Exhibit 10.1
MARKETING REPRESENTATION
AGREEMENT
This Agreement (the
“Agreement”) is made this 25 th day of August, 2005 (the
“Effective Date”), by and among (i) Novoste
Corporation, a Florida corporation with its principal place of
business at 4350 International Boulevard, Norcross, Georgia 30093
(“Novoste”), (ii) Best Vascular, Inc., a Delaware
corporation with its principal place of business at 7643 Fullerton
Road, Springfield, Virginia 22153 (“Representative”),
and (iii) Best Medical International, Inc., a Virginia corporation
which is an affiliate of Representative, with its principal place
of business at 7643 Fullerton Road, Springfield, Virginia 22153
(“BMI”), who, intending to be legally bound, hereby
agree as follows:
1. INTRODUCTION
1.1. Novoste markets, promotes,
sells, leases and distributes the Beta-Cath
™
system, a hand-held device to
deliver low-penetration radiation to the site of a treated blockage
in a coronary artery to inhibit restenosis and associated
catheters, radiation sources and other disposables (the
“Products”).
1.2. Novoste wishes to engage
Representative, in accordance with the terms of this Agreement, to
market, demonstrate and solicit orders for the Products in the
United States, Germany and Canada (the
“Territory”).
1.3. Representative hereby accepts
such appointment in accordance with the terms and conditions set
forth herein.
1.4. As an inducement to Novoste to
enter into this Agreement, BMI wishes to guarantee the full and
faithful performance and observation by Representative of all
agreements of Representative set forth in this
Agreement.
1.5. Concurrently with the execution
and delivery of this Agreement, Novoste, Representative and BMI are
entering into an asset purchase agreement pursuant to which Novoste
would transfer to Representative substantially all of the assets of
Novoste’s VBT business and Representative would assume
certain specified liabilities of Novoste’s VBT business,
subject to the terms and conditions set forth therein (the
“Asset Purchase Agreement”).
2. APPOINTMENT
Subject to the terms and conditions
of this Agreement, Novoste hereby appoints Representative, and
Representative agrees to serve, as a marketing representative in
the Territory with authority to market and solicit orders for the
Products in the Territory in accordance with Novoste’s
current Product purchase order forms and terms and conditions,
which are attached hereto as Exhibit 1 . The parties
acknowledge that Representative has been furnished with copies of
the Novoste Product purchase order forms and terms and conditions
that are in effect as of the Effective Date. From time to time in
accordance with Representative’s requests, Novoste shall
furnish Representative, at Novoste’s cost, with reasonable
quantities of sales support materials which Novoste may have
available. Representative’s obligations shall be as
follows:
2.1. Authority .
Representative shall present orders for the Products on
Novoste’s standard agreements executed by prospective
customers; provided, however, that all such orders shall be subject
to acceptance by Novoste. Representative shall clearly communicate
this acceptance requirement to all prospective
customers.
2.2. Territory Limitation .
Representative has no authority to, and shall not, market or
solicit orders for the Products outside the Territory, and
Representative shall immediately refer to Novoste any inquiries
regarding the Products that Representative receives from or for any
location outside the Territory.
2.3. Staff . At
Representative’s request, Novoste will provide reasonable
training at Novoste’s facility first listed above for
appropriate members of Representative’s staff to enable them
to market, sell, service and respond to routine inquiries regarding
the Products. Such training shall be provided without charge;
however, Representative shall be responsible for all travel-related
expenses incurred by its trainees who participate in such
training.
2.4. Marketing Expenses . All
marketing activities for the Products shall be the sole
responsibility of Representative, and Novoste shall not be
obligated to incur any expenses for Product advertising, promotion
or market development.
2.5. Trademark Restrictions .
Representative acknowledges that the trademarks on the Products are
owned or licensed by Novoste. Representative shall not make use of
such marks except for the purpose of performing its obligations
under this Agreement.
2.6. Order Fulfillment .
Novoste shall be responsible for shipping and invoicing customers
for any Product sold by Representative hereunder.
3. REGULATORY COMPLIANCE
3.1. Compliance with Laws .
Each party shall (a) perform its obligations under this Agreement
in a manner that complies with all applicable laws, statutes,
ordinances and regulations that apply to its obligations under this
Agreement, (b) obtain all required licenses, permits,
authorizations and registrations, and (c) promptly notify the other
party if it receives any notice or other allegation of
non-compliance with any such law, statute, ordinance or regulation
by any person which relates to its performance of its obligations
hereunder.
3.2. Complaints Handling and
Medical Device Reporting (MDRs) . Representative shall forward
to Novoste or its designee, within two (2) business days after its
receipt by Representative, any Product complaint or notice of
claimed or suspected Product defect received by Representative.
Novoste or its designee is responsible for investigating any
Product complaints or allegations of Product defects.
3.3. Promotional Materials,
Labeling and Advertising . Novoste shall, at its cost and
expense, provide Representative with sufficient promotional
materials, labeling and advertising for use in promoting the
Products. Novoste shall update such promotional materials, labeling
and advertising when necessary or required by United States Food
and Drug Administration. Representative shall use only the written
promotional materials, labeling and advertising provided by Novoste
and shall not make any oral statements or communications
inconsistent with, or different from, such promotional materials,
labeling and advertising or other written information authorized by
Novoste to be provided to customers in any other form, including
but not limited to customer contracts or order forms.
4. COMPENSATION
As compensation for services
performed hereunder, during the term of this Agreement,
Representative shall be entitled to receive a weekly fee of $25,000
(such weekly fee to be pro rated in the case of a partial week with
respect to the commencement of the term and the expiration or
termination of the term of this Agreement). Such compensation shall
be payable on a weekly basis.
5. NO UNAUTHORIZED PRODUCT
WARRANTIES
Novoste will honor all warranties
given by it for the Products. Representative shall not make, or
authorize any of its employees to make, any representation or
warranty whatsoever other than Novoste’s warranties. EXCEPT
AS PROVIDED HEREIN, NOVOSTE MAKES NO WARRANTIES TO REPRESENTATIVE
OR BMI, EXPRESS OR IMPLIED, AS TO THE PERFORMANCE OF THE PRODUCTS,
THEIR MERCHANTABILITY, OR THEIR FITNESS FOR ANY PARTICULAR
PURPOSE.
6. INDEMNIFICATIONS
6.1. Novoste’s
Indemnity . Novoste hereby agrees to indem
