EXHIBIT 10.28
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION]
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT effective as of January 1, 1998 (this
"Agreement"), is entered into between BIOSITE DIAGNOSTICS INCORPORATED, a
corporation under the laws of the State of Delaware ("Biosite"), having a
place of business at 00000 Xxxxxxx Xxxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxxxx
00000, and XXXXXX SCIENTIFIC COMPANY L.L.C., a Delaware Limited Liability
Company represented by its XXXXXX XXXXXXXX SCIENTIFIC division ("CMS"),
having a place of business at 0000 Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx
00000.
W I T N E S S E T H
WHEREAS, Biosite and CMS entered into the Distribution Agreement dated as
of November 11, 1991 (as amended to date, the "1991 Distribution Agreement").
WHEREAS, Biosite and CMS now desire to enter into a new agreement setting
forth the terms of their business relationship and concurrently to terminate the
1991 Distribution Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective covenants of the parties herein set forth, the parties hereby
terminate the 1991 Distribution Agreement and agree as follows:
1. PRODUCTS.
(a) For purposes of this Agreement, the "Products" shall mean the DOA
Products, the Micro Products and the Cardiac Products.
The "DOA Products" shall mean the products described in
Schedule A.
The "Micro Products" shall mean the products described in
Schedule B.
The "Cardiac Products" shall mean the products described in
Schedule C, including the Cardiac Panels and the Triage Meters. The "Cardiac
Panels" shall mean the Triage Cardiac Panels more fully described in Schedule C,
and the "Triage Meters" shall mean the Triage Meters as more fully described in
Schedule C.
(b) During the term of this Agreement, Biosite shall make available
to CMS any improved or updated versions of the Products under the same terms and
conditions (other than price) as set forth herein.
(c) Biosite shall provide all required Material Safety Data Sheets,
if any, for any Product containing hazardous chemicals or otherwise as required
by federal, state or local law.
2. GRANT OF DISTRIBUTORSHIP.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, Biosite hereby appoints CMS, and CMS accepts appointment, as the
exclusive distributor of the Products in the Territory (as defined below) during
the term of this Agreement; provided, however, that Biosite reserves certain
rights to promote, market, sell and distribute the Products in the Reserved
Market Segments (as defined below). Additionally, CMS shall have nonexclusive
distribution rights to ***.
(b) The "Territory" shall mean the Medical Segment (as defined below)
in the United States and its territories. The "Medical Segment" shall mean:
hospitals (including nonprofit, religious, government, university, military and
psychiatric hospitals); reference laboratories; occupational health centers or
clinics that are part of a hospital facility; chest pain centers or clinics that
are part of a hospital facility; drug rehabilitation centers and chest pain
centers that are part of a hospital facility; xxxxxxx xxxxxxxxxx centers; and
physician group practices of forty (40) or more physicians. The Territory shall
NOT include, and CMS shall not be permitted to sell the Products in, any areas
or to any market segment not described in this Section 2(b) without the prior
written consent of Biosite, which consent
*** CONFIDENTIAL TREATMENT REQUESTED
may be withheld at Biosite's sole discretion. CMS shall take reasonable
steps to limit the likelihood that CMS's customers in the Territory purchase
Products for resale in the Reserved Market Segments (as defined below).
(c) All areas and market segments not included in the definition
of the Territory shall be hereinafter referred to as the "Reserved Market
Segments." Biosite shall retain all rights to promote, market, sell and
distribute (either directly or through others) the Products in the Reserved
Market Segments. Except as otherwise set forth in this Agreement, Biosite
shall not be permitted to sell the Products in the Territory and shall take
reasonable steps to limit the likelihood that Biosite's customers in the
Reserved Market Segments purchase Products for resale into the Territory.
Included in the Reserved Market Segments, without limitation, are all market
segments in countries outside of the United States and its territories and
the following customer groups in the United States and its territories:
free-standing drug rehabilitation centers and chest pain centers not part of
a hospital facility; prisons and prison hospitals; physician practices of
less than forty (40) physicians; probation and parole programs; public and
private sector workplace testing; non-hospital based occupational health
centers or clinics; industrial laboratories; non-hospital military on-site
testing programs (i.e., ADCO, recruiting centers); high school, college,
university and professional sports programs; government agencies; public
carriers; and veterinary clinics and animal testing.
(d) Nothing herein shall be deemed to prohibit Biosite (i) from
distributing, selling, promoting and marketing the DOA Products to ***
without restriction, or (ii) from distributing (but not selling) the Products
within the Territory only for purposes of pre-market clinical testing or
evaluation of the Products or testing of Product improvements or enhancements
prior to market introduction.
(e) Nothing herein shall prohibit Biosite from promoting,
marketing, and soliciting and receiving orders for the sale (but not selling)
of, the Cardiac Products to hospitals within the Territory ***.
3. CONDUCT OF CMS.
(a) CMS shall use its good faith commercial efforts and facilities
to promote, market, distribute and sell the Products and to take no action
which would interfere with Biosite's efforts to develop and maintain the
reputation of and goodwill with respect to the Products within the Territory
during the term of this Agreement. CMS shall provide not less than an
aggregate of two (2) full pages of advertising for available Products in its
1998-99 General Catalog. CMS shall permit Biosite access to its sales
representatives for the purpose of providing training of CMS's sales
representatives in the demonstration and use of the Products on such dates
and in such locations as may be mutually acceptable to the parties. CMS
shall provide Biosite with samples of any such Product advertising and sales
literature prior to printing and distribution of same, and Biosite shall have
the right to approve the Product advertisement(s), which approval shall not
be unreasonably withheld or delayed. CMS shall use its good faith commercial
efforts to inform customers and potential customers of the availability and
desirability of the Product; to handle promptly all inquiries, quotations,
correspondence and orders; and to assist customers in the proper use of the
Products and the referral of customers to Biosite for the solution of
technical application problems.
(b) Except as otherwise set forth in this Section 3(b), CMS shall
not market, advertise, distribute or sell any products in the Territory that
are directly competitive with the Products as to which CMS enjoys exclusive
distribution rights. Notwithstanding the foregoing, CMS shall have the right
to distribute and sell (i) products of a third party, competitive with the
Products, which third party products CMS sells or distributes as of the date
of this Agreement, (ii) any products of such third party which are
subsequently added by such third party to its line of products, which are
competitive with the Products, (iii) any products that may include
competitive assays to the Products that are based on an automated random
access instrument platform (with the exception of those instruments
manufactured by or on behalf of *** with a broad based menu of analytes such
as chemistries, fertility, thyroid function, oncology, infectious disease,
TDM, DOA, allergy, etc. and (iv) competitive products in the event Biosite
provides notice of nonrenewal as described in Section 6(a) of this Agreement.
