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EX. 10.21.2
[CHOLESTECH LOGO]
CHOLESTECH CORPORATION
DISTRIBUTION AGREEMENT
This Distribution Agreement (this "Agreement") is made and entered into on the
day of JUNE 12, 1998 ("Effective Date") by and between BERGEN ▇▇▇▇▇▇▇▇ DRUG
COMPANY, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "DISTRIBUTOR") and
Cholestech Corporation ("Manufacturer"), having its principal place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
In consideration of mutual covenants contained herein, and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows.
1. APPOINTMENT
(a) Subject to the terms and conditions set forth herein, the Manufacturer
hereby appoints the DISTRIBUTOR as the Manufacturer's authorized distributor for
a period of one year from June 12, 1998 unless otherwise terminated pursuant to
Section 12. The appointment is on a non-exclusive basis in the United States for
sale of the Manufacturer's Product(s), (the "Products") listed on Attachment A,
as amended from time to time pursuant to Section 2(b) for use solely in the
United States and solely by such retail pharmacies.
2. TERMS OF PURCHASE FOR DISTRIBUTOR
(a) All purchases by the DISTRIBUTOR from Manufacturer during effective period
of Agreement shall be subject to the terms and conditions of this Agreement.
(b) Price: The purchase price to the DISTRIBUTOR for the Product(s) shall be
price set forth in the Manufacturer's BERGEN ▇▇▇▇▇▇▇▇ price list which shall be
updated and delivered to the DISTRIBUTOR from time to time, attached to this
Agreement as Attachment A. The Manufacturer agrees to provide DISTRIBUTOR with a
new price list (as modified by Attachment B) announcing a price increase at
least sixty (60) days prior to the effective date thereof.
Product prices do not include local, sales, use, exercise, customs, export,
import, or similar taxes, license fees or other charges incident of the sale of
Products, which shall be paid by the DISTRIBUTOR. In lieu thereof, the
DISTRIBUTOR may provide the Manufacturer with a tax-exempt certification
acceptable to the appropriate taxing authorities. The DISTRIBUTOR shall also pay
all fees, assessments and taxes levied against products in the DISTRIBUTOR'S
possession.
(c) Orders: All purchase orders of DISTRIBUTOR shall be subject to acceptance by
Manufacturer at Hayward, California. DISTRIBUTOR may use its standard purchase
order form to order Products(s); however, the terms and conditions of this
Agreement shall supersede any different,
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conflicting, or additional terms on purchase orders submitted on the DISTRIBUTOR
forms. Each purchase order shall be at least $150.00 (minimum order), or pay a
minimum of $150.00 for each order totaling less than $150.00.
Orders entered by the DISTRIBUTOR under this Agreement shall specify:
(a) Description of Products, inclusive to any of the Manufacturer's
numerical/alphabetical identification;
(b) requested delivery date;
(c) applicable price (denominated in United States dollars);
(d) location to which the Products are to be shipped;
(e) location to which invoices shall be rendered for payment; and
(f) any other ordering procedures established by the Manufacturer from
time to time.
(d) Terms of payment to the Manufacturer shall be: Net thirty (30) days after
shipment by the Manufacturer and shall be in United States dollars. A 1.5%
monthly interest rate, or the maximum rate allowed by law, whichever is less
shall be applied to all outstanding balances not paid within such thirty (30)
days. If the DISTRIBUTOR should default or if its financial condition shall at
any time be deemed impaired or unsatisfactory by the Manufacturer, in its
reasonable discretion, the Manufacturer shall have the right to cancel any
order, delay any shipments, and require cash.
(e) Shipping: The terms os shipping shall be "FOB Destination". Standard
shipping is currently specified as normal ground for LDX Systems and 2 day
delivery for all other Products. Non-standard shipping charges will be billed to
the DISTRIBUTOR. If the DISTRIBUTOR requests a drop shipment to a customer, the
entire cost of transportation designated by the DISTRIBUTOR shall be borne by
the DISTRIBUTOR. Additionally, Manufacturer, may in its sole discretion, add an
additional 6% of the invoice amount as a drop ship fee.
