Attached files
| file | filename |
|---|---|
| 10-K/A - Apyx Medical Corp | v167911_10ka.htm |
| EX-31.1 - Apyx Medical Corp | v167911_ex31-1.htm |
| EX-32.2 - Apyx Medical Corp | v167911_ex32-2.htm |
| EX-10.2 - Apyx Medical Corp | v167911_ex10-2.htm |
| EX-32.1 - Apyx Medical Corp | v167911_ex32-1.htm |
| EX-31.2 - Apyx Medical Corp | v167911_ex31-2.htm |
| EX-10.12 - Apyx Medical Corp | v167911_ex10-12.htm |
| EX-10.14 - Apyx Medical Corp | v167911_ex10-14.htm |
FIRST
AMENDMENT TO DISTRIBUTION AGREEMENT
This
First Amendment to Distribution Agreement (“Amendment”) is made and
entered into as of this 23rd day of August 2007 (“Amendment Effective Date”) by
and between Boston Scientific Corporation, One Boston Scientific Place, Natick,
MA 01760 (“BSC”) and Bovie Medical Corporation, 7100 30th Avenue
N, St. Petersburg, FL 33710 (“Bovie”).
RECITALS:
WHEREAS,
the Parties entered into that certain Distribution Agreement dated as of October
6, 2006 (the “Agreement”);
WHEREAS,
capitalized terms used but not otherwise defined herein have the meaning set
forth in the Agreement (defined below);
WHEREAS,
pursuant to the terms of the Agreement set forth in Section 9.5(iv), the Parties
may modify the Agreement only by a writing signed by both
Parties; and
WHEREAS,
the Parties have negotiated new terms respecting (i) pricing of Product
manufactured by Bovie prior to the Product Launch Date, other than
(a) Product ordered on the Initial Purchase Order or (b) Product ordered by BSC
prior to the Product Launch Date for customer training and customer sampling
(“Pre-Launch
Product”), (ii) the addition of ** **, and the removal of
“Mott,” as the primary vendor for the Product’s porous
tip** ** assembled to it (each being a separate component
and collectively referred to herein as the
** ** and each set of one porous tip and
** ** being referred to herein as a
** **, and (iii) Seller’s obligations under Section 3.2
(Seller’s Vendors) particularly directed to “Mott.”
NOW,
THEREFORE, in consideration of the foregoing recitals (which are incorporated
herein and made a part hereof) and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Parties agree as
follows.
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1.
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Amendment. As
of the Amendment Effective Date, the following modifications to the
Agreement shall apply:
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a.
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Amendment to Section
1.3. Section 1.3 of the Agreement (Ordering) is hereby
amended as follows:
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The
seventh sentence of Section 1.3(b) of the Agreement (Ordering) is hereby amended
by deleting it in its entirety and replacing it with the following: “Pre-Launch
Product shall not accrue to the 3,500 unit minimum purchase requirement for the
first two (2) Contract Years.”
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b.
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Amendment to Section
2. Section 2 of the Agreement (Pricing; Payment;
Continuous Improvement) is hereby amended by adding a new Section 2.6 to
the Agreement with the following
language:
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“Section
2.6 Pre-Launch
Product. From time to time prior to the Product Launch Date,
Seller may manufacture Pre-Launch Product (defined below) and Buyer shall
reimburse Seller for such Pre-Launch Product at the Unit Price set forth
below. Buyer will issue an open purchase order for
** **of Pre-Launch Product against which Seller
will invoice Buyer for Pre-Launch Product manufactured in furtherance of
creating commercially saleable Product. Notwithstanding anything in
this Agreement, Seller will not charge Buyer for, and Buyer will not reimburse
Seller for, any Pre-Launch Product in excess of
** ** units, unless such additional units have
been ordered by Buyer in advance pursuant to a purchase order from Buyer to
Seller. The following formula sets forth the unit pricing for
Pre-Launch Product:
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Unit
Price = ** ** * 1.15
Where (i)
** ** is the fixed price of the pencil handle
and packaging, (ii) ** ** is
** ** (defined below in Section 3.2) transfer
price for the ** ** up to a maximum of $15.00
per ** ** (provided, that such
$15.00 cap only applies to the first
** ** units of Pre-Launch Product), net of all
discounts, and (iii) 1.15 reflects Seller’s markup
of ** ** Seller shall not charge Buyer
any labor costs related to the manufacture of Pre-Launch Product.