Additionally, nothing contained in this Agreement shall restrict the
activities of CMS outside the Territory with respect to competing products.
(c) CMS shall provide Biosite, on a monthly basis, with a written
forecast of CMS's estimated purchase requirements for each month in the
ensuing three-month period for DOA Products, Micro Products and Cardiac
Products (other than Triage Meters), and in the ensuing six-month period for
Triage Meters. Forecasted quantities for the first and second month of each
forecast period shall be binding, subject however to a variance of plus or
minus ten percent (10%) for the second month of each forecast and provided
that in the first six (6) months following the date of first Product shipment
for any new Product, the second month forecast shall be subject to a variance
of plus or minus thirty percent (30%). Biosite shall use its good faith
commercial efforts to sell such quantities to CMS.
*** CONFIDENTIAL TREATMENT REQUESTED
(d) CMS may return, for full credit or replacement, any Product
for which CMS is required to give a customer credit or replacement Product
due to a claimed defect or deficiency in the Product, provided that CMS first
obtains from Biosite a returned goods authorization which shall not be
unreasonably withheld or delayed by Biosite.
(e) Biosite shall review and advise CMS on compliance with all FDA
requirements regarding the Products contained in CMS's advertising and sales
literature.
(f) CMS hereby represents and warrants that neither CMS nor its
agents or employees will make any representations or claims with respect to
the Products which are not authorized in writing by Biosite. Subject to the
provisions of Section 6(h) hereof, CMS agrees to and shall indemnify Biosite
against, and hold Biosite harmless from, all claims, actions, costs, expenses
and damages (including without limitation reasonable attorneys' fees and
expenses) arising out of: (i) representations or claims by CMS with respect
to the Products which are not authorized by Biosite; (ii) CMS's willful act
or omission in connection with the sale, marketing, promotion or distribution
of the Products; or (iii) any claim or failure by CMS to comply with
governmental regulatory requirements relating to the Products which are
applicable to distributors of products; provided, however, in each case
Biosite gives CMS prompt notice of any such claim, permits CMS to assume sole
control of the defense thereof and provides all reasonable assistance in
connection with the defense of such claim. Biosite shall have the right to
retain its own counsel and to participate in such defense, with the fees and
expenses to be paid by CMS, if representation of Biosite by counsel retained
by CMS would be inappropriate due to actual differing interests between
Biosite and CMS or any other party represented by such counsel in such
proceeding.
(g) Each shipment from Biosite shall contain numbers identifying
the manufacturing lot or lots for control purposes. CMS shall keep accurate
records that will enable CMS to determine the Product lots received by
specific customers of the Product. CMS shall make such information available
to Biosite in the event of a Product recall or Product corrective action
requested by Biosite or required by any governmental agency. CMS shall use
reasonable effort to provide Biosite with information regarding the prior
month's sales to include the account number, account name, city, state, zip
code, catalog number, Product description, sales dollars, sales quantity,
gross profit dollars and gross profit percent free of charge by the tenth
(10th) of each month, and shall provide Biosite with such information in no
event later than the last day of the month, during the term of this
Agreement. Any and all such information referred to in this Section 3(g) may
be used by Biosite for market analysis and in the course of its performance
under this Agreement and for no other purpose, subject to the provisions of
Section 9 of this Agreement.
(h) CMS shall comply with Biosite's instructions regarding the
storage and handling of the Products, and except as otherwise provided in
this Agreement, CMS shall be solely responsible for the cost thereof.
(i) At Biosite's request, CMS shall submit to Biosite such other
reports, free of charge, as are customarily provided by CMS to suppliers
similarly situated with Biosite.
(j) Both parties shall keep accurate records sufficient to permit
verification of sales data for the Products. Upon written request and upon
reasonable notice during regularbusiness hours, each party shall permit an
independent certified public accountant or other acceptable representative of
the requesting party to inspect such records in order to verify any sales or
recall information reasonably required by the provisions of this Agreement,
provided that only one such inspection annually shall be permitted and the
parties shall not be required to keep such records for longer than five (5)
years. All information received as a result of such inspections shall be
subject to Paragraph 9 of this Agreement.
(k) CMS shall promptly advise Biosite of any changes in CMS's
organization or personnel which may materially, adversely affect CMS's
ability to perform under this Agreement, as well as any material changes
affecting ownership or control of CMS.
(l) At all times during the term of this Agreement, CMS shall
maintain a current inventory of each Product sufficient to satisfy not less
than CMS's requirements for its reasonably forecasted sales of such Product
for the immediately following thirty (30) days.
(m) At all times during the term of this Agreement CMS shall treat
the Products as "focus products" or comparable status as defined at the
start of this Agreement for purposes of compensation of CMS sales
*** CONFIDENTIAL TREATMENT REQUESTED
representatives.
4. CONDUCT OF BIOSITE.
(a) Biosite shall ship promptly CMS's orders for Products, but in
any event not later than sixty (60) days from receipt of each order for DOA
Products and Micro Products, and not later than ninety (90) days from receipt
of each order for Cardiac Products (other than Triage Meters). Biosite shall
use its reasonable efforts to ship CMS's orders for Triage Meters not later
than one hundred twenty (120) days from receipt of each order for Triage
Meters. Subject to the provisions of Section 11 hereof, Biosite shall ship
CMS orders for Products f.o.b. Biosite's facility in San Diego, California
(at which point title and risk of loss shall pass from Biosite to CMS), to
CMS's warehouse or to such other CMS location(s) as CMS may designate,
insurance prepaid. Biosite shall cooperate with CMS in arranging drop
shipments of Products to customers on a case by case basis to include
Products designated by Biosite as drop ship Products. CMS shall pay all
freight costs for shipping Products by CMS customary means or by any other
means specified by CMS in a purchase order. Biosite shall pay all freight
costs for shipping Products by any means other than CMS customary means or
the means specified by CMS in a purchase order. Biosite shall pay all
insurance costs for shipping Products ordered by CMS hereunder.
(b) Biosite shall notify CMS immediately in writing should Biosite
become aware of any defect or condition which may render any Product in
violation of any statute or regulation, or which in any way materially alters
the specifications or quality of such Product.
