EXHIBIT 10.4
ASSIGNMENT AND ASSUMPTION AGREEMENT
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This AGREEMENT is made and entered into as of April 12, 2002 (the
"Agreement"), by and between Bionix, L.L.C., a Delaware limited liability
company ("Assignor") and Orthometrix, Inc., a Delaware corporation ("Assignee").
W I T N E S S E T H
WHEREAS, Assignor and Genemed GmbH, a Swiss corporation ("Genemed") have
entered into a certain Distribution Agreement, dated February 16, 2001, as
amended as of April 1, 2001 (as so amended, the "Genemed Agreement"); and
WHEREAS, Assignor has agreed to assign to Assignee all right, title, and
interest of Assignor in, to and under the Genemed Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Assignor hereby assigns and transfers, as of the day and year first
above written (the "Closing Date"), all of Assignor's right, title and interest,
arising from and. after the Closing Date, under and pursuant to the Genemed
Agreement.
2. Assignee hereby assumes, from and after the Closing Date, and agrees to
pay, discharge and perform, as and when the same shall become due, all of the
obligations of Assignor, arising from and after the Closing Date, pursuant to
the Genemed Agreement.
3. Assignee shall have whatever rights Assignor has relating the Genemed
Agreement, including the rights to contest in good faith the legality, validity
or enforceability of the Genemed Agreement.
4. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
5. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
instrument.
6. This Agreement and all the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
legal beneficiaries and permitted assigns. This Agreement may not be assigned by
any party except with the prior written consent of the other party hereto, which
shall not be unreasonably withheld.
(a) Genemed shall retain all distribution rights for the Devices in areas
outside the Territory. Genemed represent and warrants that it has duly been
granted clearance to market the device in the United States by the FDA, and that
no other person or entity has any distribution or similar rights in the
Territory with respect to Devices.
(b) Nothing herein shall be deemed to prohibit Genemed from participating
anywhere within the Territory in any manner in any clinical study or research
involving any devices or related thereto or in the manufacture or assembly of
Devices.
Section 2. PRICES AND PAYMENTS
(a) Distributor will establish the net selling price of each Device in the
Territory, initially at $* (net of commissions, discounts, etc...). The price to
be paid by Distributor to Genemed for each Device sold to Distributor in the
Territory shall be *% of the net selling price received by Distributor, i.e.
initially $*. Prices shall be reviewed from time to time and at least annually
prior to each anniversary date. While the price of Devices shall not be
arbitrarily increased or decreased without justification, the parties recognize
that price variations may be required from time to time to reflect changes in
the cost of labor, materials and component parts, exchange rate fluctuations,
the volume of sales, market conditions, and other relevant commercially
justified circumstances. In particular, Distributor's net selling price in the
Territory may eventually decrease between two price revisions due to increased
competition. In such a case and until the next price revision, Genemed will
accordingly agree to change the price paid by Distributor so that Distributor
absorbs *% of such decrease and Genemed *%.
(b) Genemed will provide Distributor regular access to several reference
sites in the Territory, the number and location of such sites to be agreed upon
between the parties. Genemed will also provide Distributor with at least one
demonstration or mock-up system at no cost to be used at medical exhibits.
(c) Prices for the Devices are FOB Danbury, CT. Shipment of each system
shall be arranged by Genemed (with shippers reasonably acceptable to
Distributor), and such shipment shall be made to Distributor or to Distributor's
customer, as directed by Distributor. Genemed will arrange for shipper to xxxx
Distributor for shipping costs. Genemed will deliver good and marketable title
to each Device, free of all liens and encumbrances.
(d) Genemed and Distributor have set as a target the sale of forty (40)
systems by Distributor during the first twelve-month period following the
signature of this Agreement. Prior to each anniversary date, Genemed and
Distributor will set a target for sales of Devices for the succeeding
twelve-month period. Such figures will be non-binding targets only, and if
Distributor
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* Confidential treatment requested
does not sell the targeted amount, Distributor shall not be penalized in any
manner and Genemed shall not be entitled to terminate this agreement or make any
claim against Distributor for any loss, damages, liability, costs or expenses
suffered or incurred by Genemed arising therefrom of or in connection therewith
except where such failure arises from the breach by the Distributor of its
obligations hereunder.
