Certain confidential portions of this Exhibit have been deleted and filed
separately with the Securities and Exchange Commission. An 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.
CONFIDENTIAL
MARKETING AND
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of the 11th day of January,
1996 between CNS, Inc., a Delaware corporation ("Distributor"), Natus
Corporation, a Minnesota corporation ("Natus"), and LecTec Corporation, a
Minnesota corporation ("LecTec") (Natus and LecTec are collectively referred
to herein as "Manufacturer").
BACKGROUND
LecTec manufactures the Product (as defined below) and Natus has
rights to the Product. Manufacturer is the owner of the Product. Distributor is
in the business of manufacturing and marketing consumer medical products and has
established sales channels for such products. Manufacturer desires to enter into
a marketing and distribution agreement for the Product on the terms and
conditions set forth in this Agreement
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall be defined in the manner set forth below:
1.1 "Product" shall mean Manufacturer's topical analgesic
pain relief patch containing any of the active ingredients methyl salicylate,
menthol and camphor, and all alterations of and improvements to such Product;
provided, however, that Manufacturer may not alter the Product without
Distributor's approval which approval shall not be unreasonably withheld.
1.2 "Territory" shall mean the United States of America and
Canada, and all of their possessions and territories.
1.3 "Exclusive Market" shall mean all retail stores in the
Territory and all wholesalers serving those retail stores.
1.4 "Non-Exclusive Market" shall mean those retail channels
in the Territory other than the channels in the Exclusive Market; provided,
however, that the Non-Exclusive Market shall not include (i) direct response
infommericals and electronic retailing through television-based shopping
programs such as (but not limited to) QVC and HSN, or (ii) direct person to
person marketing, including multi-level distributorships.
1.5 "Growth Factor" for any one calendar year shall mean the
product of Distributor's minimum purchase obligation for the prior year and the
total growth in the United States' retail topical analgesic market for such
prior year as measured by Information Resources, Inc. ("IRI") or Xxxxxxx Rating
Services ("Xxxxxxx") scanner data.
2. APPOINTMENT OF DISTRIBUTOR.
2.1 Subject to the terms and conditions contained herein,
Manufacturer grants to the Distributor, and the Distributor hereby accepts, the
rights and responsibilities of (i) an exclusive distributor of the Product in
the Exclusive Market in the Territory and (ii) a non-exclusive distributor of
the Product in the Non-Exclusive Market in the Territory. Distributor is
prohibited from selling the Product outside the Exclusive Market or
Non-Exclusive Market or to any customer who is not in the Territory. In
addition, Distributor is hereby granted a right of first refusal to act as
exclusive distributor in the Exclusive Market of any analgesic patch developed
by the Manufacturer other than the Product. Such right of first refusal shall
expire on the first anniversary of the commencement of test marketing of the
Product hereunder.
2.2 Beginning on January 1, 1996 and during the Term of this
Agreement, Manufacturer shall maintain Distributor's exclusivity in the
Exclusive Market in the Territory by not appointing any sales representatives or
distributors, or selling directly through other outlets in the Exclusive Market
in the Territory. Nothing contained herein shall in any manner restrict or limit
Manufacturer in regard to appointing another distributor for the Product or in
regard to selling directly or through other outlets in the Non-Exclusive Market.
Distributor acknowledges that Manufacturer has granted to a third party certain
rights to sell the Product in the Exclusive Market under the trademark "Natus
Patch," which rights are terminable by Manufacturer, and that on January 1, 1996
Manufacturer will give notice to such party to terminate such third party's
rights to sell the Product in the Exclusive Market effective January 30, 1996.
2.3. Each of the parties is an independent contractor and
nothing contained herein shall be deemed or construed to create the relationship
of an agency, partnership, joint venture, franchise or any other association or
relationship between the parties except that of a marketing and distributor
relationship. Distributor is not granted any right or authority to assume or
create any obligations or responsibilities, express or implied, on behalf or in
the name of, Manufacturer or to bind Manufacturer in any manner or thing
whatsoever, without the prior written approval and acceptance by Manufacturer in
each instance.