(c) Biosite shall provide to CMS's sales personnel, at CMS's
premises or such other location as the parties may agree, such training in
the demonstration and use of the Products as may be reasonably requested by
CMS. All training material, instructors, demonstration/training
*** CONFIDENTIAL TREATMENT REQUESTED
Products and other training costs and expenses therefor shall be borne by
Biosite; provided however, CMS shall, at its expense, provide transportation
and lodging for CMS personnel attending such training.
(d) Biosite shall provide technical support to CMS's sales
personnel and customers and promptly provide to CMS such additional
technical information developed or acquired by Biosite from time to time as
may reasonably be expected to be of assistance to CMS in fulfilling its
obligations hereunder. Biosite will provide, at its own expense, a toll free
long distance telephone service for technical support for CMS customers and
sales representatives.
(e) Biosite shall provide at its expense reasonable quantities of
such instruction manuals and point of sale literature as may from time to
time be requested by CMS for use in connection with the distribution of the
Products. Subject to CMS's and Biosite's prior written approval, the CMS name
will be incorporated in Biosite's advertising and literature intended for
distribution in the Territory by CMS sales representatives. If requested to
do so by CMS, Biosite shall furnish CMS with suitable copy and photographs
for use by CMS in cataloging the Product.
(f) During the period that CMS has the exclusive right to
distribute the Products in the Territory under this Agreement, Biosite shall
provide CMS, upon request, with up to the number of Samples (as defined
below) of each Product set forth on Schedule D, to be used by CMS solely in
connection with the promotion and marketing of such Product. A "Sample"
shall mean, with respect to a Product, a sample unit of such Product sold by
Biosite to CMS solely for the purpose of marketing and promoting such
Product, and not for the purpose of commercial resale. Such Samples may not
be sold by CMS and shall be marked by Biosite with the following legend:
"FOR EVALUATION PURPOSES ONLY - NOT FOR RESALE."
(g) Any Products owned by CMS and rendered unsalable, in CMS's
reasonable commercial judgment, due to a change in any Product specification,
discontinuation or elimination by Biosite of any Product from its product
offering, release by Biosite of any materially improved or updated version of
any Product, or any other material change in the Product outside of CMS's
control shall be repurchased from CMS by Biosite within thirty (30) days
following CMS's request therefor at the price paid for such Product(s) by
CMS. Biosite shall additionally pay for return freight and related
transportation and insurance charges for all such Products. Biosite's
release of a Product which has a longer shelf life shall not be deemed a
material improvement under this Section 4(g).
(h) Biosite shall promptly provide CMS with leads concerning
prospective purchasers of the Products within the Territory in a format to be
mutually agreed upon between the parties.
(i) Biosite shall provide full and accurate written instructions
on the Xxxx of Lading regarding the storage and handling of the Products.
*** CONFIDENTIAL TREATMENT REQUESTED
(j) Biosite shall ship Product so that 70% of current DOA Products
shelf life and 60% of Micro Products shelf life will be remaining at the time
of receipt at CMS's facility, or at CMS's customer's facility, if drop
shipped. Biosite shall take back for full credit plus shipping charges any
dated Products shipped contrary to this provision.
5. PRICE AND PAYMENT TERMS.
(a) Biosite shall charge CMS a transfer price for each Sample
equal to the Sample Price (as defined below) for such Sample in effect on the
date of CMS's purchase order therefor.
(b) Biosite shall charge CMS the following transfer price per unit
for each Product (other than Samples):
DOA PRODUCTS MICRO PRODUCTS CARDIAC PRODUCTS
*** *** ***
*** *** ***
The parties shall meet yearly and attempt to reach mutually acceptable
agreement on any necessary revisions to the applicable discounts from List
Price set forth in the table above per Product category to reflect an attempt
to minimize additional payments from CMS to Biosite and/or rebates from
Biosite to CMS. If the transfer price is adjusted on this basis, the Target
Purchase Obligations for subsequent calendar quarters under Schedule E shall
be adjusted proportionately.
(c) Biosite shall have the right to amend the Sample Prices and
the List Prices set forth on Schedules A, B, C, and D from time to time in
its sole discretion; provided, however, that Biosite shall give at least
ninety (90) days' prior written notice of any such amendment. Biosite shall
honor CMS's existing purchase orders at the transfer prices in effect
immediately prior to the effective date of each amendment.
(d) CMS's payment terms for Samples and Products purchased
pursuant to this Agreement shall be *** from receipt of an accurate invoice
from Biosite.
(e) CMS shall be entitled to resell the Products on such terms as
it may, in its sole discretion, determine, including, without limitation,
price, returns, credit and discounts.
(f) For purposes of this Section 5, the following definitions
shall apply:
"Actual Selling Margin" shall mean Actual Selling Price - Transfer
Price.
"Actual Selling Margin Rate" or "ASMR" shall mean:
[Actual Selling Price - Transfer Price]
-------------------------------------------
Actual Selling Price
*** CONFIDENTIAL TREATMENT REQUESTED
"Actual Selling Price" shall mean, with respect to any Product (other
than Samples), the invoiced sales price, net of any discounts actually
taken, which CMS or its affiliate charges to an unaffiliated customer for
purchase of such Product.
"Guaranteed Selling Margin Rate" or "GSMR" shall mean, with respect to
any Product (other than Samples), the margin rate that is set forth in
Section 5(h) below for such Product.
"List Price" shall mean, with respect to any Product (other than
Samples), the price therefor set forth on Schedule A, B or C (as
applicable), as amended from time to time pursuant to Section 5(c) or 5(j).
"Sample Price" shall mean, with respect to any Sample, the price
therefor set forth on Schedule D, as amended from time to time pursuant to
Section 5(c).
"Target Dollar Sales" shall mean, with respect to any Product
category, the target dollar sales obligation for such Product category set
forth on Schedule E, as amended from time to time pursuant thereto.
"Transfer Price" shall mean, with respect to any Product (other than
Samples), the price calculated pursuant to Section 5(b) above which CMS is
obligated to pay to Biosite for purchase of such Product.