(e) Prices for any Device other than the Genestone systems shall be
negotiated in good faith by Distributor and Genemed.
(f) Payment terms for each Device purchased by the Distributor shall be as
follows: 1/3 (one third) of the purchase price shall be paid net thirty (30)
days from installation of the Device, and the balance of the purchase price
shall be paid net sixty (60) days from delivery of the Device. All payments
pursuant to this Agreement shall be in U.S. dollars.
Section 3. TERM
Subject to the provisions of Section 4 hereof, the appointment of the
Distributor under this Agreement shall be for an initial term commencing on the
date hereof and ending on February 28, 2004 (the "Initial Term"), and thereafter
shall be renewed for successive one-year terms (each such additional term, a
"Renewal Term"); provided, however, that any time during the period beginning
180 days prior to, and ending 90 days prior to, the end of the Initial Term or
any Renewal Term, Genemed, by written notice to Distributor, or Distributor, by
written notice to Genemed, may elect to end such appointment effective at the
end of such initial Term or Renewal Term. The Initial Term and any Renewal Terms
shall constitute the "Term" of this Agreement.
Section 4. TERMINATION
(a) Upon the occurrence of (i) an Act of Bankruptcy (as defined below) with
respect to Distributor, or (ii) a Material Breach (as defined below) by
Distributor, which Material Breach continues for a period of 90 days following
written notice thereof from Genemed to Distributor, Genemed may elect to end the
Term of the Distributor's appointment under this Agreement with respect to all
Devices.
(b) Upon the occurrence of (i) an Act of Bankruptcy with respect to
Genemed, (ii) a Material Breach by Genemed, which Material Breach continues for
a period of 90 days following' written notice thereof from Distributor to
Genemed or (iii) the Genestone system is not functioning properly and/or in
accordance with all claims made by Genemed, Distributor may elect to end the
Term of its appointment hereunder with respect to all Devices.
(c) Notwithstanding any other provision of this Agreement, (i) it shall
constitute a Material Breach by Distributor if Distributor does not use its good
faith best endeavors to promote the sale of the Devices throughout the
Territory, particularly in accordance with section 9 (d), and (ii) Distributor
shall have the right to terminate its appointment hereunder of a Device is not
competitive in the market place.
(d) As used in this Agreement:
The term "Act of Bankruptcy" shall mean, with respect to any party
(i) The filing of an application by such party for, or a consent to
the appointment of a trustee or receiver of all or substantially all
of such party' assets:
(ii) The filing by such part of a voluntary petition in any Bankruptcy
Proceeding or the filing of a pleading in any court of record
admitting in writing such party's inability to pay such party's debts
as they come due;
(iii) The making by such part of a general assignment for the benefit
of creditors.
(iv) The filing by such party of an answer admitting the material
allegations of, or such party's consenting to, or defaulting in
answering, any Bankruptcy Proceeding filed against such party; or
(v) The entry of an order, judgment or decree by any court of
competent jurisdiction adjudicating such party a bankrupt or
appointing a trustee or receiver of all or substantially all of such
party's assets.
The term "Bankruptcy Proceeding" shall mean any bankruptcy or similar
proceeding under the laws of any jurisdiction including the United States, any
state or any foreign country. The term "Material Breach" shall mean, with
respect to either party, the failure of such party to perform its material
obligations under this Agreement.