3. PURCHASE ORDERS.
3.1 No purchase orders of Distributor shall be binding upon
Manufacturer until accepted by Manufacturer in writing. Except as otherwise
agreed in writing by Manufacturer, an order may not be canceled by Distributor
after it has been accepted.
3.2 All sales of Product by Manufacturer to Distributor
hereunder shall be subject to the provisions of this Agreement and shall not be
subject to the terms and conditions contained in any purchase order of
Distributor or confirmation of Manufacturer, except insofar as any such purchase
order or confirmation establishes (i) the quantity of Product to be sold or (ii)
the shipment date of Product.
4. SHIPMENT OF PRODUCT.
4.1 Subject to delay due to force majeure, Manufacturer will
ship Product on the date indicated in Distributor's purchase order if such order
is within the then current sales projection of Distributor. If such order is
beyond the projection, Manufacturer will use commercially reasonable efforts to
meet such order and will not unreasonably withhold or delay its acceptance of
the order.
4.2 All Product sold by Manufacturer to Distributor
hereunder will be shipped by Manufacturer F.O.B. LecTec's loading dock
("Shipping Point").
4.3 Distributor shall assume all risk of loss for Product
upon delivery by Manufacturer of the Product to the Shipping Point.
4.4 Distributor will pay all loading, freight, shipping,
insurance, forwarding and handling charges, taxes, storage, and all other
charges applicable to the Product after it is delivered by Manufacturer to the
Shipping Point.
5. PRICE AND PAYMENT.
5.1 Manufacturer agrees to sell the Product to Distributor
F.O.B. Shipping Point at the price set forth on Exhibit A. Prices may not be
changed without Distributor's prior approval and changes will be based on the
national consumer price index.
5.2 The parties agree to renegotiate in good faith the price
paid by Distributor for the Product in the following situations: (i) for
specified packout configurations, for which different prices will be based on
any cost savings or increases that Manufacturer incurs as a result of such
packout changes, (ii)) in the event price elasticity or competitive pricing
pressures impact Distributor's ability to effectively penetrate the market, in
which case the new prices will be negotiated in good faith; and (iii) to share
manufacturing cost reductions with Distributor in the event that unit sales of
the Product reach sufficient sustainable volume to generate manufacturing
economies of scale, in which case the new prices will be negotiated in good
faith with the understanding that the parties will take into consideration any
cost saving experienced by Distributor in connection with its marketing efforts.
5.3 Manufacturer agrees that it will not (i)) sell
comparably-sized Product to any other party in the Non-Exclusive Market at a
price less than the price paid by Distributor or (ii) sell comparably-sized
Product to any other party at a price less than the price paid for the Product
by Distributor. The restriction in Section 5.3(ii) shall not apply to sales
under (a) agreements existing as of the date of this Agreement or (b) agreements
for sales through direct person to person marketing, including multi-level
distributorships.
5.4 Except as otherwise provided in this Agreement,
Distributor shall pay Manufacturer for each shipment of Product within thirty
(30) days of the date of the invoice issued by Manufacturer in conjunction with
such shipment.
6. RETURNED GOODS POLICY. Distributor may return Product to
Manufacturer upon Manufacturer's prior written approval if such Product deviated
from Distributor's packaging specifications or if the Product or packaging does
not meet the warranties contained in Section 13.1. Complaints concerning
conditions of any Product or packaging must be made within fifteen (15) days of
receipt by Distributor of such Product. Manufacturer shall pay all freight
charges incurred in connection with any return of Product pursuant to this
returned goods policy.
7. MANUFACTURER'S RESPONSIBILITIES.
7.1 In support of Distributor's sales efforts to promote
Product in the Territory, Manufacturer will furnish, at no cost to Distributor,
(i) to the extent known and available to Manufacturer, medical literature
regarding or relating to the Product, including abstracts of clinical studies
and medical journal articles, (ii) sales and promotional materials as may be
developed by Manufacturer, limited to technical data and technical journal
reprints, and (iii) samples of Product in reasonable quantities, as requested by
Distributor and agreed to by Manufacturer, each acting in good faith.
Manufacturer will furnish information to aid in the orientation and training of
Distributor's service and sales personnel.
7.2 Manufacturer will package the Product in conformance
with the packaging specifications provided by Distributor. Distributor will
provide camera-ready artwork for labels and packaging.
