International Distributor Agreement

Exhibit 10.17
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INTERNATIONAL DISTRIBUTOR AGREEMENT
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December 12, 2000


Mr. Gianfranco Bellezza MDH s.r.l. Forniture Ospedaliere Via Mario Donati, 16 20146 Milan Italy


Dear Gianfranco:


This letter is the agreement ("Agreement") between MDH s.r.l. Forniture Ospedaliere ("you") and RITA Medical Systems, Inc. ("RITA ") under which you are appointed as a distributor in the territory described on Exhibit A to this Agreement (the "Territory") of the RITA-branded products listed on Exhibit B to this Agreement (the "Products"). This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior discussions, agreements and understandings, including, without limitation, that certain International Distributor Agreement between RITA and you made as of December 21, 1998 and amended September 27, 1999. The terms and conditions under which you will act as RITA 's distributor are as follows:


1. PRODUCTS AND TERRITORY
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You shall act as RITA's distributor in the Territory (described in
Exhibit A) to promote, sell and distribute the Products (described in
Exhibit B) in the approved "Field of Use" and to provide service with
respect to the Products to the Medical Community. The approved Field
of Use is liver cancer. RITA's action or failure to act with respect
to this Field of Use restriction shall not in any way serve to waive
or limit its current or future rights with regard to this provision.
As used in this Agreement, "Medical Community" means medical doctors,
institutions such as hospitals and clinics, and similar institutions
that are active in the personal care of patients. You are not
authorized to sell any Products to any of your competitors or to any
of RITA's competitors without RITA's prior written consent. You shall
not actively solicit orders from customers domiciled outside the
Territory, or sell or deliver any Product to any customer that is not
in the Territory. Notwithstanding the foregoing, from time to time,
you may be asked to sell or deliver Products (or you may have sold or
delivered Products) to customers in nations outside the Territory but
within the European Economic Area (EEA). You may only sell or deliver
Products to such customers with RITA's prior written consent for each
order or shipment, which will specify


+ Material has been omitted pursuant to a request for confidential treatment,
and such material has been filed separately with the SEC.


the terms on which such a sale or delivery are acceptable to RITA. In no
event does any such sale or delivery or RITA's consent to such a sale or
delivery confer on you any rights to sell or deliver Products or provide
services to such a customer in the future, no does any such sale or
delivery entitle you to request any future compensation regarding that
customer. Further, in case RITA does not consent to the sale or delivery of
Products to a customer outside the Territory, as described above, you shall
not have any rights to any indemnification or compensation for your
activities related to that customer. Furthermore, you shall not appoint any
distributor or any agent or maintain any sales, service or stock facility
outside the Territory with respect to the Products. A breach of the
obligations of this Section 1 shall be considered a failure to fulfill a
material obligation under this Agreement.


2. SALES PROMOTION AND REPORTING RESPONSIBILITIES
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You shall be obligated to actively promote RITA's products according to
Section 1 above, at your sole expense. This includes, but is not limited
to, the activities described below in this Section. You shall attend and
exhibit at all major trade shows in your Territory related to the Products.
You shall provide training and clinical education to all of the customers
in your Territory. You shall provide appropriate promotional materials in
the language of your Territory, and RITA shall have the right to review and
approve promotional materials in advance. You shall be obligated to provide
a sales report to RITA on a monthly basis, by the 15th of the month
following the reporting period, which details your sales to customers,
including the customer name, quantity and selling price as well as the
current inventory status of all Products which are in your possession at
the end of the month on copies of the form attached as Exhibit F to this
Agreement (or such form as RITA may provide from time to time). You shall
provide to RITA, on request, copies of any tenders for the Products in your
Territory. Prior to the commencement of each succeeding one year period
under this contract ("Succeeding Year"), you shall provide to RITA a
business plan that describes your results for the prior year and your plans
for the coming year.


RITA shall be obligated to provide you with such technical support as may
be deemed necessary by RITA to provide you with a full understanding of the
Products. RITA shall also provide you with a reasonable number of its then
existing catalogs, brochures and other promotional materials in the English
language to facilitate your promotion of the Products.


Failure to provide monthly sales/inventory reports, annual business plan
and copies of any tenders for the Products in your Territory shall be
considered failures to fulfill material obligations of this Agreement.


3. ORDERS AND MINIMUM PURCHASE QUANTITIES
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All purchase orders shall be governed by the terms of this Agreement and
RITA 's standard acknowledgement form, provided that if any conflicts shall
occur, this Agreement shall prevail.


For the purpose of securing orderly shipments, you shall submit to
RITA a rolling four (4) calendar quarter forecast of orders for the
Products at the beginning of each calendar quarter. The first rolling
forecast is due within thirty (30) days of the signing of this
Agreement. The first two (2) quarters of the rolling forecast shall
be binding. Obligations to purchase or supply product shall be
binding only while this Agreement remains in effect.


