EXHIBIT 10.8
Certain portions of this exhibit have been omitted based upon a request for
confidential treatment.
Such omitted portions have been separately filed with the Commission.
AMENDMENT NO. 3 TO
DISTRIBUTION AGREEMENT
AMENDMENT NO. 3 TO DISTRIBUTION AGREEMENT (the "Amendment") dated as of
December 1, 1996, by and among NORLAND CORPORATION, a Wisconsin corporation
having its principal place of business at X0000 Xxxxxxxxx Xxxx, Xxxx Xxxxxxxx,
Xxxxxxxxx 00000-0000, U.S.A. ("Norland Corp."), STRATEC MEDIZINTECHNIK, GmbH, a
German corporation having its principal place of business at Xxxxxxxxxxxxxxxx
00, X-00000 Xxxxxxxxx, Xxxxxxx ("Stratec", and, together with Norland Corp., the
"Manufacturers"), and NORLAND MEDICAL SYSTEMS, INC. (formerly named Ostech,
Inc.), a Delaware corporation having its principal place of business at 000
Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, White Plains, New York 10604, U.S.A. (the
"Distributor").
WHEREAS, the Manufacturers and the Distributor are parties to that certain
Distribution Agreement dated as of April 1, 1995, as amended by Amendment No. 1,
dated as of January 1, 1996, and Amendment No. 2, dated as of June 1, 1996 (as
so amended, the "Distribution Agreement"); and
WHEREAS, the Manufacturers and the Distributor desire to amend the
Distribution Agreement in certain respects, as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Norland Corp., Stratec and the Distributor hereby agree
as follows:
1. Exhibit B to the Distribution Agreement is hereby amended by deleting
all countries listed thereon except in Germany. As a result, only Germany shall
be included within the term "Excluded Territory". The words "using pQCT
technology" are hereby deleted from the second sentence of Section 2(b) and from
each of the first two sentences of Section 2(e) of the Distribution Agreement.
2. Section 2(h) of the Distribution Agreement is hereby amended in its
entirety to read as follows:
"(h) Except for (i) sales of Norland Devices and Stratec Devices
pursuant to this Agreement, (ii) sales of Devices manufactured by the
Distributor or any affiliate of the Distributor, and (iii) sales of
Devices using ultrasound technology, the Distributor agrees that during
the Term (as defined below) of this Agreement, it will not distribute or
otherwise sell any Device which competes with any Norland Device or
Stratec Device."
3. Notwithstanding the provisions of Section 3 of the Distribution
Agreement, (i) for the period from October 1, 1996 through December 31, 1997
(the "Norland Corp. Period"), the price to be paid by the Distributor to Norland
Corp. for each Norland Device shall be determined in accordance with paragraphs
4 and 6 below, and (ii) for the period from December 1, 1996 through December
31, 1997 (the "Stratec Period"), the price to be paid by the Distributor to
Stratec for each Stratec Device shall be determined in accordance with
paragraphs 5 and 6 below. The Norland Corp. Period and the Stratec Period shall
be automatically and successively renewed without further action by any party
for an indefinite number of successive one-year
-2-
terms commencing January 1, 1998 and each January 1 thereafter; provided,
however, that Norland Corp. may terminate the Norland Corp. Period and Stratec
may terminate the Stratec Period effective on December 31, 1997 or on any
December 31 thereafter upon written notice to the Distributor not less than 90
days nor more than 180 days prior to the end of such calendar year.
4. Subject to the provisions of Section 6 below, the price to be paid by
the Distributor to Norland Corp. for each Norland Device purchased during the
Norland Corp. Period shall be an amount equal to the Distributor's Device Cost
(as defined below). In addition, with respect to any Norland Device, other than
the XR-36, the Eclipse and the current model of the pDEXA, sold by the
Distributor during the Norland Corp. Period, the Distributor shall pay to
Norland Corp. an additional amount equal to 5% of the purchase price received by
the Distributor for such Norland Device (net of returns, allowances, credits,
etc.).
