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EXHIBIT 10.1(e)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT is made and entered
into as of this 18TH day of May, 1998, by and between BIOTEK SOLUTIONS, INC., a
corporation organized under the laws of the state of California, hereinafter
referred to as "BioTek", VENTANA MEDICAL SYSTEMS, INC., a corporation organized
under the laws of the State of Delaware, hereinafter referred to as "Ventana"
and DAKO A/S, a company organized under the laws of the Kingdom of Denmark,
hereinafter referred to as "DAKO."
WHEREAS, DAKO and BioTek are parties to that certain distribution
agreement dated September 27, 1994, as amended by the First Amendment to
Distribution Agreement dated March 24, 1995 and the Second Amendment to
Distribution Agreement dated September 25, 1996, to which Ventana is also a
party (the "Distribution Agreement"); and
WHEREAS, BioTek, Ventana and DAKO desire to amend and restate the
Distribution Agreement as set forth in this document (hereinafter, this
"Agreement" shall refer to the Distribution Agreement, as amended and restated
herein); and
WHEREAS, DAKO has commenced arbitration proceedings against BioTek and
Ventana, International Chamber of Commerce case number 9695/AMW (the
"Arbitration"), and the parties desire to resolve the disputes subject to
Arbitration and any other disputes between them as provided in this Agreement.
NOW, THEREFORE, in consideration of the respective covenants of the
parties herein set forth, and other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, the parties hereto do promise and
agree as follows:
1. DEFINITIONS. Certain of the terms used in this Agreement shall be
defined as follows:
"Accessories" means software, trays, slides, and pads for use
in the operation of the Instruments, and Reagents marketed by BioTek.
"Accessories Term" means the period commencing on the date of
this Agreement and ending on the earlier to occur of (i) the occurrence
of a DAKO Default; or (ii) 5:00 pm (New York City time) on the fifth
(5th) anniversary of the date of this Agreement.
"BioTek Installed Base" means those Instruments located in the
United States which were sold, leased or otherwise supplied to the user
thereof by BioTek or Ventana or an affiliate of or distributor of
BioTek or Ventana on or prior to the date of this Agreement or at any
time thereafter.
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"COLA Adjustment Factor" means 105% with respect to
Accessories and 107% with respect to Parts.
"DAKO Corporation" means DAKO Corporation, a California
corporation and a wholly-owned subsidiary of DAKO.
"DAKO Default" means the termination by BioTek of this
Agreement as the result of the occurrence with respect to DAKO of an
event described in Section 7, below.
"DAKO Installed Base" means those Instruments located in the
Territory which were sold, leased or otherwise supplied to the user
thereof by DAKO or an affiliate of DAKO or a distributor appointed by
DAKO or an affiliate of DAKO on or prior to the date of this Agreement
or at any time thereafter.
"Exclusivity Period" means the period commencing on the date
of this Agreement and ending on the earlier to occur of (i) the date
DAKO has offered for sale in any part of the Territory an automated
slide staining instrument competitive with the Instruments, or any of
them; (ii) the occurrence of a DAKO Default; or (iii) December 31,
1999.
"First Installation Date" means the date DAKO (or its
affiliate or a distributor of DAKO or its affiliate) first invoices its
customer for accessories or reagents for use on an Instrument after
that Instrument becomes operational at a customer location.
"Instruments" shall mean the TechMateTM brand of automated
slide staining instruments manufactured by or for BioTek, which
instruments are identified by BioTek as TechMate 250TM, TechMate 500TM
and TechMate 1000TM Instruments.
"Parts" means parts used to repair Instruments.
"Parts Term" means the period commencing on the date of this
Agreement and ending on the earlier to occur of (i) the occurrence of a
DAKO Default; or (ii) 5:00 pm (New York City time) on the seventh (7th)
anniversary of the date of this Agreement.
"Products" means the Accessories, Instruments and Parts.
"Reagents" means liquid chemicals consisting of primary
antibodies, detection chemistries, hematoxylin and buffers.
"Restricted Accessories" means detection chemistries,
hematoxylin, buffers, slides, pads, and trays, but not primary
antibodies and DAKO manual detection kits.
