Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Amendment No.1 to Registration Statement 52 312K
2: EX-4.1 Certificate of Common Stock 1 6K
3: EX-5.1 Opinion of Counsel 2 12K
4: EX-10.2 Amended Emp. Agree. Valesc & J. Kraus 11 43K
5: EX-10.3 Amended Emp. Agree. Valesc & S. Cohen 11 43K
6: EX-10.4 Amended Emp. Agree. Valesc & G. Miller 10 43K
7: EX-10.5 Amended Emp. Agree. Valesc & H. Kraus 9 36K
9: EX-10.6 Manufacturers Agreement 19 53K
10: EX-10.7 Sales Rep. Agreement 12 36K
8: EX-10.8 Sales Rep. Agreement 17 51K
11: EX-21.1 List of Subsidiaries 1 5K
12: EX-23.2 Consent of Independent Accountants 1 6K
SALES REPRESENTATIVE AGREEMENT
Agreement made as of the 1ST day of JULY, 2000 (the "Effective Date"),
by and between SMITH & NEPHEW, INC. ("S&N"), and HARRY KRAUS ("Representative").
1. TERM OF AGREEMENT. The initial term of this Agreement shall commence on the
Effective Date and shall end on December 31, 2000, subject, however, to
prior termination in accordance with Section 10 of this Agreement. After
the initial term, this Agreement shall be automatically renewed and
extended for successive additional six-month periods subject, however, to
prior termination in accordance with Section 10 of this Agreement.
2. APPOINTMENT AND DEFINITION OF PRODUCTS AND TERRITORY. S&N hereby grants to
Representative, and Representative accepts from S&N, the right to sell the
products listed in EXHIBIT A attached hereto (the "Products") in the
geographic area described in EXHIBIT B attached hereto (the "Territory").
S&N reserves the right to make sales of Products directly to customers
inside the Territory subject to Representative's right to receive
commissions on sales of Products in the Territory pursuant to Section 5.
Whether Representative's right to sell the Products in the Territory is
exclusive or non-exclusive is stated in EXHIBIT B.
3. RESPONSIBILITIES OF THE REPRESENTATIVE.
(a) PROMOTION OF PRODUCTS. Representative will use its best efforts and
devote such time as may be reasonably necessary to promote and
maximize the sale and use of the Products in the Territory. In
furtherance of but without limiting the foregoing, Representative
agrees to:
(i) diligently solicit orders for the Products throughout the
Territory;
(ii) distribute within the Territory sales catalogs and other
literature supplied by S & N; and Exogen, Inc. ("Exogen"); and
(iii) maintain adequate facilities and a competent work force to
promote and sell the products effectively.
(b) REPORTS. Representative shall provide S&N and Exogen with periodic and
other special sales reports as may reasonably be requested from time
to time by S&N and Exogen.
(c) MARKET INFORMATION. Representative shall forward to Company all
information relating to the Product, whether favorable or adverse,
received by it or its employees, agents or subcontractors. Likewise,
Representative shall forward to S&N all marketing information acquired
on medical instruments in competition, either directly or indirectly,
with any of the Products. Representative shall submit 30 days
following the execution date of this Agreement and 30 days prior to
the beginning of each six month period that this Agreement is in
effect, a written business plan containing, among other things,
marketing information, forecast input and sales plans.
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(d) RECORDS. Representative shall keep complete and accurate records
concerning all employees, agents and subcontractors "including,
without limitation, information detailing (i) training for Medical
Device and Complaint Reporting ("MDR") under the United States Food
and Drug Administration ("FDA") requirements, (ii) sales training
programs for all employees, agents and subcontractors selling Products
(iii) sales records for all employees, agents and subcontractors
selling Products, and (iv) a list of all customers with whom
employees, agents and subcontractors selling Products have done
business. S&N shall be allowed access to such records at all
reasonable times ( during normal business hours, or at other times
that are mutually agreeable by S&N and Representative) following S&N's
request. Within 10 days of the date of this Agreement, Representative
shall provide S&N with a list of employees and agents authorized to
sell the Products and shall notify S&N in writing within 15 days of
any change to that list.
