EXHIBIT 10.3
AMENDMENT NO. 1
TO
DISTRIBUTION AGREEMENT
This Amendment No. 1, effective as of December 22, 2000, is to that
certain Distribution Agreement (the "Agreement"), dated as of January 5,
2000, by and between MacroPore, Inc., a Delaware corporation ("MacroPore")
and Medtronic, Inc. ("Medtronic"), a Minnesota corporation.
WHEREAS, MacroPore and Medtronic desire to amend the Agreement as
set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties, hereby agree
as follows:
1. Section 7.1 (Prices) of the Agreement is hereby amended by deleting
Section 7.1 in its entirety and inserting the following in its place.
"Section 7.1) PRICES
(a) Unless and until otherwise mutually agreed upon by the parties
in writing, the purchase price per unit to Medtronic (the
"Transfer Price") under this Agreement shall be based on the
price list in effect at the time of MacroPore's receipt of the
order from Medtronic (the "Price List") as set forth on Exhibit
B; PROVIDED, HOWEVER, that the Transfer Price for all Product
sales from MacroPore to Medtronic from January 5, 2000 to the
date hereof shall be the Transfer Price as set forth on Exhibit
B. MacroPore established the attached Price List based on [***]
of the average selling price per unit for each Product,
excluding any sales, use or excise tax, freight, duty or
insurance included therein, during the six-month period
immediately prior to the date of the Price List.
(b) The Price List shall be reviewed by MacroPore and Medtronic on
the six month anniversary of the date hereof and every six
months thereafter (the "Six Month Review"), with any changes in
these prices to take effect upon delivery of the revised Price
List to Medtronic. MacroPore shall prepare the revised Price
List, to be prepared after each Six Month Review, on the same
basis as the initial Price List.
(c) New products may be added to the Price List at any time by 30
day prior written notice to Medtronic. In the event that a new
Product is added to the Price List, the Transfer Price shall be
based on [**] of the estimated selling price per unit for such
Product until the next Six Month Review.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE PORTIONS MARKED AS [***].
(d) In the event sales of a Product already on the Price List were
inadequate to establish an average selling price during the
previous six month period, MacroPore shall set the Transfer
Price based on [***] of the estimated selling price per unit
for such Product, which price may be based on the Transfer
Price for that Product from the previous Price List.
(e) In the event MacroPore and Medtronic's review of the Price List
results in a change to the Transfer Price for any of the
Products on the Price List, all such changes will apply to the
Transfer Price of future sales of that Product and shall not be
applied retroactively to previous sales of that Product to
Medtronic. Separate Transfer Prices will be established for
sales in the United States and for sales in the international
market. The prices for customized products are not included in
the Price List but shall be determined in accordance with
Section 5.7 herein."
2. The Agreement is hereby amended by inserting Exhibit B attached
hereto immediately after Exhibit A to the Agreement.
3. Except as amended hereby, the Agreement shall remain unchanged and in
full force and effect.
4. This Amendment No. 1 and the Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersede any and all prior agreements and undertakings, oral or written,
concerning the subject matter hereof. This Agreement may not be changed or
terminated orally, and may only be changed or terminated by a writing signed
by the party against whom such change or termination is sought.
5. This Amendment No. 1 may be executed in any number of counterparts
and by facsimile, each of which, when executed, shall be deemed to be an
original and all of which together shall be deemed to be one and the same
instrument.
* * * * * *
IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed by the
parties as of the date first set forth above.
MACROPORE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: VP - Finance
MEDTRONIC, INC.,
a Minnesota corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: VP and Chief Development Officer
EXHIBIT B
PRICE LIST
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE ENTIRE PRICE LIST.
