EXHIBIT 10.41
(CRYOCATH LOGO) CONFIDENTIAL
AGENT AGREEMENT
THIS AGENT AGREEMENT (the "Agreement") is made as of November 9th , 2004 (the
"Effective Date")
by and between CRYOCATH TECHNOLOGIES INC., a corporation organized and
existing under the laws of Quebec, Canada, with its principal
offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (hereinafter referred to as "Manufacturer" or "CryoCath").
and ATS MEDICAL, INC. a company organized and existing under the
laws of Minnesota with its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ U.S.A. (hereinafter
referred to as "Agent").
In consideration of the mutual promises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
As used in this Agreement, the terms set forth in this Article 1 shall have the
following meanings:
1.1 Products. Products shall mean those Surgical Cardiovascular products
listed in Exhibit A attached hereto, as amended from time to time by the
Manufacturer.
1.2 Territory. Territory shall mean All US Hospitals except for list of
accounts in the United States set forth in Exhibit B.
1.3 Contract Quarter. Contract Quarter shall mean a period of three
consecutive calendar months beginning on January 1, April 1, July 1, or
October 1.
1.4 Sales Commitment. Sales Commitment shall have the meaning set forth in
Section 3.2.
1.5 Standard Terms and Conditions of Sale. Standard Terms and Conditions of
Sale shall mean Manufacturer's terms and conditions of sale for its
products, as modified by Manufacturer from time to time.
1.51 Net Sales: Net Sales means, in respect of a specified Calendar Quarter or
Calendar Year, the total gross amounts and other cash and non-cash
consideration invoiced or otherwise charged by CryoCath in respect of all
units of all Products including service contracts sold to ATS's accounts
whether shipped, sold, transferred or otherwise distributed by or on behalf
of CryoCath during such Calendar Quarter or Calendar Year, less (to the
extent not already taken into account and to the extent the following
exclusions would be deducted from net sales using the methodology used by
CryoCath, and approved by its independent auditors, in calculating net
sales in connection with CryoCath's preparation of the
** The appearance of a double asterisk denotes confidential information that
has been omitted from the exhibit and filed separately, accompanied by a
confidential treatment request, with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934.
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ATS MEDICAL - Agreement dated November 9th, 2004 page 1 of 16
CryoCath Financial Statements) (a) normal and customary trade, cash and
quantity discounts, allowances and credits granted or allowed, including
(without limitation) free goods and free use of consoles; (b) credits or
allowances actually granted for returns or rejection of such Products and
retroactive price reductions; (c) sales taxes, duties or other taxes with
respect to such sales (including duties or other governmental charges
levied on, absorbed or otherwise imposed on the sale of Product including,
without limitation, value-added taxes or similar taxes or other
governmental charges otherwise measured by the billing amount, when
included in billing but excluding income or other taxes with respect to
gross receipts) actually collected by CryoCath; (d) charge back payments
and rebates granted to managed healthcare organizations or to national,
provincial, state and local governments, their agencies, and purchasers and
reimbursers or to trade customers, including but not limited to,
wholesalers and chain buying groups; and (e) rebates (or equivalents
thereof) granted to or charged by national, provincial, state or local
governmental authorities.
1.6.1 Trademarks. Trademarks shall mean those trademarks and trade names,
whether registered in the Territory or not, labeling, trade dress,
packaging and devices which are owned by, licensed or assigned to
Manufacturer or which it otherwise has a right to use and which are applied
to or used with the Products by Manufacturer.
ARTICLE 2. APPOINTMENT: EXCLUSIVITY; COMPETING PRODUCTS; PRICES; COMMISSIONS
2.1 Appointment. Subject to the terms of this Agreement, Manufacturer appoints
Agent as its exclusive Agent for the Products in the Territory in
accordance with the terms of this Agreement and Agent accepts this
appointment. Such appointment does not constitute a grant of any rights or
interests other than the rights specifically granted to the Agent hereunder
and does not constitute a license or sub-license of the Products. If the
Agent fails to meet the Sales Commitment, Agent's appointment will at
Manufacturer's option automatically become non-exclusive for the remaining
term of this Agreement notwithstanding the Manufacturers right to cancel
the agreement subject to a 30-day cure period, as set forth under Section
3.2.
