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Exhibit 10.1
AGREEMENT
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This agreement is effective May 1, 1998 and is by and between Gliatech R&D,
Inc., an Ohio corporation, having offices at 00000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxx 00000, (hereinafter "Gliatech"), and __________________, a
corporation, having offices at ____________________, _________ __________,
_________(hereinafter "Manufacturers Representative").
WHEREAS, Gliatech markets and sells a medical device, ADCON(R)-L Anti-Adhesion
Barrier Gel (hereinafter, "Product") to the medical trade; and
WHEREAS, Manufacturers' Representative promotes and sells products, including
medical devices such as instruments, implants and supplies, to the medical
trade; and
WHEREAS, Gliatech desires to appoint Manufacturers Representative as an
independent representative for the promoting sales of the Product manufactured
and distributed by Gliatech, and Manufacturer's Representative desires to be an
appointed independent representative for promoting sales of the Product;
NOW, THEREFORE, in consideration of the premises and covenants herein contained,
the parties hereto agree as follows:
1. APPOINTMENT OF MANUFACTURER'S REPRESENTATIVE
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Gliatech hereby appoints and Manufacturer's Representative hereby
accepts the appointment as the exclusive, independent representative of
Gliatech for the promotion of sales of Product for the territory
designated. Manufacturer's Representative shall not sell or solicit
sales of products or otherwise represent companies selling or otherwise
distributing products competitive to Gliatech's products without prior
written approval from Gliatech. Gliatech shall have the sole right to
make the determination of those products which are competitive to
Gliatech's products. Subject to the terms of this Agreement,
Distributor is free to engage in any other activities it wishes.
2. TERRITORY
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The territory specified hereunder within which the Manufacturer's
Representative shall solicit sales of Products shall be the
geographical area shown in Appendix 2 attached hereto (hereinafter
"Territory").
3. MANUFACTURER'S REPRESENTATIVE'S DUTIES AND OBLIGATIONS
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A. Manufacturer's Representative shall promote the Product and
solicit orders for sales of the Product within the Territory.
Promotional activity shall include but not be limited to
Product display advertising and promotion at medical doctor or
hospital meetings and exhibitions such as conventions and
trade shows, state or regional medical or hospital meetings.
Manufacturer's Representative shall appoint employee sales
representatives (either hereinafter "Sales Representatives")
to assist in the promotion and sale of the Product. The Sales
Representative shall be the sole responsibility of
Manufacturer's Representative which shall ensure the filing of
all appropriate business registrations, and compliance with
the requirements of tax withholding and reporting occasioned
by the engagement of such Sales Representatives and compliance
by such Sales Representatives with all obligations of
Manufacturer's Representative hereunder.
B. Manufacturers' Representative shall be responsible for
assuring its Sales Representatives are thoroughly trained to
promote and sell the Product consistent with the training
guidelines provided by Gliatech.
C. Manufacturers' Representative receives compensation for
services performed as a commission on the sale of Product in
the Territory and not on any other basis.
D. In order to comply with applicable law and in order to protect
Gliatech from claims and liabilities, Manufacturer's
Representative's communications and representations to
customers shall be true, accurate, complete and consistent
with the labeling of the Product. Manufacturer's
Representative shall in no circumstances modify, repackage,
adulterate, misbrand, alter or add labels to or remove labels
from any of the Product.
E. All advertising and all participation by Manufacturer's
Representative in public exhibitions, relating to the Product
and the use of Gliatech's name and trademarks, shall be
subject to prior written consent of Gliatech, which consent
shall not be unreasonably withheld.
F. Manufacturer's Representative's sales quota for the year of
1998 is as stated in Appendix 1 attached hereto.
Manufacturer's Representative shall receive its proposed sales
quota for any subsequent year no later than December 1.
Achievement of the annual and quarterly sales quotas is a
material obligation of this Agreement.
G. Except as otherwise agreed, Manufacturer's Representative
shall be responsible for providing its own equipment, offices,
working facilities, and such other facilities and services as
may be required at its own expense. Manufacturers'
Representative shall maintain an inventory of
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demonstration equipment, and deliverable Product (hereinafter
"Inventory") to promote and solicit orders for Product.
Manufacturer's Representative shall be responsible for the
risk of loss or damage of such Inventory owned by Gliatech
whether or not held at Manufacturer's Representative's
business location. Upon termination of this Agreement,
Inventory shall be returned to Gliatech.
H. Manufacturer's Representative shall submit an annual
comprehensive Business Plan and quarterly update reports.