"Scientific Services" means instruction in the use of
Accessories and Reagents with the Instruments.
"TechMate Royalties" means the royalties payable with respect
to the TechMate 1000 and 500 Instruments sold to DAKO by BioTek.
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"Technical Service" means service on the Instruments.
"The date of this Agreement" means the date first set forth
above.
"Territory" means the entire world, excluding the United
States, Canada, Australia, South America, Mexico, Central America, and
the Caribbean.
"Ventana" means Ventana Medical Systems, Inc., a Delaware
corporation.
2. DISTRIBUTION OF PRODUCTS.
2.1. DISTRIBUTION OF INSTRUMENTS. Upon the terms and subject
to the conditions set forth in this Agreement, during the Exclusivity Period,
DAKO shall be the exclusive distributor of Instruments in the Territory;
provided, however, BioTek or any affiliate thereof may show Instruments at trade
shows in the Territory during the Exclusivity Period, but will clearly identify
the Instruments shown as only being available in the Territory through DAKO, the
exclusive distributor of Instruments in the Territory. During the Exclusivity
Period, DAKO may not sell Instruments outside of the Territory. After the end of
the Exclusivity Period, DAKO, BioTek and Ventana may distribute, sell, and lease
Instruments both in as well as outside the Territory directly, through
distributors or otherwise. DAKO has a significant inventory of Instruments and,
accordingly, will not require any additional Instruments during the Exclusivity
Period or thereafter, except that DAKO hereby orders from BioTek 10 TechMate 250
Instruments, at a purchase price, FOB BioTek's facility, Tucson, Arizona, USA,
of $14,080.00 per Instrument, plus a prepaid royalty of $7,000.00 per
Instrument, and BioTek hereby accepts such order. BioTek will deliver those
Instruments to DAKO no later than June 30, 1998. BioTek has no additional
obligation hereunder or otherwise to sell or otherwise supply Instruments to
DAKO. Notwithstanding any provision of this Paragraph to the contrary, nothing
herein will be construed as restricting BioTek or Ventana from selling any other
type of automated slide staining instrument in the Territory, including without
limitation, the Ventana NexES(R). During the Exclusivity Period, Ventana and
BioTek waive any right to claim that DAKO has not used its best efforts to sell
Instruments in the Territory.
2.2. SUPPLY OF PARTS AND ACCESSORIES. BioTek will supply to
DAKO on a timely basis, during the Accessories Term, all Accessories detailed in
SCHEDULE 2.2(a) required by DAKO from time to time and, during the Parts Term,
all TechMate 1000 and 500 Parts detailed in SCHEDULE 2.2(b) required by DAKO
from time to time, and DAKO will purchase all of its requirements for
Accessories and TechMate 1000 and 500 Parts from BioTek during such terms,
except as follows:
(a) DAKO may at any time terminate its obligation to purchase
any item of the Accessories (an "Excluded Item") by giving BioTek 60
days prior written notice of such termination. At the end of such
period, BioTek will not have any obligation to sell the Excluded Item
to DAKO and DAKO will not have any obligation to purchase the Excluded
Item from BioTek. When giving such notice of termination, DAKO shall at
its option be allowed to cancel orders for Excluded Items to be
delivered later than 90 days after the service of the written notice of
termination.
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(b) DAKO may at any time terminate its obligation to purchase
TechMate 1000 and 500 Parts by giving BioTek 60 days prior written
notice of such termination. At the end of such period, BioTek will not
have any obligation to sell TechMate 1000 and 500 Parts to DAKO and
DAKO will not have any obligation to purchase TechMate 1000 and 500
Parts from BioTek.
BioTek hereby grants to DAKO a perpetual nonexclusive royalty free
license/sub-license to all such intellectual property rights of BioTek, Ventana
or third parties as necessary for the manufacture by DAKO or DAKO's suppliers of
Excluded Items and the TechMate 1000 and 500 Parts, the use, marketing, and
sale/lease/supply of such Excluded Items and the TechMate 1000 and 500 Parts by
DAKO, DAKO's affiliates and DAKO's distributors and for the use of such Excluded
Items and the TechMate 1000 and 500 Parts by the customers of DAKO and DAKO's
affiliates and DAKO's distributors. Such license will commence with respect to
TechMate 1000 and 500 Parts or any Accessories at such time as BioTek's
obligation hereunder to supply them terminates.