(e) EXPENSES. Representative will pay all expenses incurred by it in
connection with its business and will be solely responsible for the
acts and expenses of its employees and agents.
(f) AUTHORITY. Representative will not, without S&N's prior written
approval, accept, alter, enlarge, or limit orders, make
representations or guarantees concerning Products, accept the return
of, or make any allowance for, Products, or bill any customer for any
order of Products.
(g) POLICIES. Representative will abide by all policies and procedures
established by S&N and Exogen from time to time regarding the
solicitation and recording of orders, sales promotions, and other
matters related to the sale of Products.
(h) TRADE SHOWS. If requested by S&N, Representative at its own expense
will assist S&N in presentations at trade shows and in sales
promotional campaigns.
(i) SALES LEADS. Representative agrees to promptly advise S&N of any sales
leads or potential customers for Products outside of the Territory.
(j) TRAINING. Representative will make every reasonable effort to assure
active participation of all appropriate personnel in its organization
in the use of training materials and attendance at training programs
of S&N.
(k) COLLECTION. Representative will use its best efforts to assist Exogen,
upon its request, with any collections for Products sold in the
Territory .
(l) COMPLIANCE WITH LAWS. Representative shall comply in all material
respects, with all laws, regulations, and requirements of all
governmental agencies governing the manufacture and distribution of
the Products, including, without limitation to, the FDA's MDR and FDA
Medical Device Registration guidelines.
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4. RESPONSIBILITIES OF S&N. S&N agrees to:
(a) Provide to Representative such literature, brochures, information and
training as is required in the judgment of S & N;
(b) Keep Representative informed of the prices at which the Products are
offered for sales and of changes in products, specifications, prices
and deliveries;
(c) Provide Representative with a copy of the acknowledgement of any order
for Products submitted by a customer in the Territory which is
accepted by S&N and a copy of each invoice for Products shipped in the
Territory; and
(d) Comply in all material respects, with all laws, regulations, and
requirements of all governmental agencies governing the manufacture
and distribution of the Products, including, but not limited to, the
FDA guidelines and the FDA's MDR requirements.
5. COMMISSIONS.
(a) S&N agrees to pay and Representative agrees to accept commissions as
set forth in EXHIBIT C attached hereto as full payment for all sales
made and services rendered by Representative under this Agreement.
(b) Commissions will be paid to Representative, subject to the provisions
of Sections 6 of this Agreement, on Net Invoice Prices (as defined
below) of Orders (as defined below) for the sale of Products delivered
to customers in the Territory while this Agreement is in effect.
(c) "Net Invoice Price" means the amount shown on the invoice as due from
the customer, after giving effect to quantity or other discounts,
sales allowances and adjustments for bad debt. No commissions shall be
paid on the replacement of Products previously sold in the Territory.
(d) "Order" means any commitment to purchase Products which has been
accepted and shipped by S&N, and which is obtained by Representative
or directly by S&N, and which is obtained by Representative or
directly by S&N during the term of this Agreement from (i) any
customer located in the Territory, or (ii) any third party payer
purchasing the Product on behalf of any customer located in the
Territory, subject to the provisions in EXHIBIT C.
6. ACCEPTANCE OF ORDERS; EXCLUDED ORDERS.
(a) All orders shall be submitted to Exogen and shall be subject to
acceptance or rejection, in the sole discretion of Exogen, by an
authorized employee of Exogen at its principal office. Representative
understands that it is granted only the authority to solicit and
obtain Orders for Products for transmittal to Exogen. Representative
is neither expressly nor implicitly authorized to accept Orders on
behalf of Exogen or to enter into written or oral contracts or
agreements of any nature on behalf of Exogen.
Page 3
(b) S&N may designate by written notice to Representative certain
customers within the Territory as "National, Regional, or Government
Accounts." Representative will be paid commissions on sales to these
accounts, depending upon the Representative's responsibilities set
forth in EXHIBIT C that apply to those accounts.