Title to and possession of the Products shall pass to the DISTRIBUTOR upon
receipt to destination.
(f) Intent: Product is sold to the DISTRIBUTOR for the sole purpose that it
then be sold by the DISTRIBUTOR directly to end-use consumers of the Product.
The DISTRIBUTOR shall not sell the Product(s) to any person or entity that is
not such an end-user consumer without prior written consent by Manufacturer. No
product may be sold by the DISTRIBUTOR for subsequent transport outside of the
United States, except when sold to an agency of the United States government.
(g) The DISTRIBUTOR shall meet the annual minimum purchase obligations as
defined in Attachment C ("Minimum Purchase Requirements"). Failure of the
DISTRIBUTOR to meet the Minimum Purchase Requirements shall entitle the
Manufacturer to alter the Prices set forth in Attachment A effective
immediately and not withstanding the 60 day time period provided for in section
2(b).
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3. WARRANTY
(a) The Manufacturer hereby represents and warrants to DISTRIBUTOR that:
(i) The Manufacturer will convey to the DISTRIBUTOR good title to the
Product(s) free and clear of all security interests, liens or other
encumbrances of any kind or character.
(ii) The Manufacturer has manufactured, packaged and is selling the Product(s)
to DISTRIBUTOR in material compliance with all applicable federal, state
and local laws, rules and regulations. The Manufacturer has notified
DISTRIBUTOR as to the identity of Product(s), via copies of the Materials
Safety Data Sheets, which Product(s) when disposed of will constitute
"hazardous waste", under regulations (the "Regulations") promulgated by
the Environmental Protection Agency under Subpart C of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1916, as amended.
(iii) The Product(s) will conform substantially to the Manufacturer's
specifications until the expiration date listed on the label. This
warranty is contingent upon proper use of the Product(s) in the
application for which the Product(s) are intended and does not cover
Product(s) that were modified without the Manufacturer's approval or that
were subject by DISTRIBUTOR or end-user customer to shipment, storage, or
use conditions other than recommended by the Manufacturer.
(b) The DISTRIBUTOR represents and warrants that:
(i) It holds all necessary federal, state, and local licenses and permits for
the DISTRIBUTOR to distribute the Products in the United States in
accordance with applicable law;
(ii) There are no actions or proceedings pending or contemplated within the
knowledge of the DISTRIBUTOR that would in any way jeopardize any such
licenses or permits; and
(iii) It has all corporate authority to perform this Agreement and that such
performance will not violate any agreement to which it is a party.
4. ADDITIONAL OBLIGATIONS OF DISTRIBUTOR
The DISTRIBUTOR shall at its own expense, unless otherwise stated, and
consistent with the sales policies of the Manufacturer:
Exert its commercially reasonable efforts to sell and actively promote maximum
sales of the Product(s), solicit and obtain orders for the Product(s) and
cooperate with the Manufacturer in carrying out promotional programs.
(a) Comply with all applicable laws, ordinances and regulations pertaining to
responsibilities of a medical device distributor, including without
limitation, the Food, Drug, and Cosmetic Act, Hazardous Substance Act,
Clinical Laboratory Improvement Act of 1967, Clinical Laboratory Amendment,
of 1988, Medical Device Amendments of 1976, and the Safe Medical Devices
Act of 1990. Hold a valid resale permit or license, comply with Medical
Device reports requirements applicable to a wholesale distributor, if any,
pertaining to the reporting of adverse events and device deficiencies.
(b) Maintain adequate written procedures for warehouse control and records of
the distribution of Products for at least two (2) years after the end of
the useful life of the Products. This shall be done in such form as to
enable Manufacturer or the FDA to trace the location of all regulated
Products.
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(c) Immediately refer all written and oral complaints concerning the Products
to Manufacturer and keep a record of all such complaints.
(d) Use reasonable efforts to maintain an adequate inventory of the Product(s)
to prevent backorders for the Product(s).
