TO
ACHIEVE THE APPLICABLE MINIMUM SALES OBJECTIVES SET FORTH IN SCHEDULE C TO THE
EXTENT CAUSED BY (I) BIOSITE'S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT
WITH RESPECT TO THE DELIVERY OF THE APPLICABLE PRODUCTS BY BIOSITE TO PSS, OR
(II) BIOSITE RECALLING THE APPLICABLE PRODUCTS AND NOT REPLACING SUCH RECALLED
PRODUCTS IN A PROMPT MANNER.
* Confidential Treatment Requested
1.3
APPOINTMENT RESTRICTIONS.
(A)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, PSS SHALL NOT HAVE THE RIGHT TO DISTRIBUTE PRODUCTS TO ANY
CUSTOMER WHICH, AS OF THE EFFECTIVE DATE, HAS PURCHASED PRODUCTS FROM BIOSITE OR
[***](BUT NOT ANY OTHER DISTRIBUTOR OF BIOSITE) OTHER THAN A CUSTOMER THAT
[***](PROVIDED THAT PRIOR TO MAKING ANY SALE OF A PRODUCT TO ANY SUCH CUSTOMER,
(I) PSS SHALL PROVIDE THE CUSTOMER'S WRITTEN STATEMENT TO BIOSITE AND (II) PSS
SHALL FIRST ALLOW BIOSITE, FOR THIRTY (30) DAYS AFTER BIOSITE RECEIVES SUCH
WRITTEN STATEMENT FROM PSS, TO CONTACT THE CUSTOMER TO DISCUSS THE CUSTOMER'S
STATEMENT).
(B)
PSS SHALL REFRAIN FROM DIRECTLY OR
INDIRECTLY (I) SEEKING CUSTOMERS FOR, ESTABLISHING ANY BRANCH FOR, OR
MAINTAINING ANY DISTRIBUTION DEPOT OR NETWORK FOR THE SALE OF, THE PRODUCTS
OUTSIDE OF THE TERRITORY, OR (II) SELLING THE PRODUCTS TO ANY PERSON OR ENTITY
OTHER THAN PHYSICIAN OFFICE PRACTICES IN THE MARKET SEGMENTS AS EXPRESSLY
DESCRIBED ABOVE.
(C)
THE TERRITORY SHALL NOT INCLUDE, AND PSS
SHALL NOT BE PERMITTED TO SELL THE PRODUCTS IN, ANY TERRITORY OR TO ANY MARKET
SEGMENT NOT EXPRESSLY DESCRIBED IN THE AGREEMENT.
PSS SHALL TAKE REASONABLE
STEPS TO LIMIT THE LIKELIHOOD THAT PSS'S CUSTOMERS IN THE TERRITORY PURCHASE
PRODUCTS FOR RESALE OUTSIDE OF THE TERRITORY.
(D)
PSS SHALL NOT HAVE THE RIGHT TO APPOINT
SUB-DISTRIBUTORS, EXCEPT AS APPROVED BY BIOSITE IN ADVANCE WRITING.
ANY
PERMITTED SUB-DISTRIBUTORS SHALL BE SUBJECT TO THE PROVISIONS OF THIS AGREEMENT.
1.4
PRODUCTS.
PSS ONLY HAS A RIGHT TO SELL AND
DISTRIBUTE THE PRODUCTS PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
PSS HAS NO RIGHT TO SELL OR DISTRIBUTE ANY OTHER BIOSITE PRODUCT UNLESS SUBJECT
TO A SEPARATE WRITTEN AGREEMENT BY THE PARTIES ON A PRODUCT BY PRODUCT BASIS.
1.5
NONCOMPETITION.
PSS SHALL NOT, DURING THE
PERIOD OF THE [***] APPOINTMENT FOR [***] UNDER SECTIONS 1.1(A) AND 1.1(B) (THE
"[***] PERIOD"), DIRECTLY OR INDIRECTLY SELL, OFFER FOR SALE, OR ACT AS SALES
AGENT FOR THE SOLICITATION OF ORDERS FOR ANY PRODUCT THAT MEASURES OR DETECTS
THE PRESENCE OR ABSENCE OF ANY [***], WITH OR WITHOUT THE [***], INCLUDING
WITHOUT LIMITATION [***].
1.6
INDEPENDENT PURCHASER STATUS.
PSS IS AN
INDEPENDENT PURCHASER AND SELLER OF THE PRODUCTS.
PSS SHALL NOT ACT AS AN AGENT
OR LEGAL REPRESENTATIVE OF BIOSITE, NOR SHALL PSS HAVE ANY RIGHT OR POWER TO ACT
FOR OR BIND BIOSITE IN ANY RESPECT OR TO PLEDGE ITS CREDIT.
PSS SHALL BE FREE
TO RESELL PRODUCTS TO CUSTOMERS IN THE TERRITORY ON SUCH TERMS AS IT MAY, IN ITS
SOLE DISCRETION, DETERMINE, INCLUDING, WITHOUT LIMITATION, PRICE, RETURNS,
CREDITS AND DISCOUNTS.
1.7
PERISHABLE PRODUCTS.
PSS ACKNOWLEDGES THAT
THE PRODUCTS ARE