(c) Representative recognizes that S&N has appointed or may appoint (i)
other sales representatives for the Products in areas other than the
Territory; (ii) other sales representatives within the Territory for
goods manufactured by S&N other than the Products; and (iii) other
sales representatives within the Territory for the Products if
Representative's rights hereunder are stated to be non-exclusive in
EXHIBIT A. This Agreement does not give Representative any right to
offer for sale or sell goods manufactured or offered for sales by S&N
other than the Products.
7. COMPETITIVE PRODUCTS. Representative shall not during the term of this
Agreement, without prior written consent of S&N, market or sell goods which
in S&N's opinion compete directly or indirectly with Exogen products.
8. CHANGES IN AGREEMENT AND EXHIBITS.
(a) Because of S&N's sales policies, the commission rates it is willing to
pay to Representative and the sums on which it is willing to sell its
products may change after this Agreement has been signed, S&N reserves
the right, in its sole discretion, to make changes in this Agreement
or in any of the Exhibits to this Agreement. Changes in this Agreement
or in any Exhibits will be effective 30 days after written notice of
the change has been given to Representative; provided, however, that
S&N may make changes affecting promotions and prices without notice.
Representative may, if it does not agree to the change, terminate this
Agreement under Section 10 (e). No changes made by S&N shall be
applied retroactively if the change would result in a reduction in
commissions due to Representative.
(b) Upon 30 days prior written notice to the Representative, S&N may, in
its sole discretion, modify the Territory or terminate in full this
Agreement if S&N determines that the Representative's level of sales
is unsatisfactory to S&N .
9. FORECASTS. S&N shall establish and notify Representative in writing 30 days
prior to the beginning of each six month period that this Agreement is in
effect of its sales quota for each such six month period and its quarterly
quotas for each quarter of such six month period (the "Sales Quota" or the
"Quotas"), which Quotas shall be established by S&N on a good faith basis.
EXHIBIT D attached hereto sets forth the Representative's Sales Quota
commencing with the first full month Representative sells Sonic Accelerated
Fracture Healing System ("SAFHS"), under this Agreement.
10. TERMINATION. This Agreement may be terminated:
(a) By either party without cause, effective at the end of the then
current term, by giving prior written notice of termination to the
other party at least 30 days prior to the end of the then current
term. If no notice is given, this Agreement shall automatically renew
as stated in Section 1.
PAGE 4
(b) At any time, by either party , if the other party breaches any of its
obligations under this Agreement and fails to remedy such breach
within 30 days after written notice of such breach is provided to such
other party .
(c) By S&N, effective immediately and without notice, if (i) all or a
substantial part of the assets of Representative, or more than 50% of
the capital stock of Representative, is sold or otherwise transferred
to any person; (ii) Representative is merged or consolidated with any
other person; (iii) a receiver, trustee, or liquidator of
Representative is appointed for any of properties or assets of
Representative; (iv) Representative makes a general assignment for the
benefit of its creditors; (v) Representative files a petition under
the federal Bankruptcy Code or other federal or state statute for the
reorganization of Representative or any arrangement with its creditors
or readjustment of its debt, or its dissolution or liquidation, or
such a petition is filed against Representative and is not dismissed
within 60 days thereafter; or (vi) Representative ceases doing
business or commences dissolution or liquidation proceedings.
(d) By S&N, upon 30 days prior written notice to the Representative if the
Representative's aggregate sales, net of returns, of Products during
any quarter of this Agreement does not equal or exceed the
Representative's Sales Quota for each such period.
(e) By Representative, if S&N changes any portion of this Agreement or any
Exhibit to this Agreement pursuant to Section 8(a) and Representative
disagrees with the change, by written notice of tern1ination to S&N,
effective 10 days following the giving of such notice.
It is specifically understood by Representative and by S&N that if one
party shall duly exercise its right of termination under this section
10, the only rights of the other party shall be those specified in
Sections 11, 12, 14, and 18 hereof, and that neither party shall be
entitled to any compensation or claim for goodwill or other loss, cost
or expense which either of them may suffer or claim to have suffered
by reason of termination of this Agreement.
