini Clamp
1 - Red Robert's Mini Clamp
2 - Compression Ring
---------------------
*** Confidential material redacted and filed separately with the Commission.
Confidential Exhibits 14 03/21/02
Cutting Insertion Tray
1 - 13ga Red Compression Collar
1- 13ga Blue Compression Collar
1 - 10F Tesio Venous Catheter Extension
1 - 10F Tesio Arterial Catheter Extension
2 - Compression Ring
1 - CSR Wrap
1 - #11 Blade Scalpel
1 - 2-0 Silk Suture w/Curved Needle
1 - .038 x 70cm Marked GW (Schon)
1 - Tegaderm Oval
2 - Modified Tunneler
1 - Oval Tearaway Sheath/Dilator
1 - Angio GW Direction Sheet
1 - Angio Adaptor Direction Sheet
1 - Angio Direction Sheet
1 - Oval Sheath Tearaway Clip
2 - Injection Port
1 - 18ga x 2 3/4" Introducer Needle
1 - Red Robert's Mini Clamp
1 - Blue Robert's Mini Clamp
Venous Adapters
1 - 13ga Blue Compression Collar
1 - 10F Tesio Catheter Venous Extension
1 - Compression Ring.
1 - Angio Adaptor Direction Sheet
Tearaway Sheath
1 - Oval Tearaway Sheath/Dilator
1 - Oval Sheath Tearaway Clip
Blunt Tunnelers
1 - Blunt Tunneler for Tesio Catheter
Blunt Insertion Tray
1 - 13ga Red Compression Collar
1 - 13ga Blue Compression Collar
1 - 10F Tesio Venous Catheter Extension
1 - 10F Tesio Arterial Catheter Extension
2 - Compression Ring
1 - CSR Wrap
1 - #11 Blade Scalpel
1 - 2-0 Silk Suture w/Curved Needle
1 - .038 x 70cm Marked GW (Schon)
1 - Tegaderm Oval
2 - Blunt Tunneler for Tesio Catheter
1 - Oval Tearaway Sheath/Dilator
1 - Angio GW Direction Sheet
1 - Angio Adaptor Direction Sheet
1 - Angio Direction Sheet
1- Oval Sheath Tearaway Clip
2 - Injection Port
1 - 18ga x 2 3/4" Introducer Needle
1 - Red Robert's Mini Clamp
1 - Blue Robert's Mini Clamp
Arterial Adaptors
1 - 13ga Red Compression Collar
1 - 10F Tesio Catheter Arterial Extension
1 - Compression Ring
1 - Angio Adaptor Direction Sheet
Tearaway Sheath - Long
1 - 20cm Oval Tearaway Sheath/Dilator
1 - Oval Sheath Tearaway Clip
Sharp Tunnelers
1 - Modified Tunneler for Tesio Catheter
Confidential Exhibits 15 03/21102
EXHIBIT B
Schon XL Acute Dialysis Catheters
Exclusive World Wide Agreement*
--------------------------------------------------------------------------------
PRODUCT PRODUCT UNIT ANNUAL MIN BY YEAR (1/2/3/4/5)
NO. DESCRIPTION PRICE 1 2 3 4 5
--------------------------------------------------------------------------------
10801701 Schon XL 15cm - Cath $*** *** *** *** *** ***
--------------------------------------------------------------------------------
10801702 Schon XL 20cm - Cath $***
--------------------------------------------------------------------------------
10801703 Schon XL 24cm - Cath $***
--------------------------------------------------------------------------------
10800701 Schon XL 15cm - Set $***
--------------------------------------------------------------------------------
10800702 Schon XL 20cm - Set $***
--------------------------------------------------------------------------------
10800703 Schon XL 24cm - Set $***
--------------------------------------------------------------------------------
10802701 Schon XL 15cm - Tray $***
--------------------------------------------------------------------------------
10802702 Schon XL 20cm - Tray $***
--------------------------------------------------------------------------------
10802703 Schon XL 24cm - Tray $***
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
* AngioDynamics shal1 purchase the annual minimum number of product units
referenced in the chart above for each respective year from the list of
products on said chart.
