Common use of Minimum Purchase Commitments Clause in Contracts

Minimum Purchase Commitments. (a) Within thirty (30) days following the Effective Date, MDT shall issue to the Company a purchase order (the “Initial Order”) for the period from the Effective Date until March 31, 2006 (the “Initial Period”), providing for MDT to purchase pursuant to such purchase order during the Initial Period no fewer than [*] of the Company’s Slide-On™ EndoSheath® System for the CST-2000, [*] with the Company’s catalog No. 08-2101(hereinafter, the “Basic Cysto Sheath”) and no fewer than [*] of the Company’s flexible Cystoscope (catalog No. 08-2201) (the “CST-2000”) at the prices set forth on Annex A (the “Initial Quota”). References in this Section 5.1 to “individual units” of a Product refer to a single unit of such Product and do not refer to a single package that may contain one or more single units that are packaged and sold together under one catalog number. MDT shall be obligated to purchase the Products during the Initial Period according to the delivery schedule set forth on Annex C. The minimum purchase requirements of this Section 5.1 shall only apply to and be satisfied by sales of Products for use and sale within the United States, and shall not apply to or be satisfied by sales of Products for use and sales in Canada. (b) If MDT fails to purchase, during each successive 12-month period following the Initial Period (each such period, a “Quota Period”), the minimum dollar amounts of Products (the “Quota”), at the prices set forth on Annex A, which minimum dollar amounts shall be negotiated in good faith between the Parties hereto ninety (90) days prior to the expiration of the Initial Period or any successive Quota Period, as applicable, then the Company shall have the right and option, in its sole discretion, to (x) terminate the exclusivity of this Agreement upon written notice to MDT or (y) terminate this Agreement upon written notice to MDT. Upon the taking of any such action by the Company, MDT shall be released of any future Quota obligations. If the Parties are unable to agree on the Quota for any Quota Period at least forty five (45) days prior to the scheduled start of such Quota Period, then the Quota for such Quota Period shall be: (i) For the first Quota Period following the Initial Period, [*] of the greater of the Initial Quota or MDT’s Product sales during the Initial Period; and (ii) For the second Quota Period following the Initial Period, [*] of the greater of the Quota for or MDT’s Product sales during the first Quota Period following the Initial Period; and (iii) For each successive Quota Period, [*] of the greater of the Quota for or MDT’s Product sales during the immediately previous Quota Period. (c) Following the Initial Period (and without derogating from the Quota otherwise set for any Quota Period), MDT shall purchase no fewer than [*] of the Basic Cysto Sheath and no fewer than [*] of the CST-2000 during each calendar quarter. (d) If MDT fails to purchase (i) during the first 12-month period following the earlier of the first commercial sale or launch of any New Product that MDT has agreed to carry and on which the Company and MDT have agreed upon an Initial New Product Quota as set forth in Section 2.4 (the “Initial New Product Period”), no less, in terms of dollars, of such New Product than set forth in the Initial New Product Quota, and (ii) during each 12-month period following the Initial New Product Period (each such period, a “New Product Quota Period”), such dollar amounts of the New Product as shall be negotiated in good faith between the Parties (the “New Product Quota”) ninety (90) days prior to the expiration of the Initial New Product Period or successive New Product Quota Period, as applicable, then the Company shall have the right and option, in its sole discretion, to (x) terminate the exclusivity of this Agreement upon written notice to MDT or (y) terminate this Agreement upon written notice to MDT. Upon the taking of any such action by the Company, MDT shall be released of any future New Product Quota obligations. If the Parties are unable to agree on the New Product Quota for any New Product Quota Period at least forty five (45) days prior to the scheduled start of such New Product Quota Period, then the New Product Quota for such New Product Quota Period shall be [*] of the greater of the New Product Quota for or MDT’s New Product sales during the immediately previous New Product Quota Period (or during the Initial New Product Period, for the first New Product Quota Period following the Initial New Product Period).