For
purposes of this Agreement, “Pre-Launch Product” means
Product manufactured by Seller prior to the Product Launch Date, other than (a)
Product ordered on the Initial Purchase Order or (b) Product ordered by Buyer
prior to the Product Launch Date for customer training and customer
sampling.”
For
purposes of this Agreement, ** ** means collectively the
Product’s porous tip and tube assembled to it.
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c.
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Amendment to Section
3.2. Section 3.2 of the Agreement (Seller’s Vendors) is
hereby amended as follows:
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(i)
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by
adding the following language to subclause (a) of the eighth sentence
thereof: “or ** ** ** **
immediately after Mott Corporation (“Mott”);
and
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(ii)
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by
deleting all references to Mott in the tenth sentence thereof and
replacing each occurrence with
** **
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d.
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Amendment to Exhibit
F. Exhibit F to the Agreement (Seller’s Vendors) is
hereby amended by adding ** ** as a vendor thereto
and deleting Mott as a vendor therefrom, and by adding
** ** as a vendor
thereto.
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2.
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Product
Pricing. In addition to the amendments to the Agreement
set forth above, for the purposes of clarity, notwithstanding Section
1.3(f) of the Agreement or Section 1.a. of this Amendment, the transfer
prices for Products set forth in Exhibit E of the Agreement shall (a)
remain the same as set forth on the Effective Date despite any changes
that may occur to the Specifications because of the use of
** ** but shall remain subject to price
adjustments otherwise in accordance with the Agreement, including but not
limited to Sections 1.3(f) and 2.1 therein, and (b) only apply to Product
ordered on the Initial Purchase Order (even though ordered before the
Product Launch Date) or subsequent orders for Product after the Product
Launch Date (and not before such
time).
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3. Approval and Qualification
of Chand Eisenmann.
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a.
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Buyer
shall reasonably cooperate with Seller to promptly approve
** ** as a vendor of the
** ** Seller will be solely
responsible for any and all of Seller’s labor, materials or other expenses
associated with phasing in ** ** as a vendor of the
** ** to the extent required for Seller to comply
with the Specifications Revision Level Number A-2 approved by Seller on
April 4, 2007.
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b.
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Seller
acknowledges and agrees that Buyer’s consent to qualify and approve
** ** as the primary vendor of the
** ** in no way modifies or waives any
of Seller’s obligations with respect to Quality Assurance, or otherwise,
set forth in the Agreement, except as expressly amended
herein.
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4. Selection of Seller’s
Vendors. Notwithstanding anything in this Amendment, Seller
reserves the right to select or change its vendors, subject to Buyer’s prior
written approval, in accordance with the provisions of Section 3.2 (Seller’s
Vendors) of the Agreement.
5. Effect on
Agreement. Except as expressly stated herein, the terms and
conditions of the Agreement are ratified and confirmed, and shall remain in full
force and effect.
IN WITNESS WHEREOF, the
Parties have hereby executed this Amendment as of the date first written
above.
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BOSTON
SCIENTIFIC
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BOVIE
MEDICAL
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CORPORATION
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CORPORATION
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/S/ David McClellan
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/S/ Moshe Citronowicz
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Signature
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Signature
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David McClellan
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Moshe Citronowicz
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Printed
Name
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Printed
Name
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President of Oncology
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Vice President COO
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Title
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Title
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7-5-07
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7-6-09
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Date
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Date
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