Catheter
1 - Appropriate Schon XX Xxxxxxxx
0 - Xxxxxxxx Xxxx
0 - Xxxxx Direction Sheet
2 - Injection Port
Set
1 - Appropriate Schon XL Catheter
1 - #11 Blade Scalpel
1 - .035 x 70cm J-Flex GW
1 - Tegaderm Oval
1 - Hemo-Cath Clip
1 - 2-0 Curved Monofilament Suture
1 - 12F x 6" Vessel Dilator
0 - 00X x 0" Xxxxxx Xxxxxxx
0 - Xxxxx GW Direction Sheet
1 - Angio Direction Sheet
2 - Injection Port
1 - 18ga x 2 3/4" Introducer Needle
Tray
1 - Appropriate Schon XL Catheter
2 - CSR Wrap
4 - 4" x 4" Gauze
0 - 0xx Xxxx Xxxx Xxxxxxx
0 - 00xx x 5/8" Needle
1 - 22ga x 1 1/2" Vessel Locating Needle
1 - #11 Blade Scalpel
1 - Povidone Iodine Swabsticks
1 - Surgical Gloves
1 - 5cc Ampule Lidocaine
2 - l0cc Luer Lock Syringe
1 - 18ga x 1 1/2" Aspirating Needle
1 - .035 x 70cm J-Flex GW
1 - Fenestrated Drape
1 - Hemostat
1 - Tegaderm Oval
1 - Hemocath Clip
1 - 2-0 curved Monofilament Suture
1 - 15F x 6" Vascu-Sheath
1 - 12F x 6" Vessel Dilator
0 - 00X x 0" Xxxxxx Xxxxxxx
0 - Xxxxx GW Direction Sheet
1 - Angio Direction Sheet
2 - Injection Port
1- 18ga x 2 3/4" Introducer Needle
_________________
*** Confidential material redacted and filed separately with the Commission.
Confidential Exhibits 16 03/21/02
EXHIBIT C
Dynamic Flow
USA Exclusive Agreement
Rest of World (ROW) Non-Exclusive Agreement*
--------------------------------------------------------------------------------
PRODUCT PRODUCT UNIT ANNUAL ESTIMATES BY YEAR
NO. DESCRIPTION PRICE (Units)
USA 1 2 3 4 5
--------------------------------------------------------------------------------
10300701 D.F. 24cm - Set $*** *** *** *** *** ***
--------------------------------------------------------------------------------
10300702 D.F. 28cm - Set $***
--------------------------------------------------------------------------------
10300703 D.F. 32cm - Set $***
--------------------------------------------------------------------------------
10300704 D.F. 36cm - Set $***
--------------------------------------------------------------------------------
10300705 D.F. 55cm - Set $***
--------------------------------------------------------------------------------
10300601 D.F. 24cm - Tray $***
--------------------------------------------------------------------------------
10300602 D.F. 28cm - Tray $***
--------------------------------------------------------------------------------
10300603 D.F. 32cm -Tray $***
--------------------------------------------------------------------------------
10300604 D.F. 36cm -Tray $***
--------------------------------------------------------------------------------
10300605 D.F. 55cm - Tray $***
--------------------------------------------------------------------------------
Tunnelers
--------------------------------------------------------------------------------
Sheath/dilators
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ROW Pricing will be granted by MEDCOMP upon proof of sale to non-USA Market by
AngioDynamics. ROW Pricing shall be USA Price less $***
* AngioDynamics shall purchase the annual minimum number of product
units referenced in the chart above for each respective year from the list of
products on said chart.