2.2 Exclusivity. Subject to Agent's compliance with the terms of this
Agreement, Manufacturer shall sell the Products for delivery in the
Territory only through Agent.
2.3 Promotion and Sale of Products only within Territory. Agent shall promote
and sell the Products to customers only for use or consumption within the
Territory.
2.4 Competing Products. Manufacturer or Agent shall neither distribute nor
market products competitive with the Products during the Term as defined in
Section 16.1 and any renewal of this Agreement without the prior written
consent of either Party. It is understood that Manufacturer is restricted
from selling Products in Agent's Territory during the term of the
Agreement. If either Party does not approve the other Party's request for
representation of competitive products, the other Party must refuse to or
cease representing the competitive products. Agent shall not make any
changes, alterations, modifications or additions to the Products without
the prior written approval of CryoCath.
2.5 Prices. Agent shall sell Products to hospitals at prices previously
communicated in writing by Manufacturer from time to time. The prices to be
charged to Agent's accounts under this Agreement will be the prices set out
in Exhibit A under "Price List". Any deviations from the Price List must be
pre-approved by the Director of Marketing or VP Global Marketing and US
Sales or an Officer of the Manufacturer in writing on an account-by-
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ATS MEDICAL - Agreement dated November 9th, 2004 page 2 of 16
account basis. The Pricesare subject to change by the Manufacturer once per
year upon (30) thirty-day written notice to the Agent. Manufacturer will
respect all long-term price agreements with Agents accounts if such
agreements were pre-approved by the Manufacturer.
2.6 Commissions. Manufacturer shall pay Agent a commission in the Territory
during the Term of this Agreement ** of Net Sales to Agent's accounts.
Sales to Agent's customers and the obligation to pay commissions are
subject to Customer meeting CryoCath's standard D&B credit rating.
Commissions are payable monthly to Agent 30 days following the month to
which the commission applies .
ARTICLE 3. PROMOTION AND SALE OF PRODUCTS
3.1 Commercially Reasonable Efforts. Agent shall exercise its commercially
reasonable efforts to promote and sell the Products for use only by
qualified individuals as appropriate in the Territory, in compliance with
local laws and regulations and good commercial practice and for uses and
applications reasonably approved by Manufacturer for the Products. Agent
shall only sell directly to end users of the Products and shall not sell
indirectly or engage sub-agents or distributors without the prior written
consent of Manufacturer. Agent shall be subject to performance criteria
applied to agents of the Products in general, as communicated by
Manufacturer from time to time, after discussion and agreement with the
Agent.
3.2 Sales Commitment. In addition to the efforts described herein, Agent
hereby agrees to the minimum sales commitments for CryoCath Products during
the term of the Agreement ("Sales Commitment") set forth on Exhibit C.
Agent must meet all the annual Sales Commitments at the end of each
twelve-month term and must meet 40% of the first term's commitment by the
end of the first 9 months of that first term and 40% of the second term's
commitment by the end of the first nine months of the second term
(hereafter referred to as the "Interim Term Targets"). It is understood
that the twelve month period referred to with respect to the interim and
annual sales commitments will commence as of Januray 1, 2005. Throughout
the term of this Agreement, if Agent fails to meet any of Sales Commitment
or meet the Interim Term Targets, Agent's appointment may at CryoCath's
option, automatically become non-exclusive for the remaining term of this
Agreement subject to a 30-day cure period, without prejudice to CryoCath's
other rights under this Agreement (including the right to terminate this
Agreement upon written notice to Agent) and CryoCath may appoint one or
more additional agents for sale of the Products or solicit orders for the
Products directly in the Territory for the remaining term of this
Agreement. Products returned to CryoCath for reason other than Product
defect shall not count towards the fulfillment of Agent's relevant Sales
Commitment or Interim Targets .
