EXHIBIT 10.12
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement") is made this ____ day of
__________________, ______, (the "Effective Date") by and between Vascular
Solutions, Inc. a Minnesota corporation with its principal place of business
located at 2495 Xenium Lane North, Minneapolis, Minnesota 55441 USA (hereinafter
referred to as "COMPANY") and _______________________________________-with its
principal place of business located at _________________________________________
_____________________(hereinafter referred to as "DISTRIBUTOR") in consideration
of the mutual covenants and conditions hereinafter stated.
1. DEFINITION OF TERMS
1.1 "Party" or "Parties":
"Party" or "Parties" shall mean COMPANY or DISTRIBUTOR, individually and
collectively.
1.2 "Products":
"Products" shall mean COMPANY's vascular sealing device incorporating a balloon
catheter and biological procoagulant combination as listed in Schedule 1, as
amended from time to time together with all line extensions, modifications and
improvements thereto.
1.3 "Territory":
"Territory" is the entire country of _____________________.
2. APPOINTMENT OF DISTRIBUTOR
2.1 APPOINTMENT AS DISTRIBUTOR.
COMPANY hereby appoints DISTRIBUTOR as its DISTRIBUTOR of the Products for the
Territory, and DISTRIBUTOR hereby accepts such appointment on the terms and
conditions set forth in this Agreement. DISTRIBUTOR shall not seek customers or
establish or maintain a branch or distribution warehouse for the Products
outside the Territory.
2.2 RESALE OF PRODUCTS BY DISTRIBUTOR.
All sales of the Products by DISTRIBUTOR will be in its own name and for its own
account, and DISTRIBUTOR shall have no authority to represent COMPANY in the
Territory or elsewhere as agent, nor to bind COMPANY by any contract,
representation, act or deed. DISTRIBUTOR shall not appoint subdistributors or
outside agents to make sales of the Products in the Territory or outside of the
Territory
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without the prior written approval of COMPANY. Any such appointment
of a subdistributor or agent shall not relieve DISTRIBUTOR from any and all
obligations hereunder.
3. TERM OF DISTRIBUTORSHIP.
This Agreement and the rights conferred on DISTRIBUTOR hereunder shall come into
effect on the Effective Date mentioned in the preamble hereto and shall remain
in effect until ____________________________unless earlier terminated in
accordance with provisions of this Agreement. This Agreement may not be renewed
under any circumstances.
4. REPRESENTATIONS AND DUTIES OF DISTRIBUTOR.
4.1 Representations and Warranties of DISTRIBUTOR.
DISTRIBUTOR represents and warrants that neither DISTRIBUTOR nor any of its
employees, affiliates or owners are subject to a non-competition agreement or
any other agreement that would prevent DISTRIBUTOR from selling the Products in
the Territory. DISTRIBUTOR further represents and warrants to COMPANY that the
execution and performance of this Agreement by DISTRIBUTOR will not violate any
law or other agreement to which DISTRIBUTOR or any of its employees, affiliates
or owners are subject.
4.2 Duties of DISTRIBUTOR.
DISTRIBUTOR represents that it has adequate facilities, financing, and personnel
to perform, at its own expense, its obligations under this Agreement.
DISTRIBUTOR covenants to do each of the following:
(i) to use commercially reasonable efforts to promote and sell the
Products in the Territory and to maintain and enhance the goodwill of the
Products;
(ii) to comply with the United States Foreign Corrupt Practices Act, and,
specifically, to not directly or indirectly offer anything of value to a
government official in return for obtaining or retaining business relating to
the Products; and
(iii) not to solicit the sale of, promote the sale of, sell, exhibit for
sale, distribute or manufacture in the Territory any product directly
competitive with the Products.
5. DUTIES OF COMPANY.
5.1 Duties of COMPANY.
COMPANY covenants and agrees to do each of the following:
(i) to provide DISTRIBUTOR with materials necessary to obtain and
maintain import approvals and health registrations required to import and sell
the
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Products within the Territory by furnishing to DISTRIBUTOR, at COMPANY's cost,
such technical descriptions, specifications, data, drawings, information,
service manuals, quality control audits, facility inspection reports issued by
governmental regulators or international quality control auditors, and so forth
regarding the Products, in the English language, as DISTRIBUTOR may reasonably
request.
