EXHIBIT 10.28.1
AMENDMENT
THIS AMENDMENT is made as of April 18, 2002 ("Amendment Date") to the Sales
Representative Agreement with an effective date of November 16, 2001 ("Effective
Date"), by and between Micro Therapeutics, Incorporated, a Delaware corporation
with its principal place of business at 2 Goodyear, Irvine California ("MTI")
and ev3 International, Inc., a Delaware corporation (formerly known as Vertomed
International, Inc.) with its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxx Xxxx Xxxx, Xxxxxxxxx ("ev3").
The parties hereto agree to amend the Sales Representative Agreement as of
the Amendment Date as follows:
1. Section 6.a. of the Agreement is hereby replaced with the following
language:
a. Expenses. Until such time as the Breakeven Point (as hereinafter
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defined) is reached, MTI will pay to ev3 an amount equal to the
Employee Expenses (as hereinafter defined) and the Service Expenses
(as hereinafter defined), plus 5% of such Employee Expenses. After the
Breakeven Point is reached, MTI will pay to ev3 the Employee Expenses,
the Service Expenses and 10% of net end-customer sales (net of returns
and write-offs of accounts receivable ) on sales of the Products sold
in the Direct Territory. After the Breakeven Point is reached, ev3
will invoice MTI for an amount equal to the difference between 10% of
net end-customer sales (net of returns and write-offs of accounts
receivable) on sales of the Products sold in the Direct Territory for
the months prior to the Breakeven Point and the amount actually paid
by MTI as 5% of Employee Expenses for such months.
(i) Breakeven Point. For purposes of this Agreement, "Breakeven
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Point" means, for each year during the term of this Agreement, the
point in time at which MTI's net end-customer sales (net of returns
and write-offs of accounts receivable) on sales of Products sold in
the Direct Territory equal or exceed the actual manufacturing costs
(labor and materials) incurred by MTI in manufacturing the Products
plus Employee Expenses and Service Expenses. The Breakeven Point will
be calculated by MTI and reviewed and agreed to by the parties
annually.
(ii) Employee Expenses. For purposes of this Agreement, "Employee
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Expenses" means all expenses relating to the hiring and employing of
the Dedicated Employees and a pro rata share of the expenses relating
to the hiring and employing of Fractional Employees, including without
limitation, employee salaries, directly allocable employee benefits
costs, all incremental recruiting and hiring costs and any severance
or termination indemnities that may be due in the event of termination
of employment. MTI acknowledges that all benefits and terms of
employment for the Dedicated Employees and Fractional Employees will
be determined by ev3 in its sole discretion.
(iii) Service Expenses. For purposes of this Agreement, "Service
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Expenses" means a budgeted pro-rata share of the general and
administrative expenses calculated as MTI revenue as a percentage of
total ev3 revenue, to be determined annually by the parties in good
faith for the Services to be performed by ev3.
2. Section 6.c. of the Agreement "Fixed Fee" is hereby deleted and
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replaced with the following language:
c. Timing of Payments. The Review Committee will prepare a budget
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to be mutually agreed upon by the parties for the Employee
Expenses and the Service Expenses. Thirty (30) days prior to the
beginning of each [calendar] quarter, ev3 will send to MTI an
invoice for Employee Expenses, Service Expenses and
Distributor Management Fees to be paid monthly for such quarter.
MTI will pay to ev3 the monthly Employee Expenses, Service
Expenses and Distributor Management Fees on the first day of each
month. Within fifteen (15) days following the end of each
quarter, ev3 will reconcile the actual Employee Expenses and
budgeted Employee Expenses and will issue a credit to MTI for any
overpayment made during the previous quarter. In the event that
actual Employee Expenses during any quarter are greater than
budgeted Employee Expenses, MTI will pay to ev3 the amount of
underpayment within thirty (30) days of receipt of written notice
thereof.
3. Section 6.d. is hereby replaced with the following new subsection
6.d.:
d. Reimbursable Expenses. Within thirty (30) days of receipt of
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an invoice from ev3, MTI will reimburse ev3 for actual expenses
incurred relating to the following:
(i) ev3 will negotiate and complete contractual
relationships in Europe for animal lab training and proctorships
for customers in Europe upon MTI's prior approval. Any costs
incurred by ev3 relating to such animal lab training and
proctorships will be reimbursed by MTI in accordance with this
Section 6.d. and shall not be subject to the 5% charge and shall
be excluded from the Breakeven Point calculations set forth in
Section 6.a.
(ii) ev3 will xxxx to customers and distributors as
appropriate, any costs related to the shipment of the Products to
such customers and distributors, including without limitation,
freight, customs duties and related charges. In the event ev3 is
unable to charge or collect such shipment costs to or from a
customer or distributor, MTI will reimburse ev3 for such costs in
accordance with this Section 6.d. and shall not be subject to the
5% charge and shall be excluded from the Breakeven Point
calculations set forth in Section 6.a. ev3 and MTI shall in good
faith determine a reasonable method to allocate freight on
multiple product/company shipments.
4. This Amendment and the Agreement, set forth the entire agreement
between the parties with respect to the matters set forth herein and
supersedes all prior and contemporaneous discussions or understandings
between them relating thereto. Capitalized terms used in this
Amendment and not defined herein shall have the meanings set forth in
the Agreement. Except as otherwise expressly set forth herein, the
Agreement and each and every provision thereof shall remain in full
force and effect.
IN WITNESS WHEREOF, MTI and ev3 cause this Agreement to be executed by
their duly authorized representatives identified below.
Micro Therapeutics, Inc. ev3 International, Inc.
("MTI") ("ev3")
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxx Xxxxxxx
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Name: Xxxx X. Xxxx Name: Xxxxx Xxxxxxx
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Title: President and CEO Title: CFO
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