(e) Upon the termination for any reason of the appointment of the
Distributor, the Distributor will complete all orders from customers for Devices
which it has accepted up to the date of termination and Genemed will complete
all orders for Devices which it has accepted from Distributor. Distributor shall
send Genemed a detailed list of the accounts marketed during the Term of this
Agreement (the "Protected Accounts"). Notwithstanding the termination of this
Agreement, Distributor will continue during a twelve month period following the
termination date, to be exclusively authorized to sell the Devices to the
Protected Accounts at the prices in effect at the time of termination or at
prices granted by Genemed to third parties, whichever is more favorable to
Distributor. Notwithstanding the termination of this Agreement, Distributor will
continue to be exclusively authorized to sell consumables to its customers,
including the Protected Accounts, at the prices in effect at the time of
termination or at prices granted by Genemed to third parties, whichever is more
favorable to Distributor;
(f) Genemed covenants and agrees that following any termination pursuant to
Section 3 hereof or this Section 4 (except for a termination pursuant to any of
Section 4(a)(i) or 4(c) (ii), hereof), Genemed shall not at any time thereafter
directly or indirectly use, employ, or enter into any arrangement with any
distributor or sub-distributor then used by Distributor to sell any Devices.
Section 5. WARRANTY
(a) Genemed warrants that each Device shall be free from defects in design,
material and workmanship. Genemed warranty period shall be twelve months from
date of installation of the Device at the end-user's facility; provided,
however, in no event shall Genemed warranty extend beyond 18 months from the
date of shipment to Distributor; provided, further that with respect to any
computer and/or printer provided by Genemed with any Device, the warranty period
shall be the warranty period provided by the manufacturer of such computer
and/or printer; and provided further, that if Genemed grants to any purchaser or
user of a Device any warranty which extends beyond the warrant contained in this
Section 5, Distributor shall also receive the benefits of such extended
warranty.
(b) Except as specifically provided herein, there are no other warranties,
expressed or implied, including, but not limited to, any implied warranties or
merchantability or fitness for a particular purpose with respect to Devices.
Defective or damaged goods shall be repaired or replaced at the expense of
Genemed, provided the same are transported to Genemed's applicable U.S. facility
at no cost to Genemed. Genemed shall bear the transportation costs of shipping
any repaired or replacement goods back to Distributor or its customers.
(c) Genemed will provide to Distributor at no cost to Distributor (i) the
number of Devices as shall be agreed from time to time to be available for
temporary use by customers in the U.S.A. when Devices are required to be
returned to Genemed for warranty repairs and (ii) such spare parts as shall be
agreed from time to time for use by Distributor in providing warranty repairs.
Genemed will continue to be the owner of such units and parts (in the case of
such parts, until they are used by Distributor pursuant to this Section 5 (c)).
(d) The provision of this Section 5 shall in no way limit the
indemnification obligations of Genemed under Section 12 hereof.
Section 6. SERVICE
(a) Subject to the provision of this Section 6, Distributor shall provide
all installation and maintenance service with respect to all Devices sold by
Distributor pursuant to this Agreement, in respect of which Distributor will
establish its own charges for parts, labor and consumables. With respect to
Device spare parts used-by Distributor for non-warranty service, the price to be
paid to Genemed by Distributor for such spare parts for resale to its customers
is listed on Exhibit B. Terms for amounts payable by Distributor to Genemed, and
by Genemed to Distributor, pursuant to this section 6(a) shall be net 60 days.
Distributor may appoint one or more agents to provide service for Devices,
subject in each case to the prior written approval of Genemed, which approval
shall not be unreasonably withheld.
(b) Genemed will, from time to time during the Term of this Agreement upon
at least one month's notice by Distributor (or any shorter period agreed to by
the parties), provide training to personnel designated by Distributor on the
servicing and maintenance of any device. Such training shall take place in the
United States, either at a facility of Distributor or at Genemed's facility or
such other venue as shall be agreed between the parties. Such training,
including training materials related to the training courses, shall be provided
by Genemed free of charge; provided however, that Distributor and Genemed shall
each be responsible for the travel, accommodations and other out-of-pocket
expenses incurred by their respective personnel in connection with such
training.
Section 7. GOVERNMENT APPROVALS
Genemed shall be responsible, at its own cost and expense, for obtaining
all approvals of governmental authorities required by law for the manufacture
and sale of each Device. Distributor covenants and agrees to co-operate with
Genemed in the approvals contemplated-by this Section 7.