Minimum Purchase Commitments. 9.1 Subject to Sections 9.3 and 9.4 below, Distributor shall purchase under this Agreement, during FY05, LED Products having an aggregate purchase price of at least $160,000,000 (a) Within thirty (30) days following the Effective Date, MDT shall issue to the Company a purchase order (the “Initial Order”) for the period from the Effective Date until March 31, 2006 (the “Initial Period”), providing for MDT to purchase pursuant to such purchase order during the Initial Period no fewer than [*] of the Company’s Slide-On™ EndoSheath® System for the CST-2000, [*] with the Company’s catalog No. 08-2101(hereinafter, the “Basic Cysto Sheath”) and no fewer than [*] of the Company’s flexible Cystoscope (catalog No. 08-2201US) (the “CST-2000”) at the prices set forth on Annex A (the “Initial QuotaAnnual MPC”). References , of which not less than (a) [***] (US) will be purchased in this Section 5.1 to “individual units” the fiscal quarter of a Product refer to a single unit of such Product and do not refer to a single package that may contain one or more single units that are packaged and sold together under one catalog number. MDT shall be obligated to purchase the Products during the Initial Period according to the delivery schedule set forth on Annex C. The minimum purchase requirements of this Section 5.1 shall only apply to and be satisfied by sales of Products for use and sale within the United StatesManufacturer ending September 26, and shall not apply to or be satisfied by sales of Products for use and sales in Canada. 2004, (b) [***] (US) will be purchased in the fiscal quarter of Manufacturer ending December 26, 2004, (c) [***] (US) will be purchased in the fiscal quarter of Manufacturer ending March 27, 2005, and (d) [***] (US) will be purchased in the fiscal quarter of Manufacturer ending June 26, 2005. Products purchased using credit memoranda issued under Sections 7.1, 8.2(c) and 8.5 shall not be included for purposes of satisfying the minimum purchase commitments under this Section 9.1, but Products purchased using credit memoranda issued under Section 10.3 will be included. If MDT fails to purchase, during each successive 12-month period following the Initial Period (each such period, a “Quota Period”)LED Products ordered by Distributor are not shipped [***], the minimum dollar amounts of delayed LED Products (or the “Quota”), at the prices set forth on Annex A, which minimum dollar amounts shall be negotiated in good faith between the Parties hereto ninety (90) days prior to the expiration of the Initial Period or any successive Quota Periodsubstitute LED Products, as applicable, then will be deemed purchased by Distributor [***] solely for the Company purpose of determining whether the minimum purchase commitment for such quarter has been met, provided that (i) shipment of such LED Products is not delayed due to any cause attributable to Distributor, (ii) [***], and (iii) in no event shall shipment delays reduce Distributor’s aggregate purchase commitment hereunder. If during any fiscal quarter Distributor Distributorship Agreement Amended and Restated May 14, 2004 [***] Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission. purchases more than the MPC specified for such fiscal quarter, the excess purchase amount will be applied to reduce Distributor’s quarterly purchase commitments for that fiscal year [***]. If during any fiscal quarter Distributor’s inventory of LED Products meets or exceeds of the Inventory Cap (as defined below) and Distributor has not purchased an amount of LED Products equal to at least fifty percent (50%) of its original purchase commitments specified above in this Section 9.1 for such fiscal quarter, Manufacturer has a right to terminate this Agreement in accordance with Section 9.4 below. [***]. After the termination of this Agreement for any reason, Distributor shall have the right and option, to sell the LED Products then in its sole discretioninventory pursuant to terms and conditions determined [***]. 9.2 Beginning no later than the end of January of each year of the Term of this Agreement, the parties will discuss in good faith and seek to mutually agree upon the Annual MPC for Products for the twelve months (x12) terminate of the exclusivity Term of this Agreement upon written notice to MDT or (y) terminate this Agreement upon written notice to MDT. Upon the taking of any such action by the Company, MDT shall be released of any future Quota obligationsthat correlates with Manufacturer’s next fiscal year. If the Parties are unable to agree parties have not agreed in writing on the Quota for any Quota Period at least forty five (45) days prior to the scheduled start of such Quota Period, then the Quota for such