(iii) to promptly notify DISTRIBUTOR of any actions taken with respect to
COMPANY or the Products by regulators in other jurisdictions, including (i) any
facility inspection resulting in any notice of infraction, warning or other
action regarding the Products, (ii) voluntary or mandatory recalls or withdrawal
of the Products, (iii) administrative or court proceedings regarding the
Products, and (iv) any material changes of the method of sterilization,
packaging, materials, design or other specifications of the Products. COMPANY
will promptly provide DISTRIBUTOR with copies of any correspondence with
regulators regarding any of the foregoing.
(iv) to inform DISTRIBUTOR, from time to time, of the technical and other
developments regarding the Products as these may occur.
(v) to furnish to DISTRIBUTOR at COMPANY's cost, a reasonable quantity of
such advertising and other promotional literature for the Products.
(vi) to provide reasonable Product training, at COMPANY'S expense, to
DISTRIBUTOR at such times and places as the Parties mutually agree. Each Party
shall bear its own employee's expenses for attending such training, unless
mutually agreed otherwise; and
(vii) to provide DISTRIBUTOR samples of the Products upon terms and
conditions as mutually agreed to.
6. EXPENSES
6.1 DISTRIBUTOR'S Expenses.
DISTRIBUTOR shall be responsible for all expenses incurred by it in connection
with the implementation of this Agreement, including without limitation
salaries, office and travel expenses of its employees, advertising and trade
shows within the Territory and any and all taxes which may be imposed on
DISTRIBUTOR within the Territory. COMPANY shall bear only such of these
expenses as to which it has, by written agreement, given advance approval.
6.2 COMPANY'S Expenses.
COMPANY shall be responsible for payment of all expenses incurred by it
including any taxes imposed on it for the manufacture of the Products and shall
also pay those expenses incurred in connection with the implementation of this
Agreement for which it has given prior written approval.
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7. RECORDS and REPORTS
7.1 Records and Reports.
DISTRIBUTOR shall maintain complete and accurate records of aggregate purchases
and resales of the Products and all other information received by or relating to
the Products and shall permit, or cause to permit, COMPANY or its agents at any
time during regular business hours to examine such records for purposes related
to the performance of the Agreement. The duty of DISTRIBUTOR to preserve and the
right of the COMPANY to examine all such records shall not cease until
termination of this Agreement and shall survive until all moneys have been paid,
all inventory sold or returned and no disputes exist.
8. SALES OF PRODUCT TO DISTRIBUTOR
8.1 Purchase Prices and Terms.
COMPANY shall sell the Products to DISTRIBUTOR at the prices to be determined in
accordance with Schedule 1. Payments shall be due sixty (60) days after date of
placement with the carrier for delivery to DISTRIBUTOR. If DISTRIBUTOR is not
current on its payments or has exceeded its credit limit, COMPANY may, in its
sole discretion require prepayment or letter of credit prior to any additional
shipments of Product. Payment shall be made by wire transfer in U.S. funds to
an account designated by COMPANY. COMPANY reserves the right to revise its
prices upwards or downwards at any time in its sole discretion, but the prices
stated on an accepted order shall not be revised even though the prices are
amended prior to shipment. COMPANY shall provide DISTRIBUTOR with 60 days prior
notice of any price change.
8.2 Risk of Loss, Deliveries.
DISTRIBUTOR shall purchase the Products from COMPANY F.O.B. place of manufacture
with risk of loss passing to DISTRIBUTOR upon delivery of the Products to the
carrier at the F.O.B. point. DISTRIBUTOR shall be responsible for taxes and
import duties imposed in the Territory and for shipping fees and any transit
insurance selected by DISTRIBUTOR. COMPANY shall deliver accepted orders within
the acknowledged time of shipment stated in COMPANY's acceptance of the order.
Furthermore, COMPANY shall package the Products suitable for export.
