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Exhibit
10.16
DISTRIBUTION
AGREEMENT
between
HemoSense, Inc
600 Valley Way
Milpitas, CA 95035
USA
represented by Jim
Merselis
CEO HemoSense Inc.
- hereinafter referred to as
“HemoSense” -
and
Inamed KG
Heinz Galinski
Str.l
13347 Berlin
represented by Ina
Battke
Managing Shareholder of
Inamed KG
- hereinafter referred to as
“Inamed” -
Preamble
The two parties have agreed to interpret
this agreement in a positive sense for the benefit of both of them
and to cooperate in a spirit of partnership
HemoSense wishes to market
anticoagulants in Europea and abroad and to continuously increase
its market presence. For this purpose HemoSense plans to put
distributors in place in the various regional and national markets
who will not only market the products, but also be technically and
professionally qualified to train people to use the product and its
technical applications. One of these local distributors will be
Inamed. The products will be imported to Germany by HemoSense or by
a third party commissioned by HemoSense. Said third party will also
be responsible - on the basis of a separate agreement with
HemoSense - for maintaining centralized storage facilities for the
products, delivering the products to the distributors as and when
ordered by them, and processing the financial side of the
individual transactions. However, it is not the responsibility of
the third party to deliver or market the products to end
users.
§ 1 Subject Matter of
the Agreement
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(1) |
Effective 01.04.2003 HemoSense assigns to Inamed the right to
distribute the Contractual Products defined in § 2 in the
Contractual Territory defined in § 3. |
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(2) |
Inamed shall purchase and sell the Products in its own name and
for its own account. |
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(3) |
Inamed shall act as a free and independent
contractor. |
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(4) |
Unless otherwise agreed in writing in a particular case, Inamed
shall have no right to represent HemoSense for the purpose of
entering into legal transactions, nor to assume obligations on
HemoSense’s behalf. Inamed shall refrain from doing anything
that may give third parties the impression that they are authorized
to do so. |
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Confidential treatment requested pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Commission. |
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(5) |
HemoSense shall be entitled to appoint a representative to
represent its marketing interests. At the time of entry into this
agreement, this function is being performed by the firm of
I•Med•Pro GmbH, Max-Planck-Str. 22, 50858 Cologne.
HemoSense reserve the right to appoint the representative
themselves and, if need be, to replace the representative and
dismiss it without replacement, had to limit or cancel its
responsibilities and proxy and the nature and scope thereof at any
time by written or electronic communication to Inamed. Details of
the powers of representation of I•Med•Pro GmbH are set
forth in Exhibit 3 . They have no powers other than those
set forth therein. |
§ 2
Products
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(1) |
Contractual Products are the products listed in Attachment
1. |
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(2) |
Should HemoSense decide after conclusion of this agreement to
add further products to its sales program, they may be offered to
Inamed for them to distribute, but subject to newly defined
conditions. If the product newly added to the sales program is the
followup product of a product withdrawn from the sales program and
if it is similar in terms of price and function to the same, the
newly-added products shall automatically become a Contractual
Product, with the result that the terms and conditions hereof shall
automatically apply. |
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(3) |
Within its general distribution policy is entitled to change
single Contractual Products or withdraw single products from the
Contractual Products; the total supply of Contractual Products,
however, shall not be changed considerably hereby; Inamed will be
given at least 2 months prior written notice of any such changes.
If, when Inamed receive a written notice from HemoSense, they have
already concluded a purchase contract with a client for the
product(s) concerned or otherwise given some relevant binding
declaration, and if Inamed inform HemoSense accordingly immediately
after receiving written notice, then HemoSense shall be obliged to
sell and deliver to Inamed the number of products
concerned. |
§ 3 Contractual
Territory
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(1) |
The Contractual Territory is the territory described in
Attachment 2 (the Länder ). |
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(2) |
The parties are in agreement that the Contractual Territory
will be Inamed’s main sales territory, it being understood
that this shall not constitute any geographical limitation on
Inamed’s distribution rights. |
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(3) |
Inamed distribution rights are non-exclusive. HemoSense shall
have the right to distribute the Contractual Products through other
distribution intermediaries. |
§ 4 Obligations of
Inamed
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(1) |
Inamed shall preserve the confidentiality of the business and
trade secrets of HemoSense, including after expiry of this
Agreement. Inamed shall also oblige their employees
accordingly. |
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(2) |
Inamed shall inform HemoSense about the market situation in the
Contractual Territory and, upon learning of legal changes or of
changes in requirements for official approval, about
customers’ requests, the popularity of the Contractual
Products, the |
| *** |
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Confidential treatment requested pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Commission. |
activities of competitors
which are important for the business success of the Contractual
Products in the Contractual Territory. The reports to be submitted
by Inamed shall not contain any information about the names and
addresses of customers; HemoSense is not interested in the single
customer relationships of Inamed. HemoSense is entitled to
regularly inspect Inamed’s business premises for quality
control purposes (ISO 9001/9002) upon prior timely agreement of the
date; HemoSense is not entitled to inspect Inamed’s business
records.