7.3 Manufacturer shall take such actions as are necessary
(such as cutting off supply of Product) to prevent any domestic or foreign
entity from distributing or selling, directly or indirectly, the Product in the
Exclusive Market in the Territory.
7.4 Manufacturer shall, with the exception of an IND,
underwrite the cost of any clinical studies necessary to support the Citizens
Petition or other similar FDA filings. Distributor and Manufacturer shall
jointly underwrite the cost of any mutually agreed upon clinical studies
intended to broaden Product claims beyond the monograph. Neither party shall be
obligated to file an IND or perform any clinical studies with respect to the
Product.
7.5 Manufacturer shall give Distributor 180 days' written
notice prior to discontinuing the manufacture of the Product and shall not
discontinue manufacturing the Product prior to December 31, 1997 without
Distributor's written approval, unless the Food and Drug Administration forbids
production or distribution of the Product.
7.6 Manufacturer shall maintain a 30-day inventory of
Product to meet Distributor's forecasted volume requirements provided to
Manufacturer pursuant to Section 8.2.
8. DISTRIBUTOR'S RESPONSIBILITIES. In addition to the duties and
responsibilities outlined elsewhere in this Agreement, Distributor agrees as
follows:
8.1 Distributor will vigorously promote the sale and
acceptance of Product throughout the Territory. Distributor shall provide its
customers with all necessary and appropriate training and support regarding the
use of the Product.
8.2 Distributor shall furnish to Manufacturer a written
four-month rolling forecast for the Product, which forecast shall be given to
Manufacturer on or before the 10th day of each month.
8.3 Distributor shall underwrite the cost of any comparative
clinical studies for the Product. Distributor and Manufacturer shall jointly
underwrite the cost of any clinical studies intended to broaden Product claims
beyond the monograph, which are mutually agreed upon by the parties.
8.4 Claims language in all advertising or promotional
materials utilized by Distributor, its agents or employees in conjunction with
the sale of Product, other than such sales literature as is furnished to
Distributor by Manufacturer, shall be approved, in writing, by Manufacturer
prior to their use or dissemination.
8.5 Distributor shall cooperate fully with Manufacturer in
dealing with customer complaints concerning the Product and shall take such
action to resolve such complaints as may be requested by Manufacturer.
8.6 Distributor agrees, during the term of this Agreement,
to comply with all FDA regulations applicable to the Product. Distributor shall
not, in any way, misrepresent the nature or indications for use of the Product
or, except by prior written approval of Manufacturer, alter the Product.
9. MINIMUM PURCHASE OBLIGATIONS AND RETAIL STORE PLACEMENTS.
9.1 During the term of this Agreement, Distributor shall
purchase a minimum number of Product from Manufacturer per calendar year and
shall have the Product placed in a minimum number of retail stores as of
December 31 of each year, as set forth below.
9.1.1 Year Number of Patches
1996 (*)
1997 (*)
1998 (*)
Thereafter (*)
9.1.2 Year Number of Stores
1996 (*)
1997 (*)
Thereafter (*)
The above minimums assume that test marketing of the Product will begin by May
1, 1996. If test marketing begins later, the parties shall renegotiate the
minimums in good faith.
9.2 The minimum purchase obligation for 1997 may be satisfied
by achieving a combined volume of (*) patches during 1996 and 1997.
9.3 During years 1996, 1997 and 1998, Distributor's
obligations under this Section 9 may be satisfied by achieving either the
Product minimums or retail store minimums determined through IRI or Xxxxxxx data
and store purchase data, records of which may be reviewed by Manufacturer.
9.4 In the event that Manufacturer loses its Product deferral
with the FDA and, as a consequence, Distributor is prohibited from selling the
Product, the minimum requirements set forth above shall be waived.
9.5 In the event Distributor shall fail to meet any minimum
requirements as set forth in this Section 9, Distributor shall have defaulted
under this Agreement, and Manufacturer's exclusive remedy is to terminate this
Agreement pursuant to Section 10; provided, however, that after 1998,
Distributor shall not be in breach of this Section 9 and Manufacturer may not
terminate this Agreement until (i) Distributor shall have failed to meet any of
its minimum requirements, (ii) Manufacturer has given Distributor a 30-day
written notice of such failure, and (iii) Distributor fails to meet the minimum
requirements after an additional six-month period to cure.