(e) Not use any trademark, trade name, or logo of the Manufacturer except as
provided in this Agreement without prior written approval from the
Manufacturer as secured by signature of the CEO or CFO of Manufacturer.
DISTRIBUTOR may affix its name, address and telephone number to
Manufacturer's package or literature so long as the affixed material does
not obliterate or obscure any information placed thereon by the
Manufacturer.
(f) Distributor will make no representations or warranties or claims with
respect to Products other than those specifically authorized by
Manufacturer.
(g) Keep track of each individual sale for each Product to each customer and
shall provide to the Manufacturer, as mutually agreed by the parties,
information on sales, per product, per customer.
(h) Not relabel any Product, substitute, remove or modify any components of any
Product, unseal or open any packaged product or otherwise tamper with any
of the Products, unless mutually agreed to in writing by the parties.
(i) Respond to all questions, requests for assistance, and complaints from
purchasers of the Products in a timely manner.
5. ADDITIONAL OBLIGATIONS OF THE MANUFACTURER
The Manufacturer shall:
(a) Promptly after each request, provide the DISTRIBUTOR with marketing and
technical information concerning the Product(s) and reasonable amounts of other
printed material for the use and information of the DISTRIBUTOR'S customers.
Manufacturer will at the Manufacturer's sole expense make available to
DISTRIBUTOR training programs sponsored by the Manufacturer in connection with
the Product.
(b) Minimize delivery time to the extent reasonably possible and use its
commercially reasonable efforts to fulfill delivery obligations arising from
acceptances of purchase orders.
(c) Attend DISTRIBUTOR'S sales/marketing meetings of the DISTRIBUTOR and its
agents and employees on a timely basis, at the discretion of DISTRIBUTOR.
(d) Provide to the DISTRIBUTOR reasonable assistance with sales efforts and
inventory control programs related to the Product(s).
DISTRIBUTOR shall inspect all goods promptly upon receipt. In the event that
any of the Products when delivered to DISTRIBUTOR, do not conform to
Manufacturer's warranty as set forth in Section 3(c) hereof, or such Products
or their packaging is damaged, recipient shall notify Manufacturer as to such
condition in writing, and shall provide Manufacturer with a reasonable
opportunity to inspect such Product(s). DISTRIBUTOR'S failure to discover
non-conforming Products or to notify Manufacturer shall not negate
Manufacturer's warranties set forth in this Agreement or in any other written
Manufacturer document. If DISTRIBUTOR does not reject a shipment of Product(s)
within Five (5) days of delivery to the end user, such shipment will be deemed
to have been accepted. Manufacturer shall either replace or shall
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refund the invoice price associated with any Products which do not conform to
Manufacturer's warranty, or that are damaged upon the return of such Products
to Manufacturer under written authorization of Manufacturer.
All transportation charges for the return of such Products shall be paid by
Manufacturer, if the Manufacturer's inspection confirms that such Product(s) do
not conform to the warranty in Section 3(a(iii). Payment for the Product(s)
prior to inspection by recipient shall not constitute acceptance thereof and is
without prejudice to any claims that recipient may have against Manufacturer
under this Section 5.
6. RETURNED PRODUCTS
(a) Pre-authorized Returns: In the event that (I) the Manufacturer fails to
correctly process the DISTRIBUTOR'S order for the Product(s), or (II)
Product(s) are unsalable due to being obsolete upon receipt by Distributor, or
(III) the Product(s) are subject to an injunction or governmental order or
regulation which substantially limits the marketability of the Product(s), or
(IV) the marketability of the Product(s) is limited as a result of an act or
omission of the Manufacturer, or (V) upon receipt, the Products are subject to
expiration dating and have a remaining "shelf life" of less than 60% (limited
to Product(s) with ninety (90) days "shelf life" or greater), or the Product(s)
are rejected in accordance with Section 5, above, then DISTRIBUTOR shall have
the right to return the affected Product(s) to the Manufacturer and receive
replacement of such Product(s), or, in the event that the Manufacturer
determines in good faith that the Product(s) cannot be replaced, the
DISTRIBUTOR will receive a refund of the invoice amount for such Product(s).
