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Distribution Agreement

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Title:

Distribution Agreement

Entities:

Biosite Inc.; PSS World Medical, Inc.; Gray Cary Ware & Freidenrich

Date:

2003

Size:

44KB total

Price:

$43

ID:

#285653

► Licensing ► Distribution Agreements
► Healthcare ► Medical Equipment & Supplies
► Services ► Legal
► Biotech & Drugs ► In Vitro & In Vivo Diagnostic Substances

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DISTRIBUTION AGREEMENT

This DISTRIBUTION AGREEMENT (this Agreement) effective as of May 13, 2003 (the Effective Date) is entered into between BIOSITE INCORPORATED, a Delaware corporation (Biosite), with a place of business at 11030 Roselle Street, Suite D, San Diego, California 92121, and PSS WORLD MEDICAL, INC. (PSS), with a place of business at 4345 Southpoint Boulevard, Jacksonville, Florida 32216. The parties hereby agree as follows:

1. APPOINTMENT AND SCOPE

1.1 Appointment. Subject to the terms and conditions of this Agreement, including but not limited to the restrictions set forth in Sections 1.2 and 1.3, Biosite hereby appoints PSS as a distributor of the products listed in Schedule A (the Products) in the territory described in Schedule B (the Territory), and PSS hereby accepts such appointment, as set forth in clauses (a) through (d) of this Section 1.1.

(a) From the Effective Date until December 31, 2003, the appointment for Products described in Part 1 of Schedule A (the []) shall be (i) [] for Physician Office Practices (as defined in Schedule B) of less than [] physicians, and (ii) [] (with [] or its assignee) for Physician Office Practices of [] or more physicians;

(b) Effective as of [] until [], the appointment for [] shall be (i) [] (with [] or its assignee) for Physician Office Practices of [] or more physicians to which [] or its assignee has distributed [] prior to [], and (ii) [] for all other Physician Office Practices;

(c) Effective as of [] until [], the appointment for [] shall be [](as described below) for all Physician Office Practices. For purposes of this Section 1.1(c), [] means that Biosite has the right to sell and distribute [] directly and to appoint a limited number of other distributors to sell and distribute [***]; and

(d) From the Effective Date until [], the appointment (i) for the [] described in Part 2 of Schedule A (the []) shall be [] for all Physician Office Practices, and (ii) for all other Products described in Part 2 of Schedule A shall be [] for Physician Office Practices of less than [] physicians.

1.2 Performance Criteria. Subject to Section 1.2(a), if PSS fails to achieve the applicable minimum sales objectives set forth in Schedule C for [] or [] for any measurement period set forth in Schedule C, then (a) the parties shall meet no later than sixty (60) days after the end of the applicable measurement period to discuss PSS efforts to meet such minimum sales objectives, and (b) Biosite shall have the right (in its sole discretion) as of the end of such sixty (60) day period to [***]of this Agreement, effective upon written notice to PSS. The parties expressly agree that Biosite may not terminate this Agreement solely due to PSS failing to achieve such minimum sales objectives.

(a) PSS shall not be responsible for failing to achieve the applicable minimum sales objectives set forth in Schedule C to the extent caused by (i) Biosites breach of its obligations under this Agreement with respect to the delivery of the applicable Products by Biosite to PSS, or (ii) Biosite recalling the applicable Products and not replacing such recalled Products in a prompt manner.

* Confidential Treatment Requested

1.3 Appointment Restrictions.

(a) Notwithstanding anything to the contrary in this Agreement, PSS shall not have the right to distribute Products to any customer which, as of the Effective Date, has purchased Products from Biosite or [](but not any other distributor of Biosite) other than a customer that [](provided that prior to making any sale of a Product to any such customer, (i) PSS shall provide the customers written statement to Biosite and (ii) PSS shall first allow Biosite, for thirty (30) days after Biosite receives such written statement from PSS, to contact the customer to discuss the customers statement).

(b) PSS shall refrain from directly or indirectly (i) seeking customers for, establishing any branch for, or maintaining any distribution depot or network for the sale of, the Products outside of the Territory, or (ii) selling the Products to any person or entity other than Physician Office Practices in the market segments as expressly described above.

(c) The Territory shall not include, and PSS shall not be permitted to sell the Products in, any territory or to any market segment not expressly described in the Agreement. PSS shall take reasonable steps to limit the likelihood that PSSs customers in the Territory purchase Products for resale outside of the Territory.

(d) PSS shall not have the right to appoint sub-distributors, except as approved by Biosite in advance writing. Any permitted sub-distributors shall be subject to the provisions of this Agreement.

1.4 Products. PSS only has a right to sell and distribute the Products pursuant to the terms and conditions of this Agreement. PSS has no right to sell or distribute any other Biosite product unless subject to a separate written agreement by the parties on a product by product basis.

1.5 Noncompetition. PSS shall not, during the period of the [] appointment for [] under Sections 1.1(a) and 1.1(b) (the [] Period), directly or indirectly sell, offer for sale, or act as sales agent for the solicitation of orders for any product that measures or detects the presence or absence of any [], with or without the [], including without limitation [].

1.6 Independent Purchaser Status. PSS is an independent purchaser and seller of the Products. PSS shall not act as an agent or legal representative of Biosite, nor shall PSS have any right or power to act for or bind Biosite in any respect or to pledge its credit. PSS shall be free to resell Products to Customers in the Territory on such terms as it may, in its sole discretion, determine, including, without limitation, price, returns, credits and discounts.

1.7 Perishable Products. PSS acknowledges that the Products are perishable, and shall manage its inventory such that products are shipped throughout the Territory on a first-in-first-out basis. PSS shall be responsible for and shall bear the full risk with respect to any unsold quantities of the Products remaining in PSSs inventory beyond the stated shelf-life thereof; however, if PSS received from Biosite any such unsold perishable [] that had a posted expiration date of [] or less from the date of shipment of such [] from Biosite to PSS, then Biosite shall replace such expired [](provided that Biosite may first require PSS to provide reasonable evidence of PSSs compliance with this Section 1.7).

2. TERMS AND CONDITIONS OF SALE

2.1 Price. PSS shall purchase the Products from Biosite at the applicable prices set forth in Schedule A. Prices shall be subject to change by Biosite on [] prior written notice to PSS. PSS shall pay Biosite for purchases of the Products within [] from PSSs receipt of invoice. PSS shall make all such payments in United States dollars to such account as Biosite designates for such purpose.

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