8.3 Acceptance and Cancellation of Orders.
All orders for Products by DISTRIBUTOR shall be initiated by DISTRIBUTOR's
issuance of a written purchase order sent via Facsimile or U.S. mail. Such
orders shall state unit quantities, unit descriptions, requested delivery dates,
and shipping instructions. The acceptance by COMPANY of an order shall be
indicated by written acknowledgment thereof by COMPANY within five (5) business
days following receipt of each order. This Agreement shall control orders of
Products by DISTRIBUTOR. All different or additional terms or conditions in
DISTRIBUTOR's purchase order, acknowledgment or other similar document shall not
add to or modify
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terms of this Agreement. COMPANY shall have the right to cancel any order placed
by DISTRIBUTOR or to refuse or delay the shipment thereof if DISTRIBUTOR shall
fail to meet any payments as provided herein or otherwise agreed to by the
COMPANY. DISTRIBUTOR may cancel an order which COMPANY has accepted only by
providing written notice to COMPANY prior to the shipment of any part thereof
and by paying such reasonable cancellation charge requested by COMPANY.
8.4 Product Specifications.
COMPANY shall be obligated to deliver Products of the specifications and quality
standards in effect therefore and a minimum shelf life of six months at the time
COMPANY accepts an order. COMPANY reserves the right to change the design or
specifications of any of the Products or part thereof at any time and with prior
written notice to the DISTRIBUTOR. COMPANY also reserves the right to
discontinue the manufacture and distribution of any of the Products at any time
in COMPANY'S sole discretion. In the event COMPANY discontinues the manufacture
or distribution of any Product or in the event of a Product specification
change, DISTRIBUTOR's minimum purchase obligations under Section 8.6 herein
shall be amended and adjusted accordingly.
8.5 Taxes.
DISTRIBUTOR shall be responsible for all taxes levied and/or imposed by the
government or taxing authority in the Territory. COMPANY shall be responsible
for all taxes levied and/or imposed by the United States government or any
taxing authority in the United States.
8.6 Minimum Purchases.
DISTRIBUTOR agrees to place orders for the Products in the amount as described
in Schedule 2 attached hereto and thereafter to order at least the quantity of
Products as also set forth in Schedule 2, (Minimum Purchases). In the event that
DISTRIBUTOR fails to meet the Minimum Purchase amounts agreed by the Parties as
shown in Schedule 2 hereto for any calendar quarter during the term of this
Agreement, the Parties shall meet at a mutually agreed upon place and time to
discuss remedying this situation. In the event a remedy is not available or
agreed upon by the COMPANY, then the COMPANY may, at its sole discretion
immediately and without further notice terminate this Agreement. Failure of
DISTRIBUTOR to meet the Minimum Purchase amounts due to supply limitations of
COMPANY in any period shall not be deemed to constitute a violation of this
Section.
8.7 Product Inspection and Acceptance.
Upon receipt, DISTRIBUTOR shall have the right to inspect each order to
determine that it conforms to the quantity of Products listed on the invoice.
DISTRIBUTOR is deemed to have accepted as listed on the invoice all Products
which are not affirmatively rejected by written notice to COMPANY within five
(5) calendar days of physical receipt of the Products by DISTRIBUTOR.
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9. WARRANTY POLICY
9.1 Warranties.
COMPANY warrants that the Products sold to DISTRIBUTOR are free from any defects
in material, design, workmanship, manufacture, treatment, packing, instruction
manuals, labeling, warning or otherwise and shall at all times comply with the
stated Product specifications. COMPANY'S SOLE OBLIGATION UNDER THE FOREGOING
WARRANTY SHALL BE, AT COMPANY'S SOLE ELECTION, TO EITHER REPLACE THE RELEVANT
PRODUCT OR REFUND DISTRIBUTOR'S PURCHASE PRICE FOR SUCH PRODUCT. Such
obligation shall be subject to COMPANY being granted the reasonable opportunity
to inspect, at COMPANY'S expense, the defective Product at the location of its
use or storage and, upon request in accordance with the COMPANY'S instruction,
return of the Product to COMPANY at COMPANY'S cost. No return of any Product
will occur until the COMPANY has issued a Return Authorization Number together
with instructions for packaging and delivery. Any such replacement of PRODUCTS
may be made by substitution of any similar Product meeting quality
specifications and payment by the COMPANY of all freight, handling and duty
charges incident thereto. NOTWITHSTANDING THE FOREGOING, COMPANY MAKES NO
WARRANTY, NOR SHALL IT HAVE ANY OTHER OBLIGATION TO DISTRIBUTOR WITH RESPECT TO
ANY PRODUCT SOLD HEREUNDER, IF SUCH PRODUCT HAS EXPIRED ACCORDING TO PRODUCT
LABELS OR HAS NOT BEEN USED, HANDLED OR STORED IN ACCORDANCE WITH COMPANY
GUIDELINES AS COMMUNICATED BY COMPANY.