Quota Period shall be: (i) For the first Quota Period following the Initial Period, Annual MPC by [***] of the greater of the Initial Quota or MDT’s Product sales during the Initial Period; and (ii) For the second Quota Period following the Initial Periodsuch year, this Agreement will terminate [*] of the greater of the Quota for or MDT’s Product sales during the first Quota Period following the Initial Period; and (iii) For each successive Quota Period, [**] of notwithstanding the greater of the Quota for or MDT’s Product sales during the immediately previous Quota Periodprovisions in Sections 2.1 and 2.2 hereof. (c) Following the Initial Period (and without derogating from the Quota otherwise set for any Quota Period), MDT shall purchase no fewer than [*] of the Basic Cysto Sheath and no fewer than [*] of the CST-2000 during each calendar quarter. (d) If MDT fails to purchase (i) during the first 12-month period following the earlier of the first commercial sale or launch of any New Product that MDT has agreed to carry and on which the Company and MDT have agreed upon an Initial New Product Quota as set forth in Section 2.4 (the “Initial New Product Period”), no less, in terms of dollars, of such New Product than set forth in the Initial New Product Quota, and (ii) during each 12-month period following the Initial New Product Period (each such period, a “New Product Quota Period”), such dollar amounts of the New Product as shall be negotiated in good faith between the Parties (the “New Product Quota”) ninety (90) days prior to the expiration of the Initial New Product Period or successive New Product Quota Period, as applicable, then the Company shall have the right and option, in its sole discretion, to (x) terminate the exclusivity of this Agreement upon written notice to MDT or (y) terminate this Agreement upon written notice to MDT. Upon the taking of any such action by the Company, MDT shall be released of any future New Product Quota obligations. If the Parties are unable to agree on the New Product Quota for any New Product Quota Period at least forty five (45) days prior to the scheduled start of such New Product Quota Period, then the New Product Quota for such New Product Quota Period shall be [*] of the greater of the New Product Quota for or MDT’s New Product sales during the immediately previous New Product Quota Period (or during the Initial New Product Period, for the first New Product Quota Period following the Initial New Product Period).

Minimum Purchase Commitments. In consideration of the rights granted to it under this Agreement, BIOMERIEUX agrees (ai) Within to use diligent efforts on a commercially reasonable basis to promote and support the sale and distribution of all Products in the Territory (including by making reasonable investments in facilities, personnel, equipment and materials) and (ii) to purchase and accept delivery of minimum quantities of the Products for resale in Phase I Countries during each "Performance Period" in the manner specified on Exhibit D (the "Minimum Purchase Commitment"). In determining whether BIOMERIEUX has satisfied the Minimum Purchase Commitment for any given Performance Period, each such Performance Period shall be treated on a separate -3- basis for each period. Any purchases which exceed the Minimum Purchase Commitment in any Performance Period may not be applied to offset any deficiencies in the Minimum Purchase Commitment for the prior or subsequent Performance Period, as applicable. Only those purchase orders (i) placed by BIOMERIEUX with GEN-PROBE during any given Performance Period and for which delivery and payment therefor has been made within such Performance Period and (ii) placed within the last ten (10) days of the previous Performance Period but for which payment therefor has been made within the current Performance Period, excluding purchase orders which were included in determining the Minimum Purchase Commitment for the preceding Performance Period, or any cure period applicable thereto, shall be included in determining whether the Minimum Purchase Commitment therefor has been met. In the event that BIOMERIEUX fails to achieve the Minimum Purchase Commitment for either Performance Period as set forth in Exhibit C, BIOMERIEUX shall have thirty (30) days following in which to cure said failure to satisfy the Effective Date, MDT shall issue Minimum Purchase Commitment through payment to the Company a purchase order GEN-PROBE of an amount equal to sixty percent (the “Initial Order”60%) for the period from the Effective Date until March 31, 2006 (the “Initial Period”), providing for MDT to purchase pursuant to such purchase order during the Initial Period no fewer than [*] of the Company’s Slidedeficiency in the