Set
1 - Catheter
1 - Introducer Needle
1 - Tunneling Tool
2 - Vessel Dilators
2 - Injection Caps
1 - Scalpel
1 - Tearaway Sheath Introducer
1 - J/Flex Guidewire
1 - Adhesive Wound Dressing
Catheter
1 - Catheter
1 - Tunneling Tool
2 - Injection Caps
1 - Tearaway Sheath Introducer
____________________
*** Confidential material redacted and filed separately with the Commission.
Confidential Exhibits 17 03/21/02
EXHIBIT D
MoreFlow Dialysis Catheters
Non-Exclusive Worldwide Agreement
NO MINIMUMS
-------------------------------------------------------------------------------
PRODUCT NO. PRODUCT DESCRIPTION UNIT PRICE
-------------------------------------------------------------------------------
10300501 M.F. 24cm - Basic Kit - Straight $***
-------------------------------------------------------------------------------
10300502 M.F. 28cm - Basic Kit - Straight $***
-------------------------------------------------------------------------------
10800503 M.F. 32cm - Basic Kit - Straight $***
-------------------------------------------------------------------------------
10800504 M.F. 36cm - Basic Kit - Straight $***
-------------------------------------------------------------------------------
10800505 M.F. 55cm - Basic Kit - Straight $***
-------------------------------------------------------------------------------
10800506 M.F. 24cm - Basic Kit - Pre-Curve $***
-------------------------------------------------------------------------------
10800507 M.F. 28cm - Basic Kit - Pre-Curve $***
-------------------------------------------------------------------------------
10800508 M.F. 32cm - Basic Kit - Pre-Curve $***
-------------------------------------------------------------------------------
10800509 M.F. 36cm - Basic Kit - Pre-Curve $***
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
ROW Pricing will be granted by MEDCOMP upon proof of sale to non-USA market by
AngioDynamics. ROW Pricing shall be USA Price less $***.