All transportation charges resulting from the return of Product(s) to the
Manufacturer pursuant to section 6(a) shall be paid by the Manufacturer.
(b) Other Returns: The DISTRIBUTOR shall otherwise not have the right to return
the Product(s) to the Manufacturer, without the written authorization of the
Manufacturer. The Manufacturer will accept return only on Product(s) authorized
by the Manufacturer in writing to be returned.
7. EXCUSABLE DELAYS
The Manufacturer will fill routine orders within 5 days. For unusually large
orders of any Product(s), greater than the last 3 months orders combined from
DISTRIBUTOR, the Manufacturer will fill the order within 21 days. For instrument
orders larger than 250 units, the Manufacturer requires a sixty (60) day lead
time notification. The Manufacturer shall not be charged with any liability for
delay or non-delivery of Product(s) when due to delays of suppliers, acts of God
or the public enemy, compliance in good faith with any applicable foreign or
domestic governmental regulation order, whether or not proven to be valid,
riots, labor disputes, unusually severe weather or any other causes beyond the
reasonable control of the Manufacturer, only during the period such condition
continues and the reasonable period thereafter necessary for the Manufacturer to
recover from the effects thereof (including without limitation repair or
replacement of facilities and equipment and the fulfillment of unfulfilled
orders). The Manufacturer shall give DISTRIBUTOR written notification of any
material or indefinite delay due to such causes. In the event of demand which
exceeds the Manufacturer's ability to meet such demand for Product(s),
Manufacturer may allocate the supply of Product(s) among its customers in the
manner deems most appropriate.
8. DISCLAIMER
The warranties extended from Manufacturer to DISTRIBUTOR are limited to the
express warranties set forth in Section 3 and 5 above and such other warranties
as described in such Sections. The Manufacturer discloses all other warranties,
expressed or implied, including, but not limited to, the implied warranties of
merchantibility and fitness for a particular purpose.
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9. LIMITATION OF LIABILITY
Manufacturer disclaims liability for all consequential damages in any form, even
though Manufacturer may have been advised or may otherwise know of possibility
of such damages, except as otherwise expressly provided for in this Agreement,
provided, however, the foregoing shall not limit in any way Manufacturer's
indemnity set forth in Section 11(a) in respect of third party claims. Nothing
in this Agreement shall make Manufacturer liable beyond the expressed
limitations of this warranty (Section 9), including any claims for breach of
contract, lost receipts or profits, business interruptions, or any other
tangible business loss, except as otherwise expressly provided for in this
Agreement. DISTRIBUTOR shall not be liable to Manufacturer for any incidental or
consequential damages including lost profits from any cause, except as otherwise
expressly provided for in this Agreement.
10. CONFIDENTIALITY
Except as expressly otherwise provided in this Agreement, during the term hereof
and for five (5) years from the date this Agreement expires or terminates, each
party shall hold in confidence and not use or disclose to any third party (other
than employees of such party similarly bound in writing, provided such
disclosure is in furtherance of this Agreement) any product, technical,
marketing, financial, business or other proprietary information of the other
that is noted as "Confidential" at the time of disclosure (and promptly reduced
to writing if orally disclosed) and labeled as "Confidential" obtained by such
parties pursuant to this Agreement
Nothing contained herein will in any way restrict or impair either party's right
to use, disclose, or otherwise deal with any confidential information at the
time of its receipt:
(a) Is generally available in the public domain, or thereafter becomes available
to the public through no improper act of the receiving party; or
(b) Is known to recipient at the time the information is received or becomes
known to recipient from a source other than the discloser, which source did not
receive such information directly or indirectly form the discloser; or
(c) Is furnished by the discloser to others, without restrictions as to the
other recipient's right to use or disclose; or
(d) Is approved for release in writing by the discloser; or
(e) Is independently discovered, created, or developed by recipient; or
(f) Is required to be disclosed by law or a valid order of court, providing that
the party disclosing such information seeks confidential treatment of
information so disclosed, to the extent available.