(g) Subject to the provisions of Section 5(j) below, CMS shall
receive the Guaranteed Selling Margin Rate on Products per the matrix set
forth in Section 5(h) below for the term of this Agreement. In accordance
with the payment terms set forth in Section 5(d) above, Biosite shall receive
payment of the Transfer Price for Products shipped to CMS. Subject to the
provisions of Section 5(j) below, should the Actual Selling Margin Rate be
less than the GSMR for a Product unit, CMS is entitled to a rebate from
Biosite for such Product unit. The rebate is calculated as follows:
Rebate = [GSMR - ASMR] X Actual Selling Price
Subject to the provisions of Section 5(j) below, should the ASMR exceed the
GSMR for a Product unit, CMS will make an additional payment to Biosite for
such Product unit. The additional payment is calculated as follows:
Additional Payment = [ASMR - GSMR] X Actual Selling Price
The following is a numerical example to illustrate the calculations above:
A. No rebate or additional payment
***
(h) The GSMR for each Product category shall be as set forth below:
***
(i) Within ten (10) days after the end of each calendar month, CMS
shall prepare and provide Biosite with a reasonably detailed written sales
report which shall (i) set forth on a Product-by-Product basis the sales of
Products by CMS and its affiliates to unaffiliated customers, and (ii)
calculate on a Product-by-Product basis the Actual Selling Price, the ASMR
and the GSMR therefor, and the net amount (if any) of the additional payments
from CMS to Biosite and/or the rebates from Biosite to CMS owing under
Section 5(g) for such calendar month. Such report shall be based on sales by
CMS and its affiliates, as reflected on CMS's Key Supplier Report, on each
Product during each calendar month. CMS shall pay to Biosite any such
additional payment, and Biosite shall pay to CMS any such rebate, owing under
Section 5(g) for each calendar month on or before the later of the fifteenth
(15th) day of the following calendar month or ten (10) days after Biosite's
receipt of the applicable sales report for such calendar month. Biosite and
its agents shall have the right, on reasonable notice and not more than twice
in each calendar year, to inspect and audit the books and records of CMS and
any of its relevant affiliates to verify the accuracy of such sales reports.
*** CONFIDENTIAL TREATMENT REQUESTED
Biosite shall pay the fees and expenses of such audit; provided, however, if
such audit reveals that the aggregate amount (net of any rebates from
Biosite) payable by CMS to Biosite for the audited period is more than one
hundred five percent (105%) of the aggregate amount (net of any rebates from
Biosite) actually paid by CMS to Biosite for the audited period, CMS shall
pay the reasonable fees and expenses of such audit.
(j) Except as set forth below in this Section 5(j) or as the
parties otherwise mutually agree, if the Actual Selling Price of any Product
unit is less than the applicable amount set forth below, then for purposes of
calculating ASMR and GSMR, and the amount of any rebate or additional
payments under Section 5(g), the Actual Selling Price of such Product unit
shall be deemed to be the applicable amount set forth below:
DOA PRODUCTS MICRO PRODUCTS CARDIAC PRODUCTS
*** *** ***
The foregoing limitation on the calculation of Actual Sales Price shall not
apply to (a) any sales made by CMS or its affiliates prior to Xxxxx 0, 0000,
(x) to continuation of the discount rate or net price to existing customers
during the term of this Agreement, (c) any sales made pursuant quarters to
binding agreements between CMS and unaffiliated customers entered into prior
to March 1, 1998, or (d) to discounts beyond such levels approved by Biosite.
Further, in the event CMS gives Biosite not less than three (3) working days
prior written notice of its good faith request for a discount rate from the
List Price in excess of the amount set forth above and Biosite fails to
approve the requested discount rate and, as a result, one or more existing
customers of CMS thereafter fails to purchase further Products from CMS, CMS
shall receive a credit(s) against its quarterly Minimum Purchase Obligations
equivalent at cost to the volume of Product sale lost for each calendar
quarter during the remaining term of this Agreement equal to the quarterly
average (based on the immediately preceding four (4) calendar quarters or, if
less than four (4) quarters, the actual sales annualized and divided by 4) of
the dollar volume of DOA Products and Micro Products purchased by such
customer or customers.
6. TERM, TERMINATION AND LOSS OF EXCLUSIVITY.
(a) The initial term of this Agreement shall be for a period of
*** years ("Initial Term") from the date first set forth above, unless
terminated sooner as provided herein. Thereafter, this Agreement shall ***
("Extended Term") unless notice of nonrenewal is given by one party to the
other at least ninety (90) days prior to the expiration of the Initial Term.
(b) This Agreement shall terminate for cause, without liability to
either party, immediately if either party (i) files a voluntary petition in
bankruptcy or is adjudged a bankrupt in any involuntary proceeding, (ii) is
generally unable to pay its debts as they become due, (iii) has a receiver or
judicial trustee or custodian appointed for it, or (iv) fails to cure any
material breach in the provisions of this Agreement within thirty (30) days
after receipt of written notice of such breach from the other party.
(c) Furthermore, this Agreement may be terminated for cause by
Biosite if CMS fails to purchase at least the aggregate dollar amount of DOA
Products and Micro Products (collectively, the "Minimum Purchase Obligation")
equal to *** of the aggregate of the applicable Target Purchase Obligations
set forth on Schedule E for DOA Products and Micro Products (excluding
Samples) ***. In the event CMS fails to purchase the applicable Minimum
Purchase Obligation for any such period, Biosite may give CMS written notice
termination of this Agreement within sixty (60) days' after the end of the
applicable period, which termination shall be effective one hundred eighty
(180) days' after CMS's receipt of such written notice of termination.
Immediately upon receipt of such termination notice, the distribution rights
of CMS shall become nonexclusive with the effective date of such. The
remedies provided for in this section shall be Biosite's sole and exclusive
remedies for CMS's failure to purchase the applicable Minimum Purchase
Obligation for such period. Notwithstanding the foregoing, if CMS is unable
to purchase the applicable Minimum Purchase Obligation for any such period
due solely to an act or omission of Biosite, such failure shall not
constitute grounds for termination with cause pursuant to this Section 6(c)
with respect to such period. For the purposes of this Section 6(c), Product
shall be deemed purchased when a firm purchase order has been received by
Biosite for delivery of Products within sixty (60) days.
(d) Biosite's inability to provide Product necessary for CMS to
meet the Minimum Purchase Obligation for any Product due to an event of force
majeure shall not be deemed to be a breach of this Agreement. The occurrence
of any event of force majeure shall extend the time for performance and term
of this Agreement for a period
*** CONFIDENTIAL TREATMENT REQUESTED
of time equal to the length of the force majeure delay.
