Exhibit 10.13
FIRST AMENDMENT
TO
AMENDED UF CATHETER EXCLUSIVE OEM/PRIVATE LABEL AGREEMENT
THIS FIRST AMENDMENT TO AMENDED UF CATHETER EXCLUSIVE OEM/PRIVATE LABEL
AGREEMENT ("Amendment") is made this seventh day of May l997 between ROCHESTER
MEDICAL CORPORATION, a Minnesota corporation (herein, "RMC") and HOLLISTER
INCORPORATED, an Illinois corporation (herein, "HOLLISTER").
RECITALS:
Whereas, RMC and HOLLISTER are parties to an Amended UF Catheter
Exclusive OEM Private Label Agreement dated March 18, 1994 (the "1994
Agreement"); and
Whereas, Section 3.2 of 1994 Agreement provides that RMC and HOLLISTER
shall negotiate in good faith for the extension of the 1994 Agreement for a
Successive Term of three (3) years commencing May 1, 1998.
Whereas, the provisions of Section 3.2 of the 1994 Agreement to the
contrary notwithstanding, the parties desire to record their agreement to extend
the 1994 Agreement for a first Successive Term of four (4) years upon the terms
and conditions set forth in this Amendment.
NOW, THEREFORE, the parties hereby agree as follows;
SECTION 1 DEFINITIONS:
Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the 1994 Agreement, as amended herein.
SECTION 2 TERM
2.1 The 1994 Agreement is hereby extended for a first Successive Term
(the "First Successive Term") commencing May 1, 1998 and expiring April 30,
2002.
2.2 Any further extension of the 1994 Agreement shall be made in
accordance with Section 3.2 thereof, and shall be for the Successive Term(s) of
three (3) years each, unless the parties otherwise expressly agree in the future
to a different duration for any Successive Term.
SECTION 3 PURCHASES; PRICES; ORDERS; FULFILLMENT
3.1. Purchases. During the First Successive Term, HOLLISTER shall
purchase Non-Latex Male External Catheters from RMC as provided herein.
3.1.1. During the First Successive Term, HOLLISTER shall purchase
from RMC all of HOLLISTER's requirements of Non-Latex Male External Catheters.
3.1.2. During the First Successive Term, HOLLISTER shall purchase
from RMC a minimum of Four Million (4,000,000) UF Catheters (the "Overall
Quota") at the rate of at least One Million (1,000,000) Catheters per year (the
"Annual Quota"). HOLLISTER shall purchase the Annual Quota in increments of at
least Two Hundred Thousand (200,000) UF Catheters per Term Quarter.
3.1.3. HOLLISTER's obligation to purchase any part of the Annual
Quota of UF Catheters during the First Successive Term shall be abated during
the pendency of an Extenuating Circumstance. The amount of abatement in any Term
Year shall be equal to the Annual Quota multiplied by a fraction whose
denominator is three hundred sixty-five (365) and whose numerator is the number
of days of duration of the Extenuating Circumstance during that same Term Year.
3.1.4. The provisions of ss.4.1.1 of the 1994 Agreement to the
contrary notwithstanding, HOLLISTER may acquire, manufacture and/or sell from a
source other than RMC, including HOLLISTER itself, another or different
non-latex male external catheter(s) having an integral adhesive means upon
twelve (12) months' prior notice to RMC and payment to RMC of an amount (the
"Amount") equal to one hundred ten percent (110%) of the then current remaining
Overall Quota. HOLLISTER may elect to pay the Amount to RMC in cash or to apply
the Amount toward the purchase of UF Catheters at their then current Transfer
Price(s) or toward the purchase of Sheaths at the then agreed price (if
HOLLISTER and RMC have by then agreed to terms and prices for Sheaths).
HOLLISTER may pay the Amount over the duration of the First Successive Term, or
such other time as the parties agree (the "Termination Period"). Payment of the
Amount shall be in lieu of, and not in addition to, HOLLISTER's purchase
obligations. Upon HOLLISTER's notice of intent to sell such other non-latex male
external catheter(s) having an integral adhesive means, HOLLISTER shall
relinquish its exclusive rights set forth in ss.2.1 of the 1994 Agreement, and
RMC shall be immediately released from the limitations on it set forth in ss.2.2
and ss.2.3 of the 1994 Agreement, but RMC shall continue to fill HOLLISTER's
purchase orders, if any, during the Termination Period. Upon payment of the
Amount or the expiration of the Termination Period, whichever comes first, RMC
shall be relieved of any further obligation to sell any Non-Latex Male External
Catheters to HOLLISTER, and HOLLISTER shall be relieved of any further
obligation to purchase any Non-Latex Male External Catheters from RMC.