11. INDEMNIFICATION
(a) The Manufacturer hereby agrees to defend, indemnify and hold harmless
DISTRIBUTOR, its customers, agents, affiliates and subsidiaries, and the
officers, directors, and employees of each of them (collectively "Indemnities")
from and against any and all damages, losses, expenses, costs, claims, judgments
and liabilities, including reasonable attorney's fees, incurred by any of the
Indemnities (except to the extent caused by the negligence, recklessness or
willful misconduct of the respective Indemnities) arising form or in connection
with (I)("Claims") that indemnities possession, use, promotion, marketing,
distribution, sale, or delivery of the
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Product(s) constitutes unfair trade competition or the infringement of any
invention or invasion of the proprietary rights of any third party, including
without limitation, the infringement of any rights of third parties under laws
relating to trademarks, trade names, trade secrets, copyrights, patents or the
violation of any copyright laws or any other applicable, federal, state or
local laws, rules or regulation; (II) any bodily injury or property damage to a
third party caused by the use or possession of the Product(s), provided, that
the Manufacturer shall not indemnify any indemnity to the extent such
indemnities is responsible for bodily injury or property damage caused by use
of the Products that is not the proper use of such Products in the application
for which such Products were intended by the Manufacturer, modification of
Products without the Manufacturer's prior written approval or the subjecting of
Products to shipment, storage or use conditions other than those recommended by
the Manufacturer; (III) the negligence, recklessness, or willful misconduct of
the Manufacturer, its officers, directors, agents and employees; (IV) the
breach of any representation, obligation or warranty of the Manufacturer
contained herein; (V) a recall of the Product(s); (VI) the label, labeling,
promotional literature, or other information concerning products provided by
Manufacturer.
(b) DISTRIBUTOR shall indemnify and hold harmless Manufacturer and its
affiliates, and their officers, directors, employees, sales persons and other
agents against any and all claims, demands, damages, losses, costs and other
expenses, including reasonable attorney's fees, sustained by Manufacturer by
reason of (I) any warranty or representation, expressed or implied, made by
DISTRIBUTOR, its affiliates, subsidiaries, officers, directors, and employees
of each of them, except for those representations and warranties relating to
Products that are expressly made by the Manufacturer, appearing in
Manufacturer's labeling or literature or are expressly approved in writing by
Manufacturer; (II) any failure of DISTRIBUTOR, its affiliates, subsidiaries,
directors, officers, and employees of each of them to comply with
DISTRIBUTOR'S obligations under this Agreement, include without limitation any
failure to comply with applicable laws and regulations; and (III) any
negligent, reckless, or willful misconduct on the part of DISTRIBUTOR, its
affiliates, subsidiaries, officers, directors, and employees of each of them.
12. TERMINATION
(a) The term of this Agreement shall commence on June 12, 1998 and shall extend
for one year thereafter, and continue automatically for successive one (1) year
periods with agreed upon volume commitments as outlined in Attachment C, unless
terminated upon notice by either party at least thirty (30) days prior to the
end of the existing term. This Agreement may be terminated for any reason by
either party upon thirty (30) days written notice.
(b) This Agreement shall terminate, without notice: (I) upon the institution by
or against either party of insolvency, receivership or bankruptcy proceedings
or any other proceeding for the settlement of either party's debts; (II) upon
either party's making an assignment for the benefit of creditors; and (III)
upon either party's dissolution.