(e) In the event that Biosite fails for whatever reason(s) to
deliver the quantities of Product units ordered by CMS to meet the Minimum
Purchase Obligation for such Product for any two (2) consecutive calendar
quarters in any calendar year, then CMS may, within thirty (30) days before
or after the end of such period, give Biosite written notice of Xxxxxx'x
intent to sell competitive products. Biosite must, within ten (10) days
after receipt of such notice of intent, either (a) provide information to the
reasonable satisfaction of CMS that it will be back in production at a run
rate sufficient to satisfy the Minimum Purchase Obligation within ninety (90)
days thereafter, (b) make CMS nonexclusive as to that Product, or (c) remove
the Product from this Agreement. Notwithstanding anything in this Agreement
to the contrary, in the event Biosite fails to timely make its election, CMS
shall have the right to terminate this Agreement as to any such Product by
providing written notice thereof to Biosite, with such termination being
effective sixty (60) days after such notice to Biosite from CMS.
(f) Biosite may also terminate this Agreement at any time without
cause if, upon termination, Biosite pays CMS a one-time payment (the "Buy-out
Amount") equal to the following:
(i) if Biosite gives not less than one hundred eighty (180) days
prior written notice of such termination, the Buy-out Amount shall equal
***
(ii) if Biosite gives at least sixty (60) days but less than one
hundred eighty (180) days prior written notice of such termination, the
Buy-out Amount shall equal ***. In no event may Biosite terminate this
Agreement with less than sixty (60) days notice.
Except as provided in Section 6(g), payment of any sums calculated under this
Section 6(f) shall constitute CMS's sole and exclusive remedy in the event
Biosite terminates this Agreement without cause.
(g) Upon termination of this Agreement, CMS shall return to
Biosite all CMS's unused Samples, in substantially the same condition as
received, and unsold inventory of Products, f.o.b. CMS's warehouse(s);
provided, however, that Biosite shall not be obligated to repurchase expired
Samples and Product. Biosite shall refund to CMS the cost of such Samples and
Product. If this Agreement is terminated by Biosite under Section 6(e) or
6(f), Biosite shall pay the return freight and insurance therefor.
Otherwise, CMS shall pay the return freight and insurance therefor.
(h) The rights and duties of each party under Sections 3(d), 3(f),
6(g), 7, 8, 9, 10, 14, 15, 19 and 25 of this Agreement and Biosite's
obligations under the Continuing Guaranty as referred to in Section 10(a)
hereof, shall survive and be enforceable in accordance with their terms.
(i) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
CONTINGENT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF THE OTHER PARTY, OR ANY
LOSS OF PROFITS OR REVENUE OF THE OTHER PARTY, WHETHER ARISING IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY OR OTHERWISE.
7. TRADEMARKS.
(a) All Product units sold by Biosite to CMS will bear one or more
of the trademarks or trade names (including, but not limited to, the name
Triage-TM-) relating to such Product owned by or licensed to Biosite
(collectively, the "Biosite Marks"), and CMS shall not alter, remove or
modify the Biosite Marks, nor affix any other trademark to the Product,
without the prior express written consent of Biosite. CMS shall not utilize
any of the Biosite Marks in connection with any promotional brochures or
advertising materials relating to the Products without the prior express
written consent of Biosite, which consent shall not be unreasonably withheld,
delayed or conditioned. Biosite's consent to the use of the Biosite Marks
shall be conditioned upon such brochure or advertising materials clearly
indicating Biosite's ownership of the Biosite Marks.
(b) All Product units purchased by CMS hereunder shall be marketed
by it in the original packages under the original labels provided by Biosite,
and CMS shall make no modifications, or alterations to such Product units or
labels; provided, however, that CMS may affix labels or other indices which
serve to identify CMS as a distributor of the Product, so long as they do not
cover and are not inconsistent with any of Biosite's Product labels or
markings.
*** CONFIDENTIAL TREATMENT REQUESTED
(c) Nothing in this Agreement shall be construed as granting CMS
any license or interest in the Biosite Marks, and CMS acknowledges that it
has been advised by Biosite of Biosite's claim of ownership of the Biosite
Marks. CMS agrees that it will do nothing inconsistent with such ownership
and that all use of the Biosite Marks will inure to the benefit of and be on
behalf of Biosite. Specifically, CMS agrees that: it will not challenge the
validity of, or Biosite's ownership of, any of the Biosite Marks; it will not
take any action that is inconsistent with, or may impair, Biosite's right,
title and interest to the Biosite Marks; it will not represent to any third
party that it has any ownership interest in the Biosite Marks; it will not
adopt any trademarks that are confusingly or deceptively similar to the
Biosite Marks; and it will, at Biosite's sole cost and expense, execute and
deliver to Biosite any and all documents which Biosite may request to confirm
in Biosite all right, title and interest in the Biosite Marks.
(d) CMS shall make no statement to the press relating or referring
to the Products without the prior express written approval of Biosite.
(e) CMS shall promptly notify Biosite in writing of any challenges
to the validity, infringement on or unauthorized use of any of the Biosite
Marks, actual or threatened, that may come to CMS's attention. Biosite shall
be responsible for and shall assume all expenses of the enforcement of the
Biosite Marks.
(f) Biosite recognizes that CMS is the owner of the trademarks and
trade names denoting CMS or CMS products, which it may elect to use in the
promotion and sale of the Products, and that Biosite has no right or interest
in such trademarks or trade names; provided, however, that except as
otherwise set forth in Section 7(b) hereof, no CMS labels, package inserts or
other material shall accompany the Products without the prior express written
approval of Biosite.
(g) Upon termination of this Agreement, CMS shall continue to be
entitled to utilize the Biosite Marks on the terms agreed to previously by
the parties in connection with CMS's promotion, marketing, distribution and
sale of units of Products remaining in CMS's inventory and not repurchased by
Biosite. Thereafter, CMS shall terminate all use of Biosite Marks, and shall
at Biosite's request and at Biosite's expense, destroy or return to Biosite
all literature and other advertising and promotional materials bearing the
Biosite Marks. In the event of termination or expiration of this Agreement,
CMS agrees to cooperate with Biosite and to execute any and all documents
requested by Biosite for the purpose of canceling any registered user or
other rights with respect to Biosite's name and the Biosite Marks that CMS
may have acquired in operating hereunder, or, at Biosite's election, in
transferring such rights to Biosite or its designee. CMS also agrees to
cooperate with Biosite in transferring any appropriate rights in connection
with the Biosite Marks to Biosite and/or Biosite's designee, at Biosite's
sole cost and expense, if Biosite desires to sell or have sold products in
the Territory (other than the Products), other than by CMS.
