Exhibit 10.9.2
DISTRIBUTOR
AGREEMENT
AMENDMENT NO. 2
This Amendment No. 2 is entered
into as of January 1, 2005 (the “Amendment No. 2
Effective Date”) by and between Fisher Scientific Company
L.L.C., having a place of business at 2000 Park Lane, Pittsburgh,
Pennsylvania 15275, on behalf of itself, its parent, subsidiaries
and affiliates (collectively, “Distributor”) and TVI
Corporation (“Supplier” or “TVI”), with
offices at 7100 Holladay Tyler Road, Suite 300, Glenn Dale,
Maryland 20769. In consideration of the mutual promises and
covenants hereinafter set forth, the parties acknowledge and agree
that the Distributor Agreement entered into as of April 3,
2002, by and between the parties (the “Original
Agreement”), as amended in the Distributorship Agreement
Addendum, dated February 25, 2003 (“Amendment
No. 1”) (collectively, the “Agreement”), is
hereby amended as follows, but that such Agreement shall otherwise
continue in full force and effect:
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1.
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The parties
agree to amend Section 1.2 of Amendment No. 1 as
follows:
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a.
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Replace the
first sentence with the following:
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“Prices. The prices payable
for the Products shall be the then-current manufacturer’s
suggested retail price for such Products (“Minimum
Prices”), subject to the applicable discount described in
Section 14, “Supplier Warranties
.”
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b.
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Delete the last
sentence and add the following sentences:
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“Minimum Prices may be
increased by Supplier [OMITTED] * , provided that such increases are
reasonably commensurate with increases in the costs of
manufacturing such Products. TVI, in its sole discretion, may make
documentation supporting such increases available to Distributor
upon request. Shipments shall be billed at the price in effect at
time of order placement.”
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2.
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The parties
agree to amend Section 5, “Termination ,”
of the Original Agreement by replacing the second occurrence of
“sixty (60)” with “ninety (90)” and by
adding the following sentence at the end thereof:
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“For the avoidance of
ambiguity, Supplier shall continue to honor Distributor’s
purchase orders for Products submitted prior to the effective date
of termination, pursuant to all of the terms of the
Agreement.”
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3.
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The parties
agree to amend Section 2. “Product and Markets and
Customer Type (Market) ,” as described in Amendment
No. 1, as follows:
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a.
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Delete
Section 2.1, “Products” in its entirety and
replace it with the following provision:
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“2.1 Products . The
products covered by this Agreement are those Decontamination
Products and Infection Control Products (collectively, the
“Products”) identified in Appendix A , and any
improved or updated versions thereof, including accessories
designed for such Products.”
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b.
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Delete
Section 2.2, “Market and Customer Types” in
its entirety.
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c.
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Amend the
section reference of “ Similar or Related Products
,” from Section 2.3 to Section 2.2
.
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The parties further agree that the
attached Appendix A shall replace Exhibit A to the Original
Agreement and Appendix A to Amendment No. 1.
* MATERIAL NOTED AS [OMITTED] IS CONFIDENTIAL
AND HAS BEEN OMITTED, PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT, AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
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4.
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The parties
agree to delete Section 3, “Grant of Rights
,” as described in Amendment No. 1, in its entirety and
replace it with the following provisions:
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3.1 Supplier hereby appoints
Distributor and Distributor hereby accepts the appointment as a
non-exclusive distributor of the Decontamination Products in the
Territory during the term of this Agreement and pursuant to the
terms of this Agreement. Additionally, Supplier hereby appoints
Distributor and Distributor hereby accepts the appointment as a
non-exclusive distributor of the Infection Control Products during
the term of this Agreement and pursuant to the terms of this
Agreement, also in the Territory. The term of this Agreement will
be effective until December 31, 2005, and it will renew
annually thereafter unless either party provides written
termination notification to the other party at least sixty
(60) days prior to the expiration of the term of its intention
not to renew. “Territory” means the United States of
America, Puerto Rico, Guam and the U.S. Virgin Islands. For
purposes of selling to the U.S. Government, including without
limitation any or all of the branches of the U.S. Military there
shall be no territorial restrictions; provided that any U.S.
Military order is invoiced to, and paid from, a continental U.S.
mailing address.
3.2 Distributor shall exercise its
good faith efforts to meet the minimum sales goal for the Products
for 2005 of [OMITTED]*.
3.3 In the event that Supplier
receives a request for the Products from a potential applicable
customer, Supplier may ask Distributor to quote or contact such
potential customer on Supplier’s behalf. For all orders in
which Distributor provides quotes directly to a customer, whether
or not referred to Distributor by Supplier, and successfully
secures the order from Customer, Distributor shall be entitled to
the applicable discount as described in Section 14,
“Supplier Warranties .”
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5.
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The parties
agree to delete the third and fourth sentences in
Section 4.7, “Sales and Marketing Support ”
in Amendment No. 1.
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6.
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The parties
agree to insert the following section and language immediately
following Section 3, “Grant of Rights ,” as
described in Amendment No. 1 and amended herein:
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“6.
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TVI GSA
Contracts and Customers .
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6.1 The parties agree that Supplier
has established the following U.S. G