5. Subject to the provisions of Section 6 below, the price to be paid by
the Distributor to Stratec for each Stratec Device purchased during the Stratec
Period shall be an amount equal to Distributor's Device Cost. In addition, with
respect to each Stratec Device using pQCT technology sold by the Distributor
during the Stratec Period, the Distributor shall pay to Stratec an additional
amount equal to 5% of the purchase price received by the Distributor for such
Stratec Device (net of returns, allowances, credits, etc.).
6. If the aggregate purchase price payable by the Distributor pursuant to
paragraphs 4 and 5 hereof for all Norland Devices purchased in a calendar year
during the Norland Corp. Period and all Stratec Devices purchased in a calendar
year during the Stratec Period would exceed the aggregate purchase price for
such Devices under the Distribution Agreement,
-3-
assuming that the provisions of paragraphs 3 through 5 hereof had never become
effective (the "Original Aggregate Purchase Price"), then the aggregate purchase
price payable by the Distributor to Norland Corp. and Stratec for such Devices
shall be reduced to an amount equal to the Original Aggregate Purchase Price.
Such determination shall be made as soon as practicable following the end of
each calendar year during the Norland Corp. Period and the Stratec Period, and
Norland Corp. and Stratec shall promptly repay to the Distributor any amounts
paid by the Distributor in excess of the Original Aggregate Purchase Price. The
period from October 1, 1996 through December 31, 1997 shall be deemed to be a
single calendar year during the Norland Corp. Period, and the period from
December 1, 1996 through December 31, 1997 shall be deemed to be a single
calendar year during the Stratec Period.
7. The term "Distributor's Device Cost" shall have the meaning set forth
on Annex A attached hereto.
8. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original and all of which taken together shall
constitute one and the same instrument, and any party may execute this Amendment
by signing any such counterpart.
9. Except as specifically amended herein, the terms and provisions of the
Distribution Agreement are in all respects ratified and confirmed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
NORLAND CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
-4-
STRATEC MEDIZINTECHNIK GmbH
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Geschaftsfuhrer
NORLAND MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
-5-
ANNEX A
"Distributor's Device Cost" shall mean, with respect to any Norland Device
or Stratec Device, an amount equal to the sum of (i) *% of the Manufacturer's
Standard Costs of all components and other parts used in such Device, other than
Computer Components, as in effect at the time of shipment of such Device by the
Manufacturer, (ii) 100% of the Manufacturer's Standard Costs of any Computer
Components purchased from the Manufacturer as part of such Device, as in effect
at the time of shipment of such Device by the Manufacturer, (iii) a computer
handling charge of $200 for each Norland Device and DM300 for each Stratec
Device, (iv) the Labor Costs related to such Device, and (v) all sales, excise
or other taxes or duties imposed in connection with the sale of such Device, to
the extent payable by the Manufacturer.
The term "Computer Components" shall mean any computer hardware and
related peripherals, including monitors and printers.
The term "Standard Cost" shall mean, at any time that the Standard Cost of
any component or part is to be established by the Manufacturer, the average cost
to the Manufacturer of all units of such component or part purchased by the
Manufacturer during the preceding six months. If there have been no purchases of
such component or part during such six month period, the then established
Standard Cost shall not be changed. All Standard Costs shall be expressed in
U.S. dollars.
Each Manufacturer shall maintain a list setting forth the Standard Cost of
each component and part used in each Device. This list will be updated by the
Manufacturer at least twice each year. If, at the time the list of Standard
Costs for a particular Device is to be revised, the aggregate Standard Costs of
all components and parts used in such Device would not increase or decrease by
more than 5% from the aggregate Standard Costs of such components and parts then
in effect, the Standard Costs of such components and parts shall not be changed.
The term "Labor Costs" shall mean, with respect to any Device, an amount
equal to the Lesser of (i) the actual labor costs incurred by the Manufacturer
in producing such Device (using standard cost accounting methods) and (ii) *% of
the Manufacturer's Standard Costs of all components and other parts used in such
Device, other than Computer Components.
* = Confidential Treatment Requested
