EXHIBIT 10.7
Dated this sixteenth day of October Nineteen Hundred and Ninety
Five (16th October 1995)
Innovative Technologies Limited (1)
- and -
Xxxxxxxxxx Laboratories Incorporated (2)
SUPPLEMENTAL AGREEMENT
to a NON-EXCLUSIVE
SALES AND DISTRIBUTION AGREEMENT
for Alginate Dressings and dated August 22nd, 1995
Ref: SUPPCARL.xxx
DATE: October 16th, 1995
PARTIES
INNOVATIVE TECHNOLOGIES LIMITED of Road Three, Industrial
Estate, Xxxxxxxx, Xxxxxxxx XX0 0XX, XX ("IT").
XXXXXXXXXX LABORATORIES INCORPORATED of XX XXX 000000,
XXXXXX, XXXXX 00000-0000 XXX. ("XXXX")
WHEREAS:-
IT and XXXX entered into a non-exclusive sales and distribution
agreement for certain alginate dressing products on August 22nd,
1995.
IT and XXXX are now desirous of making certain minor amendments
to that Agreement.
IT IS HEREBY AGREED:
The Recitals to and the Definitions set out in the Agreement
shall be deemed to be incorporated herein.
Clause 5.3 of the Agreement shall be replaced by the following:
"The Purchase Price as set out in Schedule 3 hereto and as
subsequently revised under Clause 5.2 shall be determined
according to the general principle that the Purchase Price shall
(unless the parties agree otherwise in writing) represent a sum
of money equivalent to forty per cent (40%) of CARL's Average
Net Selling Price for the Products for a period of one (1) year
from the Effective Date of this Agreement and thereafter the
following shall apply:-
5.3.1 forty percent (40%) of CARL's Average Net Selling Price
for the Products during any period in which CARL's market share
is less than five percent (5%); or
5.3.2 thirty-seven percent (37%) of CARL's Average Net Selling
Price for the Products during any period in which CARL's market
share is between five percent (5%) and ten percent (10%); or
5.3.3 thirty-three percent (33%) of CARL's Average Net Selling
Price for the Products during any period in which CARL's market
share is between ten percent (10%) and fifteen percent (15%); or
5.3.4 thirty percent (30%) of CARL's Average Net Selling Price
for the Products during any period in which CARL's market share
is greater than fifteen percent (15%).
As used herein, market share shall be CARL's overall market
share in monetary value for the Products in the United States as
reported in the Healthcare Products Information Services, Inc.
("HPIS") reports for the relevant period. After said initial
six (6) month period and annually thereafter as set forth in
Clause 5.2, CARL's actual average selling price and market share
will be calculated and the Purchase Price from IT adjusted
retrospectively for purchases made during said six (6) month or
annual period and prospectively for future purchases. XXXX will
supply to IT its actual Average Net Selling Price for the
Products within sixty (60) days of the end of each such period
throughout the term of this Agreement. Within thirty (30) days,
any deviations between estimates and actuals shall be paid."
The following shall be inserted into the Agreement as a new
Clause 5.4 and the remaining provisions of Clause 5 of the
Agreement shall be re-numbered accordingly.
5.4.1 "Without prejudice to the generality of Clause 5.3 above,
XXXX hereby agrees to undertake additional expenditure on
promoting the Products in the Territory, including on
promotional literature and marketing effort, to an amount equal
to not less than five per cent (5%) of CARL's Average Net
Selling Price for the Products for a period of one (1) calendar
year from the Effective Date of this Agreement.
5.4.2 The promotional expenditure incurred by XXXX pursuant to
Clause 5.4.1 above shall be deemed to be part-payment of the
Purchase Price for the Products during the first calendar year
from the Effective Date of this Agreement.
5.4.3 Consequently, in consideration for and in acknowledgement
of CARL's agreeing to pay IT five per cent (5%) of the Purchase
Price for the Products in the form of additional promotional
expenditure equal to that amount in respect of the Products, as
specified in Clause 5.4.1 above, IT hereby acknowledges that the
balance of the Purchase Price payable for the Products is an
amount equal to thirty five per cent (35%), rather than the
figure of forty per cent (40%) set out in Clause 5.3 above, of
CARL's Average Net Selling Price for the Products during the
first calendar year from the Effective Date of this Agreement.
5.4.4 The parties hereby agree and acknowledge that the
provisions of this Clause 5.4 shall only apply for a period of
one year from the Effective Date of this Agreement."
The parties hereby agree that they will accept and be bound by
the terms and conditions of the Agreement so that the Agreement
(as amended by the above provisions) shall be deemed to be
incorporated into this agreement and re-executed by the parties
hereto.
AS WITNESS the hands of the duly authorised representatives of
IT and XXXX the day and year first above written.
Signed by: D Xxxxx Xxxxxxx, )
Managing Director )
for and on behalf of Innovative Technologies Ltd.: )
Signed by: Xxxxx Record )
Vice President )
for and on behalf of Xxxxxxxxxx Laboratories Inc. : )
