Exhibit 10.18
ALPHATEC SPINE, INC. SALES
AGENCY AGREEMENT
This Sales Agency Agreement (the
“Agreement”) is between Alphatec Spine, Inc., a
California corporation (the “Company”) and SS Fusion
Medical, Inc. (Employer Identification Number # [***]) (hereinafter
referred to as “Sales Agent”) is made as of
January 2, 2008 (the “Effective Date”).
WHEREAS Sales Agent has established
and maintained a business office staffed with professional sales
personnel in the Territory (as hereinafter defined); and
WHEREAS the Company wishes to retain
Sales Agent to sell its Products (as hereinafter defined) and Sales
Agent wishes to act as the Company’s exclusive Sales Agent
within the Territory.
NOW THEREFORE, in consideration of
the mutual covenants and provisions herein contained, and other
good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the parties hereto the parties agree as
follows:
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1.
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APPOINTMENT
OF SALES AGENT
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Subject to the provisions of the
Agreement, the Company hereby appoints Sales Agent and Sales Agent
hereby accepts appointment as the Sales Agent for the products
described in Exhibit A (hereinafter the
“Products”) with exclusive responsibility for the
geographical areas listed on Exhibit B (hereinafter the
“Territory”). Sales Agent shall have the right to
solicit orders for Products only from persons and entities having
their places of business within the Territory that agree to use the
Products so ordered within the Territory. Sales agent shall be the
exclusive agent for the Company for sale of Products in the
Territory for the term of this Agreement. Except as specifically
provided herein to the contrary, any sale of Products in the
Territory shall be credited as sales made by Sales Agent and Sales
Agent shall be entitled to the commission provided
herein.
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2.
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SALES
AGENT’S OBLIGATIONS
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In addition to any and all
covenants, duties and obligations of Sales Agent set forth
elsewhere in this Agreement, Sales Agent agrees:
2.1. To use its best efforts to
promote the sale of the Products throughout the
Territory;
2.2. To use its best efforts to meet
the sales quotas set forth on Exhibit D ;
2.3. To bear all costs and
liabilities relating to the conduct of its business, including but
not limited to the cost and expense of providing and maintaining
its place of business, the wages of its employees, the payment of
commissions or other compensation to its agents or independent
contractors, and its expenses incurred for or in connection with
its performance under or breach of this Agreement;
2.4. To refrain from making any
representations or warranties in respect of the Products, except:
(i) those representations and warranties authorized in writing
by the Company, in the form of brochures, memorandums, press
releases, advertisements, specification sheets, or correspondences,
and (ii) verbal technical assistance that Sales Agent received
from the Company which was subsequently confirmed in writing by
Sales Agent;
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2.5. To promote the Products in
strict adherence to (i) regulatory and professional
requirements, and all applicable laws, rules, guidelines and
regulations including, but not limited to, the Federal Food, Drug
and Cosmetic Act of 1938, as amended, and the regulations
promulgated thereunder (the “Act”); and (ii) those
portions of the Company’s Code of Conduct that address
interactions with healthcare professionals (available at
http://atec.client.
shareholder.com/documentdisplay.cfm?DocumentID=900) (the
“Code of Conduct”), and to make such certifications in
writing that may be reasonably requested by the Company as evidence
of such compliance;
2.6. That it has read and
understands the Code of Conduct; and that it acknowledges that any
violation of the Code of Conduct by it or any of its officers,
employees or agents shall constitute a material breach of this
Agreement;
2.7. To render reasonable assistance
to the Company, at the Company’s request, in the defense of
any and all Liabilities (as defined below);
2.8. To refrain from disparaging the
Company and its subsidiaries or its Products, or from otherwise
injuring the reputation and good standing of the Company and its
subsidiaries;
2.9. To not, directly or indirectly,
solicit any sale of the Products or establish any branch or
distribution depot for the sale of the Products outside the
Territory without the prior written approval of the
Company;
2.10. Take full responsibility for
the actions of any Sales Agent Indemnitee (as defined
below);
2.11. To assist the Company, on
request, in ascertaining the credit standing of and in collecting
receivables from any customer;
2.12. To attend, at its own expense,
all sales meetings, training sessions, seminars, trade shows and
the like for which the Company reasonably requests attendance by
Sales Agent;
2.13. To immediately notify the
Company prior to any physician, hospital or any other health care
supplier or provider who is in a position to refer or recommend
patients to the Company (a “Health Care Provider”)
acquiring an equity interest in the Sales Agent, and upon such
instance to provide in writing a listing, by percentage of equity
interest owned, of all Health Care Providers that have an equity
interest in the Sales Agent at the time of each disclosure. A
breach of this Section 2.13 shall constitute a material breach
of this Agreement;
2.14. To deliver all Products using
documented procedures for handling, storage, packing, preservation,
and delivery of such Products;
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2.15. To promptly notify the Company
in writing of the following: (i) any serious regulatory action
relating to the Products; (ii) any material complaints
regarding the Products or the related instrumentation; or
(iii) any adverse incidents that may be subject to FDA’s
(as hereinafter defined) Medical Device Reporting regulation;
and
2.16. To comply with recalls or
general corrective actions initiated by the Company.