(c) Upon termination of this Agreement: (I) all licenses to DISTRIBUTOR shall
terminate and all trade names, patents, designs, drawings, copyrights,
trademarks, formulas, trade secrets, or other data, photographs, samples,
literature, and sales aids of every kind shall remain the property of the
manufacturer; (II) and DISTRIBUTOR shall prepare all such items in its
possession with reasonable promptness for shipment, (F.O.B the shipping point),
as the Manufacturer may direct, at the Manufacturer's expense; (III) neither
Manufacturer nor DISTRIBUTOR shall make or retain copies of any confidential
items or information of which either party may have been entrusted by the other
party; (IV) effective upon termination of this Agreement, DISTRIBUTOR shall
cease immediately the use of any and all trademarks or trade names of the
Manufacturer.
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(d) Upon termination of this Agreement, with or without cause, DISTRIBUTOR may
sell any remaining inventory of the Product(s) unless Manufacturer notifies
DISTRIBUTOR that the Manufacturer will, within thirty (30) days from the date
of termination, repurchase, at DISTRIBUTOR'S cost, DISTRIBUTOR'S remaining
inventory of Product(s).
13. MARKS
(a) The Manufacturer grants the DISTRIBUTOR permission to use Product's
trademarks, trade names, insignia symbols, identification and logo types
owned by the Manufacturer or which the Manufacturer is permitted to use
("Marks") in its advertising and promotions provided that all such
advertising and promotion using Marks or any references thereto shall:
(i) conform to current written Manufacturer standards and guidelines,
with the respect to but not limited to style, appearance and manner
of use of Marks (the "Guidelines");
(ii) be submitted in writing to the Manufacturer for review and the
Manufacturer's written approval (which approval may be withheld for
any reason) as secured by signature of the CEO or CFO of
Manufacturer. If any use by the DISTRIBUTOR does not conform to the
Manufacturer Guidelines, then the Manufacturer may require the
DISTRIBUTOR to submit materials using or referring to Marks for
republication review; and
(iii) clearly separate any non-product items or Marks of others, shown or
identified, from Marks or Products, (Marks are not to be used in the
DISTRIBUTOR'S advertising and promotion in anyway to imply the
Manufacture's endorsement of or in connection with non-Manufacturer
products or services).
(a) The DISTRIBUTOR will not alter or remove any ▇▇▇▇ applied to the Products
without written approval of the Manufacturer. Nothing in this Agreement
shall grant to the DISTRIBUTOR any rights in the Marks of the Manufacturer.
(b) No product, copyright, software, technology licenses, express or
implied, or any licenses of any kind, other than for the distribution and
sale of the Products within the terms and conditions of this Agreement,
are granted by the Manufacturer to the DISTRIBUTOR hereunder.
14. MISCELLANEOUS
(a) The Manufacturer and the DISTRIBUTOR agree that the DISTRIBUTOR is an
independent contractor and that this Agreement does not establish either the
Manufacturer or the DISTRIBUTOR as an agent, partner, joint venture, employee,
servant, or legal representative of the other for any purpose whatsoever.
Neither the Manufacturer nor the DISTRIBUTOR is granted any right or authority
to assume or create any obligation or responsibility, expressed or implied, on
behalf of the other in any manner whatsoever.
(b) The Agreement is executed in duplicate and shall be governed by the laws
of the State of California.
(c) This Agreement embodies the entire Agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings relating
to the subject matter hereof. No subsequently delivered invoice, purchase
order, acknowledgment, confirmation, standard terms and conditions or similar
document, whether submitted in writing, electronically, or via facsimile,
containing terms inconsistent herewith shall be effective to amend or modify
this Agreement, unless such document expressly states the intention to do so
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and is signed by both parties hereto, or except for any Continuing Guaranty and
Indemnification or similar document required to be delivered to DISTRIBUTOR by
all suppliers.
(d) No modification, change, or amendment to the Agreement, nor waiver of any
rights in respect hereto, shall be effective unless in writing and signed by
both parties. The waiver of any breach or default hereunder shall not
constitute the waiver of any subsequent breach or default.
(e) Any notice or report required or permitted by this Agreement shall be
deemed given if delivered personally, or sent by either party to the other by
registered or certified mail, postage prepaid, addressed to the other party at
its principal business address given hereunder.
