AMENDMENT NO. 1 TO DISTRIBUTION AGREEMENT
Exhibit 10.2
AMENDMENT NO. 1 TO
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT
THIS AMENDMENT NO. 1 TO DISTRIBUTION AGREEMENT (this “Amendment No. 1”), effective as of
January 1, 2006 (the “Amendment Effective Date”), is entered into between XXXXXX SCIENTIFIC
COMPANY L.L.C., a Delaware limited liability company represented by its XXXXXX HEALTHCARE division,
(“FHC”), having a place of business at 0000 Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, and
BIOSITE INCORPORATED, a Delaware corporation (“Biosite”), having a place of business at 0000
Xxxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000. Capitalized terms not defined herein shall have
the meanings set given to them in the Agreement.
RECITALS
A. The
parties have entered into a Distribution Agreement effective as of
January 1, 2006 (the “Agreement”).
B. The
parties now desire to amend the Agreement in certain respects on the
terms and conditions set forth below.
NOW THEREFORE, in consideration of the foregoing premises and the mutual covenants set
forth below, the parties amend the Agreement and otherwise agree as follows:
1. Amendments.
1.1 Notwithstanding anything to the contrary in the Agreement, including
without limitation Sections 2(c) and 2(d), the “Territory” shall exclude Puerto Rico and the
US Virgin Islands.
Accordingly, the first sentence of Section 2(c) is hereby amended and restated to
read as follows:
“The “Territory” consists of two segments in the United States and its territories
(excluding Puerto Rico and the US Virgin Islands): (1) the “Hospital Medical Segment”, and
(2) the “Physician Medical Segment.”
In addition, in the fourth sentence of Section 2(d), each reference to the phrase
“United States and its territories (including without limitation, Puerto Rico” shall be
hereafter replaced with the phrase “United States and its territories (excluding Puerto Rico
and the US Virgin Islands)”.
1.2 Notwithstanding anything to the contrary in the Agreement, except with
respect to sales to customers in the Territory who have purchased any of the Products listed
on the attached Exhibit A (the “SOB Products”)
on or prior to March 31, 2006 ( “Pre-existing SOB
Product Customers”), the SOB Products shall be considered Increased Margin Products in the
Territory, and the “first sale of such Product by Biosite to FHC” under the Agreement shall be
deemed to have occurred on the Effective Date. For the avoidance of doubt any sales of SOB
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Products
to Pre-existing SOB Product Customers, at any time, shall be deemed sales of Cardiac
Products as originally contemplated by the Agreement and the GSMR for sales of such Cardiac
Products shall be 11%. By not later than April 30, 2006, Biosite and Xxxxxx shall mutually agree
to a list of those Pre-existing SOB Product Customers based on their respective business records.
2. Miscellaneous.
2.1
Continuing Effect. This Amendment No. 1 shall be effective for all
purposes as of the Amendment Effective Date. Except as otherwise expressly modified by this
Amendment No. 1, the Agreement shall remain in full force and effect in accordance with its
terms.
2.2
Governing, Laws. This Amendment No. 1 shall be governed by,
interpreted and construed in accordance with the laws of the State of California, without regard to
conflicts of law principles.
2.3
Counterparts. This Amendment No. 1 may be executed in counterparts,
each of which shall be deemed to be an original and together shall be deemed to be one and the
same document.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1
to be executed by their
respective duly authorized officers as of the Amendment Effective Date.
| BIOSITE INCORPORATED | XXXXXX SCIENTIFIC COMPANY L.L.C. | |||||||||
By: |
/s/ Xxxxxx X. Xxxxxxx | By: | /s/ Xxxx Xxxxxx | |||||||
Title: |
Sr VP, WW Marketing and Sales | Title: | President & General Manager | |||||||
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EXHIBIT A
SOB PRODUCTS
| Catalog | ||||||
| Number | Product | Size | List Price | |||
97300 |
Triage ProfilER SOB Panel | 25 tests | $1,175.00 | |||
97301 |
Triage ProfilER SOB Control Set (2x1) | $ 100.00 | ||||
97303 |
Triage ProfilER SOB Control Set (5x1) | $ 100.00 | ||||
97305 |
Triage ProfilER SOB Calibration Verification Samples | $ 80.00 |
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