3.2. Purchase Orders. By April 15, 1998, and by the fifteenth (15th)
day of the first month of each Term Quarter thereafter during the First
Successive Term, HOLLISTER shall provide to RMC a purchase order ("Quarterly
Order") for HOLLISTER's UF Catheter requirements for the immediately following
Term Quarter. HOLLISTER may furnish RMC, from time to time, with additional or
supplemental purchase orders ("Supplemental Order") for delivery within the same
Term Quarter during which such Supplemental Orders are given. RMC will use its
best efforts to fill Supplemental Orders within the same Term Quarter as
received. By the first day of each Term Quarter, RMC shall furnish HOLLISTER
with a shipment schedule for such Term Quarter showing estimated quantities and
shipment dates for deliveries during such Term Quarter and, subject to RMC's
production schedule, reasonably accommodating HOLLISTER's requested shipment
schedule.
3.3. Order Fulfillment. RMC will fulfill HOLLISTER's Quarterly Orders
in three (3) or fewer shipments, depending on RMC's manufacturing schedule for
the applicable Term Quarter, and consistently with the previously furnished
shipment schedule. Provided HOLLISTER is not then in breach of any of its
obligations under the 1994 Agreement, as amended herein, RMC will not place any
Quarterly Order or Supplemental Order received from HOLLISTER on a back-order
status if RMC is then manufacturing the same size and types of UF Catheters for
its own customers. In the event of manufacturing capacity constraints, RMC shall
allocate UF Catheter production reasonably among customers. Provided, further,
that if HOLLISTER's Quarterly Order and Supplemental Orders, in the aggregate,
for delivery in any Term Quarter are reasonably consistent as to sizes and
quantities with its prior purchases during preceding Term Quarters, then, in the
event that RMC is unable to fill any HOLLISTER Quarterly or Supplemental Orders
(i) within thirty (30) days following the end of the Term Quarter for which a
Quarterly Order was placed or (ii) within thirty (30) days following the end of
the Term Quarter succeeding the Term Quarter in which a Supplemental Order was
placed, then HOLLISTER shall be relieved prorata of its purchase obligation
under this Amendment to the extent of the unfilled Quarterly or Supplemental
Orders remaining unshipped at the expiration of those respective periods.
Notwithstanding the foregoing, RMC shall only be required to use its best
efforts to fill such portions of any Quarterly or Supplemental Order that, alone
or when aggregated with all other Quarterly or Supplemental Orders received for
delivery in any Term Quarter during the First Successive Term, is greater than
Four Hundred Thousand (400,000) UF Catheters, and HOLLISTER shall not be
relieved of any purchase obligation for a Term Quarter under this Amendment for
undelivered UF Catheters in excess of Four Hundred Thousand (400,000) UF
Catheters ordered for delivery in any Term Quarter.
3.4. Forecasts. During the First Successive Term, no forecasts are
required under Section 4.4 of the 1994 Agreement.
SECTION 4. NOTICES
The addresses for notices specified in Section 14.1 of the 1994
Agreement are hereby designated as follows:
Xxxxxxx X. Xxxxxx, President
Rochester Medical Corporation
Xxx Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxx 00000
Telefacsimile Number: (000) 000-0000
Xxxxxx X. Xxxxx, Secretary
Hollister Incorporated
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Telefacsimile Number: (000) 000-0000
SECTION 5. CONTINUATION
The 1994 Agreement, as amended herein and except as otherwise
inconsistent with the terms hereof, shall continue in full force and effect
during the First Successive Term. Paragraphs one (1) through five (5) inclusive
and paragraph nine (9) of that Supplemental Agreement dated March 18, 1994,
shall continue in full force and effect during the First Successive Term.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed by its duly authorized representatives as of the day and year first
above written.
ROCHESTER MEDICAL CORPORATION, HOLLISTER INCORPORATED,
a Minnesota corporation an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxx
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Xxxxxxx. X. Xxxxxx Xxx Xxxxxx,
President and Secretary Senior Group Vice President
ATTEST: ATTEST:
By: /s/Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxx X. Xxxxxxxxxxx Xxxxxx X. Xxxxx
Chief Financial Officer Secretary