(f) Neither party shall assign the Agreement nor any rights hereunder without
the prior written consent of the other party. The Agreement shall bind and
inure to the benefit of the respective parties hereto and their heirs, personal
representatives, successors and permitted assignees.
(g) The headings appearing at the beginning of the numbered sections hereof
have been inserted for convenience only and do not constitute a part of the
Agreement.
(h) If any section of this Agreement is declared invalid by any court of
competent jurisdiction or other government agency having jurisdiction over
either party, such declaration shall not affect the validity and enforceability
of the other sections.
(i) This Agreement may be executed in counterparts, each of which constitute an
original and all of which shall constitute one instrument.
AGREED TO AND ACCEPTED BY:
Manufacturer: Distributor:
CHOLESTECH CORPORATION BERGEN ▇▇▇▇▇▇▇▇ DRUG COMPANY
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ -------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President of Sales Marketing Title: Products, National Director
Date: 7/20/98 Date: 7/20/97
------------------------- ------------------------------
Cholestech Bergen ▇▇▇▇▇▇▇▇ DRUG Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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ATTACHMENT "A"
PRICE LIST
Price list attached.
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CHOLESTECH L-D-X(R) SYSTEM
-----------------------------------------------------------------------------------------------------------------------------------
BERGEN ▇▇▇▇▇▇▇▇ PRICE LIST EFFECTIVE MAY 15, 1998
Catalog No. Description Unit Price
----------- ----------- ---- -----
ANALYZER
10-959 Cholestech L-D-X(R) System 1 Each $ ***
Includes: Analyzer, Printer, Power Supply, Starter Pack, Optics Check
Cassette, User Manual, Procedure Manual and Training Video
00-001 1 Year Extended Warranty Program for Cholestech L-D-X Analyzer 1 Each $ ***
00-002 2 Year Extended Warranty Program for Cholestech L-D-X Analyzer 1 Each $ ***
00-003 3 Year Extended Warranty Program for Cholestech L-D-X Analyzer 1 Each $ ***
TEST CASSETTES
10-986 TC (Total Cholesterol) Box of 10 Cassettes $ ***
10-988 TC and Glucose Box of 10 Cassettes $ ***
10-987 TC and HDL Panel Box of 10 Cassettes $ ***
10-990 TC-HDL-GLU Panel Box of 10 Cassettes $ ***
▇▇-▇▇▇ ▇▇▇▇▇ Profile Box of 10 Cassettes $ ***
▇▇-▇▇▇ ▇▇▇▇▇ Profile plus Glucose Box of 10 Cassettes $ ***
QUALITY CONTROL MATERIALS
10-982 Level 1 and Level 2 Control Materials 2 Vials, 2 mL Each $ ***
(1 Vial ▇▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇)
▇▇-▇▇▇ ▇▇▇▇▇ 1 and Level 2 Control Materials 6 Vials, 2 mL Each $ ***
(3 Vials Level 1 and 3 Vials Level 2)
10-228 Optics Check Cassette with Case 1 Each $ ***
ACCESSORIES
10-965 Seiko Smart Label(TM) Printer EZ30, IBM(R) Compatible 1 Each $ ***
10-966 Seiko Smart Label(TM) Printer EZ30, Macintosh(R) Compatible 1 Each $ ***
10-976 White Labels for the Seiko Smart Label(TM) Printer EZ30 2 Rolls, 130/Roll $ ***
10-903 Cholestech Printer Handi-Pak (4 rolls of single ply paper and 2 ribbons) 1 Each $ ***
10-926 Cholestech Printer 2-Ply Carbonless Paper 4 Rolls $ ***
10-009 Cholestech L-D-X Power Supply 1 Each $ ***
10-958 RS232 Adapter Kit 1 Each $ ***
11-011 Seiko Smart Label(TM) Printer EZ30 Adapter Kit 1 Each $ ***
10-973 Carrying Case 1 Each $ ***
DISPOSABLE SUPPLIES
10-972 Starter Pack: 1 vial each of 50 Capillary Tubes and ▇▇▇▇▇▇▇▇, ▇ Each $ ***