3.3 Personnel. Manufacturer and Agent shall ensure all of its sales
representatives are trained and engaged in the sale of Manufacturer's
Products. Manufacturer will be responsible for holding a training session
for Agent's representatives at Manufacturer's cost. Agent will be
responsible for representative's travel and incidental training costs In
addition, Agent and Manufacturer shall each employ a dedicated co-promote
manager to ensure that both Parties are committed to meet their duties
under this Agreement. Manufacturer will dedicate clinical specialists to
support surgical clinical cases.
3.4 Inventories and Direct Shipment. Products will be shipped from
Manufacturer's warehouse directly to customers who will be billed directly
by Manufacturer.
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3.5 Promotional Materials. In promoting the Products in the Territory, Agent
shall not use promotional materials contrary to the best interest of the
Manufacturer. Manufacturer reserves the right to require prior approval of
the promotional materials and advertising campaigns. Manufacturer will
provide to Agent reasonable amounts of such promotional materials that it
provides to its own representatives, at no cost to the Agent.
3.6 Reports. The parties agree to meet quarterly for the purpose of reviewing
the business and a three month rolling forecast.
3.7 Customer Complaints. Agent shall report to Manufacturer no later than
within 48 hours of receipt all customer complaints of any nature concerning
the Products and all notices of serious or adverse reaction associated with
the use of the Products, and cooperate with Manufacturer in the resolution
of such complaints. Agent shall maintain records of such complaints for at
least three (3) years after their receipt and shall make such records
available to Manufacturer for inspection and copying upon Manufacturer's
request at any time during Agent's normal business hours.
3.8 Legal Compliance. Manufacturer and Agent shall comply with all relevant
legislation governing the sale of the products.
3.9.1 Limited samples to be provided. The Manufacturer shall supply the Agent
with ** at Manufacturer's fully absorbed cost and a reasonable number of
surgical consoles not for human use **.
3.9.2 Conference and Marketing Booth. Agent agrees to attend the following
conferences (ATS to attach list) each year for the promotion of Products.
In addition, Agent agrees to dedicate 25% of its Marketing booth sales
representative stations to CryoCath. CryoCath agrees to display ATS's name
as Agent of its Products in its booth at such Surgical conferences that it
attends and at which it has booth space.
ARTICLE 4. MANUFACTURER ASSISTANCE TO AGENT
To assist Agent in selling the Products in the Territory, Manufacturer shall
provide Agent with information on marketing and promotional plans with respect
to the Products as well as copies of marketing, advertising, sales and
promotional literature concerning the Products produced by or for CryoCath, if
any.
ARTICLE 5. ADDITION AND DELETION OF PRODUCTS FROM AGREEMENT
5.1 Addition of Products. From time to time new Products may be added to those
covered by this Agreement by amendment of Exhibit A in accordance with
Article 17.7. Article 18.7
5.2 Deletion of Products. Manufacturer may delete specific Products, provided
such Products are replaced with next generation Products, from coverage by
this Agreement upon (30) thirty-day written notice to Agent, which notice
includes an amendment of the attached Exhibit A reflecting the deletion. No
such deletion shall be deemed a termination or partial termination of this
Agreement.
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ARTICLE 6. PROCEDURE FOR ORDER OF PRODUCTS BY AGENT
6.1 Manufacturer's address. Hospital shall mail or fax all orders for the
Products to the following address:
CryoCath Technologies Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Customer Service
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Or to such other address or facsimile number as Manufacturer shall from
time to time designate in writing.
ARTICLE 7. ADDITIONAL EXPRESS WARRANTIES AND DISCLAIMER
7.1 Warranty. Manufacturer will provide the following warranty to customers:
that the Products shall materially conform to CryoCath's then current
specifications, as amended from time to time, for such Products for the
shelf life of such Products as set forth in the label of each such Product.
Customer's exclusive remedy and CryoCath's sole liability for breach of the
foregoing warranty shall be the remedy set forth in Section 8.2.
