Confidential treatment has been requested as to certain portions of this document. Each such portion, which has been omitted herein and replaced with a series of three asterisks in brackets [***], has been filed separately with the Securities and...
[Confidential
treatment has been requested as to certain portions of this
document. Each such portion, which has been omitted herein and
replaced with a series of three asterisks in brackets [***], has been filed
separately with the Securities and Exchange Commission.]
EXHIBIT
10.8
February
25, 2009
Xxx
Last
President
Bard
Access Systems, Inc.
000 Xxxxx
0000 Xxxx
Xxxx Xxxx
Xxxx, Xxxx 00000
Re: Chronoflex
Agreement extension and amendment
Dear
Xxx:
We refer
to the Development, Supply and License Agreement, dated November 11, 1992 (the
“Original Agreement’), by and between AdvanSource Biomaterials, Corp. (formerly
known as CardioTech International, Inc. and Polymedica Industries,
Inc.) (“AdvanSource”) and Bard Access Systems, Inc. (“Bard”), as amended by the
Amendment to Development, Supply and License Agreement, dated January 26, 1999
(the “Amendment”) between AdvanSource and Bard, and as modified by the letter
agreement between Bard and AdvanSource dated October 30, 2001 (the “First
Letter’), the letter agreement between Bard and AdvanSource dated July 1, 2003
(the “Second Letter”) and the letter agreement between Bard and AdvanSource
dated April 1, 2004 (the “Third Letter”). The Original Agreement, the Amendment,
the First Letter, the Second Letter and the Third Letter are referred to herein
collectively as the “Agreement”. Capitalized terms used herein but not defined
herein shall have the meanings given such terms in the Agreement.
As of
March 31, 2009, Bard and AdvanSource agree to amend the Agreement as
follows:
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1.
|
Section
1.10 of the Agreement is hereby deleted in its
entirety.
|
|
2.
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AdvanSource’s
obligations set forth in Article VI, Exclusive Supply of CHRONOFLEX of the
Original Agreement and any supply and license obligations of AdvanSource
set forth in the First Letter, Second Letter and Third Letter shall be
non-exclusive.
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3.
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Section
8.2 is hereby deleted in its entirety and replaced as
follows:
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“From
April 1, 2009 through March 31, 2011, AdvanSource and Bard hereby agree that the
price for CHRONOFLEX and IMPROVEMENTS, FOB AdvanSource’s manufacturing facility,
exclusive of sales tax and customs duties, if any, shall become [***] of
CHRONOFLEX.”
1
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4.
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Sections
8.3, 8.3(a) and 8.6 of the Agreement are hereby deleted in their
entirety.
|
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5.
|
Section
9.1 of the Agreement and any royalty obligations set forth in the First
Letter, Second Letter and Third Letter are hereby deleted in their
entirety and replaced as follows:
|
“From
April 1, 2009 through March 31, 2010, Bard shall pay AdvanSource a royalty in
the amount of [***] of PRODUCT that is COMMERCIALLY SOLD and that would infringe
an issued claim of a patent included in the PROPRIETARY RIGHTS if COMMERCIALLY
SOLD in a country in which an issued claim of such patent included in the
PROPRIETARY RIGHTS is valid and subsisting at the time of COMMERCIAL SALE, provided, however,
that only one royalty shall be due to AdvanSource regardless of the number of
issued claims of patents included in the PROPRIETARY RIGHTS that may cover such
PRODUCT and regardless of the number of COMMERCIAL SALES or transfers of such
PRODUCT.
From
April 1, 2010 through March 31, 2011, Bard shall pay AdvanSource a royalty in
the amount of [***] of PRODUCT that is COMMERCIALLY SOLD and that would infringe
an issued claim of a patent included in the PROPRIETARY RIGHTS if COMMERCIALLY
SOLD in a country in which an issued claim of such patent included in the
PROPRIETARY RIGHTS is valid and subsisting at the time of COMMERCIAL SALE, provided, however,
that only one royalty shall be due to AdvanSource regardless of the number of
issued claims of patents included in the PROPRIETARY RIGHTS that may cover such
PRODUCT and regardless of the number of COMMERCIAL SALES or transfers of such
PRODUCT.”
