AS WELL AS ANY MATERIAL
CHANGES AFFECTING OWNERSHIP OR CONTROL OF FHC.
(L)
AT ALL TIMES DURING THE TERM OF THIS
AGREEMENT, FHC SHALL MAINTAIN INVENTORY OF EACH PRODUCT SUFFICIENT TO SATISFY
NOT LESS THAN FHC'S REQUIREMENTS FOR ITS REASONABLY FORECASTED SALES OF SUCH
PRODUCT FOR THE IMMEDIATELY FOLLOWING [***].
(M)
PROVIDED THAT BIOSITE IS NOT IN DEFAULT UNDER
THE TERMS OF THIS AGREEMENT, AT ALL TIMES DURING [***] OF THIS AGREEMENT, FHC
SHALL TREAT THE PRODUCTS SOLD TO CUSTOMERS OTHER THAN HOSPITALS [***] AS
"[***]," OR A [***] STATUS FOR PURPOSES OF [***].
(N)
TO THE EXTENT OTHERWISE PERMITTED UNDER THIS
AGREEMENT, IF BIOSITE IN GOOD FAITH ENTERS INTO A BONA FIDE WRITTEN AGREEMENT (A
"BIOSITE/GPO AGREEMENT") WITH A GROUP PURCHASING ORGANIZATION, INTEGRATED
DELIVERY NETWORK OR SIMILAR ENTITY (COLLECTIVELY, A "GPO") PURSUANT TO WHICH
(I) THE FACILITIES IN THE TERRITORY HAVING THE RIGHT TO PURCHASE PRODUCTS UNDER
SUCH GPO SHALL BE OBLIGATED TO PURCHASE ONE OR MORE PRODUCTS AT A PURCHASE PRICE
(THE "GPO PRICE") SPECIFIED IN, OR CALCULATED UNDER, SUCH BIOSITE/GPO AGREEMENT,
THE EFFECTIVE PRICE TO FHC, FOR PRODUCTS SOLD TO FHC FOR RESALE UNDER SUCH
AGREEMENT HEREUNDER SOLELY FOR RESALE TO SUCH FACILITIES, SHALL BE NOT GREATER
THAN [***]. IF FISHER OBJECTS TO SUCH PRICING THEN THE PARTIES SHALL EXERCISE
GOOD FAITH EFFORTS TO NEGOTIATE MUTUALLY AGREEABLE PRICING FOR A PERIOD OF NOT
LESS THAN FIFTEEN (15) DAYS.
IF THE PARTIES ARE UNABLE TO REACH AGREEMENT ON
OTHER PRICING ARRANGEMENTS, THEN DURING THE
* Confidential Treatment Requested
9
TERM OF THE GPO AGREEMENT, BIOSITE SHALL HAVE THE RIGHT TO PROMOTE, MARKET, SELL
AND DISTRIBUTE SUCH PRODUCTS TO SUCH GPO UNDER THE GPO AGREEMENT, IF FISHER
REFUSES TO SELL THE PRODUCTS TO THE GPO MEMBER(S) AT THE GPO PRICE.
(O)
TO THE EXTENT THAT SECTION 952 OF THE
OMNIBUS RECONCILIATION ACT OF 1980 (THE "ACT") AND THE REGULATIONS PROMULGATED
THEREUNDER ARE APPLICABLE TO THE DISTRIBUTION OR DELIVERY OF PRODUCTS TO A
CUSTOMER, DURING THE TERM OF ANY WRITTEN AGREEMENT WITH SUCH CUSTOMER AND UNTIL
THE EXPIRATION OF FOUR (4) YEARS AFTER THE LAST SALE OF A PRODUCT BY FHC
PURSUANT TO SUCH CUSTOMER AGREEMENT, FHC WILL MAKE AVAILABLE, TO THE SAME EXTENT
THAT BIOSITE IS REQUIRED TO DO SO UNDER THE CUSTOMER AGREEMENT, UPON WRITTEN
REQUEST OF THE SECRETARY OF HEALTH AND HUMAN SERVICES OR THE COMPTROLLER GENERAL
OF THE UNITED STATES OR ANY OF THEIR DULY AUTHORIZED REPRESENTATIVES, COPIES OF
ANY BOOKS, DOCUMENTS, RECORDS AND OTHER DATA OF FHC THAT ARE NECESSARY TO VERIFY
THE NATURE AND EXTENT OF THE COSTS INCURRED BY THE APPLICABLE CUSTOMER IN
PURCHASING THE PRODUCTS.
4.
CONDUCT OF BIOSITE.
(A)
BIOSITE SHALL SHIP PROMPTLY FHC'S ORDERS
FOR PRODUCTS, BUT IN ANY EVENT NOT LATER THAN SIXTY (60) DAYS FROM RECEIPT OF
EACH ORDER FOR A PRODUCT, (OTHER THAN [***]).
BIOSITE SHALL USE ITS REASONABLE
EFFORTS TO SHIP FHC'S ORDERS FOR [***] NOT LATER THAN [***] FROM RECEIPT OF EACH
ORDER FOR [***].
SUBJECT TO THE PROVISIONS OF SECTION 11 HEREOF,