Section 8. INSURANCE
Genemed shall maintain at least SFR 5,000,000 of product liability
insurance in the United States and Canada pursuant to policies which shall cover
Distributor as an additional named insured (with no liability for premium
payments). Such insurance shall remain in force during the Term and for a
minimum of five years following its termination. Genemed will consult with
Distributor at least annually to consider increasing or decreasing the amount of
such product liability insurance coverage. If Genemed and Distributor deem it
advisable to increase the amount of such coverage, Genemed will obtain such
additional insurance to the extent available on commercially reasonable terms.
Genemed and Distributor may also agree to decrease the amount of such coverage;
provided, however, that in no event shall coverage be reduced below SFR
5,000,000. Genemed agrees that upon request from Distributor, Genemed will
promptly submit certificates of insurance to Distributor evidencing the coverage
required by this Agreement. Such insurance shall be with companies reasonably
acceptable to Distributor, and Genemed will use its best efforts to have such
insurance policies provide that they may not be canceled or materially changed
except on at least 30 days' prior written notice to Distributor.
Section 9. DUTIES OF DISTRIBUTOR
(a) Distributor will use its good faith best efforts to promote the sale of
each Device and, in connection therewith, will conduct what it believes to be
appropriate advertising of such Device. Distributor will bear the cost of such
advertising, and will prepare, at its expense, sales brochures and other
relevant literature from information and materials, which shall be made
available by Genemed. Distributor will exhibit each Device at exhibitions and
trade shows as the Distributor, in; its sole discretion, may deem appropriate.
Distributor will use Genemed's trademarks and trade names in promoting and
selling the Devices
(b) Except for sales of Devices pursuant to this Agreement, Distributor
agrees that during the Term of Distributor's appointment hereunder, it will not
distribute or sell any other system that is directly in competition with the
Genestone systems.
(c) Distributor will deliver to Genemed, within 45 days of the end of each
calendar quarter, a report setting forth:
(i) total sales of each Device in the preceding quarter.
(ii) estimated sales for each Device in the next quarter;
(iii) a summary of Distributor's views as to current market conditions
for each Device and for its competition; and
(iv) such other information as Genemed may reasonably request.
(d) Distributor will market the Device at a minimum aggregate number of
twelve (12) exhibits, trade shows and/or medical product conferences per
twelve-month period.
(e) Distributor will follow technical instructions provided by Genemed with
respect to the installation, use and care of each Device and will promptly
advise Genemed if Distributor becomes aware of any matters adversely affecting
the use of a Device.
(f) Distributor will, in all correspondence and dealings relating to the
sale of any Device clearly indicate that it is acting as principal, and at no
time will Distributor have any power or authority to assume any obligation of
any kind implied or express on behalf of Genemed.
(g) Distributor will endeavor to keep Genemed informed as to matters which
it believes are likely to be of interest to Genemed with respect to market
conditions in the Territory for a Device, including information, recommendations
or opinions expressed by customers of the Distributor relating to the Device's
performance. Distributor will also promptly advise Genemed of; any improper or
wrongful use of Genemed's trademarks or other intellectual property rights that
may come to the attention of Distributor and will assist Genemed, at Genemed's
request and expense, in taking steps to defend the rights of Genemed.
(h) Upon the termination of its appointment hereunder the Distributor shall
return to Genemed all documents received from Genemed and relating to the
Devices, and all copies thereof except for those documents the Distributor is
required to retain by law or normal accounting practices. The Distributor shall
require that each of its sub-distributors throughout the Territory agree to do
likewise upon their appointment ceasing. The Distributor shall maintain in
strict confidence through the Term and for a period of two years thereafter all
information concerning Genemed and the Devices which is not public knowledge and
shall require that is sub- distributors agree to do likewise at the time of
their appointment.
Section 10. DUTIES OF GENEMED.