2.3. PURCHASE PRICE. The purchase prices for Accessories will
be as set forth on attached SCHEDULE 2.2(a) and for TechMate 1000 and 500 Parts
will be as set forth on attached SCHEDULE 2.2(b). These purchase prices will be
adjusted annually, effective as of the first day of each calendar year
commencing January 1, 1999, to an amount equal to the product of the purchase
price in effect during the previous year, multiplied by the COLA Adjustment
Factor.
2.4. TECHMATE 250 PARTS. Upon the execution of this Agreement,
DAKO will purchase from BioTek, and BioTek will sell to DAKO, all of BioTek's
inventories of TechMate 250 Parts, which inventories are listed on attached
SCHEDULE 2.4. DAKO will pay BioTek an aggregate purchase price for those
inventories of $40,000.00, FOB BioTek's facilities, Tucson, Arizona, and
Strasbourg, France, upon delivery. BioTek will convey to DAKO good and
marketable title to those inventories, free and clear of all liens, claims and
encumbrances. DAKO may return, within 30 days of their delivery to DAKO, any
items of those inventories which are defective. The purchase price of the
defective Parts, based on the prices of the Parts reflected on attached SCHEDULE
2.4, will be refunded for any such defective Parts returned to BioTek. BioTek
hereby grants to DAKO a perpetual nonexclusive royalty free license/sub-license
to all such intellectual property rights of BioTek, Ventana or third parties as
necessary for the manufacture by DAKO or DAKO's suppliers of TechMate 250 Parts,
the use, marketing, and sale/lease/supply of TechMate 250 Parts by DAKO, DAKO's
affiliates and DAKO's distributors and for the use of such Parts by the
customers of DAKO and DAKO's affiliates and DAKO'S distributors.
2.5. METAL SKINS. BioTek acknowledges that DAKO desires to
purchase from BioTek, and hereby agrees to purchase, metal skins for 79 TechMate
250 Instruments. BioTek agrees to sell those metal skins to DAKO at a price of
$3,200.00 per unit, FOB BioTek's facilities in Tucson, Arizona, USA; provided,
however, that if DAKO establishes that a metal skin replaces a resin skin which
did not pass the Xylene Resistance Test described in attached EXHIBIT 2.5(a),
BioTek will grant to DAKO a discount against the price of the metal skin as set
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forth in attached EXHIBIT 2.5(b) based on the component which was not resistant
to xylene. The parties acknowledge that the metal skins in stock at LJL
BioSystems, Inc. ("LJL") are defective and agree that the metal skins called for
in this Paragraph will be supplied as follows:
(a) If LJL is able to repair the defect in the metal skins in
stock to the reasonable satisfaction of DAKO, DAKO will accept those
skins as repaired and BioTek will deliver all of them to DAKO no later
than July 15, 1998. BioTek agrees to deliver ten (10) metal skins
repaired by LJL to DAKO on or before May 31, 1998 and DAKO agrees to
communicate to BioTek by June 15, 1998 whether the repairs are
satisfactory or unsatisfactory.
(b) If the repairs are unsatisfactory to DAKO in its
reasonable discretion, BioTek will supply to DAKO satisfactory skins
from an alternative source no later than August 30, 1998.
2.6. SHIPPING. All Products delivered pursuant to this
Agreement shall be marked for shipment at the destination designated in DAKO's
written purchase order, and shipped by Federal Express or a carrier or
forwarding agent mutually agreed upon by the parties. Shipments shall be FOB
BioTek's facilities in Tucson, Arizona, USA or Strasbourg, France, at which time
risk of loss and title will pass to DAKO. DAKO will bear all freight, insurance
and other costs and expenses of shipping to DAKO the Products purchased by it.
2.7. PAYMENT TERMS. DAKO will pay the purchase price for all
Products purchased hereunder, and all other amounts payable under the terms of
this Agreement, within 30 days of the later of the date of invoice or delivery
of the Products, except as specifically provided in this Agreement to the
contrary.