In the first year of this Agreement, you shall purchase the minimum
quantity of Products in each of the four (4) quarters set forth on
Exhibit C. In Succeeding Years, the minimum quantity of Products to
be purchased shall be as agreed between the parties in writing at
least thirty (30) days prior to the start of each Succeeding Year.


If additional products are added by RITA to the Products listed in
Exhibit B, then the minimum quantity of Products to be purchased
shall be as agreed between the parties in writing at least sixty (60)
days in advance of the Product addition.


Failure to purchase the minimum quantity of products in each calendar
quarter and/or failure to provide a rolling four (4) calendar quarter
forecast of orders for the Products at the beginning of each calendar
quarter shall be considered failures to fulfill material obligations
of this Agreement.


4. RETURNS
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Products may only be returned with the prior written approval of
RITA. Any such approval shall reference a return material
authorization number issued by RITA. Repair and transportation costs
for returned Products not under warranty shall be borne by you.
Repair and transportation costs for returned Products under warranty
shall be borne by RITA, provided, if RITA determines that the
returned Products were not defective, such costs shall be borne by
you.


5. PRICES
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In the first year of this Agreement, you shall pay for Products the
prices ("Prices") listed on Exhibit D hereto. Beginning with the
second year of this Agreement, Seller may make unilateral adjustments
to Product prices with sixty (60) days prior written notice.


If additional products are added by RITA to the Products listed in
Exhibit B, then the Prices shall also be as agreed between the
parties in writing at least sixty (60) days in advance of the Product
addition.


6. PAYMENT
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Full payment of your purchase Price for the Products (including any
freight, taxes or other applicable costs initially paid by RITA but
to be borne by you) shall be in United States of


America dollars. All exchange, interest, banking, collection, and
other charges shall be at your expense. Payment terms shall be at
RITA's sole discretion and advised to you at time of order
acceptance. Terms will be either documentary collection with draft at
120 days from date of acceptance, cash in advance, or open account
net 90 days from invoice date. Determination of payment terms will
depend upon the status of your payment history and outstanding
receivables balance. Any invoiced amount not paid when due shall be
subject to a service charge at the lower of the rate of one and one-
half percent (1.5%) per month or the maximum rate permitted by law.
If you fail to make any payment to RITA when due, RITA may, without
affecting its rights under this Agreement, cancel or delay any future
shipments of the Products to you. Further, such a failure to pay
shall be considered a failure to fulfill a material obligation under
this Agreement.


7. COMPLAINTS
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If you receive any written, electronic or oral communication that
alleges deficiencies related to the identity, quality, durability,
reliability, safety, effectiveness or performance of the Products,
you shall promptly report them to RITA on copies of the form attached
as Exhibit E to this Agreement (or on such form as RITA may provide
from time to time) and you shall provide all necessary assistance in
connection with any corrective action with respect to the Products.
Any determination of corrective action shall be made by RITA in its
sole discretion.


8. COMPLIANCE WITH TERRITORIAL REGULATIONS
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You shall comply with and advise RITA of all applicable laws, rules
and regulations of the Territory governing the use, sale,
distribution, shipment and import of the Products. With respect to
those Products that have not yet received approval for commercial
sale, you shall also comply with the laws, rules and regulations of
the Territory concerning use, sale, distribution, shipment and import
of unapproved products, and with any applicable RITA clinical trial
protocol. In connection with these obligations regarding products
that are approved or have not yet received approval, you shall obtain
and keep in effect all required licenses, permits and authorizations
(collectively, "Registration(s)"), provided however, that the CE
approval shall be obtained and kept in effect by RITA.


Except for CE approval, you shall pay all applicable Registration
fees, duties, taxes and other expenses relating to the sale and use
of the Products within the Territory. RITA shall provide you with all
necessary assistance in connection with your obtaining Registrations
which RITA concurs in writing are necessary for the conduct of your
business. You will advise RITA, upon RITA's request, of the status of
all Registrations, and you will notify and provide RITA documentation
whenever any change of Registration status occurs and whenever any
Registration is called into question. All such Registrations shall be
in the name of RITA or, if Registration in RITA's name is prohibited
by applicable law, in the name of a party designated in writing by
RITA or in trust for RITA. RITA shall have the sole authority to
cancel or transfer (or direct the cancellation or transfer of) all
such


Registrations. If this Agreement is terminated for any reason, you
shall transfer all Registrations held by you in connection with your
distribution of the Products to RITA or its designee.


To the extent that the law requires RITA, rather than you, to file
any Registration, RITA shall register the Products as required by
law. You shall provide all necessary assistance in connection with
the filing of such Registrations.


All activities with respect to tenders shall be conducted so as to
allow, upon termination of this Agreement for any reason, and upon
RITA's written request, transfer of such tenders to RITA or to such
par ...