7.2 Defective Products. In the event that any Product fails to conform to the
warranty set forth in Section 7.1, CryoCath's sole and exclusive liability,
and customer's exclusive remedy shall be, at CryoCath's sole election, to
replace the Product or credit customer's account for the purchase price of
such Product; provided however, that: (a) customer promptly notifies
CryoCath in writing during the Agent Warranty Period that such Product
fails to conform to the warranty set forth in Section 7.1, provides a
detailed explanation of any alleged nonconformity, and requests a return
material authorization number; and (b) such Product is returned within the
Warranty Period to CryoCath F.O.B. CryoCath's shipping location in
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, or as otherwise notified by CryoCath, with the
return material authorization number affixed prominently to the outside
packaging. If CryoCath verifies that such Product fails to conform to the
warranty set forth in Section 7.1, CryoCath will replace the Product or
credit customer's account for the purchase price of such Product.
7.3 Disclaimer. To the full extent permitted under applicable law, except for
the warranties provided in Sections 7.1 and 8.2, CryoCath disclaims all
other warranties or conditions, express, implied, statutory or otherwise,
regarding the products, including without limitation, warranties of their
quality, fitness for any purpose, or merchantability. Any other
representations or warranties made by any person or entity, including
employees or representatives of CryoCath that are inconsistent herewith
shall be disregarded and shall not be binding on CryoCath.
7.4 **.
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ARTICLE 8. TECHNICAL SERVICE, WARRANTY COVERAGE AND SERVICE CONTRACTS
8.1 Technical Service. Manufacturer certifies that it has the technical
capabilities and knowledge to provide optimal service on the Manufacturer's
Products. Technical Service is defined as the ability to maintain and
service critical and non-critical components, calibrate and troubleshoot
all electronic, mechanical and other systems contained within the Surgical
Console.
8.2 Warranty Obligation to Customer. In addition to the specific warranty
described in Section 7.1, Manufacturer warrants that the products sold
shall be free from defects in material and workmanship for a period of 12
months from date of installation at customer's site (the "Customer Warranty
Period"). During the Customer Warranty Period, Manufacturer will supply all
parts used in servicing such products, excluding gas and disposable
products and accessories. Manufacturer shall provide all warranty service
to the end user free of charge while the unit is covered during the
Customer Warranty Period. Manufacturer shall provide all non-warranty
service at reasonable rates for all Products in the Territory. Non-warranty
service shall include electronic set-up and calibration as well as
operational troubleshooting. Such Non-Warranty services will be provided to
Agent's customers at the regular service rates for parts and labour of the
Manufacturer. Manufacturer shall invoice such services to Agent's customers
directly. ** Manufacturer shall maintain properly equipped service
departments and an adequate inventory of spare parts sufficient to meet the
needs of the Territory. Customer and Agent shall use only Manufacturer's
authorized parts and gases. Failure to do so completely voids all warranty
obligations of Manufacturer and shall be considered a material breach of
this Agreement. Manufacturer is not responsible for product failures due to
power failures or natural catastrophes of any kind.
8.3 Warranty Replacement Parts. Warranty parts shall be replaced free of
charge, provided validation by Manufacturer verifies that the failure was
due to defects in material and/or workmanship and that all parts are
properly returned to Manufacturer. The defective part(s) shall be replaced
and returned to Manufacturer. The proper written documentation describing
the exact defect(s) of the Product must be included. Manufacturer's
obligation is limited to the repair or replacement, at its option, of any
warranted Product that is returned.
8.4 Interchangeability. Due to the complexity and interchangeability of the
components, the use of new or like new parts may be used at the discretion
of the Manufacturer. All such parts shall be refurbished and will meet
Manufacturer's specifications and high quality standards in force on the
date of shipment.
8.5 Non-Warranty Replacement Parts. Non-warranty parts will be provided on an
exchange basis at Manufacturer's current Agent Price attached as Exhibit A
and as amended from time to time by the Manufacturer.
8.6 Warranty Procedures. All Warranty claims hereunder must be made in writing
promptly after discovery of the defect and must be received by
Manufacturer's service department within the applicable warranty period.