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(3) |
Inamed is aware that the Contractual Products are medical
devices that are governed by special legislation. This applies in
particular to the system of reporting injuries to patients which is
regulated by the law. Inamed agrees to comply with this
legislation, too, and to notify the competent bodies of any
occurrences without delay. |
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(4) |
Inamed shall immediately inform HemoSense of all actual and
suspected violations of fair competition and all actual and
suspected infringements of labeling and name rights, intellectual
property rights, copyrights and related rights by third parties of
which they become aware and which affect HemoSense or the
Contractual products. Inamed shall use their best efforts to
support HemoSense in defending itself against such
infringements. |
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(5) |
Inamed shall instruct their customers in the proper use and
maintenance of the Contractual Products. |
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(6) |
Inamed shall be obliged to distribute the Contractual Products
under the trademarks and packed and presented as specific by
HemoSense. |
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(7) |
Inamed shall provide regular training courses for their staff
during the life of this Agreement. |
§ 5 Obligations of
HemoSense
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(1) |
HemoSense is obliged to take into reasonable consideration the
interests of Inamed and support Inamed in their
activities. |
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(2) |
HemoSense must provide Inamed with the information and
documents required for its distribution activities, such as
instruction materials and brochures, free of charge. All documents
- to the extent not provided to customers or the training centers
in the ordinary course of Inamed’s business - shall remain
the property of HemoSense. |
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(3) |
At the beginning of the Agreement HemoSense shall offer two
training sessions for the Contractual Products, which Inamed should
attend. |
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(4) |
HemoSense shall ensure that the distribution of the Contractual
Products in the Contractual Territory accordance with the
provisions of this Agreement does not lead to the violation of any
statutes or regulations and, in particular, that any official
permits, designations and approvals needed have been issued by the
health insurance funds (Krankenkassen). |
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(5) |
HemoSense shall keep confidential the business and trade
secrets of Inamed and oblige its employees accordingly; this
obligation shall survice the termination of this
Agreement. |
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Confidential treatment requested pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Commission. |
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(6) |
HemoSense shall take measures to guarantee Inamed sufficient
supplies of strips for patients using the INRatio Kit for a period
of [***] - particularly in the event of insolvency. [***] of these
strips will be deposited in trust by HemoSense at the
latter’s expense with a third party to be designated by
HemoSense. Until further notice the trustee shall be the firm of
I•Med•Pro GmbH. The strips will be deposited for a
period of [***] months from the date of delivery of the device
concerned to Inamed. As the [***] pass, the number of strips
deposited may be reduced pro rata; once the [***] period has
expired there is no longer any need for any strips to be deposited
for the device concerned. On enquiry Inamed shall inform HemoSense
without delay about the delivery dates of the devices and the
residual periods. Inamed may only require the trustee to surrender
the strips if and to the extent that it needs them in order to be
able to perform its own delivery obligations vis-à-vis
customers and HemoSense is not in a position to supply the strips.
HemoSense reserves the right to find equivalent solutions (e.g.
replace the devices with other makes available on the market).
HemoSense shall inform Inamed without delay if it starts using a
different trustee. |
§ 6 Minimum Purchase,
Inventory, Sales Planning
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(1) |
Inamed plans to purchase and take delivery of the following
quantities of Contractual Products from HemoSense: |
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a. |
in the first year after signing of the Agreement and approval:
[***] INRatio Kits and [***] Strips (boxes with 12 strips
each) |
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b. |
on conclusion of the Agreement: a starter pack with 10 INRatio
Kits. |
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(2) |
Inamed shall be obliged to set up and maintain at their own
expense an inventory with a complete range of the Contractual
Products. |
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(3) |
Each month Inamed shall prepare a sales forecast for the next
six months. |
§ 7 Prices and Terms
of Payment
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(1) |
HemoSense shall sell the Contractual Products to Inamed at its
end user list prices applicable at the time of entry into the
respective sales contract, less a discount of a certain amount. The
end user list prices in force at the time of entry into this
Agreement and the respective discounts are set forth in Attachment
1. |
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(2) |
For each order of at least [***] INRatio Kits Inamed will
receive a training set free of charge. |
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(3) |
By granting the discount pursuant to the above, all claims of
Inamed’s against HemoSense in connection with their
activities to be performed under this Agreement shall be fully
settled. This does not apply to claims out of other agreements yet
to be concluded (e.g. marketing agreements). |
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(4) |
The following terms of payment shall apply to individual sales
contracts which are concluded and performed between HemoSense and
Inamed under this Agreement: |
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a. |
All HemoSense’s prices are exclusive of the applicable
statutory value-added tax and apply ex warehouse of
HemoSense’s European importer (currently
I•Med•Pro GmbH) and do not include forwarding costs,
which shall be invoiced separately. Inamed will not be charged any
forwarding costs if Contractual Products to a value of at least
[***] after deduction of discounts are ordered. |
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b. |
HemoSense’s invoices shall be due for payment within 30
days of delivery; [***] cash discount will be granted in case of
payment within 14 calendar days of delivery. Payments by Inamed
shall not be deemed to have been made until HemoSense is able to
dispose of the amount concerned. In the event |
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Confidential treatment requested pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Commission. |
that Inamed is in default,
HemoSense shall be entitled to demand default interests in the
applicable statutory amount. On provision of evidence, HemoSense
can claim further damages for default.
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c. |
Inamed can only offset counterclaims that are res
judicata or acknowledged by HemoSense and
uncontested. |
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d. |
Inamed can claim a right of retention only in respect of
counterclaims that are based on the same contractual relationship
and are uncontested or res judicata or about to become
res judicata . |
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e. |
HemoSense will process the financial transactions through
I•Med•Pro GmbH until further notice to
Inamed. |
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(5) |
Inamed are at liberty to set their prices and conditions in
relation to their customers. |
§ 8 Order and Supply
of Contractual Products
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(1) |
Within six weeks from the date hereof Inamed shall receive a
training starter set free of charge for six |
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