2.8. ORDERS. DAKO will order Accessories and TechMate 1000 and
500 Parts hereunder by submitting firm purchase orders to BioTek. DAKO will
submit such firm purchase orders on its order form and BioTek will acknowledge
the order by facsimile within two (2) working days of BioTek's receipt of DAKO's
order. If the terms of DAKO's order or BioTek's acceptance thereof differ from
the terms of this Agreement, the terms of this Agreement will govern.
2.9. PACKAGE MARKINGS. DAKO agrees to ▇▇▇▇ all packaging and
inserts for Accessories and Parts, to the extent not already marked, with
BioTek's trademarks in a form and size consistent with past practices. Products
not sourced from Ventana or BioTek shall not be marked with BioTek's name. DAKO
shall have the right but not an obligation to use the ChemMate trademark.
2.10. MISCELLANEOUS BIOTEK SERVICES.
(a) BioTek will ship promptly, but in any event not later than
sixty (60) days from receipt of order, DAKO's orders for Accessories
and TechMate 1000 and 500 Parts.
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(b) BioTek will notify DAKO immediately in writing if BioTek
becomes aware of any defect or condition which renders any Instrument
or Accessory in violation of any applicable governmental statute or
regulation, or which in any way alters the specifications or quality of
the Instrument or Accessory.
(c) BioTek will provide to DAKO such types and quantities of
technical information developed or acquired by BioTek from time to
time, if any, as relate to the sale of the Products and the service of
the Products, hereunder the documentation specified in attached
SCHEDULE 2.10(c). DAKO will use such documentation solely for the
purposes set forth in this Paragraph.
2.11. RETURN OF PRODUCTS. Except for returns in accordance
with applicable product warranty provisions as provided below, DAKO may not
return any Products purchased by it from BioTek or Ventana or any of their
affiliates, whether before, on or after the date of this Agreement.
3. SETTLEMENT OF ISSUES.
3.1. OUTSTANDING INVOICES. DAKO hereby agrees that all
outstanding invoices to it from Ventana or BioTek which are not yet due will be
paid when due. BioTek and Ventana will accept the amount of $58,733.39 as
payment in full of the amounts outstanding under the invoices from Ventana or
BioTek numbered 852, 942, 1007, 34711, 36681, and 36682. DAKO will accept the
amount of $15,729.00 as payment in full of the amounts outstanding under the
invoices from DAKO numbered 96041, 96521, 96717, 96986, 97777, 99064, 99472,
99475, 99492, 99610, 10021, 10892, 11446, 11447 and 11591. Such amounts will be
paid by DAKO and BioTek or Ventana by wire transfer within 10 days after the
date of this Agreement.
3.2. PRICE ADJUSTMENT.
(a) Pursuant to the Second Amendment, DAKO ordered from
Ventana 316 TechMate 250s and the parties agreed on the price for the
first 33 units, but disagreed on the price for the other 283 units. The
parties now agree that the price per unit for units 34 to 180 is
$20,000.00 per unit and the price for additional units is $14,080.00
per unit. Accordingly, DAKO has (a) overpaid for 67 units at the rate
of $10,738 per unit (i.e., the aggregate amount of $719,446), and (b)
overpaid for 80 units at the rate of $7,202 per unit (i.e., the
aggregate amount of $576,160). Accordingly, the net overpayment is
$1,295,606.00 and the interest accrued thereon totals $51,287.45 as of
May 31, 1998.
(b) Under the terms of Section 2.3 of the Second Amendment,
the rate at which amounts owed to DAKO by BioTek are recouped upon the
sale of TechMate 250 Instruments 34 and on is reduced from as follows:
(i) Instruments 34-100 per unit from $10,018 per unit to $6,500; and
(ii) Instruments 101-180 from $10,018 per unit to $6,500 (which
recoupment rate is hereby acknowledged and agreed to by DAKO and
BioTek). Accordingly, the excess recoupment totals $517,146.00 and the
interest accrued thereon totals $16,842.62 as of May 31, 1998.