(a) Genemed will supply Distributor with a sufficient quantity of each
Device to enable Distributor to fill all orders for such Device from its
customers on a timely basis.
(b) Genemed covenants and agrees that each Device sold to Distributor will
meet all standards and specifications applicable to such Device and will be in
compliance with all applicable requirements of law and all governmental and
regulatory authorities, including without limitation, U.S. FDA and Canadian CSA
Quality System Regulation requirements.
(c) Genemed will supply Distributor with (i) all technical information
applicable to each Device and (ii) such other information as Distributor may
reasonably request for use in preparing' product brochures and other promotional
materials.
(d) Exhibit C hereto lists all patent, trademark and related rights held by
Genemed with respect to the Devices (the "Patent and Related Rights"). Genemed
represents and warrants to Distributor that except as disclosed on Exhibit C,
Genemed owns all the right, title and interest in and to the Patent and Related
Rights; that Genemed is unaware of any infringing uses of the Patent and Related
Rights; that the Patent and Related Rights are not the subject of any challenge;
and that the Patent and Related rights do not interfere with, violate or
infringe upon any rights of any third party.
Section 11. LABELLING
Distributor will not remove Genemed's original manufacturer's label from
any Device. Genemed will also place on each Device, in a manner not to detract
from the manufacturer's label, a label identifying Distributor, using a label
design provided to Genemed by Distributor.
Section 12. INDEMNIFICATION
Subject always to the proviso of this section,
(a) Genemed hereby agrees to indemnify and hold harmless Distributor, its
subsidiaries and affiliates and its and their agents, officers, directors,
employees, representatives, successors and permitted assignees from and against
any and all claims, suit, actions or proceeding for loss, injury, damage or
liability, including reasonable attorney's fees, which in any way result from,
arising out or related to the development and manufacture of any Device
(including any design or other defect).
(b) Genemed represents and warrants that the Devices do not and will not
infringe upon the patent, trademark, copyright or other intellectual property
rights of any third party. Genemed agrees to indemnify and hold Distributor and
its customers harmless from and against all damages, liability, costs and
expenses, including reasonable attorney's fees arising from any claim of a third
party of infringement of patent, trademark, copyright or other intellectual
property rights in the manufacture use or sale of the Devices. Genemed covenants
and agrees to use its best efforts to
undertake the defense of any such claim of infringement by counsel of its choice
and at its expense. Distributor shall assist Genemed to the extent reasonably
required for such defense. In case the manufacturing, marketing, sale or use of
any Device or component thereof is held by a court to constitute or involve the
infringement of a patent, trademark or copyright, Genemed shall at its own cost
either procure for Distributor or its customers the right to continue using such
Device, or modify the Device so that it becomes non-infringing, or accept the
return of such Devices and refund the purchase price plus transportation costs
and duties paid thereon. Genemed covenants and agrees to use its best efforts to
protect all intellectual property rights relating to the Devices where it is
commercially prudent so to do, PROVIDED ALWAYS however that the indemnity
provided by this Section shall not extend to any claim, suit, action or
proceeding for loss, injury, damage or other liability directly or indirectly
caused by the negligence or gross carelessness of the Distributor, its
sub-distributors and their respective employees and agents or any one or more of
them.
Section 13. FORCE MAJEURE
Neither party shall under any circumstances be liable for failure to
perform any obligation hereunder if such failure results from causes beyond such
party's control such as fires, insurrection, riots, embargoes, wrecks and
regulations of any civil or military authority.
Section 14. ASSIGNMENT
Neither party hereto may assign, delegate or otherwise transfer this
Agreement, or any of its rights and obligations hereunder, or any portion
thereof, without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided, however, that either party may
assign this Agreement without the consent of the other in connection with a
merger, consolidation or other change in control of such party or a sale of all
or substantially all of such party's assets (provided that as a result of such
transaction the resulting entity does not have distribution rights with respect
to a system that directly competes with the Device). Subject to the foregoing,
this Agreement shall inure to the benefit of the parties and their respective
permitted successors and assigns.