Such claims shall state the nature and details of the claim, the date on
which the defect giving rise to the claim was first discovered, and the
product serial number and must be attached to the defective product. Agent
shall request authorization from Manufacturer prior to the return of each
defective product for repair or replacement by Manufacturer. Upon such
request, Manufacturer shall provide the address of the facility to which
such product must be returned, together with a Return Material
Authorization (RMA) number to be prominently displayed on the shipping
container for the
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ATS MEDICAL - Agreement dated November 9th, 2004 page 6 of 16
defective product. Manufacturer's obligation is limited to the repair or
replacement, at its option, of any warranted Product that is returned to
Manufacturer in Manufacturer's standard shipping container or properly
packed in accordance with Manufacturer's packing procedures, freight
prepaid, in which Manufacturer's examination shows the product to have
failed under normal use. Upon determination of product failure,
Manufacturer will reimburse Agent for shipping costs related to the return
of the defective product to Manufacturer's facility. Manufacturer may, at
its sole option, employ new or used parts for Products to make such repair
or replacement. Any Products replaced under this warranty shall become
Manufacturer's property. Notwithstanding any contrary provisions of this
Agreement, Manufacturer shall be responsible for all shipping expenses and
bear risk of loss relating to the return shipment to Agent of repaired or
replacement Products which were under warranty.
8.7 Service Contracts. Manufacturer is responsible for providing service for
the Products in the Territory. Service Contracts shall be sold in
accordance with the pricing described in Exhibit A.
ARTICLE 9. TRADEMARKS
9.1 Use of Agent's or Manufacturer's Name. Either Party shall be entitled to
represent in promotional materials and otherwise that Agent is
Manufacturer's exclusive Agent of the Products in the Territory provided
that both Parties remain in compliance with its obligations under this
Agreement.
9.2 Sale Only Under the Trademarks. Agent shall promote and sell the Products
in the Territory only under the Trademarks and the CryoCath name. Agent
will be permitted to apply a business card size sticker with Agent's name
on CryoCath's promotional literature for Surgical Products and on the side
of the console's control unit on the opposite side of the power supply
placed in Agent's Territory.
9.3 Use of Trademarks. Manufacturer or Agent undertake not to use the
Trademarks in a manner that will impair the name or jeopardize the goodwill
or the reputation of the Products or either Party, and to use the
Trademarks in accordance with the standards and specifications of both
Parties.
9.4 Waiver. Both Parties shall not have, assert or acquire any right, title or
interest in or to any Trademark owned by the other Party.
9.5 Agent Acknowledgment of Validity. Agent acknowledges the validity of the
Trademarks and shall not take any action that may impair any right, title
or interest of Manufacturer in any Trademark or that may create any such
right, title or interest adverse to Manufacturer.
9.6 Prohibition of Use of Trademarks on Other Products. Agent shall not use
any Trademark except in connection with the Products.
9.7 Notice of Infringement of Trademarks. Agent shall promptly notify
Manufacturer of any apparent infringement or threatened infringement of any
Trademark, and shall, upon request by Manufacturer and at Manufacturer's
expense, use its best efforts to assist Manufacturer to restrain any such
infringement or threatened infringement.
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ATS MEDICAL - Agreement dated November 9th, 2004 page 7 of 16
ARTICLE 10. PRODUCT RECALLS
In the event that Manufacturer, after consultation with Agent, deems it
necessary to recall any Product because such Product fails to comply with the
warranties set forth in Section 7.1 hereof, or if any governmental authority
requests recall of any Product for any reason, Manufacturer shall promptly
effect such recall in accordance with its standard procedures then in effect.
Agent shall initiate no communications regarding any such recall with the news
media, customers, governmental or regulatory authorities or any other person,
except if and to the extent required by applicable law, without the prior
approval of CryoCath, which approval will not be unreasonably withheld or
delayed. All costs and expenses associated with implementation of a recall shall
be borne by the Manufacturer. Each party will provide any assistance reasonably
requested by the other party in connection with the implementation of any recall
pursuant to this Section.
ARTICLE 11. CLAIMS AGAINST MANUFACTURER AND AGENT; INDEMNIFICATION AND INSURANCE
11.1 Product Liability Claims and patent infringement ; Indemnification by
Manufacturer. Manufacturer shall have full and exclusive responsibility
for the defense of any claim, lawsuit or other action in which it is
alleged that a Product supplied hereunder by Manufacturer has caused injury
to a third party or infringes on a third party's patent, and shall hold
Agent harmless with respect to any such claim, lawsuit or other action.