I. The Manufacturers' Representative's principal owner and
officer executing this agreement shall be personally, as an
individual, liable to see that such corporation meets all of
the Manufacturers' Representative's obligations herein.
J. Manufacturers' Representative shall not make any
representation or statement, written or otherwise, concerning
prices, terms of delivery, terms of payment or conditions of
sale except and to the extent that the same is specifically
authorized by Gliatech. Manufacturers' Representative shall
have no right or authority to make any price guarantees, offer
or agree to any discounts and/or accept any orders on
Gliatech's behalf or return any products to Gliatech without
prior written authorization by Gliatech.
4. GLIATECH DUTIES AND OBLIGATIONS
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A. Gliatech shall sell the Product on orders solicited by
Manufacturer's Representative in accordance with published
price lists in effect. Gliatech may accept or refuse any order
for the Product and will not be bound by any order until it is
finally accepted by Gliatech. Gliatech shall not be liable for
any loss or damage caused by non-acceptance of orders or
delays in making shipments.
B. Gliatech shall pay a commission to Manufacturer's
Representative on orders solicited within and delivered to the
Territory according to the schedule attached as Appendix 3
(which may be from time to time amended). Commissions shall be
deemed earned by Manufacturer's Representative upon invoicing
of Product sales by Gliatech to customers. Commissions earned
by Manufacturer's Representative shall be computed on the net
amount of the invoices rendered (less credit memos) in
accordance with published price lists for each order or part
of an order, exclusive of all freight and transportation costs
(including insurance), normal and recurring bona fide trade
discounts having Gliatech's prior approval and any applicable
sales or similar taxes.
Commissions earned by the Manufacturers' Representative shall
be due and payable on or before the 25th day of the month
immediately following
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the month during which the product sale is recorded and
invoiced by Gliatech.
C. Gliatech shall forward to Manufacturer's Representative those
inquiries for the Product which are reasonably identifiable as
having been generated through the advertising or sales
promotion efforts of Manufacturer's Representative or any of
the Manufacturer's Representative's Sales Representatives.
D. Subject to reasonable charges as determined by Gliatech,
Gliatech shall supply Manufacturer's Representative with
reasonable quantities of descriptive literature, promotional
materials and catalogs describing and listing the Product.
E. Gliatech shall indemnify Manufacturer's Representative, its
employees and Sales Representatives against any and all third
party claims and demands for losses, damages and injuries,
including legal expenses and attorneys fees, arising out of
any claim of a defect in the manufacture or design of a
Product or written representation or omission in Gliatech's
promotional literature concerning the Product. This indemnity
shall not extend to any malfeasance or nonfeasance of
Manufacturer's Representative, its employees or Sales
Representatives in connection with any acts related to the
Manufacturer's Representative's activity hereunder. Except as
otherwise expressly provided, Manufacturer's Representative is
liable for all its own expenses and all claims made against
it.
F. Gliatech shall make a good faith effort to collect monies owed
on invoices from orders solicited by Manufacturer's
Representative and shall provide Manufacturer's Representative
with a monthly statement of past due accounts in the
Territory. In the event that Gliatech has not received payment
from any customer account upon which a commission was paid
within one hundred twenty (120) days from the date on which
any payment was due, Gliatech reserves the right to charge
back to the Manufacturers' Representative the full amount of
the commission paid on such sale. Upon eventual payment of the
outstanding monies, Gliatech will pay the original commission
amount.
5. CONFIDENTIALITY, IMPROVEMENTS, PATENTS AND TRADEMARKS
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A. Manufacturer's Representative shall take all reasonable steps
to do those things reasonably necessary to ensure that
confidential information relating to the Product and to the
technology and business of Gliatech is not disclosed or made
use of outside the business of Manufacturer's Representative
and Gliatech; provided, however, that the foregoing shall
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not apply to information (a) which be can shown to be in
writing and known to Manufacturer's Representative prior to
disclosure by Gliatech; (b) which is or becomes public
knowledge through no fault of Manufacturer's Representative;
or (c) which is disclosed to Manufacturer's Representative
by a third party with the lawful right to make such
disclosure. Manufacturers' Representative's obligation of
confidentiality shall survive the termination of this
Agreement for three years until and unless such confidential
information shall have become, through no fault of the
Manufacturers' Representative, generally in the public
domain.