2
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6.
|
Section
9.2 of the Agreement is hereby deleted in its entirety and replaced as
follows:
|
“Periodic
royalties payable under Section 9.1 shall be paid by Bard to AdvanSource within
forty-five (45) days of the close of the calendar quarter to which such payment
relates. Bard will keep or cause to be kept accurate written records
of the COMMERCIAL SALES of PRODUCTS sold in each such quarter and will supply
AdvanSource with a written summary thereof at the time of its payment of the
period royalties therefore. Bard hereby grants to AdvanSource the
right, during normal business hours and upon reasonable advance notice to Bard,
to have an independent certified public accounting firm, reasonably acceptable
to Bard, inspect Bard’s records relating to the payment of royalties hereunder,
no more often than once per year, for the purpose of ascertaining the
correctness and accuracy of the information contained in royalty reports
furnished by Bard. The cost of any such audit shall be borne by
AdvanSource, provided, however, in the event such audit indicates a discrepancy
of greater than five percent (5%) to the detriment of AdvanSource, Bard shall
reimburse AdvanSource for the cost of such accounting firm audit within thirty
(30) days of Bard’s receipt of evidence of AdvanSource’s incurred actual
out-of-pocket cost for the same.”
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7.
|
Sections
9.3, 9.4 and 9.5 of the Agreement are hereby deleted in their
entirety.
|
|
8.
|
Section
11.1 of the Agreement is hereby deleted in its entirety and replaced as
follows:
|
“Except
as otherwise provided herein, this Agreement shall commence of the EFFECTIVE
DATE and shall continue thereafter until March 31, 2011, unless sooner
terminated as provided below.”
|
9.
|
Section
11.2 of the Agreement is hereby deleted in its
entirety.
|
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10.
|
Section
11.3 of the Agreement is hereby deleted in its entirety and replaced as
follows:
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“Bard
shall have the right to terminate this Agreement at any time, for any reason
with or without cause and without resulting liability, by providing AdvanSource
with twelve (12) month advance written notice.”
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11.
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Section
11.4 of the Agreement is hereby deleted in its
entirety.
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12.
|
Section
15.1 of the Agreement is hereby deleted in its entirety and replaced as
follows:
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“All
notices required or permitted to be given under this Agreement shall be in
writing and shall be deemed effective and given when delivered in person or sent
by edified or registered mail, postage and certification prepaid, return receipt
requested, addressed to the party to be notified at its address first above
written or to such changed address as the party may direct by notice given in
the aforementioned matter. In the case of notices to Bard, the same
shall be directed to the attention of Bard’s President with a copy to the
attention: General Counsel, X. X. Xxxx, Inc., 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxx Xxxxxx 00000. In the case of notices to AdvanSourcne, a copy of
same shall be directed to: Xxxxxxx Xxxxx at AdvanSource with a copy to Xxxxxxxxx
Xxxxxxx at AdvanSource.”
3
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13.
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Schedule
A of the Agreement is hereby deleted in its entirety and replaced by
Schedule A attached hereto.
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14.
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Schedule
C of the Agreement is hereby deleted in its entirety and replaced by
Schedule C attached hereto.
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This
letter agreement, the Original Agreement, the Amendment, the First Letter, the
Second Letter and the Third Letter shall hereafter contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof, and supersede in all respects any and all prior oral or written
agreements or understandings. This letter agreement may be amended or modified
only by a written agreement executed by the parties hereto.
If the
foregoing is in accordance with your understanding, please so indicate by
executing a copy of this letter and returning it to the undersigned, whereupon
this letter shall become our binding agreement.
Sincerely,
/s/ Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx
Xxxxxxx
Vice
President – Sales and Marketing
In
witness whereof, each party has caused this Amendment to be executed by their
duly authorized representatives on the date and the year first written
above.
By: /s/ Xxxxxxx
Adams______________
Xxxxxxx
Xxxxx
President _
4
Agreed to
and accepted by:
BARD
ACCESS SYSTEMS, INC.
By: /s/ Xxx
Last__________________
Xxx
Last
President
5
[Confidential
treatment has been requested as to certain portions of this
document. Each such portion, which has been omitted herein and
replaced with a series of three asterisks in brackets [***], has been filed
separately with the Securities and Exchange Commission.]
Schedule
A
ChronoFlex Resin
Specifications
[***]
6