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3.
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ALPHATEC’S DUTIES AND
OBLIGATIONS
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In order to assist Sales Agent in
fostering the promotion and sale of the Company’s Products,
the Company agrees:
3.1. To reasonably assist Sales
Agent with, and provide to Sales Agent reasonable quantities of,
advertising material, sales promotion aids, displays, catalogues,
literature and convention assistance;
3.2. To provide Sales Agent with new
Product information and reasonably assist Sales Agent in
promotional activities;
3.3. To provide Sales Agent with
reasonable technical assistance, through sales seminars, meetings
and training programs; and
3.4. To use commercially reasonable
efforts to make Products available to the Sales Agent to be used by
customers.
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4.
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QUOTATIONS,
ORDERS AND PAYMENT BY CUSTOMERS
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4.1. Sales Agent will make
quotations in respect to the sales of the Products only in
accordance with the Company’s then current policies and
procedures and on prices established by the Company and the
Company’s terms and conditions of sale, including the terms
of payment specified by the Company. The Sales Agent will assist
the Company in obtaining the appropriate documentation needed for
customers (credit reports, sales tax exemptions, etc.).
4.2. Sales orders generated by Sales
Agent will be submitted directly to the Company by the customer and
such sales orders shall be paid by Company if Sales Agent makes a
sale and even if the Company unilaterally decides to reject the
customer; provided that if the rejection of the customer occurs in
accordance with this Agreement, the Company shall not be obligated
to pay the Sales Agent for such sale. If Sales Agent receives any
order for Products, it will promptly forward it to the Company. The
Company will establish and promulgate the criteria for sales orders
to be generated by Sales Agent and Sales Agent will use its best
efforts to secure sales orders that meet the Company’s
criteria. The Company will have the right at any time to reject any
order in whole or in part for good cause. Good cause shall include
the following: (i) the sales order fails to meet the
Company’s criteria, (ii) the customer fails to meet the
Company’s credit criteria, (iii) lack of Product
availability due to no fault of the Company, or (iv) poor
payment history by the customer. If the Company rejects a sales
order generated by Sales Agent without good cause, then Company
shall pay to Sales Agent full commission on such order. If the
Company reasonably rejects any sales order generated by Sales
Agent, then Sales Agent
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shall be notified and given the opportunity to
inform its customer or potential customer of said rejection in an
attempt to preserve Sales Agent’s business goodwill. On
request of the Company, Sales Agent will not supply Product to
customers placed on credit hold until released by the
Company.
4.3. The Company will bill the
customer for the purchased Products. Sales Agent will not bill
customers for the Product unless expressly requested to do so by
the Company in writing. Payments against purchase orders are to be
made directly to the Company, without intervention by Sales Agent
unless expressly requested in writing by the Company in each
instance. If Sales Agent receives any payment from a customer, then
Sales Agent will immediately forward the entire amount of such
payment to the Company.