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(c) The net amount of the overpayments and interest referred
to in the previous subparagraphs totals $812,904.83, (the "Refund
Amount") calculated as follows:
DESCRIPTION OF AMOUNT OWED AMOUNT OWED
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Overpayment of Price $1,295,606.00
Excess Recoupment $ (517,146.00)
Interest on Price Overpayment $51,287.45
Interest on Excess Recoupment $ (16,842.62)
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REFUND AMOUNT $ 812,904.83
3.3. REPAYMENT. According to Sections 2.3.a. and b. of the
Second Amendment to the Distribution Agreement (the "Second Amendment"), BioTek
has agreed to repay to DAKO the amount of $2,003,566.00 (of which amount,
$1,646,676 has already been recouped according to the terms of Section 2.3.b.(i)
and (ii) of the Second Amendment). However, Section 2.3.b. of the Second
Amendment also provides for an Adjusted Recoupment Rate in the event the price
of TechMate 250 Instruments is reduced. Under this Section, the Adjusted
Recoupment is $1,129,530.00 leaving $874,036.00 owed by BioTek to DAKO. In
addition, DAKO will be entitled to recoup the amount of $3,540.00 per unit for
the Instruments purchased pursuant to Paragraph 2.1, above, further reducing the
amount owed by BioTek to $838,636.00. In full settlement of these recoupment
obligations (i.e., the $838,636.00 owed by BioTek to DAKO (the "Repayment
Amount")), BioTek will pay the Repayment Amount to DAKO in accordance with the
provisions of Paragraph 3.5, below.
3.4. ROYALTIES. DAKO and BioTek acknowledge and agree that
DAKO is current in the payment of all royalty invoices issued by BioTek pursuant
to the Distribution Agreement through the date of this Agreement. DAKO agrees to
pay when due all outstanding royalty invoices issued by BioTek through the date
of this Agreement. DAKO will continue to pay royalties for TechMate 500 and 1000
Instruments as follows (regardless of whether the Instruments were installed or
sold by DAKO prior to, on or after the date of this Agreement):
(a) TECHMATE ROYALTIES. DAKO shall pay to BioTek the royalties
set forth in SCHEDULE 3.4 hereto with respect to TechMate 500 and 1000
Instruments that are or were sold and delivered to DAKO or delivered to
DAKO's customers based on DAKO's drop shipment directions. Such royalty
shall be paid to BioTek by DAKO for each instrument installed by DAKO
for five (5) years after installation. Such royalties per Instrument
purchased shall be paid starting on the First Installation Date of the
Instrument on a monthly basis not later than thirty (30) days after the
last day of the month for which the royalties are payable. The
foregoing provisions to the contrary notwithstanding:
(i) The royalty payable during the ninth, tenth,
eleventh and twelfth months after the date of delivery and
thereafter will increase only to a maximum
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of $534.00 per month, for a maximum of 15 Instruments sold
solely for DAKO's European distributors in the following
countries: Spain, Holland, Belgium, Austria, Norway, Finland
and Slovenia.
(ii) Such royalty shall not be paid for Instruments
sold to pharmaceutical companies that purchase limited amounts
of dual-labeled Reagents from DAKO, but DAKO shall pay instead
a quarterly fee equal to 25% of dual-labeled Reagents sold by
DAKO for use on such Instruments.
(iii) Any TechMate 500 or TechMate 1000 Instrument
installed after September 27, 1997 in any country in a
hospital which already has one royalty-bearing TechMate 500 or
TechMate 1000 Instrument installed, shall be royalty-free.
However, if the volume of Reagents sold by DAKO for use in
those Instruments installed in such hospital in any 6-month
period exceeds 150% of the average volume sold to hospitals
with only one such Instrument during that period, then DAKO
shall, with effect from the end of that 6-month period, pay
royalties for those two (2) Instruments, with such payments
being made retroactive to the date of installation of the
second Instrument.
