EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
CO-MARKETING AGREEMENT
----------------------
THIS AGREEMENT is made as of the 9th day of August, 1999 by and between
UROLOGIX, INC., a Minnesota corporation ("Urologix") and Boston Scientific
Corporation, a Delaware corporation ("BSC").
BACKGROUND
Urologix is in the business of manufacturing and marketing its
Targis(TM) System for use in the treatment of benign prostatic hyperplasia
("BPH"). The Urologix Targis System consists of the control unit (the "Control
Unit") and the procedure kit (the "Procedure Kit"). BSC is engaged, among other
things, in the sale of various medical devices in the United States in the field
of urology through salespersons in the Microvasive Urology Division of BSC.
Urologix and BSC desire to establish an arrangement, under which BSC,
through certain members of its Microvasive Urology Division sales force, will
actively promote the Targis System to certain identified urologists who are not
currently using the Targis System but have indicated interest in the Targis
System, and BSC is willing to provide these services on the terms and conditions
set forth below.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. Termination of Prior Arrangement. The Co-Marketing Agreement between
Urologix and BSC dated October 6, 1998 is hereby terminated effective June 30,
1999.
2. BSC Responsibilities. BSC will direct the Microvasive Urology
Division sales representatives identified on Exhibit A to devote a portion of
their time, under the direction of BSC sales management, during the term of this
Agreement to the active promotion of the Targis System as an effective treatment
for BPH, to the accounts and urologists identified on Exhibit B (the "Target
Urologists"). [Confidential Treatment Requested].
1
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
In connection with these activities:
2.1. BSC shall promptly forward to Urologix indications of
interest, feedback and any complaints or concerns from the Target
Urologists so that Urologix may respond. By the fifteenth day of each
month, BSC will provide a written report to Urologix with information
about the contacts with the Target Urologists during the prior month
and the status of BSC's activities.
2.2. BSC will not solicit orders for Targis System products or
provide quotations for price or terms for the Procedure Kits or the
Control Units to any potential customer, other than the list price
provided from time to time by Urologix to BSC. In addition, BSC and
BSC's sales persons will not make any representations regarding the
Targis System which are inconsistent with the representations contained
in Urologix' printed literature, as provided by Urologix to BSC from
time to time.
2.3. BSC agrees that the services to be provided under this
Agreement will be performed by BSC employees and will not include the
direct offer, promotion, sale or lease to a patient of any product or
service.
2.4. BSC's sales representatives will comply with applicable
laws, regulations, and all policies, procedures and ethical standards
of BSC.
3. BSC Compensation.
3.1. In consideration for BSC's services throughout the term
of this Agreement, Urologix will pay to BSC:
(a)-(e) [Confidential Treatment Requested]
2
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
(f) BSC will not receive any commission on any
Procedure Kits used by a Target Urologist or Control Unit
delivered to any customer identified on Exhibit C under any
trial period or loaned unit or sample kit arrangement or in
conjunction with any Targis Quality Outcomes Training Center
agreement. If a Target Urologist uses a Control Unit that is
being leased on a per procedure basis, then BSC will be
entitled to [Confidential Treatment Requested] described in
Section 3.1(b) only as to the allocable portion of the fee
relating to the Procedure Kit and not the capital fee portion.
(g) "Net Sales Price" means the price of the Control
Unit or Procedure Kit, as applicable, as invoiced by Urologix,
less: (i) all sales and similar taxes, (ii) all transportation
or shipping expenses, (iii) any amounts refunded or credited
by reason of rejections, returns, or retroactive price
reductions, (iv) discounts or rebates, (v) amounts paid for a
maintenance service agreement, and (vi) amounts paid for the
Targis Transport Kit.
3.2. Urologix will pay BSC [Confidential Treatment Requested]
by the 25th day following the end of the month for which the fee is
earned. By the 25th day following the end of each calendar quarter,
Urologix will remit to BSC [Confidential Treatment Requested] during
such calendar quarter, together with a complete and accurate accounting
of all uses of Procedure Kits by the Target Urologists and sales of
Control Units [Confidential Treatment Requested].