9.6 The minimums stated above will be appropriately reduced by
good faith negotiation of the parties (i) if Manufacturer does not use
reasonable efforts to defend its patents, (ii) if Manufacturer does not obtain
or maintain the necessary governmental or regulatory approvals to sell the
Product or (iii) where the parties are unable to agree on the price of the
Product pursuant to in paragraph 5.2(ii) hereof.
10. TERM OF AGREEMENT: TERMINATION.
10.1 This Agreement shall commence on the date hereof and
terminate on the later of (i) expiration of the last of Manufacturer's United
States patents on the Product issued or pending as of the date of this Agreement
and (ii) any other patent issued or pending or application filed on the Product
after the date hereof
10.2 Either party may terminate this Agreement by giving
thirty (30) days' written notice to the other party of any material breach
provided that as of the expiration of said thirty (30) day notice period and an
additional sixty (60) days' cure period such breach remains uncured (other than
as set forth in Section 9.5)(iii).
10.3 Either party may terminate this Agreement immediately
upon written notice to the other party if the other party shall: (i) file a
voluntary petition in bankruptcy or be the subject of an involuntary petition in
bankruptcy which is not dismissed within thirty (30) days of the date of filing;
(ii) be voluntarily or involuntarily dissolved; or (iii) have a receiver,
trustee or other court officer appointed for its property in connection with any
such bankruptcy proceeding, liquidation or insolvency proceeding.
10.4 Termination of this Agreement shall not relieve
Manufacturer of its obligations to deliver all Product ordered by Distributor
and accepted by Manufacturer prior to such termination; nor will such
termination relieve Distributor of its obligation to accept and pay for all
Product ordered by Distributor under purchase orders issued by Distributor and
accepted by Manufacturer prior to the date of such termination. Termination
shall not relieve or release either party from its obligation to make any other
payments which may be owing to the other party under the terms of this Agreement
or from any other liability which either party may have to the other arising out
of this Agreement or the breach of this Agreement. Following notice of
termination, Manufacturer shall have no obligation to accept any orders for
Product from Distributor.
10.5 Upon termination of this Agreement for breach by
Manufacturer or for breach by Distributor of its minimum purchase obligations or
minimum store placements hereunder, Distributor shall have the right, but not
the obligation, to cause Manufacturer to repurchase all Product having at least
50% of its original shelf life in possession of Distributor, at the lower of
Distributor's original invoice purchase price or the then current invoice price,
provided, that such Product is new, unused and not materially damaged.
Manufacturer agrees to buy said Product from Distributor for said price should
Distributor exercise this right.
10.6 Upon termination of this Agreement for breach by
Distributor (other than a breach by Distributor of its minimum purchase
obligations or minimum store placements hereunder), Manufacturer shall have no
obligation to repurchase Distributor's inventory of Product, and shall have the
right, but not the obligation, to cause Distributor to purchase, at the then
current price, Manufacturer's 30 day inventory of Product as required to be held
by Manufacturer pursuant to Section 7.6, having at least 50% of its original
shelf life in Manufacturer's possession, provided, that such Product is new,
unused and not materially damaged. Distributor agrees to buy said Product from
Manufacturer for said price should Manufacturer exercise this right.
10.7 Notwithstanding anything contained herein to the
contrary, Sections 12, 13 and 19 of this Agreement shall survive termination of
this Agreement and shall remain in full force and effect.
11. Waiver of Breach. The waiver or failure of either party to
enforce the terms of this Agreement in one instance shall not constitute a
waiver of said party's rights under this Agreement with respect to other
violations.
12. MANUFACTURER'S WARRANTIES AND REPRESENTATIONS: INDEMNIFICATION.
12.1 Manufacturer warrants that the Product and its
packaging (i) are free from defects in material and manufacture, (ii) are fit to
be used as indicated in the Product labeling, (iii) meet all specifications and
performance claims, and (iv) are not adulterated or misbranded (as defined by
the FDA). If a Product or the packaging does not meet its warranty, Manufacturer
shall replace such Product or packaging or refund Distributor's purchase price.