Section 15. ARBITRATION
(a) Any controversy or claim arising out of or relating to this Agreement,
or any breach thereof, including, without limitation, any claim that this
Agreement, or any part hereof, is invalid, illegal or otherwise voidable or
void, shall be submitted to arbitration in New York, New York in accordance with
the rules of the American Arbitration Association. Any award or determination of
the arbitration tribunal shall be final, non-appealable, and conclusive upon the
parties, and; judgment thereon may be entered by and court of competent
jurisdiction.
(b) Nothing in Section 15 (a) shall prevent either party from seeking
injunctive relief before the appropriate courts where circumstances permit such
relief.
Section 16. REMEDIES
No remedy conferred herein is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and may be exercised singly
or concurrently, and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by statute or otherwise.
Section 17. CONFIDENTIALITY
All confidential or proprietary information provided by one party to the
other pursuant to this Agreement shall be held in confidence by the other party,
shall be used solely for the purposes contemplated by this Agreement and shall
not be disclosed to any third party by such party without prior written consent
of the other party, except as contemplated by this Agreement.
Section 18. NOTICES
All notices given by the parties hereunder shall be in writing and shall be
personally delivered or mailed by registered or certified mail, return receipt
requested, by overnight courier or by facsimile transmission to the intended
recipient thereof at the address or facsimile number set forth below. Any such
notice shall be deemed to have been duly given when delivered personally or by
overnight courier and/or given by confirmed facsimile or five days after
mailing. The addresses and facsimile numbers of the parties for purposes of this
Agreement are as follows:
If to Genemed:
Genemed GmbH
Xxxxxxxxxxxxxxxxx 0
Kreuzlingen
Attention: Xxxx Xxxxxxxxx
Fax No.: 00-000 0000 000
If to Distributor:
Bionix, L.L.C.
000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000.
Attention: Xxxxxxx X. Xxxxxxx
Fax No.: 0-000-000-0000
Or such other address as either party shall designate in writing to the other
Section 19. ENTIRE AGREEMENT
This Agreement is the entire agreement among the parties hereto relating to
the subject matter hereof, and it cancels and supersedes all earlier agreements,
written or oral relating to the subject matter hereof. No waiver, modification
or change of any of the terms of this Agreement shall be valid unless in writing
and signed by duly authorized representatives of the parties.
Section 20. SEVERABILITY
If any term or provision of this Agreement shall at any time be held to be
void, invalid or unenforceable. Such term or provision shall be construed as
severable from this agreement, and the remainder of this Agreement shall be
carried out as if such void, invalid or unenforceable terms or provisions were
not contained herein.
Section 21. AUTHORITY
Each party represents and warrants to the others that the execution and
delivery of this Agreement and the performance of the provisions hereof by such
party have been duly authorized by all necessary corporate action and that this
Agreement has been duly and validly executed and delivered by such party and
constitutes a valid and legal bind agreement enforceable against such party in
accordance with its terms.
Section 22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without reference to the choice of law principles
of such laws.
Section 23. RELATIONSHIP OF PARTIES
The relationship between Genemed and the Distributor is that of independent
contractors. No party hereto is an agent, partner or employee of the other and
no party has any right or any other authority to enter into any contract or
undertaking in the name of or for the account of the other or to assume or
create any obligation of any kind, express or implied, on behalf of the other,
nor will the act or omissions of either create any liability for the other. This
Agreement shall in no, way constitute or give rise to a partnership between the
parties.
Section 24. HEADINGS
The headings contained in this Agreement are for purposes of reference only
and shall not limit or otherwise affect the meaning of any provision hereof.
Section 25. COUNTERPARTS
This Agreement 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 Agreement by signing
any such counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
GENEMED GMBH
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President
BIONIX L.L.C.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
EXHIBIT A
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TERRITORY
o The United States of America and its territories and possessions;
o Canada.
