(certain information has been omitted from this exhibit and filed separately
with the SEC pursuant to a request for confidential treatment under Rule 24b-2).
Exhibit 10.18
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").
B A C K G R O U N D
LecTec manufactures the Product (as defined below) and Natus has
certain 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
infommercials 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.0.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 [Confidential
1998 Treatment
Thereafter Requested]
9.1.2 Year Number of Stores
---- -----------------
1996 [Confidential
1997 Treatment
Thereafter Requested]
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 [Confidential Treatment Requested] 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 obliga tions 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 claims 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 forseeable 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 shall 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. Xxxxxxxxx, 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.
P.O. Box 39802 0000 XXX 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. ASSIGNABILITY. 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 hereunto set their hands ^l 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,
Chairman, President and CEO 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 $[Confidential Treatment Requested]
per patch based on packaging of five patches per box. The price shall be subject
to change based on future negotiations.