EXCEPT AS EXPRESSLY PROVIDED ABOVE AND IN SECTION 11.1 BELOW, COMPANY GRANTS
DISTRIBUTOR NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE,
IN THIS AGREEMENT OR IN ANY COMMUNICATION BY COMPANY, REGARDING THE PRODUCTS,
THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY
OR OTHERWISE.
10. PATENTS, TRADEMARKS, COPYRIGHTS;
PROPRIETARY AND CONFIDENTIAL INFORMATION
10.1 Trademark License.
COMPANY hereby grants to DISTRIBUTOR a non-exclusive license to use the
trademarks, trade names and copyrights of COMPANY as communicated to DISTRIBUTOR
from time to time (hereinafter referred to as the "Trademarks") in connection
with its sales, promotion, and distribution of the Products under this
Agreement. DISTRIBUTOR has no permission to and will not adopt, use or register
as trademark, trade name, business name, or corporate name or part thereof,
whether during the term of this Agreement or after its termination, any word, or
symbol the same as or similar to any Trademarks. Furthermore, upon request,
DISTRIBUTOR shall discontinue the use of any and all Trademarks utilized and
registered by
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DISTRIBUTOR in connection with the Products prior to or after the execution of
this Agreement.
10.2 Duty to Preserve Confidentiality.
Without the prior written consent of the supplying Party, no receiving Party,
its officers, agents, or employees shall, in any manner whatever for use in any
way for its own account or for any third party disclose or communicate to a
third party, any technical, engineering, manufacturing, business, financial, or
other information and know how (hereinafter referred to as the "Confidential
Information") generated by any Party hereto and acquired directly or indirectly
by any other Party. Nothing in this section 10.2 shall prevent disclosure or
use of information (i) already known to any Party; (ii) which is or becomes
public knowledge without the fault of any Party; (iii) which is properly
acquired by any Party from a third party having the legal right to such
information; or (iv) is required to be disclosed by a proper governmental or
judicial authority. No receiving Party shall, in any manner whatever for use in
any way for its own account or for the account of any third party, disclose or
communicate to a third party, any Confidential Information for any purpose
except for the purpose of for which such Confidential Information was supplied,
and such receiving Party will take every reasonable precaution to protect the
confidentiality of such information. Each Party acknowledges that any breach of
any obligation under this section 10.2 is likely to cause or threaten
irreparable harm to the other Party, and accordingly, each Party agrees that in
such event the non-breaching party shall be entitled to equitable relief to
protect its interests, including, but not limited to, preliminary and permanent
injunctive relief.
10.3 Proprietary.
DISTRIBUTOR acknowledges that the Products are proprietary to COMPANY and may
not be copied and that all rights of design and invention are reserved to
COMPANY.
11. INDEMNITIES.
11.1 Indemnity.
Each Party agrees to indemnify, defend and hold the other Party and its
officers, directors, employees, agents, successors and assigns harmless from and
against any and all claims made by any third party arising out of the
manufacture, processing, marketing, distribution and sale of the Products, where
and to the extent such damages are alleged to have been caused by the fault of
such indemnifying Party or its officers, directors, employees, agents,
successors and assigns. The indemnifying party under this article 11.1 shall be
relieved of its obligation unless the indemnified party: (i) gives the
indemnifying party written notice of such claim as soon as reasonably
practicable; (ii) cooperates in the defense of such claim at the expense of the
indemnifying party, and (iii) gives the indemnifying party the sole control of
defense and/or settlement of such claim. No settlement shall take place without
the consent of the indemnified Party.