Manufacturer shall indemnify Agent from and against any damages, costs or
expenses, including reasonable attorneys' fees, which are incurred by Agent
and which arise from any such claim, lawsuit or other action, save when
such claim, lawsuit or action arises as a result of Agent's
misrepresentation of the Product's efficacy, safety or warranty, or when
attributable to Agent's acts, negligence or omissions. However, none of the
foregoing shall apply if the claim or loss is due solely or in part to the
act or omission of Agent.
11.2 Insurance. Each of the parties shall obtain and maintain in effect
Commercial General Liability insurance coverage, including for bodily
injury and property damage to third parties ** and Errors and Omissions
liability insurance including bodily injury and property damage with
minimum **.
11.3 Survival. The obligations of the parties under section 11 shall survive
the expiration or the termination of this Agreement subject to applicable
law governing limitation periods.
ARTICLE 12. CONFIDENTIALITY
Either Party acknowledges that by reason of their relationship hereunder, either
Party will have access to certain information and materials concerning the other
Party's business plans, customers, technology, and products that are
confidential and of substantial value to it, which value would be impaired if
such information were disclosed to third parties. Either party agrees that both
Parties will not use in any way for their own account or the account of any
third party, nor disclose to any third party, any such confidential information
revealed to the receiving Party by each other. Both Parties shall take every
reasonable precaution to protect the confidentiality of such information. Upon
request by either party, the disclosing Party shall advise the receiving
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ATS MEDICAL - Agreement dated November 9th, 2004 page 8 of 16
Party whether or not it considers any particular information confidential. The
Agent shall not publish any technical description of the Products beyond the
description published by CryoCath. In the event of termination of this
Agreement, there shall be no use or disclosure by either party of any
confidential information of CryoCath or Agent, and Agent shall not manufacture
or have manufactured any compositions, devices, components or assemblies
utilizing any of CryoCath's confidential information. Without the disclosing
Party's prior consent, receiving Party shall not directly or indirectly disclose
any confidential or proprietary information received pursuant to this Agreement,
including but not limited to such information specifically designated as
confidential by the disclosing Party. This duty shall not apply to:
(a) Information which is already known to receiving Party at the time of
its disclosure to the receiving Party;
(b) Information disclosed to receiving Party by a third party as a matter
of right; or
(c) Information, which becomes patented, published or otherwise part of
the public domain as a result of acts of the disclosing Party or a
third party obtaining such information as a matter of right.
The parties also agree to maintain the terms of this Agreement in strict
confidence.
ARTICLE 13. AGENT AUTHORIZATIONS
13.1 Agent Warranty. Agent warrants that it is legally authorized to act as an
agent for the Products in the Territory and that it will exercise its
commercially reasonable efforts to maintain these authorizations during the
term of this Agreement. Upon request by Manufacturer, Agent shall provide
Manufacturer with evidence of these authorizations.
13.2 Disqualification. Agent shall immediately notify Manufacturer if it
suffers the loss or impairment of any license, permit or other
authorization that it requires in order to act as an agent for the Products
in the Territory.
13.3 Product Registrations. Manufacturer is responsible for obtaining and
maintaining all required product registrations, market authorizations,
licenses or other government approvals required from time to time for the
sale of the Products in the Territory other than those that the Agent is
required to hold to carry out its obligations hereunder.
ARTICLE 14. COMPLIANCE WITH APPLICABLE LAW
Agent shall comply with all laws, statutes, decrees, regulations and policies
which have the effect of law in the Territory, including but not limited to
anti-bribery laws, and which apply to its activities under this Agreement.
