Exhibit 10.1
AMENDMENT 11
TO THE
SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN
ICU MEDICAL SALES, INC.
AND
XXXXXX LABORATORIES
This Amendment 11 (this "AMENDMENT"), effective this 14th day of
January, 2004 (the "Effective Date") is made to the Supply and Distribution
Agreement dated April 3, 1995, as amended by Amendment 1 dated September 9,
1997, Amendment 2 dated November 13, 1997, Amendment 3 dated January 9, 1998,
Amendment 4 undated, unnumbered Amendment dated November 27, 1998, Amendment 5
dated January 14, 1999, Amendment 6 dated July 16, 1999, Amendment 7 dated
January 1, 2000, Amendment 8 dated February 27, 2001, Amendment 9 dated August
7, 2001 and Amendment 10 dated December 31, 2001 between ICU Medical, Inc.
("ICU") and Xxxxxx Laboratories ("Abbott") for the purchase and sales of certain
Products (the "Agreement").
The parties agree to amend the Agreement as follows:
1. INCORPORATION OF THE AGREEMENT. All capitalized terms which are
not defined herein shall have the same meanings as set forth in
the Agreement, and the Agreement, to the extent not inconsistent
with this Amendment, is incorporated herein by this reference as
though the same was set forth in its entirety. To the extent any
terms and provisions of the Agreement are inconsistent with the
amendments set forth below, such terms and provisions shall be
deemed superseded hereby. Except as specifically set forth herein,
the Agreement shall remain in full force and effect and its
provisions shall be binding on the parties hereto.
2. ACKNOWLEDGEMENT OF ASSIGNMENT. The Agreement was, effective July
1, 2002, assigned to ICU Medical Sales, Inc. All references to ICU
shall be deemed to be references to ICU Medical Sales, Inc.;
provided, however, that nothing this Amendment shall be deemed to
release ICU from any obligation or liability to Abbott under the
Agreement.
3. TERM. The text of Section 14 of the Agreement shall be deleted in
its entirety and shall be replaced by the following:
"This Agreement shall be effective on the Effective Date and,
unless terminated in accordance with Section 15, shall expire
on December 31, 2014."
4. ADDITION OF PRODUCTS. Section 1 of the Agreement shall amended by
inserting the following:
1.6.6 The 1o2 Valve product and all modifications or
extensions thereof.
1.6.7 The Xxxxx Valve product and all modifications or
extensions thereof.
1.6.8 ICU agrees to timely notify Abbott of improvements to
any Products and to notify Abbott of any new needle safe I.V.
administration set connector, and give Abbott the ability to
purchase such products upon initial introduction by ICU into
the market if the parties agree on contractual terms.
5. PURCHASE AND SALE; EXCLUSIVITY. Sections 3.3 through 3.13 of the
Agreement shall be deleted in their entirety and shall be replaced
with the following:
3.3 ICU grants to Abbott the exclusive right to market, sell
and distribute all Products in all Abbott Full Line IV
Contract Accounts in the United States and Canada. ICU
grants to Abbott the non-exclusive right to market, sell
and distribute all Products to all customers other than
Abbott Full Line IV Contract Accounts in the United
States and Canada.
3.4 Notwithstanding the exclusive rights granted to Abbott in
Section 3.3, ICU shall have the right to sell Products
for inclusion in or on medical kits and trays that may be
sold into Abbott Full Line IV Contract Accounts in the
United States.
3.5 ICU additionally grants to Abbott the exclusive right to
market, sell and distribute all Products to all customers
in all countries set forth on Exhibit 3.5 attached
hereto. ICU grants to Abbott the non-exclusive right to
market, sell and distribute all Products to all customers
in all countries outside the United States and Canada
that are not set forth on Exhibit 3.5; it being
understood and agreed by the parties that ICU may also
market, sell and distribute Products, either directly or
indirectly, in all countries outside the United States
and Canada that are not set forth on Exhibit 3.5.
3.6 ICU shall use its best efforts to obtain and enforce
agreements with other entities to whom it sells Products
to honor the exclusive rights granted to Abbott
hereunder. Such best efforts shall not require that ICU
terminate its agreements with entities that refuse to
honor such exclusive rights.
3.7 As a condition to maintaining the exclusive rights
granted to Abbott under Sections 3.3 and 3.5, Abbott will
continue to promote Products supplied by ICU and shall
not substitute connectors from third party sources.
Abbott shall use reasonable commercial efforts to achieve
sales growth in connectors supplied by ICU. In any
country that ICU deems that Abbott has not complied with
its obligations under this Section 3.7, ICU shall notify
Abbott and the parties shall meet to discuss such deemed
failure. ICU's sole remedy with respect to any failure by
Abbott under this Section 3.7 shall be that, upon request
of ICU, the distribution arrangement shall be converted
to non-exclusive, on a country-by-country basis in any
country in which any failure has occurred.
3.8 With respect to any appointment of Abbott as a
distributor under this Agreement (whether the appointment
is exclusive or non-exclusive), Abbott shall have the
express right to appoint one or more sub-distributors."
6. PRICING.
a. A new Section 6.5(b) shall be added to the Agreement as
follows.
"The prices for the 1o2 Valve and the Xxxxx Valve shall
be as set forth in Exhibit 6.5(b). Revenue sharing, as
described in Sections 6.2, 6.3, 6.4 and the first
sentence of paragraph 6.6 shall not be applicable to the
1o2 Valve and the Xxxxx Valve Products."
b. A new Exhibit 6.5(b) shall be added to the Agreement
which shall read as set forth on Exhibit 6.5(B) attached
hereto.
7. ASSIGNMENT. Section 24 of the Agreement shall be amended by adding
the following language to the end of the existing text:
"Abbott intends to transfer its core hospital products
business to a newly formed entity ("Newco") as described in a
press release issued by Abbott on August 22, 2003.
Notwithstanding anything to the contrary contained herein,
Abbott shall have the right to assign all of its rights and
obligations hereunder to Newco or a majority-owned subsidiary
of Newco. If Abbott effects an assignment pursuant to the
previous sentence, Abbott shall relinquish all of its rights
and shall have no further rights or obligations hereunder.
Thereafter, there shall be a contractual obligation solely
between Newco (or a majority-owned subsidiary of Newco, as
applicable) and ICU for performance of the obligations
hereunder that were previously the obligations of Abbott."
8. EFFECTUATION. The amendments to the Agreement contemplated by this
Amendment shall be deemed effective as of the date first written
above upon the full execution of this Amendment and without any
further action required by the parties hereto. There are no
conditions precedent or subsequent to the effectiveness of this
Amendment.
9. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same
instrument. One or more counterparts of this Amendment may be
delivered by facsimile, with the intention that delivery by such
means shall have the same effect as delivery of an original
counterpart thereof.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE TO AMENDMENT 11]
IN WITNESS WHEREOF, the parties, intending to be bound by the terms and
conditions hereof, have caused this Amendment to be signed by their duly
authorized representatives.
XXXXXX LABORATORIES ICU MEDICAL SALES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx, M.D.
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Xxxxxxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx, M.D.
President, Chief Executive Officer
Hospital Products Division