3.3. In the event any Control Unit is returned or a credit or
refund is given for any reason, in either case within ninety (90) days
of delivery, BSC must refund to Urologix any commission paid to BSC in
conjunction with that sale originally. Urologix may deduct the amount
of any such refund due Urologix from any payments due BSC under Section
3.1.
3.4. Exhibit B and Exhibit C are confidential information of
Urologix. BSC shall not distribute the Exhibits to anyone other than
those persons who need to know such information for the purpose of
entering into and complying with this Agreement.
3.5. BSC will distribute at least [Confidential Treatment
Requested], to the appropriate sales persons involved in the sale of
the Urologix products to insure that BSC's sales persons are provided
an adequate incentive to promote the Targis System.
3
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
4. Urologix Obligations.
4.1. Urologix will provide [Confidential Treatment Requested]
of training for BSC's sales representatives identified on Exhibit A.
Additional training will be provided as mutually agreed by BSC and
Urologix.
4.2. Urologix will provide, at no charge to BSC, Urologix'
product brochure and related clinical sales literature for the Targis
System, as well as such other materials as may be reasonably required
by BSC.
4.3. Urologix will provide prompt service and support to
address questions or concerns raised by the Target Urologists.
4.4 During the term of this Agreement, Urologix will not enter
into any agreement, arrangement or understanding with any third party
with respect to the sale or marketing of the Targis System or Procedure
Kits in the United States.
5. Term and Termination.
5.1. The term of this Agreement will commence on August 9,
1999 and end on December 31, 1999, unless BSC and Urologix specifically
agree in writing to extend the term of the Agreement.
5.2. Either party may terminate this Agreement upon 30 days'
written notice in the event of any material breach of this Agreement by
the opposite party, provided such material breach remains uncured after
such 30 days.
5.3. Any termination of this Agreement pursuant to this
Section 5 will not affect any rights or obligations of the parties
which have arisen prior to the date of such termination. BSC will be
entitled to the commissions earned under Section 3.1 for all Control
Units and Procedure Kits sold or used, as the case may be, prior to the
effective date of termination.
5.4. Upon termination or expiration of this Agreement, BSC
agrees to immediately cease using all advertising and promotional
matters, forms, manuals, lists,
4
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
applications, software programs and any other materials, including
copies thereof, provided by Urologix to BSC in conjunction with this
Agreement, and BSC will promptly deliver all such materials remaining
in BSC's possession to Urologix.
6. Non-Competition. BSC agrees that, during the term of this Agreement,
BSC shall not advertise, arrange for the sale of, or sell any microwave-based or
radio frequency-based therapy for use in the treatment of BPH in the United
States.
7. Confidential Information. Urologix and BSC may exchange information
each considers confidential in carrying out the terms of this Agreement.
"Confidential Information" means any information, marked as "Confidential," 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 foreseeable 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 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 party shall promptly return all such Confidential Information to the
disclosing party, except for the retention of one archival copy solely for use
by the receiving party in defending itself in the event of litigation involving
this Agreement. Each party 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 will survive the termination of this
Agreement.
8. Public Announcement. Urologix and BSC may each issue a public
announcement following the execution of this Agreement. The terms of any such
announcement shall be mutually agreed upon prior to any public announcement,
except that either party may issue an announcement without prior agreement of
the other party if such party determines in good faith that it has a legal
obligation to do so and the other party's agreement is not available on a timely
basis.
5
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
9. Independent Contractor. Each of the parties is an independent
contractor and nothing contained herein will 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 joint
marketing relationship. Neither BSC nor Urologix will have, and will not hold
itself out as having, any right, power or authority to create any contract,
obligation or responsibility either express or implied, on behalf of, or in the
name of, the opposite party unless the opposite party consents thereto in
writing. Neither party will have any authority to bind the opposite party in any
respect. All persons engaged by either party will be that party's employees,
legal representatives, agents or independent contractors and not those of the
opposite party. Each party will be responsible for its own expenses in
connection with the performance of its responsibilities under this Agreement.