1 Bag of 50 Pipette Tips, 50 Lancets, 1 Mini-Pet Pipettes
and Accessory Tray
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ Tubes (Plastic Clad) Vial of 50 $ ***
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Vial of 50 $ ***
01-606 Lancets Box of 50 $ ***
11-000 Mini-Pet Pipette 1 Each $ ***
11-010 Pipette Tips Bag of 50 $ ***
EDUCATIONAL MATERIALS
10-995 Cholestech L-D-X User Manual 1 Each $ ***
11-014 Cholestech Procedure Manual (CLIA '88") 1 Each $ ***
01-538 Training Video 1 Each $ ***
00-940 "Understanding Your Blood Cholesterol Test" Brochure (Fasting-red) 1 Pack (50 each) $ ***
00-941 "Understanding Your Blood Cholesterol Test" Brochure (Non Fasting-blue) 1 Pack (50 each) $ ***
00-939 "Is Your Heart At Risk"? HDL Pamphlet 1 Pack (50 each) $ ***
01-207 Fingerstick Tip Technique Pad 1 Pad $ ***
To place an order, please call Cholestech Customer Service at 800-733-0404 between 6:00 AM - 5:00 PM Pacific time
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Cholestech Corporation - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. - ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ - ▇▇▇-▇▇▇-▇▇▇▇ - FAX: ▇▇▇-▇▇▇-▇▇▇▇▇ CHOLESTECH [LOGO]
*** denotes material that has been omitted pursuant
to a request for confidential treatment and has
been filed with the S.E.C. separately
12
ATTACHMENT "C"
Bergen ▇▇▇▇▇▇▇▇ Company agrees to a minimum purchase and shipment of L.D.X.
Systems and Test Cassettes according to the following quarterly schedule:
COMBINED
LDX SYSTEMS TESTS $ VOLUME
------------------------------------------------------
First 12 months:
Q1 *** *** $ ***
Q2 *** *** $ ***
Q3 *** *** $ ***
Q4 *** *** $ ***
----- --- ------- ----------
Total *** *** $ ***
**SEE ATTACHMENT "A" FOR BERGEN ▇▇▇▇▇▇▇▇ COMPANY PRICE LIST**
-------------------------------------------------------------
Units may vary depending on market conditions. However dollar volume must remain
fixed or increase. DISTRIBUTOR must submit a rolling quarterly forecast
commencing at the start of each quarter, with the first quarter as a firm order
commitment. IF DOLLAR VOLUME ABOVE IS ACHIEVED (BY QUARTER), DISTRIBUTOR IS
ELIGIBLE FOR THE ATTACHED FUNCTIONAL DISCOUNT SCHEDULE FOR AN ADDITIONAL .03%
MARGIN.
*** denotes material that has been omitted pursuant
to a request for confidential treatment and has
been filed with the S.E.C. separately
13
ATTACHMENT "C" CONTINUED
FUNCTIONAL DISCOUNTS FOR NATIONAL
DISTRIBUTORS
In the event the Distributor offers vendor marketing programs, preferred
vendor programs, select vendor initiatives, prime alliance programs, elite
programs, enhanced marketing vehicles, and/or programs offering enhanced sales
compensation packages, Cholestech agrees to provide an additional discount of
03%. This additional discount will be provided upon achieving sales goals and on
completion of the quarter in which Cholestech and the Distributor have
successfully participated in such program(s) and will be paid within thirty (30)
days from the close of the quarter. A 1.5% interest rate will be applied monthly
to any amounts not paid within thirty (30) days.
Such programs will minimally provide but not be limited to the
following:
Point-of-Sale monthly reports to Cholestech
Cholestech Product line emphasis
Sales compensation programs and initiatives
Preferred vendor status
Marketing programs and emphasis
National account support
Participation opportunity at all Distributor sales meetings (national,
area, and/or regional) with no or minimal additional costs to Cholestech