8. COPYRIGHTS.
(a) CMS hereby acknowledges that Biosite may claim copyright
protection with respect to its package inserts and other supporting materials
which it includes with each of the Product units, and CMS further
acknowledges the validity of Biosite's right to claim the copyright
protection to such materials. CMS further acknowledges that Biosite has
advised CMS that it has the sole and exclusive right to claim the copyright
protection with respect to all of its package inserts and other supporting
materials included with the Products, and CMS shall take no action which is
in any way inconsistent with Biosite's claim of copyright protection that it
expects to make with respect to such materials.
(b) In order to protect against infringement of Biosite's
copyright through unauthorized reproduction or duplication of its copyrighted
materials, such materials included with the units of Products sold by Biosite
to CMS shall bear appropriate copyright markings. Nothing contained in this
Section 8 shall prohibit CMS from copying and distributing to its sales
representatives Product advertising, literature and other materials prepared
by or on behalf of Biosite for the purpose of fulfilling CMS's obligations
under this Agreement.
(c) CMS shall promptly notify Biosite in writing of any
infringements, whether within or without the Territory, of any of Biosite's
copyrights which come to the attention of CMS. CMS shall, at Biosite's
request, provide Biosite with all reasonable assistance in initiating and
prosecuting any legal action against any infringer of Biosite's copyrights
within the Territory; provided, however, that all costs incurred in
connection with any such copyright infringement action shall be borne solely
by Biosite.
*** CONFIDENTIAL TREATMENT REQUESTED
9. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) CMS may receive various trade secrets of Biosite and other
information of Biosite of a confidential nature (including but not limited to
specific technical information concerning the Products). CMS agrees that it
will not disclose to anyone, directly or indirectly, any of such trade
secrets or other confidential information, or use such trade secrets or other
confidential information other than as reasonably required in the course of
its performance under this Agreement. Notwithstanding the foregoing, CMS may
disclose such trade secrets or other confidential information to the extent
required by applicable law, regulation or court order, provided that CMS
shall give Biosite reasonable notice of any such required disclosure and
shall give Biosite an opportunity to object to any such disclosure or to
request confidential treatment thereof. CMS shall, at Biosite's option,
return such information to Biosite or destroy all such data having physical
form and all copies thereof. The obligations set forth in this Section 9(a)
shall survive any termination of this Agreement for a period of three (3)
years.
(b) Biosite may receive various trade secrets of CMS and other
information of CMS of a confidential nature (including, but not limited to
the names of CMS's customers and sales data). Biosite agrees that it will
not disclose to anyone, directly or indirectly, any of such trade secrets or
other confidential information, or use such trade secrets or other
confidential information other than as reasonably required in the course of
its performance under this Agreement. Notwithstanding the foregoing, Biosite
may disclose such trade secrets or other confidential information to the
extent required by applicable law, regulation or court order, provided that
Biosite shall give CMS reasonable notice of any such required disclosure and
shall give CMS an opportunity to object to any such disclosure or to request
confidential treatment thereof. Biosite shall, at CMS's option, return such
information to CMS or destroy all such data having physical form and all
copies thereof. The obligations set forth in this Section 9(b) shall survive
any termination of this Agreement for a period of three (3) years.
(c) Notwithstanding any provision set forth in this Section 9 to
the contrary, the parties' obligations under this Section 9 shall not apply
to the extent that: (i) the confidential information, or any relevant part
of it, can be shown to be in the public domain prior to the date of this
Agreement; (ii) the confidential information, or any relevant part of it,
becomes part of the public domain, other than by some unauthorized act or
omission, after the date hereof; (iii) the confidential information, or any
relevant part of it, is disclosed to such party by a third party who has the
right to make such disclosure; (iv) express written permission to disclose
the confidential information, or any relevant part of it, or to make use of
same, is obtained from the non-disclosing party by the disclosing party; or
(v) the information is developed independently of the confidential
information by the other party based on written records maintained in the
ordinary course.
10. BIOSITE'S WARRANTIES; DISCLAIMER OF WARRANTIES.
(a) Biosite agrees that it shall execute and warrants that it
shall abide by the terms of CMS's Continuing Guaranty, a copy of which is
attached hereto as Exhibit A and which guaranty is incorporated herein by
reference. The terms and provisions of the Continuing Guaranty shall survive
the termination of this Agreement. Prior to the first shipment of Product to
CMS, Biosite shall provide CMS with certificates of insurance which meet the
requirements of paragraph D of the Continuing Guaranty. Biosite's insurance
carriers shall at all times during the term of this Agreement be rated by
Best's as B+ or superior. Biosite is not aware after due inquiry of any
circumstance which would prevent the issuance of such policy.
(b) In addition to the warranties of Biosite set forth in this
Agreement and in the Continuing Guaranty, Biosite warrants that each of the
Products will conform to the specifications set forth in Product literature
prepared by or on behalf of Biosite and that the Products will comply and be
manufactured, packaged, sterilized (if applicable), labeled and shipped in
compliance with all applicable federal, state and local laws, orders,
regulations and standards.
(c) Biosite and CMS shall extend to customers only the Product
Warranty embodied in Exhibit B hereto; provided that Biosite may modify such
Product Warranty with CMS's consent, which consent shall not be unreasonably
withheld. Biosite shall not modify or amend the warranty during the term of
this Agreement without providing CMS with sixty (60) days' prior written
notice. Biosite warrants and represents that the Products will perform in
accordance with Biosite's warranty.
(d) Except for the Product warranty which is described in Section
10(c) hereof, Biosite MAKES NO WARRANTIES TO CUSTOMERS AND CMS SHALL NOT MAKE
ANY OTHER WARRANTIES
*** CONFIDENTIAL TREATMENT REQUESTED
TO CUSTOMERS AS TO THE MERCHANTABILITY OR FITNESS OF THE PRODUCT FOR A
PARTICULAR USE.
11. FORCE MAJEURE.
The obligations of either party to perform under this Agreement
shall be excused during each period of delay to the extent caused by such
matters as strikes, shortages of power or raw materials, government orders or
acts of God, which are reasonably beyond the control of the party obligated
to perform. The affected party shall make all commercially reasonable
efforts to remedy the effects of such force majeure. Any force majeure event
shall not excuse performance by the party but shall delay performance, unless
such force majeure continues for a period in excess of ninety (90) days. In
such event, the party seeking performance may cancel its obligations
hereunder.
