FIRST AMENDMENT TO DISTRIBUTION AGREEMENT
EXHIBIT 10.13
FIRST
AMENDMENT TO DISTRIBUTION AGREEMENT
This
First Amendment to Distribution Agreement (“Amendment”) is made and entered into
as of this 23rd day of August 2007 (“Amendment Effective Date”) by and between
Boston Scientific Corporation, Xxx Xxxxxx Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000
(“BSC”) and Bovie Medical Corporation, 0000 00xx Xxxxxx
X, Xx. Xxxxxxxxxx, XX 00000 (“Bovie”).
RECITALS:
WHEREAS,
the Parties entered into that certain Distribution Agreement dated as of October
6, 2006 (the “Agreement”);
WHEREAS,
capitalized terms used but not otherwise defined herein have the meaning set
forth in the Agreement (defined below);
WHEREAS,
pursuant to the terms of the Agreement set forth in Section 9.5(iv), the Parties
may modify the Agreement only by a writing signed by both
Parties; and
WHEREAS,
the Parties have negotiated new terms respecting (i) pricing of Product
manufactured by Bovie ** **
to the ** **,
other than (a) Product ordered on the ** **
Order or (b) Product ordered by BSC ** **
to the ** **
for customer training and customer sampling
(** **Product”),
(ii) the addition of ** **,
and the removal of ** **
as the ** **
vendor for the ** **
assembled to it (each being a separate component and collectively referred to
herein as the ** **,
and each set of ** **
and ** **
being referred to herein as a ** **,
and (iii) Seller’s obligations under Section 3.2 (Seller’s Vendors) particularly
directed to ** **
NOW,
THEREFORE, in consideration of the foregoing recitals (which are incorporated
herein and made a part hereof) and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Parties agree as
follows.
|
1.
|
Amendment. As
of the Amendment Effective Date, the following modifications to the
Agreement shall apply:
|
|
a.
|
Amendment to Section
1.3. Section 1.3 of the Agreement (Ordering) is hereby
amended as follows:
|
The
seventh sentence of Section 1.3(b) of the Agreement (Ordering) is hereby amended
by deleting it in its entirety and replacing it with the following: ** **
Product shall not accrue to the ** **
unit minimum purchase requirement for the ** **”
|
|
b.
|
Amendment to Section
2. Section 2 of the Agreement (Pricing; Payment;
Continuous Improvement) is hereby amended by adding a new Section 2.6 to
the Agreement with the following
language:
|
“Section
2.6 ** **
Product. From time to time prior to the ** **Date,
Seller may manufacture ** **
Product (defined below) and Buyer shall reimburse Seller for such ** **
Product at the Unit Price set forth below. Buyer will issue an
open purchase order for ** **
units of ** **
Product against which Seller will invoice Buyer for ** **
Product manufactured in furtherance of creating commercially saleable
Product. Notwithstanding anything in this Agreement, Seller will not
charge Buyer for, and Buyer will not reimburse Seller for, any ** **
Product in excess of ** **
units, unless such additional units have been ordered by Buyer in advance
pursuant to a purchase order from Buyer to Seller. The following
formula sets forth the unit pricing for Pre-Launch Product:
Page 1 of
3
Unit
Price = ** **
Where (i)
** **
is the fixed price of the pencil handle and packaging, (ii) ** **
is ** **
(defined below in Section 3.2) transfer price for the ** **
up to a maximum of $15.00 per ** **
(provided, that such ** **
cap only applies to the first ** **
units of ** **
Product), net of all discounts, and (iii) 1.15 reflects Seller’s markup
of** **. Seller
shall not charge Buyer any labor costs related to the manufacture of ** **
Product.
For
purposes of this Agreement, ** ** Product” means Product
manufactured by Seller prior to the ** **
Date, other than (a) Product ordered on the ** **
Order or (b) Product ordered by Buyer ** **
the ** **
Date for customer training and customer sampling.”
For
purposes of this Agreement, ** **
means collectively the Product’s porous tip and tube assembled to
it.
|
c.
|
Amendment to Section
3.2. Section 3.2 of the Agreement (Seller’s Vendors) is
hereby amended as follows:
|
|
|
(i)
|
by
adding the following language to subclause (a) of the eighth sentence
thereof: “or ** **,
Inc. (** **
immediately after Xxxx Corporation ** **;
and
|
|
|
(ii)
|
by
deleting all references to ** **
in the tenth sentence thereof and replacing each occurrence with ** **
|
|
|
d.
|
Amendment to Exhibit
F. Exhibit F to the Agreement (Seller’s Vendors) is
hereby amended by adding ** **
as a vendor thereto and deleting ** **
as a vendor therefrom, and by adding ** **
as a vendor thereto.
|
|
2.
|
Product
Pricing. In addition to the amendments to the Agreement
set forth above, for the purposes of clarity, notwithstanding Section
1.3(f) of the Agreement or Section 1.a. of this Amendment, the transfer
prices for Products set forth in Exhibit E of the Agreement shall (a)
remain the same as set forth on the Effective Date despite any changes
that may occur to the Specifications because of the use of ** **,
but shall remain subject to price adjustments otherwise in accordance with
the Agreement, including but not limited to Sections 1.3(f) and 2.1
therein, and (b) only apply to Product ordered on the ** **
Order (even though ordered ** **
the ** **
Date) or subsequent orders for Product ** **
the ** **
Date (and not before such time).
|
3. Approval and Qualification
of Chand Xxxxxxxxx.
|
|
a.
|
Buyer
shall reasonably cooperate with Seller to promptly approve ** **
as a vendor of the ** **. Seller
will be solely responsible for any and all of Seller’s labor, materials or
other expenses associated with phasing in ** **
as a vendor of the ** **
to the extent required for Seller to comply with the Specifications
Revision Level Number A-2 approved by Seller on April 4,
2007.
|
Page 2 of
3
|
|
b.
|
Seller
acknowledges and agrees that Buyer’s consent to qualify and approve ** **
as the primary vendor of the ** **
in no way modifies or waives any of Seller’s obligations with respect to
Quality Assurance, or otherwise, set forth in the Agreement, except as
expressly amended herein.
|
4. Selection of Seller’s
Vendors. Notwithstanding anything in this Amendment, Seller
reserves the right to select or change its vendors, subject to Buyer’s prior
written approval, in accordance with the provisions of Section 3.2 (Seller’s
Vendors) of the Agreement.
5. Effect on
Agreement. Except as expressly stated herein, the terms and
conditions of the Agreement are ratified and confirmed, and shall remain in full
force and effect.
IN WITNESS WHEREOF, the
Parties have hereby executed this Amendment as of the date first written
above.
|
BOSTON
SCIENTIFIC
|
BOVIE
MEDICAL
|
|
|
CORPORATION
|
CORPORATION
|
|
|
/S/ Xxxxx XxXxxxxxx
|
/S/ Xxxxx Citronowicz
|
|
|
Signature
|
Signature
|
|
|
Xxxxx XxXxxxxxx
|
Xxxxx Citronowicz
|
|
|
Printed
Name
|
Printed
Name
|
|
|
President of Oncology
|
Vice President COO
|
|
|
Title
|
Title
|
|
|
7-5-07
|
7-6-09
|
|
|
Date
|
Date
|
Page 3 of
3