11. RIGHTS FOLLOWING TERMINATION.
(a) Following termination of this Agreement, S&N shall have no further
responsibility to Representative except to (i) pay commissions then
due, and (ii) pay when they become due commissions on Orders accepted
by S&N prior to termination, which are scheduled for shipment and are
actually shipped within 30 days following termination; provided,
however, that S&N's obligation under clause 11 (a)(ii) shall be an
amount equal to one-half(1/2) of the usual commission otherwise due
under Exhibit C. Except as expressly stated herein, S&N shall have no
liability for commissions with respect to Orders received by S&N after
the Effective Date of termination of this Agreement.
(b) In the event of termination, Representative shall promptly return to
S&N or its designee all sales literature, brochures, technical
information, price lists, samples, evaluation units and other
materials supplied by S&N to Representative without charge.
Page 5
(c) The rights and obligations of the parties to this Agreement set forth
in this Section 11 and Sections 12, 14, and 18 hereof shall survive
any termination or expiration of this Agreement. The termination or
expiration of this Agreement shall in no case relieve either party
from its obligations to pay to the other monies accrued hereunder
prior to such termination or expiration.
(d) S&N shall have no liability to Representative for damages of any
kind, including incidental or consequential damages, on account of
the termination or expiration of this Agreement. Without limiting the
generality of the foregoing, S&N shall not be liable to Representative
on account of the termination or expiration of this Agreement for
reimbursement or damages for the loss of goodwill, prospective profits
or anticipated sales, or on account of any expenditures, investment,
leases or commitments made by Representative or for any reason
whatsoever based upon or growing out of such termination or
expiration.
12. PROPRIETARY RIGHTS AND CONFIDENTIALITY .
(a) Except as expressly set forth in Section 14, neither this Agreement
nor any sale of Products under this Agreement shall be construed as
granting to the Representative any license or right in or to any
patent, copyright, trademark or other proprietary right of S&N or
Exogen.
(b) The Representative shall maintain the confidentiality of, and not
disclose to others, any confidential or proprietary information of S&N
or Exogen which it may now have or may hereafter obtain, including
without limitation specifications, technical reports, customer lists
and product plans relating to S&N's business or products.
Representative shall cause each of its employees, agents and
subcontractors to execute such agreements as may be necessary to
assure compliance with this Section l2(b).
13. PRODUCT CHANGES.
(a) It is understood that new and additional products may be introduced by
S&N from time to time. Representative shall be authorized to solicit
orders for sales of such new or additional products only if and when
S&N authorizes Representative, in writing, to represent S&N in
connection with each such product.
(b) Upon 30 days prior written notice to the Representative, Products may
be deleted from the list of Products which Representative is
authorized to sell. No commissions shall be paid on Orders for such
deleted Products received by S&N after the effectiveness of such
Product deletion.
14. TRADEMARKS. Representative shall conduct business under its own name.
Representative shall not use any trademarks or trade names of S&N in any
manner, except as authorized in writing by S&N or in connection with the
use of literature supplied by S&N. Representative shall discontinue such
usage upon termination of this Agreement.
Page 6
15. RELATIONSHIP BETWEEN PARTIES. The relationship between S&N and
Representative is that of independent contractors, and nothing in this
Agreement shall be construed to constitute Representative as an employee,
partner or agent of S&N. Without limiting the foregoing, Representative
shall have no authority to act for or to bind S&N in any way, to alter any
of the terms or conditions of any standard forms or other agreements of S&N
with purchasers of Products, to make representations or warranties or to
execute agreements on behalf of S&N, or to represent that is in any way
responsible for the acts or omissions of Representative. Representative
shall indemnify and hold S&N harmless for any liability or damage to S&N
resulting from a violation of this Section 15.
16. NOTICES. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly
given when delivered in person or, if mailed, when mailed by United States
certified or registered mail, postage prepaid, to the parties at the
addresses set forth below their signatures to this Agreement or at such
other address as may be given in writing by either party to the other in
accordance with this Section 16.
