IN GOOD FAITH ENTER INTO WRITTEN
AGREEMENTS WITH FHC CUSTOMERS RELATING TO THE DISTRIBUTION BY FHC TO SUCH FHC
CUSTOMERS OF MULTIPLE PRODUCTS INCLUDING PRODUCTS AND MULTIPLE PRODUCTS OF THIRD
PARTY MANUFACTURERS (A "MULTI-PRODUCT AGREEMENT"), PROVIDED THAT FHC SHALL NOT
OBLIGATE OR GIVE THE RIGHT TO ANY FHC CUSTOMER TO PURCHASE ANY PRODUCTS BEYOND
THE TERM OF THIS AGREEMENT.
"CONTRACT CUSTOMER" SHALL MEAN A FHC CUSTOMER THAT
PURCHASES A PRODUCT FROM FHC UNDER THIS AGREEMENT; PROVIDED, HOWEVER, "CONTRACT
CUSTOMER" SHALL NOT INCLUDE NATIONAL PURCHASING GROUPS WITH WHICH FHC HAS
ENTERED INTO ITS STANDARD CONTRACTS AS OF THE EFFECTIVE DATE.
6
(J)
NOTWITHSTANDING ANYTHING TO THE
CONTRARY, UPON [***] ADVANCE WRITTEN NOTICE TO FHC (THE "EVENT NOTICE"), BIOSITE
MAY, IN ITS SOLE DISCRETION, (I) DISCONTINUE THE MANUFACTURE, SALE OR SUPPLY OF
[***] INTO THE GENERAL COMMERCIAL MARKET (BUT NOT TO FHC ONLY), AND (II) SELL OR
TRANSFER ITS [***] OF PRODUCTS (OR SUCH PORTION OF BIOSITE'S BUSINESS THAT
PERTAINS TO THE [***]).
[***] AFTER RECEIPT OF AN EVENT NOTICE, (I) FHC SHALL
NO LONGER HAVE THE RIGHT TO DISTRIBUTE, AND SHALL CEASE DISTRIBUTING, THE [***]
OTHER THAN SUCH [***] THAT ARE ALREADY IN FHC'S INVENTORY, AND (II) THIS
AGREEMENT SHALL TERMINATE WITH RESPECT TO [***] ONLY, SUBJECT TO SECTION 6(C)
AND OTHER THAN FOR PURPOSES OF SECTIONS 5(G) AND 5(H).
3.
CONDUCT OF FHC.
(A)
FHC SHALL USE ITS GOOD FAITH COMMERCIAL
EFFORTS AND FACILITIES TO PROMOTE, MARKET, DISTRIBUTE AND SELL THE PRODUCTS AND
TO TAKE NO ACTION WHICH WOULD INTERFERE WITH BIOSITE'S EFFORTS TO DEVELOP AND
MAINTAIN THE REPUTATION OF AND GOODWILL WITH RESPECT TO THE PRODUCTS WITHIN THE
TERRITORY DURING THE TERM OF THIS AGREEMENT.
FHC SHALL PROVIDE NOT LESS THAN AN
AGGREGATE OF [***] FULL PAGES OF ADVERTISING FOR AVAILABLE PRODUCTS IN ALL OF
FHC'S GENERAL CATALOGS.
WITH RESPECT TO EACH [***], [***] AND [***], FHC SHALL
PERMIT BIOSITE ACCESS TO ITS SALES REPRESENTATIVES FOR AT LEAST [***] PER
PRODUCT FOR THE PURPOSE OF PROVIDING TRAINING OF FHC'S SALES REPRESENTATIVES IN
THE DEMONSTRATION AND USE OF THE PRODUCTS ON SUCH DATES (WHICH SHALL BE NOT
LATER THAN [***] FOLLOWING THE LAUNCH OF SUCH PRODUCT IN THE TERRITORY) AND IN
SUCH LOCATIONS AS MUTUALLY ACCEPTABLE TO THE PARTIES.
FHC SHALL PROVIDE BIOSITE
WITH SAMPLES OF ANY SUCH PRODUCT ADVERTISING AND SALES LITERATURE PRIOR TO
PRINTING AND DISTRIBUTION OF SAME, AND BIOSITE SHALL HAVE THE RIGHT TO APPROVE
THE PRODUCT ADVERTISEMENT(S), WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD
OR DELAYED.
FHC SHALL USE ITS GOOD FAITH COMMERCIAL EFFORTS TO INFORM CUSTOMERS
AND POTENTIAL CUSTOMERS OF THE AVAILABILITY AND DESIRABILITY OF THE PRODUCTS; TO
HANDLE PROMPTLY ALL INQUIRIES, QUOTATIONS, CORRESPONDENCE AND ORDERS; AND TO
ASSIST CUSTOMERS IN THE PROPER USE OF THE PRODUCTS AND THE REFERRAL OF CUSTOMERS
TO BIOSITE FOR THE SOLUTION OF TECHNICAL APPLICATION PROBLEMS.
(B)
EXCEPT AS OTHERWISE SET FORTH IN THIS
SECTION 3(B), AND EXCEPT WITH RESPECT TO THE [***], PROVIDED THAT BIOSITE
SUPPLIES SUFFICIENT PRODUCTS TO FHC TO SATISFY FHC'S PURCHASE OF THE PRODUCTS
FROM