ARTICLE 15. LEGAL RELATIONSHIP
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No provision of this Agreement is intended by the parties or shall be construed
to establish Agent as Manufacturer's officer, employee, or legal representative
or agent other than for the specific purpose described herein. Agent has no
authority under this Agreement to assume any obligation on behalf of
Manufacturer and shall not hold out to any third party that it has authority to
act on behalf of Manufacturer. In all of its activities under this Agreement,
except as specifically herein provided or otherwise authorized by Manufacturer
in advance and in writing, Agent shall be responsible for its own expenses and
shall not incur expenses for Manufacturer's account.
ARTICLE 16. TERM AND TERMINATION
16.1 Term. This Agreement shall take effect on the Effective Date and unless
earlier terminated under the provisions of this Agreement, it shall be
effective for a two (2) year period following the Effective Date. It shall
be subject to automatic renewal for additional terms of one (1) year each
if the sales commitments in Section 3.2 are met or upon express written
agreement of the parties.
16.1.1 Early Termination. Manufacturer may terminate the Agreement at any
time for any reason. It is understood that 16.1.1 does not apply to 16.2
and 16.3. **
16.2 Termination for Breach, Insolvency Either party may immediately terminate
this Agreement by written notice to the other party upon the occurrence of
any of the following events:
(a) if the other party materially breaches any of its duties under this
Agreement and fails to correct this breach within fifteen (15) days
after receiving written notice thereof;
(b) if the other party enters bankruptcy proceedings voluntarily or
involuntarily, assigns its assets for the benefit of creditors or
otherwise becomes or is threatened with becoming insolvent;
16.3 Agent Disqualification. Manufacturer may terminate this Agreement
immediately and without any liability to Agent other than amounts owing
hereunder by providing written notice to Agent if Agent becomes legally
disqualified for any reason from selling the Products in the Territory.
16.4 Sales Commitments. Manufacturer may terminate this Agreement on thirty
(30) days written notice in the event that Agent fails to meet sales
commitment for any annual or Interim Term if not cured by the Agent in the
time frame specified in Section 3.2.
16.5 Consequences of Termination. In the event of a termination of this
Agreement under any provision of Articles 16.1 through 16.4:
(a) The term of this Agreement shall automatically terminate, but this
termination shall not relieve either party of any duty accrued during
that term or from any duty expressly provided in this Agreement to
survive that term.
(b) In the event that Agent meets its Sales Commitments as defined in
Section 3.2 or;
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Manufacturer elects to Early Termination of the agreement as defined
in Sec 16.1.1,
Then
Manufacturer shall pay Agent a Compensation Fee equal **
Agent will also be entitled to a 12 month notice prior to
termination It is understood that the twelve month notification period
and Compensation Fee would not apply in the event that the Agreement
is terminated because Agent does not meet any of the sales minimums
referred to in section 3.2.
(c) Both Parties shall cease using and return all information designated
by either Party as confidential and all sales, advertising and
promotional materials supplied to Agent by Manufacturer. Both Parties
shall for a period of five (5) years after termination continue to
hold in strict confidence all such information.
(d) Both Parties shall immediately cease using any of the Trademarks.
(e) If payments under 16.5(b) are not being paid by manufacturer to Agent,
then manufacturer will repurchase all accounts from Agent that Agent
purchased from Manufacturer at the beginning of this agreement. This
payment will be calculated by the formula defined in Exhibit B but
shall not exceed on an account by account **.
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ARTICLE 17. GENERAL PROVISIONS
17.1 Notices. All notices under this Agreement shall be in writing sent by
courier, first-class mail or by confirmed facsimile, or otherwise as
provided by Article 17.2 hereof, and shall be addressed to the parties at
the addresses set forth below;
In the case of Manufacturer:
CRYOCATH TECHNOLOGIES INC.
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Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of Agent:
ATS Medical
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Att. VP Business Development
Fax (▇▇▇)▇▇▇-▇▇▇▇
A party may change its address designated above by giving written notice to
the other party.
17.2 Notice Periods. All notice periods provided in this Agreement shall be
deemed to begin running (a) in the case of notice by letter sent by
first-class or registered mail, on the third day following the date of
posting; (b) in the case of notice by facsimile or other telegraphic
communication, on the date when the communication is sent and confirmed;
and (c) in the case of any other method of notice, on the date when the
notice is actually received.