4.4. The Company will have the
right, in its sole discretion, to issue credits, make discounts and
allowances, and/or accept returns of the Products. Sales Agent in
an effort to be competitive with the orthopedic market or to
develop new customers will have the right to request the Company to
issue credits, make discounts and allowances and/or accept returns
of the Products. The Company shall use its sole discretion in
determining whether to grant Sales Agent’s request. In the
event that the Company issue credits, make discounts and allowances
and/or accept returns of the Products, the Company shall be
entitled to unilaterally reduce the commission rate paid to the
Sales Agent with respect to all sales of Products that are subject
to a credit, discount, allowance or return. The Company shall
indicate such reduction in commission rate by sending written or
electronic notice of such reduction to the Sales Agent. All
reductions shall be effective as of the date that such notice of
commission reduction was delivered to the Sales Agent.
5.1. Except as set forth in this
Agreement, during the term of this Agreement the Company will pay
to Sales Agent a commission at the rate specified in Exhibit
C on the Company’s Net Sales (as defined below) of
Products in the Territory that were generated by the Sales Agent in
accordance with this Agreement. For purposes of this Agreement, the
terms “Net Sales” shall mean, for any period, the gross
amount properly set forth on a purchase order received by the
Company from the customer in connection with such customer’s
purchase of Product, less deductions for: (i) normal and
customary quantity and/or cash discounts, including, without
limitation, those granted on account of price adjustments, rebates
actually allowed and taken, administrative or other fees or
reimbursements or similar payments to buying groups, pharmacy
benefit management organizations, health care insurance carriers or
other institutions, fees paid to other distributors and
chargebacks; (ii) customs or excise duties or other duties
directly imposed and related to the sales making up the gross
purchase order amount; (iii) any rebates or similar payments
made with respect to sales paid for by any governmental or
regulatory authority such as, by way of illustration and not in
limitation of the parties’ rights hereunder, Federal or state
Medicaid, Medicare or similar state program or equivalent foreign
governmental program; (iv) sales and other taxes and duties
directly related to the sale of Products, to the extent that such
items are included in the gross purchase order price (but not
including taxes assessed against the income derived from such
sale); and (v) any such amounts included in the purchase order
that are not collected by the Company which are over 90 days past
due and are recorded on the books of the Company as bad debt in
accordance with generally accepted accounting principles; provided,
if the amount due from such purchase order is subsequently
paid,
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then Sales Agent shall be paid commission on the
amount ultimately received by the Company (less any expenses
incurred by the Company in collecting such amount). For purposes of
determining commissions, the Product shall be deemed to be sold
when a properly executed purchase order is received by the Company
from the customer in connection with such sale, and a
“sale” shall not include transfers or dispositions for
charitable, promotional, pre-clinical, clinical, regulatory, or
governmental purposes.
5.2. All commission amounts payable
to the Sales Agent shall be subject to the Company’s
then-current Distribution Shipping Policy, which policy shall set
forth that certain shipping charges that are not paid by customer
shall reduce the commissions paid to the Sales Agent.
5.3. If new product lines are added
to the Product list the commission rate related to such new Product
shall be set forth on Exhibit C attached hereto. The parties
agree and acknowledge that the Company shall have sole
decision-making authority in connection with establishing
commission rates for product lines added to the Product list after
the Effective Date.
5.4. The Sales Agent agrees to
promptly submit an invoice to the Company in connection with each
sale and that all such invoices for payment shall include a listing
of all lot numbers of the Products that were sold in connection
with such invoice.
5.5. Commissions
will be released to the Sales Agent on the twenty-fifth (25
th
) day after the
close of the month in which the applicable sales are made, or in
the event that such day is not a business day, on the next business
day. Any commissions paid on outstanding accounts receivable at the
close of the month that exceed the payment terms of net ninety
(90) days will be deducted from the Sales Agent’s
outstanding commission or invoiced to Sales Agent pursuant to
Section 5.7. Upon collection of past due accounts commissions
will be re-posted to the Sales Agent.
5.6. The Company will keep and
maintain accurate, complete and current books and records relating
to commissions earned by Sales Agent. Upon payment of commission to
Sales Agent by the Company, the Company shall provide Sales Agent
with a detailed breakdown of the customer sales used to calculate
the commission as well as any credit, discount, allowance or
set-off taken by the Company or applied against Sales Agent
commission. Any discrepancies must be reported to the Company
within thirty (30) days of the receipt of the d