(iv) If DAKO's total volume of Reagents sold to a
particular customer for use in an Instrument over any 12
consecutive months is reduced by more than 50% compared to the
previous 12 consecutive months, then the royalty payable by
DAKO with respect to such Instrument for the rest of the
royalty period shall, commencing with the month following such
calculation, be calculated instead at 25% of the amounts
invoiced for Reagents for use with such Instrument by DAKO in
each month (converted into US Dollars according to the
exchange rate in effect at the end of such month). The
relevant 12-month periods shall be the months 7-18 after
installation and each subsequent 12-month period.
(v) DAKO agrees that, with respect to Instruments
sold in Sweden, the United Kingdom and France, in recognition
of the royalty reduction to a maximum of $334.00 per month in
such countries as stated in SCHEDULE 3.4, there may be an
increase in the royalty paid to BioTek by DAKO, calculated
after thirty (30) months of use of an Instrument by any
customer in the three aforementioned countries if there is a
sufficient increase in Reagent purchases by any one customer
in any of such countries as determined by the following
formula:
Reagent sales for months 19 through 30 (inclusive) in
excess of Reagent sales for months 7 through 18
(inclusive), reflected as a percentage increase, will
be adjusted by subtracting 25% points from any such
percentage. Such reduced percentage (if positive)
will be the percentage increase in royalty,
retroactive to month 19 of customer use and will
create the new royalty to apply from and after such
month 19. This adjustment will be made again in
months 42 and 53 of the royalty period, and any
increase adjusted retroactively, if applicable, for
the prior 12 months. The
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base period, for purposes of calculating the royalty
adjustment at months 42 and 53, will also be the
months 7 through 18.
Notwithstanding the above, the royalty per month cannot exceed $734.00.
(b) DEINSTALLED INSTRUMENTS. In the event that a TechMate 500
or 1000 Instrument for which royalties are payable hereunder is removed
from service because it is replaced by a slide staining instrument not
sold through DAKO, such TechMate 500 or 1000 Instrument (a "Deinstalled
Instrument") shall not be counted for purposes of calculating the above
royalties until such time as that TechMate 500 or 1000 Instrument is
reinstalled.
(c) MAXIMUM NUMBER OF INSTRUMENTS EXCLUDED FROM THE ROYALTY
BASE. The foregoing to the contrary notwithstanding, DAKO shall be able
to exclude a maximum of 30 TechMate 500 Instruments from the payment of
royalties on the basis that they are not installed and will pay
royalties at the Standard Royalty Rate on any uninstalled Instruments
in excess of 30. The Deinstalled Instruments shall not be included when
calculating the maximum of 30 royalty-free Instruments. The foregoing
to the contrary notwithstanding:
(i) An Instrument which is not repairable shall be
excluded from the above 30 Instruments and shall not be
subject to royalties.
(ii) If DAKO believes that an Instrument is not
repairable, DAKO shall advise BioTek and the Instrument will
be deemed non repairable unless repaired by BioTek within 30
days of its receipt of such notice. Any such Instrument later
installed shall, however, be subject to royalties from the
date of that installation.
(d) CERTIFIED REPORTS. Each royalty spreadsheet delivered
under subparagraph (f), below, shall be certified to be true and
correct by the chief financial officer of DAKO. Such spreadsheet shall
contain reasonable detail as to the calculation of the amount due. DAKO
agrees to keep and maintain accurate books and records relative to the
TechMate Royalties and, for purposes of permitting BioTek to verify the
accuracy of any such report, DAKO will make such books and records
available for inspection during normal business hours at the offices of
DAKO at any time, and from time to time, by an independent accountant
appointed by BioTek. Audits will be at BioTek's own expense and will be
conducted at DAKO's premises. BioTek will give DAKO ten (10) days prior
written notice of the audit and may not audit DAKO's books any more
frequently than quarterly.
(e) U.S. DEINSTALLED INSTRUMENTS. The foregoing to the
contrary notwithstanding, neither DAKO nor any affiliate thereof may
reinstall any Instrument previously installed in the United States, if
DAKO or any affiliate thereof has in stock any Instruments of that type
which are subject to the royalty provisions of this Agreement (or would
be subject thereto if installed).