17.3 Waiver of Rights. No failure or delay by either party in exercising any
right or remedy under this Agreement shall be construed as a waiver of such
right or remedy, nor shall any single or partial exercise of any right or
remedy preclude any further or other exercise of such right or remedy. All
rights and remedies under this Agreement are cumulative and shall not be
deemed exclusive of any other rights or remedies provided by law.
17.4 Assignments. Agent may not assign all or any part of its rights or duties
under this Agreement without the prior written consent of the other party.
Manufacturer may not assign all or any part of its rights or duties under
this Agreement without the prior written consent of the other party except
for in such cases as may be required for insurance, taxation or financing.
17.5 Force Majeure. Neither party shall be liable for any failure to perform
provisions of this Agreement or supply the Products due to war, whether
declared or undeclared, acts of war or terrorism, embargo, acts of the
public enemy, strikes, fires, explosions, flood, riot, lockout, injunction,
interruption of transportation, accidents, inability to obtain supplies at
reasonable prices or other causes beyond its control.
CONFIDENTIAL Agent Agreement
ATS MEDICAL - Agreement dated November 9th, 2004 page 12 of 16
17.6 Severability. If any provision of this Agreement is declared invalid by
any court of competent jurisdiction or by a government agency having
jurisdiction over the Agreement, this declaration shall not affect the
validity of any other provision and each other provision shall remain in
full force and effect.
17.7 Entire Agreement; Amendments. This Agreement, including the attached
Exhibits, contains the entire agreement of the parties with respect to the
subject matter hereof. This Agreement supersedes and cancels all prior oral
and written agreements between the parties with respect to this subject
matter. Except as otherwise provided herein, this Agreement may be amended
only by an agreement in writing signed by both parties.
17.8 Rights and Remedies. Nothing in this Agreement limits or restricts the
rights or remedies available to the parties under the applicable law.
17.9 Governing Law; Forum. The laws of the Province of Ontario, Canada shall
govern the interpretation and enforcement of this Agreement.
17.10 Headings. All section headings in this Agreement are for convenience only
and shall not in any way affect the meaning or interpretation of the
Agreement.
17.11 Non Solicit. During the term of this Agreement and for a period of 12
months thereafter, either Party will not, whether for itself or on behalf
of another, except if mutually agreed upon in writing, directly or
indirectly ecourage, solicit, entice, hire or cause any employees or
consultants of the other Party to leave their working relationship.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their authorized representatives as of the Effective Date written above.
CRYOCATH TECHNOLOGIES INC. ATS MEDICAL
Signature Signature
--------------------------- ------------------------------
Name Name
-------------------------------- -----------------------------------
Title Title
------------------------------- ----------------------------------
Date Date
-------------------------------- -----------------------------------
CONFIDENTIAL Agent Agreement
ATS MEDICAL - Agreement dated November 9th, 2004 page 13 of 16
EXHIBIT A
** [5 pages omitted]
CONFIDENTIAL Agent Agreement
ATS MEDICAL - Agreement dated November 9th, 2004 page 14 of 16
EXHIBIT B
TERRITORY
All US Hospitals except Agent is restricted from engaging in any sales
promotions of any kind of Manufacture's Products in the following list of
Manufacturer Accounts.
List of manufacture Accounts to be finalized as of December 31 2004
Manufacturer may upon mutual agreement turn any of such accounts over
to Agent for the sole purpose of selling Manufacturer's Products. A compensation
fee equal to:
**
CONFIDENTIAL Agent Agreement
ATS MEDICAL - Agreement dated November 9th, 2004 page 15 of 16
EXHIBIT C
SALES COMMITMENTS
As a qualifying sales commitment to support the Term of the contract, the Agent
agrees to perform by meeting a minimum Sales Commitment as follows:
First Twelve-Month Period:
**
and
**
Second Twelve-Month Period:
To be negotiated mutually between the parties 6 months prior to the expiration
of the First Twelve Month Period such that:
**
CONFIDENTIAL Agent Agreement
ATS MEDICAL - Agreement dated November 9th, 2004 page 16 of 16