Minimum Purchase Commitment. If BIOMERIEUX fails so to cure such failure, GEN-On™ EndoSheath® System for the CST-2000, [*] with the Company’s catalog No. 08-2101(hereinafter, the “Basic Cysto Sheath”) and no fewer than [*] of the Company’s flexible Cystoscope (catalog No. 08-2201) (the “CST-2000”) at the prices set forth on Annex A (the “Initial Quota”). References in this Section 5.1 to “individual units” of a Product refer to a single unit of such Product and do not refer to a single package that may contain one or more single units that are packaged and sold together under one catalog number. MDT shall be obligated to purchase the Products during the Initial Period according to the delivery schedule set forth on Annex C. The minimum purchase requirements of this Section 5.1 shall only apply to and be satisfied by sales of Products for use and sale within the United States, and shall not apply to or be satisfied by sales of Products for use and sales in Canada. (b) If MDT fails to purchase, during each successive 12-month period following the Initial Period (each such period, a “Quota Period”), the minimum dollar amounts of Products (the “Quota”)PROBE may, at the prices set forth on Annex A, which minimum dollar amounts shall be negotiated in good faith between the Parties hereto ninety (90) days prior to the expiration of the Initial Period or any successive Quota Period, as applicable, then the Company shall have the right its option and option, in its sole discretion, to at any time within thirty (x30) days after the expiration of the applicable cure period, (i) terminate this agreement or (ii) terminate the exclusivity of this Agreement upon written notice the distribution rights granted pursuant to MDT or (y) terminate this Agreement upon written notice to MDT. Upon the taking Section 2.1, in which latter event, BIOMERIEUX shall be relieved of any minimum purchase commitment under this Section 3.3 for such action by Performance Period and the Company, MDT shall be released of any future Quota obligations. If the Parties are unable to agree on the Quota for any Quota Period at least forty five (45) days prior to the scheduled start of such Quota subsequent Performance Period, then the Quota for such Quota Period as applicable. GEN-PROBE shall be: exercise its rights set forth in clauses (i) For the first Quota Period following the Initial Period, [*] of the greater of the Initial Quota or MDT’s Product sales during the Initial Period; and (ii) For the second Quota Period following the Initial Period, [*] of the greater of the Quota for or MDT’s Product sales during the first Quota Period following the Initial Period; and (iii) For each successive Quota Period, [*] of the greater of the Quota for or MDT’s Product sales during the immediately previous Quota Period. (c) Following the Initial Period (and without derogating from the Quota otherwise set for any Quota Period), MDT shall purchase no fewer than [*] of the Basic Cysto Sheath and no fewer than [*] of the CST-2000 during each calendar quarter. (d) If MDT fails to purchase (i) during the first 12-month period following the earlier of the first commercial sale or launch of any New Product that MDT has agreed to carry and on which the Company and MDT have agreed upon an Initial New Product Quota as set forth in Section 2.4 (the “Initial New Product Period”), no less, in terms of dollars, of such New Product than set forth in the Initial New Product Quota, and (ii) during above in each 12-month period following the Initial New Product Period (each such period, a “New Product Quota Period”), such dollar amounts of the New Product as shall be negotiated in good faith between the Parties (the “New Product Quota”) ninety (90) days prior to the expiration of the Initial New Product Period or successive New Product Quota Period, as applicable, then the Company shall have the right and option, in its sole discretion, to (x) terminate the exclusivity of this Agreement upon written case by giving notice to MDT or BIOMERIEUX within the aforesaid thirty (y30) terminate this Agreement upon written notice to MDT. Upon the taking of any such action by the Company, MDT shall be released of any future New Product Quota obligations. If the Parties are unable to agree on the New Product Quota for any New Product Quota Period at least forty five (45) days prior to the scheduled start of such New Product Quota Period, then the New Product Quota for such New Product Quota Period shall be [*] of the greater of the New Product Quota for or MDT’s New Product sales during the immediately previous New Product Quota Period (or during the Initial New Product Period, for the first New Product Quota Period following the Initial New Product Period)day period.