12. NOTICES.
Any notice required by this Agreement shall be in writing, and may
be delivered in person, by nationally recognized overnight delivery service
or by any lawful means to the party for whom intended at its address set
forth below, and shall be effective on receipt.
If to Biosite: Biosite Diagnostics Incorporated
00000 Xxxxxxx Xxxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxx Xxxxxxxxxxxx
with a copy to: Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
If to CMS: Xxxxxx Scientific Company
0000 Xxxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attn: Legal Department
with a copy to: Xxxxxx Scientific Company
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: General Counsel
or such other address as provided in writing in the manner provided by this
Section.
13. ENTIRE AGREEMENT.
This Agreement, including Schedules and Exhibits, constitutes the
entire agreement between the parties relating to the subject matter hereof
and supersedes all prior agreements, understandings and representations,
whether written or oral, between the parties with respect to such subject
matter. Without limiting the generality of the foregoing, Biosite and CMS
each releases the other from its obligation to pay any unpaid amounts owing
pursuant to Section 6(b) of the Amendment executed as of March 12, 1996, to
the 1991 Distribution Agreement. In ordering and delivery of the Products,
the parties may employ their standard forms, but nothing in those forms shall
be construed to modify or amend the terms of this Agreement.
14. ATTORNEYS' FEES.
In the event any claim or counterclaim is asserted or action is
commenced to enforce any of the rights
*** CONFIDENTIAL TREATMENT REQUESTED
or obligations of the parties under this Agreement, the prevailing party
shall be entitled to collect from the other party, as part of the judgment
rendered with respect to such claim or action, reasonable attorneys' fees,
expenses and court costs.
15. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CALIFORNIA CHOICE
OF LAW PROVISIONS.
16. COMPLIANCE WITH APPLICABLE LAWS.
In connection with the sale of the Products hereunder, Biosite and
CMS shall comply with all applicable laws, regulations and orders of
governmental bodies having jurisdiction in respect of activities contemplated
by or covered under this Agreement, including without limitation, obtaining
all necessary permits, licenses and regulations. CMS shall cooperate fully
with Biosite, at Biosite's sole cost and expense, in connection with securing
and maintaining any governmental registration or other governmental permits
required with respect to marketing the Products in the Territory and CMS will
notify Biosite of any local laws affecting the Products which may come to its
attention.
17. ASSIGNMENTS.
(a) Subject to Section 17(b) below, neither party shall assign or
transfer this Agreement, by operation of law or otherwise, in whole or in
part without the prior written consent of the other party in each and every
instance, which consent may not be unreasonably withheld. If either party
wishes to assign or otherwise transfer this Agreement, as aforesaid, in each
instance the party seeking to assign or otherwise transfer this Agreement
shall submit to the other party for such party's review and approval as soon
as practicable such information as the other party may reasonably request
concerning the assignee or transferee and the party from which consent is
sought shall have thirty (30) days following receipt of the fully responsive
materials in which to review the same and approve or reject the assignment
or transfer. In any event in which the party from which consent is sought
reasonably rejects the assignment or transfer, this Agreement shall terminate
one hundred eighty (180) days following the date on which the rejection is
received by the party seeking to assign or transfer. The parties shall make
best efforts to promptly and amicably wind up all outstanding matters
concerning the subject matter of this Agreement.
(b) Notwithstanding Section 17(a) above, a merger, reorganization,
recapitalization, sale or transfer of all or substantially all of the assets,
change of control, or similar transaction of a party shall not be deemed an
assignment or transfer of this Agreement subject to the provisions of Section
17(a) above.
18. AMENDMENTS.
No amendment or modification of the terms of this Agreement shall
be binding on either party unless reduced to writing and signed by an
authorized officer of the party to be bound.
19. EXISTING OBLIGATIONS.
Each party represents and warrants that the terms of this Agreement
do not violate any existing obligations or contracts of it. Each party shall
defend, indemnify and hold harmless the other party from and against any and
all claims, demands, liabilities and causes of action that are hereafter made
or brought against the other party that allege any such violation.
20. RELATIONSHIP OF THE PARTIES.
(a) For the purposes of this Agreement, CMS and Biosite are deemed
to be independent contractors and not the agent or employee of the other.
Neither CMS nor Biosite shall have the authority to make any statements,
representations or commitments of any kind, or take any action, which shall
be binding on the other, except as provided for herein or authorized in
writing by the party to be bound.
(b) This Agreement does not grant any license from Biosite to CMS
or from CMS to Biosite
*** CONFIDENTIAL TREATMENT REQUESTED
except as expressly provided herein.
21. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
22. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original for all purposes.
23. APPROVALS AND CONSENTS.
Each of the parties represents to the other that all necessary
approvals of any third persons, the granting of which are necessary for the
consummation of the transactions contemplated hereby, or for preventing the
termination of any right, privilege, license or agreement or any right
granted hereunder have been received by both parties to this Agreement.
24. MISCELLANEOUS.
Any payment obligation under this Agreement which shall be due from
Biosite to CMS and for which no date of payment is specified in this
Agreement shall be payable on the thirtieth (30th) day following the day on
which the event occurs which triggers Biosite's obligation to make any such
payment.
25. FURTHER ASSURANCES.
Biosite and CMS each shall perform any and all further acts and
execute and deliver any and all further documents and instruments that may be
reasonably necessary to carry out the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have, by their duly authorized
officers, executed this Agreement on the date first set forth above.
BIOSITE DIAGNOSTICS INCORPORATED
By: /S/ XXX X. XXXXXXXXXXXX
-----------------------
Title: PRESIDENT
-----------------------
XXXXXX SCIENTIFIC COMPANY L.L.C.
By: /S/ XXXXXXX X. XXXXXXX
----------------------
Title: PRESIDENT
----------------------
*** CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A
DOA PRODUCTS
* * *
*** CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE B
MICRO PRODUCTS
* * *
*** CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE C
CARDIAC PRODUCTS
* * *
*** CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE D
SAMPLE QUANTITIES AND PRICES
* * *
*** CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE E
TARGET OBLIGATIONS
* * *
*** CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
CONTINUING GUARANTY
A. __________________________________________________________________
(hereinafter referred to as "Seller"), having its principal office and
place of business at _________________________________________________
______________________________________________________________________
____________________, hereby guarantees that all Products (including
their packaging, labeling and shipping) comprising each shipment or
other delivery hereinafter made by Seller (hereinafter referred to as
"Products") to or on the order of Xxxxxx Scientific Company L.L.C., a
Delaware limited liability company, having its principal place of business
at 0000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or to any of its
branches, divisions, subsidiaries, affiliates, or any of their customers
(hereinafter collectively referred to as "Xxxxxx"), pursuant to that certain
Distribution Agreement effective as of January 1, 1998 (the "Distribution
Agreement"), between Seller and Xxxxxx Scientific Company L.L.C., a Delaware
limited liability company represented by its Xxxxxx Xxxxxxxx Scientific
division, are, as of the date of such shipment or delivery, in compliance
with applicable federal, state and local laws, and any regulations, rules,
declarations, interpretations and orders issued thereunder, including,
without limitation, the Federal Food, Drug and Cosmetic Act, as amended,
and conform to representations and warranties made by Seller in its
advertising, product labeling and literature.