In case of a recall, Manufacturer shall reimburse Distributor for its reasonable
costs in assisting in the recall.
THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY
MANUFACTURER, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF USE, EXCEPT AS
EXPRESSED ABOVE IN PARAGRAPH 12.1.
12.2 Manufacturer will comply with all material laws and
regulations, including FDA GMPs with respect to the manufacturing, packaging and
labeling of the Products. Distributor may periodically audit procedures,
processes, process controls and manufacturing records of Manufacturer.
12.3 Each of LecTec and Natus has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of Minnesota and the undersigned has been duly authorized to execute this
Agreement on behalf of the Manufacturer, and when so executed, this Agreement
will constitute the valid and binding obligation of Manufacturer, enforceable in
accordance with its terms.
12.4 Manufacturer has the exclusive right, under the
applicable patents related to the Product, to manufacture the Product, for the
duration of such patents, in the United States and Canada and Manufacturer has
obtained clearance to market the Product in the United States from the FDA. It
will use commercially reasonable efforts to obtain clearance from the Ministry
of Health to market the Product in Canada taking into account the costs of
obtaining such clearance and the anticipated market for the Products in Canada.
12.5 LecTec and Natus shall jointly and severally save
Distributor, its directors, officers and employees from and against and
indemnify them from any and all claims, liabilities, costs and expenses of any
nature (including attorney's fees) caused by reason of claim that the Product
caused personal injury or property damage; provided, however, that
Manufacturer's indemnification obligations are conditioned upon Distributor
giving Manufacturer prompt written notice of any such claims and allowing
Manufacturer to participate in its own defense with its own counsel.
12.6 Manufacturer shall maintain product liability insurance
coverage in the amount of $2 million per occurrence which will be renewed
annually and which shall name Distributor as an additional named insured.
12.7 No party shall be liable to another party for any
consequential damages (e.g., lost profits, business opportunities or
investments) that arise as a result of this Agreement or its termination.
13. DISTRIBUTOR'S REPRESENTATIONS: INDEMNIFICATION.
13.1 Distributor shall not make any statements concerning
the Product which are not approved by Manufacturer, and any such statements by
Distributor shall be the sole responsibility of Distributor and Distributor
shall save Manufacturer, its directors, officers and employees harmless against
and indemnify them from the liability, costs, and expenses of any nature
(including attorneys' fees) which Manufacturer may incur as the result of any
such statements; provided, however, that Distributor's indemnification
obligations are conditioned upon Manufacturer giving Distributor prompt written
notice of any such claims and allowing Distributor to participate in its own
defense with its own counsel.
13.2 Distributor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and the undersigned has been duly authorized to execute this Agreement
on behalf of the Distributor, and when so executed, this Agreement will
constitute the valid and binding obligation of Distributor, enforceable in
accordance with its terms.
14. TRADEMARKS AND TRADE NAMES.
14.1 Manufacturer hereby grants to Distributor the exclusive
license to use the "TheraPatch(TM)" trade name for use in the Territory in
connection with the advertising and sale of the Product. If at any time
Distributor markets the Product under a trade name other than "TheraPatch," the
exclusive license granted pursuant to this Section 14.1 shall terminate.
Distributor will discontinue the use of such trade name at the end of this
Agreement. If Distributor uses the TheraPatch name in connection with the
advertising and sale of the Product, Distributor shall indicate on package
labeling of the Product that the product is manufactured by LecTec and that
"TheraPatch" is a trademark of the Manufacturer."
14.2 Distributor is hereby granted the first right of
negotiation to acquire the trade name "TheraPatch." Such right of negotiation
shall expire on the first anniversary of the commencement of test marketing of
the Product hereunder.
14.3 Distributor shall not remove, cover, change, or add to
the labels affixed by Manufacturer to Product without first receiving
Manufacturer's written approval.