Minimum Purchase Commitments. (a) Within thirty (30) days following the Effective Date, MDT MDTX shall issue to the Company a purchase order (the “Initial Order”) for the period from first twelve months following the Effective Date until March 31, 2006 (the “Initial Period”), providing for MDT MDTX to purchase pursuant to such purchase order during the Initial Period no fewer than [*] ]of the Company’s Slide-On™ EndoSheath® System for the CST-2000, [*] On Sheath with the Company’s catalog No. 08number 22-2101(hereinafterxxxx (hereinafter, the “Basic Cysto ENT Sheath”) at a price of [*] per individual unit, and no fewer than [*] of the Company’s flexible Cystoscope ENT—2000 Nasopharyngo-Laryngoscope (catalog Nono. 0802-2201) (the “CST-2000”2302) at the prices set forth on Annex A a price of [*] per unit, of which [*] of such flexible scopes shall be purchased by MDTX pursuant to Section 4.1(h)(ii) at a [*] (the “Initial Quota”). References in this Section 5.1 to “individual units” of a Product refer to a single unit of such Product and do not refer to a single package that may contain one or more single units that are packaged and sold together under one catalog number. MDT MDTX shall be obligated to purchase the Products during the Initial Period according to the delivery schedule set forth on Annex C. The minimum purchase requirements of this Section 5.1 shall only apply to and be satisfied by sales of Products for use and sale within the United States, and shall not apply to or be satisfied by sales of Products for use and sales in Canada. (b) If MDT MDTX fails to purchase, during each successive 12-month period following the Initial Period (each such period, a “Quota Period”), the minimum dollar amounts of Products (the “Quota”), at a reduced transfer price for the prices Basic ENT sheaths of the greater of (i) [*] (as set forth on Annex A) or (ii) [*] of the average selling price of the sheaths by MDTX during the immediately preceding Quota Period, which minimum dollar amounts shall be negotiated in good faith between the Parties parties hereto ninety (90) days prior to the expiration of the Initial Period or any successive Quota Period, as applicable, then the Company shall have the right and option, in its sole discretion, to (x) terminate the exclusivity of this Agreement upon written notice to MDT MDTX or (y) terminate this Agreement upon written notice to MDT. Upon the taking of any such action by the CompanyMDTX, MDT provided that if this Agreement is so terminated, MDTX shall be released allowed to continue sales of Products hereunder on a nonexclusive basis for a period of six (6) months following the date of such termination, solely for the purpose of reducing its existing Product inventory (but the Company shall not be obligated to ship any future Quota obligationsProducts to MDTX after the date of such termination, regardless of the date of the purchase order therefor). If the Parties parties are unable to agree on the Quota for any Quota Period at least forty five (45) days prior to the scheduled start of such Quota Period, then the Quota for such Quota Period shall be: (i) For the first Quota Period following the Initial Period, [*] of the greater of the Initial Quota or MDT’s Product sales during the Initial Period; and (ii) For the second Quota Period following the Initial Period, be [*] of the greater of the Quota for or MDTMDTX’s Product sales during the immediately previous Quota Period (or during the Initial Period, for the first Quota Period following the Initial Period; and (iii) For each successive Quota Period, [*] of the greater of the Quota for or MDT’s Product sales during the immediately previous Quota Period). (c) Following Prior to the introduction of any New Product to the market, the Company and MDTX shall jointly conduct, or cause to be conducted, a market study to determine the pricing and the Initial Period (New Product Quota for such New Product, which study will be funded by MDTX. Based on the result of such market study, and without derogating from on the Company’s current and reasonable expectations regarding the Company’s productions costs for the New Product, the Company and MDTX shall agree on the Initial New Product Quota otherwise set for any Quota Period), MDT shall purchase no fewer than and on transfer pricing to MDTX that is expected to give MDTX a gross margin on sales of the New Product to end users of at least [*] of the Basic Cysto Sheath and no fewer than [*] of the CST-2000 during each calendar quarter. (d) ]. If MDT MDTX fails to purchase (i) during the first 12-month period following the earlier of the first commercial sale or launch of any New Product that MDT has agreed to carry and on which the Company and MDT have agreed upon an Initial New Product Quota as set forth in Section 2.4 (the “Initial New Product Period”), no less, in terms of dollars, of such New Product than set forth in the Initial New Product Quota, and (ii) during each 12-month period following the Initial New Product Period (each such period, a “New Product Quota Period”), such dollar amounts of the New Product as shall be negotiated in good faith between the Parties parties hereto (the “New Product Quota”) ninety (90) days prior to the expiration of the Initial New Product Period or successive New Product Quota Period, as applicable, then the Company shall have the right and option, in its sole discretion, to (x) terminate the exclusivity of this Agreement upon written notice to MDT MDTX or (y) terminate this Agreement upon written notice to MDT. Upon the taking of any such action by the CompanyMDTX, MDT provided that if this Agreement is so terminated, MDTX shall be released allowed to continue sales of Products hereunder on a nonexclusive basis for a period of six (6) months following the date of such termination, solely for the purpose of reducing its existing Product inventory (but the Company shall not be obligated to ship any future New Product Quota obligationsProducts to MDTX after the date of such termination, regardless of the date of the purchase order therefor). If the Parties parties are unable to agree on the New Product Quota for any New Product Quota Period at least forty five (45) days prior to the scheduled start of such New Product Quota Period, then the New Product Quota for such New new Product Quota Period shall be [*] of the greater of the New Product Quota for or MDTMDTX’s New Product sales during the immediately previous New Product Quota Period (or during the Initial New Product Period, for the first New Product Quota Period following the Initial New Product Period).