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COMPANY shall defend, hold harmless and indemnify DISTRIBUTOR and its officers,
directors, employees, agents, successors and assigns against any damages,
disbursements, expense, liability, penalty or loss of any kind or nature
(including reasonable attorneys' fees) incurred in connection with any suit,
claim, or proceeding brought against COMPANY and/or DISTRIBUTOR for an alleged
patent or trademark infringement or for bodily injuries or death to any person
caused by a defect in a Product or its design or manufacture sold hereunder, and
COMPANY shall pay any such costs and damages finally awarded against DISTRIBUTOR
in any such suit, claim or proceeding (including judgments, court costs and
reasonable attorneys' fees), provided that: (i) Such Product has not been
modified or tampered with by DISTRIBUTOR; (ii) such Product has not been misused
as a result of DISTRIBUTOR'S unauthorized representation about the Product;
(iii) DISTRIBUTOR gives COMPANY reasonable written notice of any such claim as
soon as is reasonably practicable; and (iv) COMPANY has the sole control of the
defense and/or settlement of such claim; however, COMPANY agrees that it will
not control or settle the same without the prior consultation with DISTRIBUTOR.
12. TERMINATION
12.1 Termination for Cause.
COMPANY or DISTRIBUTOR may terminate this AGREEMENT, immediately upon the giving
of written notice to the defaulting Party, in the event that any of the
following events occur:
(i) COMPANY or DISTRIBUTOR becomes insolvent or is unable to pay its
debts as they mature or ceases to pay in the ordinary course of business its
debts as they mature; or either Party makes an assignment for the benefit of its
creditors; or a receiver, liquidator, custodian, trustee or the like is
appointed for the Party or its property; or either Party commences a voluntary
case under any applicable bankruptcy or insolvency law or consents to the entry
of an order for relief in any involuntary case, or with jurisdiction enters a
decree for relief in any involuntary case involving either party.
(ii) COMPANY or DISTRIBUTOR defaults in the performance of any obligation
under this Agreement and fails to cure such default within thirty (30) days
after written notice thereof from the non-defaulting Party.
(iii) _____________________________ shall no longer be regularly involved
in the day to day management and sales activities of DISTRIBUTOR for any reason.
(iv) COMPANY is merged or purchased or otherwise experiences a change in
control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A promulgated under the Securities Exchange Act of 1934, as
amended (whether or not COMPANY is then subject to such reporting obligatioins)
and the
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terminating party gives the other party prior written notice not less than 12
months in advance of the date of termination.
(v) Pursuant to Section 8.6 hereof.
12.2 Obligations upon Termination.
Upon the termination of this Agreement for cause and after the allowance for any
applicable cure periods, DISTRIBUTOR and COMPANY promises to do each of the
following immediately:
(i) DISTRIBUTOR shall pay to COMPANY all amounts which are payable by
DISTRIBUTOR to COMPANY under this Agreement less any such amounts payable on the
grounds of a dispute arising out of this Agreement against any claim or damages
sought by DISTRIBUTOR;
(ii) Each Party shall return to the other Party all of the Confidential
Information in the possession or under the control of the respective Party
holding the Confidential Information, together with a statement signed by an
officer or duly empowered representative of the Party to the effect that all of
the Confidential Information has been returned to the Party;
(iii) DISTRIBUTOR shall cease to use any of the Trademarks and to return
to COMPANY all materials supplied to DISTRIBUTOR by COMPANY which contain any of
the Trademarks. Furthermore, upon receipt of written notice from COMPANY,
DISTRIBUTOR shall dispose of all packaging, labels, brochures, lists, and other
similar materials containing any of the Trademarks in accordance with COMPANY'S
instructions. COMPANY shall reimburse DISTRIBUTOR for the direct costs
(exclusive of overhead) of such material and their disposal;
(iv) DISTRIBUTOR shall return to COMPANY all of the Products in
DISTRIBUTOR'S possession or under DISTRIBUTOR'S control and unsold on the date
of termination. COMPANY shall pay DISTRIBUTOR for the Products so returned at a
price equal to DISTRIBUTOR'S direct costs therefore (exclusive of overhead) for
each Product which is returned unopened in its original packaging with in excess
of six months sterile shelf life remaining and in the same condition as when
received by DISTRIBUTOR. Any product returned within its last six months of
sterile shelf life shall be reimbursed at 50% of such amount. DISTRIBUTOR shall
furnish to COMPANY promptly after the date of termination an inventory of the
Products which DISTRIBUTOR will return to COMPANY. COMPANY shall pay DISTRIBUTOR
within thirty (30) days of shipment of returned Product by DISTRIBUTOR by wire
transfer to an account designated by DISTRIBUTOR at that time
(v) DISTRIBUTOR shall immediately assist in the process to transfer any
necessary import licenses to COMPANY or its designee.
