Exhibit 10.2
AMENDMENT 1
TO THE
CO-PROMOTION AND DISTRIBUTION AGREEMENT
BETWEEN
ICU MEDICAL SALES, INC.
AND
▇▇▇▇▇▇ LABORATORIES
This Amendment 1 (this "Amendment"), effective this 14th day of
January, 2004 the "Effective Date") is made to the Co-Promotion and Distribution
Agreement dated February 27, 2001 between ICU Medical, Inc. ("ICU") and ▇▇▇▇▇▇
Laboratories ("Abbott") (the "Agreement").
The parties agree to amend the Agreement as follows:
1. INCORPORATION OF THE AGREEMENT. All capitalized terms which are
not defined herein shall have the same meanings as set forth in
the Agreement, and the Agreement, to the extent not inconsistent
with this Amendment, is incorporated herein by this reference as
though the same was set forth in its entirety. To the extent any
terms and provisions of the Agreement are inconsistent with the
amendments set forth below, such terms and provisions shall be
deemed superseded hereby. Except as specifically set forth herein,
the Agreement shall remain in full force and effect and its
provisions shall be binding on the parties hereto.
2. ACKNOWLEDGEMENT OF ASSIGNMENT. The Agreement was, effective July
1, 2002, assigned to ICU Medical Sales, Inc. All references to ICU
shall be deemed to be references to ICU Medical Sales, Inc.;
provided, however, that nothing this Amendment shall be deemed to
release ICU from any obligation or liability to Abbott under the
Agreement.
3. TERRITORY. The definition of Territory set forth in Section 1.29
of the Agreement shall be deleted in its entirety and shall be
replaced by the following: " "Territory" shall mean all countries
of the world."
4. PRODUCTS. The definition of "Product" contained in Section 1.22
shall be deleted in its entirety and shall be replaced by the
following:
"1.22 "Product" shall mean (a) SetSourceTM I.V. Sets
manufactured by ICU, which .SetSource I.V. Sets may include
proprietary products using either Party's proprietary devices
or features, new configurations or non-proprietary pump sets,
but shall not include any proprietary pump set unless and
until the Parties agree to include such product as a Product
hereunder, (b) I.V. Starter Kits and (c) Punctur-Guard Safety
Needle Products and any similar safety needle products.
5. APPOINTMENT IN FULL LINE ACCOUNTS. The first sentence of Section
2.1 shall be deleted in its entirety and shall be replaced by the
following:
"ICU grants to Abbott the exclusive right to market, sell and
distribute all Products in all Abbott Full Line IV Contract
Accounts in the United States and Canada."
6. APPOINTMENT IN THE TERRITORY. The first sentence of Section 2.2
shall be deleted in its entirety and shall be replaced by the
following:
"ICU additionally grants to Abbott the exclusive right to
market, sell and distribute all Products to all customers in
all countries outside the United States and Canada set forth
on Exhibit 2.2 attached hereto. ICU grants to Abbott the
non-exclusive right to market, sell and distribute all
Products to all customers in all countries in the Territory
that are not set forth on Exhibit 2.2; it being understood and
agreed by the parties that ICU may also market, sell and
distribute Products, either directly or indirectly, in all
countries outside the United States and Canada that are not
set forth on Exhibit 2.2. I"
7. ADDITION OF EXHIBIT 2.2. A new Exhibit 2.2 shall be added to the
Agreement which shall read as set forth on Exhibit 2.2 attached
hereto.
8. SUBDISTRIBUTORS. A new Section 2.7 shall be added to the Agreement
which shall read in its entirety as follows:
"With respect to any appointment of Abbott as a distributor
under this Agreement (whether the appointment is exclusive or
non-exclusive), Abbott shall have the express right to appoint
one or more sub-distributors."
9. TERM.
a. The first sentence of Section 11.1 of the Agreement
shall be deleted in its entirety and shall be
replaced by the following: "Unless earlier
terminated, the term of this Agreement shall commence
on the Effective Date and shall expire on December
31, 2014."
b. Section 11.2 shall be deleted in its entirety.
10. ASSIGNMENT. Section 12.7 of the Agreement shall be amended by
adding the following language to the end of the existing text:
"Abbott intends to transfer its core hospital products
business to a newly formed entity ("Newco") as described in a
press release issued by Abbott on August 22, 2003.
Notwithstanding anything to the contrary contained herein,
Abbott shall have the right to assign all of its rights and
obligations hereunder to Newco or a majority-owned subsidiary
of Newco. If Abbott effects an assignment pursuant to the
previous sentence, Abbott shall relinquish all of its rights
and shall have no further rights or obligations hereunder.
Thereafter, there shall be a contractual obligation solely
between Newco (or a majority-owned subsidiary of Newco, as
applicable) and ICU for performance of the obligations
hereunder that were previously the obligations of Abbott."
11. EFFECTUATION. The amendments to the Agreement contemplated by this
Amendment shall be deemed effective as of the date first written
above upon the full execution of this Amendment and without any
further action required by the parties hereto. There are no
conditions precedent or subsequent to the effectiveness of this
Amendment.
12. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same
instrument. One or more counterparts of this Amendment may be
delivered by facsimile, with the intention that delivery by such
means shall have the same effect as delivery of an original
counterpart thereof.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE TO AMENDMENT 1]
IN WITNESS WHEREOF, the parties, intending to be bound by the terms and
conditions hereof, have caused this Amendment to be signed by their duly
authorized representatives.
▇▇▇▇▇▇ LABORATORIES ICU MEDICAL SALES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
----------------------------- ----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
President, Chief Executive Officer
Hospital Products Division