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(f) ROYALTY ADJUSTMENT. DAKO and BioTek agree that DAKO's
obligations for TechMate 500 and 1000 royalties have been overpaid by
the amount of $52,618 through September 30, 1997, to be paid to DAKO
within ten (10) days after the date of this Agreement. The parties also
agree that DAKO has paid royalties totaling $465,420 for the six (6)
months ended March 31, 1998 and that this amount may be subject to
adjustment based on further analysis of actual installation data. It is
further agreed that DAKO will complete an internal audit of
installation activity for the six (6) months ended March 31, 1998 and
communicate any resulting changes to its royalty obligation to BioTek
by e-mailing an updated royalty spreadsheet by the close of business
June 30, 1998, and that BioTek will issue the applicable billing
adjustment or credit statement no later than July 31, 1998. Thereafter,
DAKO will continue to e-mail an updated spreadsheet to BioTek by the
last day of each calendar quarter to finalize the royalty for the next
previous calendar quarter (i.e., by the end of the second quarter of a
calendar year DAKO will e-mail to Ventana an updated spreadsheet for
the first quarter of that year). BioTek will issue each applicable
billing adjustment the following month. BioTek's regular ▇▇▇▇▇▇▇▇ will
always be based on the most recent update. This procedure will remain
in force until all royalty obligations have expired.
3.5. PAYMENT OF OBLIGATIONS. The Repayment Amount and the
Refund Amount (collectively, the "Debt") will accrue interest and be payable as
follows:
(a) Interest will accrue on the Debt at the rate of 7% per
annum commencing January 1, 2000, and be payable quarterly as of each
March 31, June 30, September 30 and December 31 commencing March 31,
2000. No interest will accrue on the Debt through January 1, 2000.
(b) The principal portion of the Debt will be payable
quarterly, on each April 1, July 1, October 1 and January 1, commencing
January 1, 2000, in sixteen (16) equal quarterly installments.
(c) Ventana and BioTek shall be jointly and severally liable
for the fulfillment of the payment obligations according to this
Paragraph 3.5.
(d) The foregoing to the contrary notwithstanding, the Debt
(and all accrued interest) will become immediately due and payable upon
the occurrence of any of the following events:
(i) Ventana and BioTek shall fail to pay when due any
amounts payable under this Paragraph 3.5 and such failure
shall continue for a period of thirty (30) days after written
notice thereof from DAKO to Ventana and BioTek.
(ii) If Ventana and/or BioTek shall make a general
assignment for the benefit of creditors or shall become the
subject of an "order for relief" within the meaning of the
United States Bankruptcy Code, or shall voluntarily file a
petition in bankruptcy or for reorganization or effect a plan
or other arrangement with creditors.
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3.6. RELEASES.
(a) In consideration of this Agreement and the transactions
contemplated herein, and other good and valuable consideration, DAKO,
for itself and its subsidiaries, affiliates, successors and assigns,
forever releases and discharges BioTek, and its officers, directors,
shareholders, agents, partners, representatives, attorneys, employees,
and their respective heirs, successors and assigns, and each of them,
past and present, including without limitation, Ventana (the "BioTek
Parties"), from and against any and all actions, obligations, costs,
damages, losses, claims, liabilities and demands of whatever kind or
nature which DAKO has as of the date hereof or it has had against
BioTek or any of the other BioTek Parties, including, without
limitation, any such claim or cause of action arising out of or in
connection with any agreement, event, transaction, action, omission or
circumstances occurring or existing on or prior to the date hereof by
or involving the BioTek Parties, or any of them, excepting the
obligations of BioTek and Ventana under this Agreement and those
obligations, if any, which the parties agree by the specific terms of
this Agreement will survive.
(b) In consideration of this Agreement and the transactions
contemplated herein, and other good and valuable consideration, BioTek,
for itself and its parent, subsidiaries, affiliates, successors and
assigns, forever releases and discharges DAKO, and its officers,
directors, shareholders, agents, partners, representatives, attorneys,
employees, and their respective heirs, successors and assigns, and each
of them, past and present, including without limitation, DAKO
Corporation (the "DAKO Parties"), from and against any and all actions,
obligations, costs, damages, losses, claims, liabilities and demands of
whatever kind or nature which BioTek has as of the date hereof or has
had against DAKO or any of the DAKO Parties, including, without
limitation, any such claim or cause of action arising out of or in
connection with any agreement, event, transaction, action, omission or
circumstances occurring or existing on or prior to the date hereof by
or involving the DAKO Parties, or any of them, excepting the
obligations of DAKO and DAKO Corporation under this Agreement and those
obligations, if any, which the parties agree by the specific terms of
this Agreement will survive.
