BIOSITE WITHIN FHC'S REASONABLE FORECASTED AMOUNTS PURSUANT TO
SECTION 3(C), FHC SHALL NOT PROMOTE, MARKET, ADVERTISE, SELL, OR DISTRIBUTE ANY
PRODUCTS IN THE TERRITORY THAT ARE DIRECTLY COMPETITIVE WITH THE PRODUCTS.
NOTWITHSTANDING THE FOREGOING, FHC SHALL HAVE THE RIGHT TO DISTRIBUTE AND SELL
(I) PRODUCTS OF A THIRD PARTY, COMPETITIVE WITH THE PRODUCTS, WHICH THIRD PARTY
PRODUCTS FHC SELLS OR DISTRIBUTES AS OF THE EFFECTIVE DATE, AS LISTED ON
SCHEDULE H; (II) ANY PRODUCTS OF SUCH THIRD PARTY WHICH ARE SUBSEQUENTLY ADDED
BY SUCH THIRD PARTY TO ITS LINE OF PRODUCTS, WHICH ARE COMPETITIVE WITH THE
PRODUCTS, EXCEPT THOSE PRODUCTS IN THE SAME OR EQUIVALENT TESTING FORMAT OF THE
PRODUCTS THAT READ VISUALLY OR READ ON A POINT OF CARE INSTRUMENT; AND (III) ANY
INSTRUMENTS THAT MAY INCLUDE COMPETITIVE ASSAYS TO THE PRODUCTS WHICH ARE
INSTRUMENTS THAT ARE BASED ON AN AUTOMATED RANDOM ACCESS INSTRUMENT PLATFORM
(WITH THE EXCEPTION OF THOSE INSTRUMENTS MANUFACTURED BY OR ON BEHALF OF [***],
[***] [***], [***], [***] OR [***] OR THEIR SUCCESSORS OR ASSIGNS AND WHICH HAVE
A [***]) WITH A BROAD BASED MENU OF ANALYTES SUCH AS CHEMISTRIES, FERTILITY,
THYROID FUNCTION, ONCOLOGY, INFECTIOUS DISEASE, TDM, DOA, ALLERGY, ETC.;
PROVIDED THAT ALL OF THE
* Confidential Treatment Requested
7
PRODUCTS REFERRED TO IN SECTIONS 3(B)(I)-(III) HAVE A [***].
ADDITIONALLY,
NOTHING CONTAINED IN THIS AGREEMENT SHALL RESTRICT THE ACTIVITIES OF FHC OUTSIDE
THE TERRITORY WITH RESPECT TO COMPETING PRODUCTS.
FHC MAY OPT OUT OF THE
REQUIREMENTS OF THIS SECTION 3(B) AT ANY TIME DURING THE EXTENDED TERM BY
PROVIDING EXPRESS WRITTEN NOTICE THEREOF TO BIOSITE.
(C)
FHC SHALL PROVIDE BIOSITE, ON A MONTHLY
BASIS, WITH A WRITTEN FORECAST OF FHC'S ESTIMATED PURCHASE REQUIREMENTS FOR EACH
MONTH IN THE ENSUING THREE-MONTH PERIOD FOR THE PRODUCTS (OTHER THAN [***]), AND
IN THE ENSUING SIX MONTH PERIOD FOR [***].
FORECASTED QUANTITIES FOR PRODUCTS
FOR THE FIRST AND SECOND MONTH OF EACH FORECAST PERIOD SHALL BE BINDING, SUBJECT
HOWEVER TO A VARIANCE OF PLUS OR MINUS [***] FOR THE SECOND MONTH OF EACH
FORECAST AND PROVIDED THAT IN THE FIRST [***] MONTHS FOLLOWING THE DATE OF FIRST
PRODUCT SHIPMENT FOR ANY NEW PRODUCT, THE SECOND MONTH FORECAST SHALL BE SUBJECT
TO A VARIANCE OF PLUS OR MINUS [***].
BIOSITE SHALL USE ITS GOOD FAITH
COMMERCIAL EFFORTS TO SELL SUCH QUANTITIES TO FHC.
(D)
FHC MAY RETURN, FOR FULL CREDIT OR
REPLACEMENT, ANY PRODUCT FOR WHICH FHC IS REQUIRED TO GIVE A CUSTOMER A CREDIT
OR REPLACEMENT PRODUCT DUE TO A CLAIMED DEFECT OR DEFICIENCY IN THE PRODUCT,
PROVIDED THAT FHC FIRST OBTAINS FROM BIOSITE A RETURNED GOODS AUTHORIZATION
WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED BY BIOSITE.
(E)
BIOSITE SHALL REVIEW AND ADVISE FHC ON
COMPLIANCE WITH ALL FDA REQUIREMENTS REGARDING THE PRODUCTS CONTAINED IN FHC'S
ADVERTISING AND SALES LITERATURE.
(F)
FHC HEREBY REPRESENTS AND WARRANTS THAT
NEITHER FHC NOR ITS AGENTS OR EMPLOYEES WILL MAKE ANY REPRESENTATIONS OR CLAIMS
WITH RESPECT TO THE PRODUCTS WHICH ARE NOT AUTHORIZED IN WRITING BY BIOSITE.
SUBJECT TO THE