15. PATENT OR TRADEMARK INFRINGEMENT.
15.1 If a patent infringement action is commenced or
threatened against Manufacturer as to any Product and Manufacturer elects to, as
a result, discontinue the sale of the Product in any part or all of the
Territory, Distributor shall discontinue its efforts to sell said Product in any
such part or all of the Territory immediately upon receipt of written notice
thereof from Manufacturer. LecTec and Natus shall jointly and severally save
Distributor, its directors, officers and employees harmless from and against and
indemnify them from any and all claims, liabilities, costs and expenses of any
nature (including attorney's fees) caused by reason of claims that the Product
infringes the intellectual property rights of others (e.g., patent, copyright,
trademark, trade name, etc.); provided, however, that Manufacturer's
indemnification obligations are conditioned upon Distributor giving Manufacturer
prompt written notice of any such claims and giving the defense of the claim to
Manufacturer and reasonably cooperating with Manufacturer in the defense.
Distributor shall have a right to cooperate in its own defense with its own
counsel.
15.2 Distributor shall promptly notify Manufacturer in the
event Distributor becomes aware of any activities of a third party that may
constitute infringement of the Manufacturer's patents or pending patents on the
Product or trademarks.
16. Recall. Distributor shall maintain complete and accurate records
of all Product sold by Distributor, its agents or employees (including without
limitation a complete and current list of all customers who have purchased, the
date of such purchases and the lot numbers of the units purchased). In the event
of a recall of any of the Product, Distributor will cooperate fully with
Manufacturer in effecting such recall, including without limitation, promptly
contacting any purchasers Manufacturer desires be contacted during the course of
any such recall, and promptly communicating to such purchasers such information
or instructions as Manufacturer may desire be transmitted to such purchasers.
17. Traceability . Distributor agrees to comply with all traceability
programs in effect at any time as initiated by Manufacturer. Manufacturer may
examine and make transcripts of any records required as part of a traceability
program at reasonable times during business hours.
18. Appointment of Subdistributors. In the event Distributor appoints
any subdistributors or sales representatives in the Territory in connection with
the performance of this Agreement, such appointment shall be made only in the
name and for the account of Distributor and shall be for a term no greater than
the term of this Agreement. Distributor shall not grant to the subdistributors
and/or sales representatives any rights greater than those which are granted by
Manufacturer to Distributor under this Agreement. Distributor shall also impose
on the subdistributors and/or sales representatives the same obligations as
Manufacturer has imposed on Distributor under this Agreement.
19. Confidential Information. Manufacturer and Distributor may
exchange information each considers confidential ("Confidential Information").
"Confidential Information" shall include any information that is not generally
known, including trade secrets, outside of that disclosing party and that is
proprietary to that party, relating to any phase of that party's existing or
reasonably foreseeable business which is disclosed to the receiving parties
during the term of this Agreement. "Confidential Information" does not include
information that (i) is or becomes publicly available through no fault of the
receiving parties, (ii) is in the possession of the receiving parties prior to
the receipt from the disclosing party, (iii) is developed by the receiving party
independently of the Confidential Information, or (iv) is given to the receiving
party by someone else who has the right to do so. Each party hereto specifically
agrees to keep confidential and not to disclose to others any and all
Confidential Information. Upon the request of the disclosing party, or in the
event of the expiration or other termination of this Agreement, the receiving
parties shall promptly return all such Confidential Information to the
disclosing party. Each party hereto agrees not to use any such Confidential
Information except in conjunction with the purposes of this Agreement. The duty
not to disclose or use (other than in conjunction with the performance of this
Agreement) such Confidential information shall survive the termination of this
Agreement.
20. Force Majeure. Neither Manufacturer nor Distributor shall be in
breach of this Agreement for a failure to perform or be liable to the other for
any failure to perform under this Agreement if such failure is caused, in whole
or in part, directly or indirectly, by strikes, lockouts, or any other labor
troubles, fires, floods, acts of God, accidents, embargoes, war, riots, act or
order of any government or governmental agency, delay in the delivery of raw
material parts, or completed merchandise by the supplier thereof or any other
cause beyond the control of, or occurring without the fault of, such party.
21. Notice. All notices under this Agreement shall be in writing, and
may be delivered by hand or sent by mail or facsimile transaction. Notices sent
by mail shall be sent by registered mail return receipt requested, and shall be
deemed received on the date of receipt indicated by the receipt verification
provided by the United States postal service. Notices delivered by hand or
facsimile transaction shall be effective upon receipt. Notices shad be given,
mailed, or sent to the parties at the following addresses:
If to LecTec: With a copy to:
LecTec Corporation Xxxxxx & Xxxxxxx P.L.L.P.