B. Further, with respect to any Product that is privately labeled for Xxxxxx,
Seller agrees to make no change in such Products or the Xxxxxx artwork on
the labeling or packaging relating thereto without first obtaining the
written consent of Xxxxxx. Seller recognizes that Xxxxxx is the owner of
the trademarks and trade names connoting Xxxxxx which it may elect to use in
the promotion and sale of such private label Products and that Seller has
no right or interest in such trademarks or trade names. Seller shall
periodically analyze and review packaging and labeling for any Products
which are private labeled for Xxxxxx to ensure conformity with the provisions
of paragraph A hereof and the adequacy of Product warnings and instructions.
C. Seller hereby agrees that it will reimburse Xxxxxx Scientific Company
L.L.C., a Delaware limited liability company, for all reasonable
out-of-pocket costs and expenses incurred in connection with any product
corrective action or recall relating to the Products which is requested
by Seller or required by any governmental entity.
D. Seller agrees to procure and maintain product liability insurance with
respect to the Products and contractual liability coverage relating to this
Guaranty, with insurer(s) having Best's rating(s) of A- or better, naming
Xxxxxx as an additional insured (Broad Form Vendors Endorsement), with
minimum limits in each case of $3,000,000. Seller shall promptly furnish to
Xxxxxx Scientific Company L.L.C., a Delaware limited liability company, a
certificate of insurance and renewal certificates of insurance evidencing
the foregoing coverages and limits. The insurance shall not be canceled,
reduced or otherwise changed without providing Xxxxxx with at least ten (10)
days prior written notice.
E. Subject to the provisions of Section 6 (i) of the Distribution Agreement,
Seller agrees to and shall protect, defend, indemnify and hold harmless
Xxxxxx Scientific Company L.L.C., a Delaware limited liability company,
(and with respect to Subparagraph E. (i) below, the customers of Xxxxxx
Scientific Company L.L.C., a Delaware limited liability company) from any
and all claims, actions, costs, expenses and damages, including reasonable
attorney's fees and expenses arising out of: (i) any actual or alleged
patent, trademark or copyright infringement in the design, composition,
use, sale, advertising or packaging of the Products; (ii) any breach of
the representations or warranties set forth in this Guaranty; (iii) the
sale or use of the Products where such liability results from the act or
omission of Seller (whether for breach of warranty, strict liability in tort,
negligence or otherwise). In each such case, Xxxxxx shall give Seller
prompt written notice of any such claim, shall permit Seller to assume
sole control of the defense thereof and shall provide all reasonable
assistance in connection with the defense of such claim. Xxxxxx shall
have the right to retain its own counsel and to participate in such defense,
with the fees and expenses of such counsel to be paid by Seller, if
representation of Xxxxxx by counsel retained by Seller would be
inappropriate due to actual differing interests between Xxxxxx and any
other party represented by such counsel in such proceeding.
F. Seller agrees to and shall provide to Xxxxxx Material Safety Data Sheets
and other information concerning any Product as required by then
applicable federal, state or local law.
*** CONFIDENTIAL TREATMENT REQUESTED
G. Seller agrees to and shall accept, at its facility, all of Xxxxxx'x unsold
or expired Products containing hazardous chemicals, materials or substances
for disposal, recycling or use. Xxxxxx shall be responsible for packing and
transportation costs to Seller. Seller shall be responsible for all other
costs, including, without limitation, any costs associated with Seller's
disposal, recycling or use.
H. If the Products to be furnished by Seller are to be used in the
performance of a U.S. government contract or subcontract, those clauses of
the applicable U.S. Government procurement regulation which are
mandatorily required by Federal Statute to be included in U.S. Government
subcontracts shall be incorporated herein by reference including, without
limitation, the Fair Labor Standards Act of 1938, as amended.
I. The representations and obligations set forth herein shall be continuing
and shall be binding upon the Seller and his or its heirs, executors,
administrators, successors and/or assigns, whichever the case may be, and
shall inure to the benefit of Xxxxxx Scientific Company L.L.C., a Delaware
limited liability company, its successors and assigns and to the benefit
of its officers, directors, agents and employees and their heirs,
executors, administrators, and assigns.
J. The agreements and obligations of Seller set forth in this Guaranty are in
consideration of purchases made by Xxxxxx from Seller and said obligations
are in addition to (and supersede to the extent of any conflict) any
obligations of Seller to Xxxxxx or Xxxxxx to Seller. This Guaranty shall
be effective upon the first sale to Xxxxxx of any Product by Seller, and
the obligations of Seller under this Guaranty shall survive and be
enforceable in accordance with its terms.
SELLER
BIOSITE DIAGNOSTICS INCORPORATED
-----------------------------------------------
-----------------------------------------------
Name Under Which Seller's Business is Conducted
/s/ XXX X. XXXXXXXXXXXX
-----------------------------------------------
Signature of Authorized Representative
PRESIDENT 4/3/98
-----------------------------------------------
Title Date
XXXXXX SCIENTIFIC COMPANY L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
/s/ XXXXXXX X. XXXXXXX
-----------------------------------------------
Signature of Authorized Representative
PRESIDENT
-----------------------------------------------
Title
*** CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
PRODUCT WARRANTY
Biosite's express and implied warranties (including implied warranties of
merchantability and fitness) are conditioned upon observance of Biosite's
published directions with respect to the use of Biosite's diagnostic
products. Remedies against Biosite for breach of warranty or other duty are
limited solely to replacement or return of the purchase price of the affected
products. Any such claim against Biosite must be made in writing and promptly
pursued within one year from the date of delivery of the goods. UNDER NO
CIRCUMSTANCES WHATSOEVER SHALL BIOSITE BE LIABLE FOR ANY INDIRECT OR
CONSEQUENTIAL DAMAGES.