EXHIBIT B
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SPARE PARTS and CONSUMABLES
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Name Distributor's Price MRSP
------- ------------------- ----
Confidential treatment requested
EXHIBIT C
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PATENTS & TRADE MARKS
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1. US Patent No:
2. European Patent No:
Countries covered:
AMENDMENT TO DISTRIBUTION AGREEMENT
AMENDMENT TO DISTRIBUTION AGREEMENT, dated as of April 1, 2001 by and among
GENEMED GMBH, a Swiss corporation ("Genemed"); and BIONIX, L.L.C., a Delaware
limited liability company ("Distributor").
WHEREAS, the parties hereto are parties to that certain Distribution
Agreement dated as of February 16, 2000 (the "Agreement"), pursuant to which
Bionix is the exclusive distributor in the Territory of the Devices developed
and manufactured by Genemed.
WHEREAS, the parties desire to amend the Agreement is provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
i. Capitalized Terms. All capitalized terms used in this Amendment are
not otherwise defined herein shall have the meaning to such terms in the
Agreement.
ii. Prices and Payments. The second sentence of Section 2 (a) shall be
replaced in its entirety as follows:
"THE PRICE TO BE PAID BY DISTRIBUTOR TO GENEMED FOR EACH DEVICE SOLD TO
DISTRIBUTOR IN THE TERRITORY SHALL BE $*."
iii. Ratification. Except as specifically amended hereby, the Agreement
is in all respects ratified and confirmed.
iv. Counterparts. This Amendment may be executed in any number of
counterparts, and all of such counterparts shall for all purposes constitute on
agreement, binding on the parties hereto, notwithstanding that all parties are
not signatories to the same counterpart
v. Applicable Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
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* Confidential treatment requested
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the years and date first above written
GENEMED GMBH
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President
BIONIX, L.L.C.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
AMENDMENT TO DISTRIBUTION AGREEMENT
AMENDMENT TO DISTRIBUTION AGREEMENT, DATED AS OF August 20, 2002 by and
between GENEMED GMBH, a Swiss corporation ("Genemed") and ORTHOMETRIX, INC.
(Formerly known as NORLAND MEDICAL SYSTEMS, INC.), a Delaware corporation having
its principal place of business at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxx Xxxx 00000, U.S.A. ("Distributor").
WHEREAS, Genemed and BIONIX, L.L.C., a Delaware limited liability company
("Bionix") are parties to that certain Distribution Agreement dated as of
February 16, 2000, as amended as of April 1, 2001 (the "Agreement"), pursuant to
which Bionix is the exclusive distributor in the Territory of the Devices
developed and manufactured by Genemed;
WHEREAS, Bionix assigned the Agreement to Distributor in connection with
the sale of substantially all of its assets dated as of April 12, 2002 pursuant
to Section 14 of such Agreement;
WHEREAS, the parties desire to amend the Agreement as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
i. Capitalized Terms. All capitalized terms used in this Amendment and
not otherwise defined herein shall have the meaning ascribed to such terms in
the Agreement.
ii. Appointment as Distributor. The first sentence of Section 1 (a) (i)
shall be replaced in its entirety as follows.
"Genemed hereby designates appoints and licenses Distributor as the
exclusive distributor to all United States of America military bases worldwide
(collectively referred to as the "Territory") during the Term (as defined below)
of the Devices, and all improvements thereof (also collectively referred to as
the "Devices")."
iii. Exhibit A. Exhibit A of the Agreement shall be deleted in its
entirety.
iv. Ratification. Except as specifically amended hereby, the Agreement
is in all respects ratified and confirmed.
v. Counterparts. This Amendment may be executed in any number of
counterparts, and all of such counterparts shall for all purposes constitute on
agreement, binding on the parties hereto, notwithstanding that all parties are
not signatories to the same counterpart.
vi. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without reference to the
choice of law principles of such laws.
IN WITNESS WHEREOF, the parties have caused this Amendment to Distribution
Agreement to be executed as of the day and year first above written.
GENEMED GMBH
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
ORTHOMETRIX, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