Tray
1 - Appropriate MoreFlow Catheter
1 - Xxxxxxxxx Bulb Syringe
2 - CSR Wrap
4 - 4x4 Gauze Sponge
1 - Povidone Iodine Ointment
2 - 5cc Luer Lock Syringe
1 - 25ga x 5/8" Syringe
1 - 22ga x 1/2" Syringe
1 - #11 Blade Scalpel
1 - Povidone Iodine Swabsticks
1 - Surgical Gloves
1 - 5cc Ampule Lidocaine
0 - 00xx Xxxx Xxxx Xxxxxxx
0 - 00xx x 1 1/2" Aspirating Needle
MoreFlow Kit
1 - Appropriate More-Flow Catheter
1 - Xxxxxxxxx Bulb Xxxxxxx
0 - # 00 Blade Scalpel
1 - .038 x 70cm J-Flex GuideWire
1 - Tegaderm Oval
1 - 15F x 6" Vascu-Sheath
I - 12F x 6" Vessel Dilator
0 - 00X x 0" Xxxxxx Xxxxxxx
0 - Xxxxx GW Direction Sheet
1 - Angio More-Flow IFU
1 - Sheath Dilator
1 - Tunneler w/Tri-Ball Tip
2 - Injection Ports
1 - 18ga x 2 3/4" Introducer Needle
1 - .038 x 70cm J-Flex GuideWire
1 - 2-0 Silk Suture w/Curved Needle
1 - Fenestrated Xxxxx
0 - Xxxxxxxx
0 - Xxxxxxxx Xxxx
0 - 00X x 6" Vascu-Sheath
1 - 12F x 6" Vessel Dilator
0 - 00X x 0" Xxxxxx Xxxxxxx
0 - Xxxxx GW Direction Sheet
1 - Angio MoreFlow IFU
1 - Sheath Dilator
1 - Tunneler w/Tri-Ball Tip
2 - Injection Ports
1 - 18ga x 2 3/4" Introducer Needle
_______________
*** Confidential material redacted and filed separately with the Commission.
Confidential Information 18 03/21/02
EXHIBIT E
DuraFlow Dialysis Catheters
Exclusive Worldwide Agreement
NO MINIMUMS
----------------------------------------------------------------------------------------------------
PRODUCT PRODUCT DESCRIPTION UNIT 7,000 11,000 14,000 16,000 18,000
NO. PRICE
----------------------------------------------------------------------------------------------------
D.F. 24cm - Full Tray - Straight $***
--------------------------------------------------------
D.F. 28cm - Full Tray- Straight $***
--------------------------------------------------------
D.F. 32cm - Full Tray - Straight $***
--------------------------------------------------------
D.F. 36cm - Full Tray - Straight $***
--------------------------------------------------------
D.F. 55cm - Full Tray - Straight $***
--------------------------------------------------------
D.F. 24cm - Full Tray - Pre-Curve $***
--------------------------------------------------------
D.F. 28cm - Full Tray - Pre-Curve $***
--------------------------------------------------------
D.F. 32cm - Full Tray - Pre-Curve $***
--------------------------------------------------------
D.F. 36cm - Full Tray - Pre-Curve $***
--------------------------------------------------------
D.F. 24cm - Basic Kit - Straight $***
--------------------------------------------------------
D.F. 28cm - Basic Kit - Straight $***
--------------------------------------------------------
D.F. 32cm - Basis Kit - Straight $***
--------------------------------------------------------
D.F. 36cm - Basic Kit - Straight $***
--------------------------------------------------------
D.F. 55cm - Basic Kit - Straight $***
--------------------------------------------------------
D.F. 24cm - Basic Kit - Pre-Curve $***
--------------------------------------------------------
D.F. 28cm - Basic Kit - Pre-Curve $***
--------------------------------------------------------
D.F. 32cm - Basic Kit - Pre-Curve $***
--------------------------------------------------------
D.F. 36cm - Basic Kit - Pre-Curve $***
--------------------------------------------------------
--------------------------------------------------------
ROW pricing will be granted by MEDCOMP upon proof of sale to non-USA market by
AngioDynamics. ROW Pricing shall be USA Price less $***.
Tray
1 - Appropriate Dura Flow catheter
1 - Xxxxxxxxx Bulb Syringe
2 - CSR Wrap
4 - 4x4 Gauze Sponge
1 - Povidone Iodine Ointment
0 - 0xx Xxxx Xxxx Xxxxxxx
0 - 00xx x 5/8" Syringe
1 - 22ga 1/2" Syringe
1 - #11 Blade Scalpel
1 - Povidone Iodine Swabsticks
1 - Surgical Gloves
1 - 5cc Ampule Lidocaine
0 - 00xx Xxxx Xxxx Xxxxxxx
0 - 00xx x 1 1/2" Aspirating Needle
1 - .038 x 70cm J-Flex Guidewire
1 - 2-0 Silk Suture w/Curved Needle
1 - Fenestrated Drap
1 - Hemostat
1 - Tegaderm Oval
1 - 16F x 6" Vascu-Sheath
1 - 12F x 6" Vessel Dilator
0 - 00X x 0" Xxxxxx Xxxxxxx
0 - Xxxxx GW Direction Sheet
1 - Angio MoreFlow IFU
1 - Sheath Dilator
1 - Tunneler w/Tri-Ball Tip
2 - Injection Ports
1 - 18ga x 2 3/4" Introducer Needle
____________
*** Confidential material redacted and filed separately with the Commission.
Confidential Exhibits 19 03/21/02
More-Flow Kit
1 - Appropriate More-Flow Catheter
1 - Xxxxxxxxx Bulb Syringe
1 - #11 Blade Scalpel
1 - .038 x 70cm J-Flex Guidewire
1 - Tegaderm Oval
1 - 16F x 6" Vascu-Sheath
1 - 12F x 6" Vessel Xxxxxxx
0 - 00Xx 0" Xxxxxx Xxxxxxx
0 - Xxxxx GW Direction Sheet
1 - Angio More-Flow IFU
1 - Sheath Dilator
1 - Tunneler w/Tri-Ball Tip
2 - Injection Ports
1 - 18ga x 2 3/4" Introducer Needle
Confidential Exhibits 20 03/21/02
EXHIBIT F
HemoCath
Exclusive Worldwide Agreement
NO MINIMUMS
--------------------------------------------------------------------------------
PRODUCT PRODUCT UNIT
NO. DESCRIPTION PRICE
--------------------------------------------------------------------------------
10300301 Hemo*Cath(R) $***
--------------------------------------------------------------------------------
Catheter
1 - Appropriate HemoCath Catheter
1 - Angio IFU
___________
*** Confidential material redacted and filed separately with the Commission.
Confidential Exhibits 21 03/21/02