10. Force Majeure. Urologix assumes no liability and shall not be
liable to BSC for any failure to fill, or delay in filling, orders received and
accepted by Urologix from customers, to the extent any such event is caused, in
whole or in part, directly or indirectly, by any strike, fire, flood, act of
God, accident, explosion, sabotage, embargo, war, riot, act or order of any
government or governmental agency, inability to obtain or 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 Urologix.
11. Notice. All notices to be given hereunder must be in writing, given
either by personal delivery, facsimile transmission or registered mail, return
receipt requested. Such notices will be deemed to have been made when personally
delivered, when the sender receives a transmission confirmation or the date of
receipt indicated by the return verification provided by the U.S. postal
service. Notices must be given or sent to the parties at the following
addresses:
6
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
If to BSC: Boston Scientific Corporation
0 Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Chief Financial Officer
Fax: (000) 000-0000
With a copy to: General Counsel
Boston Scientific Corporation
0 Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
If to Urologix: Urologix, Inc.
00000 - 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
Either party may designate any other address for notices given it by
written notice to the other party given at least ten (10) days prior to the
effective date of such change.
12. Assignability. This Agreement is personal to the parties hereto and
may not be sold, assigned, or transferred by either party, by operation of law
or otherwise, without the prior written consent of the other party.
13. Remedies. The parties acknowledge that money damages may not be an
adequate remedy for any breach of Section 6 (Non-Competition) and Section 7
(Confidential Information) 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 will be proper modes of relief and are not to be
considered mutually exclusive remedies. In the event of any such violation, the
parties agree 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.
7
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
14. Applicable Law and Forum Selection. This Agreement will be governed
and construed in accordance with the laws of the State of Minnesota, without
regard to the rules or principles of any jurisdiction with respect to conflict
of laws. Any disputes between the parties arising out of this Agreement must be
resolved before the United States federal district court for the District of
Minnesota, located in Minneapolis, Minnesota, and jurisdiction is hereby
conferred upon such court. Each party hereby agrees to and consents to submit to
the exclusive jurisdiction, venue and process of said court for all actions,
suits, or proceedings arising out of this Agreement.
15. Miscellaneous. The waiver of any party of a breach of any
provisions of this Agreement will not operate or be construed as a waiver of any
other breach. If any provision of the Agreement is held unlawful or
unenforceable in any respect, such illegality or unenforceability will not
affect any other provision hereof, and this Agreement will be construed as if
the unlawful or unenforceable provision had never been contained herein. This
Agreement contains the entire agreement and understanding of the parties and
supersedes and replaces all prior agreements, understandings, writings and
discussions between the parties with respect to co-marketing activity in the
United States. This Agreement does not supersede the International Distribution
Agreement dated as of June 26, 1996 between Urologix and BSC. This Agreement
will not be amended or modified nor may any of its terms be waived except by a
writing signed by all other parties hereto. Only the parties to the Agreement
may bring an action to enforce its terms or seek a remedy for a breach thereof.
No obligations or rights with respect to any third parties are intended or
created by this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
16. Counterparts. This document may be executed in counterparts, each
of which will be deemed to be an original and all of which together will be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed effective as of the day and year first above written.
UROLOGIX, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
Its: Vice President, Finance and
Administration
---------------------------
BOSTON SCIENTIFIC CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Its: President, Microvasive
Urology
---------------------------
8
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
Exhibit A
BSC Representatives
[Confidential Treatment Requested]
BSC and Urologix may mutually agree to change the above-named representatives at
any time during the term of this Agreement. If any of the above-named BSC
representatives ceases to be employed by BSC during the term of this Agreement,
BSC shall propose replacements as promptly as practicable. Urologix will have
the right to either accept the replacement or request another representative to
fulfill BSC's obligations under this Agreement.
[Confidential Treatment Requested]
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
Exhibit B CONFIDENTIAL
Target Urologists ------------
(To be determined)
EXHIBIT 10.11
Certain information has been
omitted form this exhibit
and filed separately with
the SEC pursuant to a
request for confidential
treatment under Rule 24b-2.
Exhibit C CONFIDENTIAL
BSC Control Unit Customers ------------
[Confidential Treatment Requested]