B. Gliatech hereby grants Manufacturer's Representative a
royalty-free right to use Gliatech's trademarks and
identification on and in connection with the solicitation of
orders for the Product during the term of this Agreement. It
is the obligation of the Manufacturers' Representative to
notify Gliatech of any infringement of its trademarks and
identification. Manufacturer's Representative shall
discontinue the use of all such trademarks upon the
termination of this Agreement. All goodwill generated
hereunder in the use of such trademarks shall accrue to the
benefit of Gliatech. The Manufacturer's Representative hereby
disclaims any rights in Gliatech's trademarks and
identification other than the aforementioned license.
6. TERMS AND TERMINATION
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A. This Agreement shall continue in full force and effect
beginning on May 1, 1998 and continuing through December 31,
1999. This Agreement shall thereafter be renewable for
additional yearly periods.
B. Gliatech shall have the right to terminate this Manufacturers'
Representative if the sales quota as determined by Gliatech
and specified in Appendix 1 is not achieved. In this case,
Gliatech will provide Manufacturers' Representative 30 days
notice to termination.
C. Gliatech shall have the right to terminate this Manufacturers'
Representative upon notice of Manufacturers' Representative's
(i) commission or suffering of any act of bankruptcy or
insolvency, (ii) failing to cure any material breach in the
provisions of this agreement within thirty (30) days after
written notice of such breach, (iii) conviction in any court
of a felony under applicable city, state, or federal laws.
D. If this agreement shall terminate for any reason whatsoever,
the Manufacturers' Representative shall be entitled to receive
commissions as determined in accordance with the above
provisions with respect to orders solicited prior to the
effective date of such termination, regardless of when
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such orders were accepted by Gliatech (provided such orders
can be demonstrated to be orders that were solicited prior to
the effective date of such termination) and regardless of when
such shipments are made and invoices rendered. Goods returned
according to Gliatech's Customer Returns Policy shall be
charged against Manufacturers' Representative commission
payable. Ninety days (90) after termination of this agreement,
the commission account shall be closed and all proceeds over
the uncollected accounts receivable shall be paid to the
Manufacturers' Representative.
7. FORCE MAJEURE
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Obligations of either party to perform under this Agreement shall be
excused and, in Manufacturer's Representative's case, sales quotas
addressed in paragraph 3 F and 6 B will be reduced proportionately
during such period of delay caused by matters such 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.
8. NOTICES
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Any notice required by this Agreement shall be deemed sufficient if
sent by certified mail, postage prepaid, to the party to be notified at
the address set forth below, until a different address is supplied in
writing.
A. In the case of Gliatech, such notice shall be sent to:
Gliatech Inc.
00000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Ph.D.
In the case of Manufacturer's Representative, such notice shall be sent
to:
____ _________ ______________
_____________________________
_____________________________
__________ __________ _______
9. ENTIRE AGREEMENT
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This document and the incorporated references represent the entire
agreement between the parties hereto, and supersede all prior
agreements regardless of their terms or cancellation provisions, and
this Agreement shall be modified only by a written agreement signed by
Gliatech and the Manufacturer's Representative.
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10. APPLICABLE LAW
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This Agreement shall be governed by the laws of the State of Ohio as
applicable to contracts made and to be performed in that state.
11. ASSIGNABILITY
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This agreement shall not be assigned either by the parties or by
operation of law without prior written consent of the other party;
however, in the case of Gliatech, Gliatech may, without obtaining the
consent of the Manufacturer's Representative, assign its rights and
obligations under this Agreement to any corporation with which Gliatech
may merge or consolidate or to which Gliatech may transfer
substantially all of its assets.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the 1st day of Month, Year.
GLIATECH INC. __________________________________
By: By:
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Xxxxxx X. Xxxxxxxxxx, Ph.D. _________________ _________________
President and Chief Executive ___________________________________
Date: Date:
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Appendices:
1. Products/1998-1990 Sales Quota
2. Territory
3. Commission Schedule
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APPENDIX 1
ADCON(R)-L Sales Quota for _________________________
Units
1998 Q3 Q3
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Q4 Q4
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Agreed upon this day
(Date)
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(Signature of Manufacturer's Representative)
* 1999 Quotas to be established by mutual agreement no later than December 1,
1998.
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APPENDIX 2
Territory designation for : _____________________
By zip code ______
______
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______
______
______
______
______
Agreed upon this day
(Date)
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(Signature of Manufacturer's Representative)
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APPENDIX 3
COMMISSION SCHEDULE
ADCON(R)-L-__% of net invoice price to hospital
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