00000 Xxx Xxxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 000 Xxxxx 0xx Xxxxxx
Attn: Xxxxxx X. Xxxxxxxx, Ph.D. Xxxxxxxxxxx, XX 00000
Phone: (000) 000-0000 Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000
If to Natus: With a copy to:
Natus Corporation Xxxxxx & Xxxxxxx P.L.L.P.
0000 X. 00xx Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, XX 00000 000 Xxxxx 0xx Xxxxxx
Attn: Xxxxxxxx X. Xxxxxxxx Xxxxxxxxxxx, XX 00000
Phone: (000) 000-0000 Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000
If to Distributor: With a copy to:
CNS, Inc. Xxxxxxxxx & Xxxxxx P.L.L.P.
X.X. Xxx 00000 0000 XX Xxxxxx
Xxxxxxxxxxx, XX 00000 00 Xxxxx 0xx Xxxxxx
Attn: Xxxxxxx X. Xxxxxx Xxxxxxxxxxx, XX 00000
Phone: (000) 000-0000 Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000
Any party hereto may designate any other address for notices given it
hereunder for written notice to the other party given at least ten (10) days
prior to the effective date of such change.
22. ENTIRE CONTRACT There are no oral or other agreements or
understandings between the parties affecting this Agreement or relating to the
selling or purchase of Product. This Agreement supersedes all previous oral and
written arrangements between the parties, including their letter of intent dated
October 10, 1995, and is intended as a complete and exclusive statement of the
terms of their understanding.
23. AMENDMENTS. Amendments, if any, shall be in writing and valid
only when signed by all parties.
24. ASSIGNABILITV. No party may assign this Agreement without the
written consent of the other parties; provided, however, that either party may
assign this Agreement without such consent to any majority-owned or controlled
affiliate or subsidiary.
25. SEVERABILITY. In the event that any provision of this Agreement
is held invalid by the final judgment of any court of competent jurisdiction,
the remaining provisions shall remain in full force and effect as if such
invalid provision had not been included herein.
26. REMEDIES. The parties acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that,
in addition to any other relief afforded by law, an injunction against such
violation may be issued against it and every other person concerned thereby, it
being understood that both damages and an injunction shall be proper modes of
relief and are not to be considered mutually exclusive remedies. In the event of
any such violation, the parties agrees to pay, in addition to the actual damages
sustained by the other parties as a result thereof, the reasonable attorneys'
fees incurred by such party in pursuing any of its rights under this Agreement.
27. ACTION FOR BREACH. The time within which Manufacturer or
Distributor may bring an action for breach of this Agreement shall be one year
from the date of knowledge of such breach. No action may be commenced after that
one-year period.
28. DISPUTES: APPLICABLE LAW AND FORUM SELECTION. Except as altered
or expanded by this Agreement, the substantive law (and not the law of
conflicts) of the State of Minnesota shall govern this Agreement in all respects
as to the validity, interpretation, construction and enforcement of this
Agreement and all aspects of the relationship between the parties hereto. Any
disputes between the parties hereto relating to any provision hereof shall be
settled by submission for arbitration at the Minneapolis, Minnesota office of
the American Arbitration Association under the then current rules of the
American Arbitration Association. Notwithstanding the foregoing, nothing herein
shall prevent a party from seeking and obtaining equitable relief in a court of
competent jurisdiction solely for the purpose of protecting such party's rights,
pending a final decree of the arbitrator.
IN WITNESS WHEREOF, the parties have herunto set their hands ^I as of the day
and year first above written
LECTEC CORPORATION NATUS CORPORATION
By: /s/Xxxxxx X. Xxxxxxxx By: /s/Xxxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Ph.D Xxxxxxxx X. Xxxxxxxx, President and CEO
Chairman, President and CEO
CNS, INC.
By: /s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President and COO
Exhibit A
PRICES
The initial price for the Product shall be (*) per patch based on packaging of
five patches per box. The price shall be subject to change based on future
negotiation