Upon termination of this Agreement in accordance with its terms (whether at the
end of its scheduled term or earlier), neither party shall be liable to the
other for any damages or amounts whatsoever sustained or arising out of, or
alleged to have arisen
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out of, such termination. DISTRIBUTOR HEREBY EXPRESSLY IRREVOCABLE WAIVES ANY
RIGHTS AND CLAIMS TO ANY COMPENSATION (FOR GOODWILL OR OTHERWISE) OR INDEMNITY
RESULTING FROM THE TERMINATION OF THIS AGREEMENT OR ITS STATUS AS A DISTRIBUTOR,
WITH OR WITHOUT CAUSE, UNDER ANY APPLICABLE LAW.
13. GENERAL PROVISIONS
13.1 Force Majeure.
Neither Party to this Agreement is responsible to the other Party for
nonperformance or delay in performance of the terms and conditions herein due to
any force majeure, including without limitation acts of God, acts of government,
wars, civil disturbances, strikes, and other labor unrest, accidents in
transportation or other cause beyond the control of its Parties. The Party
whose performance is prevented under this paragraph shall immediately inform the
other Party of the state of affairs.
13.2 Relationship Between Parties.
DISTRIBUTOR'S relationship to the COMPANY shall be that of independent
contractor. Nothing contained in this Agreement shall make DISTRIBUTOR a
partner, joint venturer, employee, or agent of COMPANY for any purpose
whatsoever. DISTRIBUTOR shall not sign any contract in the name of the COMPANY,
shall not purport to bind COMPANY in any way to any obligation, and shall not
hold itself out or purport to act as COMPANY'S legal partner or legally
empowered agent or representative for any purpose whatsoever. In particular,
but without limiting the generality of the foregoing, DISTRIBUTOR shall not
purport to give, or assume on behalf of COMPANY, any other or different
guarantee, warranty, obligation or liability whatsoever, including without
limitation liability for loss or damage to person or property resulting from
default or defect in design, workmanship or material or goods of any kind,
other than stipulated in such warranties as COMPANY may specify from time to
time. Furthermore, DISTRIBUTOR shall not give such other or different
warranties or guarantees on its own behalf unless DISTRIBUTOR obtains the prior
written consent of COMPANY on each such occasion.
13.3 Successors, Nonassignability.
This Agreement and each and every covenant, term and condition hereof is binding
upon and inures to the benefit of the Parties hereto and their respective
successors and assigns, but neither this Agreement nor any rights hereunder may
be assigned by DISTRIBUTOR directly, indirectly, voluntarily or by operation of
law, without first receiving the prior written consent of COMPANY. In the event
of a sale or transfer of all or substantially all of the stock or Product device
assets of COMPANY, COMPANY shall assign its rights and obligations under this
Agreement to the purchaser of such stock or assets
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13.4 Survival of Obligations.
Both Parties agree that the obligations described in Articles 9, 10, 11, 12 and
13 of this Agreement shall survive any termination or expiration of this
Agreement.
13.5 Remedies.
The rights and remedies of each Party under this Agreement are not exclusive but
shall be in addition to all of the rights and remedies to which that Party is
entitled against the other Party under the law governing this Agreement.
13.6 Notices.
Unless otherwise specified, any notice required by this Agreement shall be made
in a writing sent by prepaid certified mail, overnight courier or any means of
electronic communications with confirmation copy sent by certified mail to the
addresses first listed above, until notice of another address shall be given in
the manner provided herein. All notices, consents or requests shall be
effective from the date of mailing if sent by facsimile, seven days if sent by
certified mail and when received if sent by international courier.
13.7 Disputes.
In the event there arises a dispute between the Parties as to the performance or
interpretation of any of the provisions of this Agreement, or as to matters
related to but not covered by this Agreement, the Parties shall first attempt to
find a mutually agreeable solution by consultation in good faith. If the matter
has not been resolved in within thirty (30) days of their first meeting to
resolve a dispute, then any such dispute shall be determined finally by
arbitration in accordance with the International Arbitration Rules of the
American Arbitration Association. The place of arbitration shall be Minneapolis,
Minnesota USA and the language of the arbitration shall be English. The arbitral
tribunal shall consist of a single arbitrator. If the Parties shall not have
agreed upon an arbitrator within thirty (30) days of the notice of arbitration,
then the Administrator of the American Arbitration Association shall appoint
one. The unsuccessful Party in an arbitration shall pay and discharge all
reasonable costs and expenses (including reasonable attorneys' fees) which are
incurred by the other Party in enforcing this Agreement.