17. ASSIGNABILITY.
(a) Representative acknowledges that S&N is entering into this Agreement
in reliance upon the personal reputation, qualifications and abilities
of the present owner or owners of Representative's business and
operations, and accordingly, the Representative may not assign its
rights or obligations under this Agreement, either voluntarily or by
operation of law, except with the prior written consent of S&N. A
change in control of the Representative's business shall be deemed to
be an assignment for this purpose.
(b) S&N may assign this Agreement without Representative's consent.
18. INDEMNIFICATION. S&N shall indemnify and hold harmless Representative from
any and all claims, damages or costs which arise out of Representative's
performance of its duties hereunder, except to the extent such claims,
damages or costs result, directly or indirectly, from Representative's
breach of Section 15 hereof or the gross negligence or willful misconduct
of Representative. Representative shall indemnify and hold harmless S&N
from and all claims, damages or costs which arise out of Representative's
performance of its duties hereunder, to the extent such claims, damages or
costs result, directly or indirectly, from Representative's breach of
Section 15 hereof or the gross negligence or willful misconduct of
Representative.
19. MISCELLANEOUS.
(a) This Agreement shall not be binding upon S&N until it has been
executed by a duly authorized officer of S&N .
(b) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Tennessee without giving effect to conflict
of laws principles.
(c) This Agreement constitutes the entire understanding between the
parties relating to the subject matter of this Agreement and
supersedes all prior writings, negotiations or understandings with
respect thereto. No modification or addition to this Agreement shall
have any effect unless it is set forth in writing and signed by both
parties.
Page 7
(d) The waiver by S&N of any breach of any provision of this Agreement
shall not be construed as a continuing waiver of such breach or as a
waiver of other breaches of the same or of other provisions of this
Agreement.
(e) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
REPRESENTATIVE SMITH & NEPHEW, INC.
HARRY KRAUS
Name Printed: Harry Kraus
--------------------
By: /s/ HARRY KRAUS By: /s/ RUE A. BERG
--------------- ---------------
Harry Kraus
Title: Title: V.P. Sales
------------- -------------
Address: Address:
4905 SW Dosch Park Lane 1450 Brooks Road
Portland, OR 97201 Memphia, Tennessee 38116
TaxID or Social Security No: 561-23-9447
------------
Date: Date:
------------------------ ------------------------
Exhibits:
A. Products
B. Territory
C. Commission
D. Sales Quota
PAGE 8
EXHIBIT A
"PRODUCTS "
Exogen 2000(TM) - Ultrasound Bone healing Therapy for Fresh Closed Distal Radius
(Colles') Fractures and Closed or Grade I Open Tibial Diaphysis Fractures in
Skeletally Mature Individuals When These Fractures are Orthopaedically Managed
by Closed Reduction and Cast Immobilization.
EXHIBIT B
"TERRITORY"
REPRESENTATIVE: -----------------------
(name, social security no. or Federal I.D.) -----------------------
EXCLUSIVE NON-EXCLUSIVE X
--------------- ---------
TERRITORY: TO BE DEFINED BY THE PORTLAND DISTRICT SALES MANAGER.
EXHIBIT C
"COMMISSIONS"
COMMISSIONS ARE 13% OF THE NET INVOICE PRICE AS DEFINED IN SECTION 5 PARAGRAPH C
UNTIL AN EXOGEN SPECIALIST IS HIRED TO ASSIST IN YOUR TERRITORY.
COMMISSIONS REVERT TO 5% OF THE NET INVOICE PRICE AS DEFINED IN SECTION 5
PARAGRAPH C AS SOON AS AN EXOGEN SPECIALIST IS HIRED TO ASSIST IN YOUR
TERRITORY.
EXHIBIT D
"SALES QUOTA"
The Sales Quota is to be determined by the Manager
in terms of number of monthly REVENUE SHIPMENTS and ORDERS .
Dates Referenced Herein and Documents Incorporated by Reference
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