Vitrogen International Distribution Agreement

VITROGEN INTERNATIONAL DISTRIBUTION AGREEMENT


This VITROGEN INTERNATIONAL DISTRIBUTION AGREEMENT ("Agreement"), effective as of January 1, 1998 (the "Effective Date"), is made by and between COLLAGEN INTERNATIONAL, INC., a Delaware corporation ("CII"), and COHESION TECHNOLOGIES, INC., a Delaware corporation formerly known as Collagen Technologies, Inc. ("Technologies").


RECITALS


1. CII is a wholly owned subsidiary of Collagen Corporation ("Collagen").


2. Technologies and Collagen have entered into a relationship whereby certain assets and liabilities are being transferred from Collagen to Technologies as further described in the Separation and Distribution Agreement effective as of January 1, 1998 between Collagen and Technologies (the "Separation Agreement") and in the Ancillary Agreements.


3. Technologies wishes to appoint CII as a non-exclusive distributor in the Territory for certain products defined herein, and CII wishes to accept such appointment;


NOW, THEREFORE, the parties agree as follows:


ARTICLE I
DEFINITIONS


Except as otherwise defined herein, capitalized terms used herein shall have the meanings given to them in the Separation Agreement. In addition, for the purposes of this Agreement, the capitalized terms set forth below shall have the meanings set forth in this Article I.


1.1 "Product" shall mean the product currently known as Vitrogen(TM), the specifications which are attached hereto as Exhibit A ("Specifications").


1.2 "Net Sale Price" shall mean the gross invoiced price for Products received by CII and/or its Affiliates for the sale of Product in the Territory less deductions made in the normal course of business for: (a) commercially reasonable quantity, trade and cash discounts or rebates, recalls, credits or allowance and adjustments separately and actually credited to customers for rejections and returns of Product; (b) charges for freight, postage, transportation, insurance, third party distribution costs and other distribution or delivery costs not otherwise charged to the customer and actually paid by CII and/or its Affiliates; and (c) any export, import, sales, use, withholding or excise tax, VAT, duties, tariffs, federal, state or local tax, or any other taxes or other government charges levied on the use, sale, transportation or delivery of Product and borne by CII and/or its Affiliates except any tax based on the net income of CII or its Affiliates.


1.3 "Territory" shall mean Germany.


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ARTICLE II
DISTRIBUTION


2.1 APPOINTMENT. Subject to the terms and conditions in this Agreement, Technologies hereby appoints CII as a non-exclusive distributor and reseller for the Product in the Territory, and CII hereby accepts such appointment; provided, however, that the parties specifically agree that CII shall have no duty to advertise, market or promote the Product in the Territory so as to increase or maintain Product sales in the Territory.


2.2 ORDER AND ACCEPTANCE. No later than ninety (90) days prior to the beginning of each calendar quarter, representatives from each party shall meet, or communicate via telephone conference, to agree upon a forecast, of the projected sales for the Product in the Territory for such quarter ("Forecast"). Based on such Forecast, CII shall deliver to Technologies a written purchase order for Product no later than sixty (60) days prior to the beginning of such quarter specifying Product quantity and delivery date for such quarter. Purchase orders may initially be placed by telephone or telecopy; provided, however, that a signed confirming purchase order is received in writing (which may include telecopy transmission) by Technologies. Upon receipt, Technologies shall promptly accept such purchase order and return a signed acceptance thereof to CII. Notwithstanding anything herein to the contrary, no order shall be binding upon either party until accepted by Technologies in writing. Once accepted, each party may cancel or reschedule purchase orders for Product only with prior written approval of the other party.


2.3 DELIVERY. Technologies shall ship (or shall direct Collagen to ship) Product to the address specified in the applicable purchase order submitted by CII by the scheduled delivery date specified therein; provided that Technologies shall have no liability for any delay in shipment that is due to Collagen's actions or failures to act. Technologies shall deliver Product to CII packaged and labeled in such form as to be ready for direct shipment to end users. All shipments shall be F.O.B. CII's receiving facilities in Munich, Germany, and Technologies shall bear the risk of loss and cost of transportation of the Product to CII's receiving facilities. All shipping, freight and insurance shall be paid by Technologies.


2.4 PURCHASE PRICE. CII and/or its Affiliates shall pay to Technologies the Net Sale Price actually received by CII and/or its Affiliates for Product sold by CII and/or its Affiliates in the Territory.


2.5 INVOICING AND REPORTING.


2.5.1 Technologies shall invoice CII for each shipment of Product based on the Technologies' direct cost of procuring the Product ("Cost of Goods") contained in such shipment. All invoices shall be sent via first class mail or by telecopy to CII's address for notices hereunder.


2.5.2 Within sixty (60) days after the last day of each calendar quarter, CII shall provide Technologies with a written report ("Sales Report") setting forth:


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