Judgment upon the award of the arbitrator may be entered in any court having
jurisdiction thereof. The Parties acknowledge that this Agreement and any award
rendered pursuant to it shall be governed by the 1958 United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Award.
Pending the submission to arbitrators and thereafter until the single arbitrator
renders the award, the Parties shall, except in the event of termination,
continue to perform all their obligations under this Agreement without prejudice
to a final adjustment in accordance with the award.
Nothing herein shall prevent any party from seeking injunctive relief from any
court of competent jurisdiction, in order to preserve assets, prevent
irreparable harm or as otherwise appropriate.
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13.8 Unenforceable Terms.
In the event any term or provision of this Agreement shall for any reason be
invalid, illegal or unenforceable in any respect, it shall be deemed separate
and shall not affect any other provisions hereof or the validity hereof. The
Parties agree to re-negotiate in good faith any term or provision held invalid
and to be bound by the mutually agreed substitute term or provision.
13.9 Waivers.
No waiver of any of the terms and conditions of this Agreement shall be
effectual for any purpose, unless expressed in a writing and signed by the Party
hereto giving the same, and any such waiver shall be effective only in the
specific instance and for the purpose given.
13.10 Governing Law.
This Agreement shall be governed by and construed in accordance with substantive
law of the State of Minnesota, excluding that body of law applicable to choice
of law. The headings to the paragraphs of this Agreement are for the
convenience of reference only, do not form a part of this Agreement, and shall
not in any way affect the interpretation hereof.
13.11 Entire Agreement, Modification.
This Agreement constitutes the entire and final agreement between the Parties on
the subject matter hereof and supersedes any and all prior oral or written
agreements or discussions on the subject matter hereof. This Agreement may not
be modified in any respect except in a writing which states the modification and
is signed by both Parties hereto.
13.12 Further Assurances.
The parties agree to execute any and all such further agreements, instruments or
documents, and to take any and all such further action as may be necessary or
desirable to carry out the provisions hereof and to effectuate the purposes of
this Agreement.
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IN WITNESS WHEREOF, this Agreement has been prepared in two (2) original
copies and the Parties and/or their duly authorized representatives have placed
their signatures here below.
VASCULAR SOLUTIONS, INC.
By: _________________________________
Name: Howard C. Root
Title: Chief Executive Officer
______________________________________
By: _________________________________
Name:
Title:
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Schedule 1.
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Products and Prices
DESCRIPTION: The Vascular Solutions Duett sealing device utilizing a balloon
catheter and a biological procoagulant to achieve hemostasis following
percutaneous catheterization procedures by cardiologists and radiologists,
together with all line extensions, modifications and improvements thereto, as
amended from time to time.
Prices: Shall be based on COMPANY'S Price List in effect for the Territory on
the date on which COMPANY accepts an order, less any discounts or special
pricing programs established and offered by COMPANY from time to time.
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Schedule 2.
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Minimum Annual Purchases
The following sales from the COMPANY to the DISTRIBUTOR expressed in units
represent the minimum purchase amounts that have been mutually established that
reflect an acceptable performance by DISTRIBUTOR
YEAR QUANTITY
---- --------
From the date of this Agreement to December 31, 1999:
Year 2 (January 1, 2000 through December 31, 2000):
Year 3 (January 1, 2001 through December 31, 2001):
DISTRIBUTOR shall purchase these minimum purchase amounts in roughly
equivalent percentages throughout the year. If DISTRIBUTOR has not purchased
20%, 45% and 65% of the annual minimum purchase amounts by March 31, June 30 and
September 30, respectively, of the year starting in 2000, DISTRIBUTOR will be in
violation of the minimum purchase requirements established in section 8.6 of the
Agreement and COMPANY may take all actions specified thereunder.
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Distribution Agreement 7/13/99
Vascular Solutions, Inc. Initial ________ page-15
Initial ________