3.7. TERMINATIONS.
(a) All security interests of DAKO in the assets of BioTek, or
any affiliate thereof, are hereby terminated and released. In that
regard, DAKO agrees to execute such Uniform Commercial Code and other
termination statements and documents as necessary to release any
financing statements and other Instruments which are on file to perfect
such security interests.
(b) All Escrow Agreements between DAKO and BioTek under which
blue prints, designs, drawings, specifications and other information is
escrowed for the benefit of DAKO are hereby terminated, with all such
materials held in escrow released to BioTek. DAKO will, upon request,
execute such documents and Instruments as necessary to effectuate such
termination and the return of such materials.
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3.8 ARBITRATION. Upon execution of this agreement, DAKO,
Ventana and BioTek will instruct the attorney's representing them in the
Arbitration to file the Stipulation of Dismissal with Prejudice attached as
Schedule 3.8.
4. RESTRICTIVE COVENANTS.
4.1. DAKO INSTALLED BASE. Neither BioTek nor any affiliate
thereof (including without limitation, Ventana) will, at any time during the
three (3) year period immediately following the date of this Agreement, sell
Restricted Accessories or Parts for use on any Instrument in the DAKO Installed
Base or render Scientific Service for or Technical Service on any such
Instrument, and BioTek and Ventana will not permit any distributor of BioTek or
an affiliate of BioTek to do any of the foregoing (however, with regard to
Scientific Services or Technical Services, BioTek and Ventana will, as regards
their distributors, only be obligated to use their best efforts to restrict
their distributors from performing such services). If a customer operates an
Instrument which is part of the DAKO Installed Base as well as any other slide
staining instrument supplied by BioTek or Ventana (including without limitation,
the Ventana NexES(R)), BioTek and Ventana and their affiliates cannot be held
liable if customer used Restricted Accessories or Parts supplied by BioTek or
Ventana or their affiliates on Instruments which are part of the DAKO Installed
Base. Nothing herein will be construed to restrict BioTek or its affiliates or
distributors from supplying any other products to customers with Instruments in
the DAKO Installed Base, including without limitation, slide staining
instruments competitive with the Instruments.
4.2. BIOTEK INSTALLED BASE. Neither DAKO nor any affiliate
thereof (including without limitation DAKO Corporation), nor any distributor of
DAKO or an affiliate of DAKO, will, at any time during the three (3) year period
immediately following the date of this Agreement:
(a) Actively promote manual detection kits for use on any
Instrument in the BioTek Installed Base. Notwithstanding any provision
of this Paragraph 4.2 to the contrary, DAKO Corporation or distributors
may continue to supply manual DAKO detection kits and render Scientific
Services to customers who are using DAKO manual detection kits on
Instruments in the BioTek Installed Base as of the date hereof.
Further, BioTek acknowledges that certain customers with Instruments
that are part of the BioTek Installed Base may after the date hereof
decide to use manual DAKO detection kits on their Instruments despite
the fact that DAKO Corporation or its affiliates or distributors have
not actively promoted such use. Nothing herein will be construed to
restrict BioTek or Ventana from supplying Parts, Accessories and/or
Reagents to any customer in the BioTek Installed Base.
(b) Sell Prediluted Ready-To-Use ChemMate like reagents (other
than primary antibodies) for use in any Instrument in the BioTek
Installed Base.
(c) Sell Parts, buffers, slides, pads or trays for use in any
Instrument in the BioTek Installed Base.
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(d) Render Technical Services on any Instrument in the BioTek
Installed Base.
If a customer operates an Instrument which is part of the BioTek Installed Base
as well as any other slide staining instrument supplied by DAKO or DAKO
Corporation and their affiliates or distributors (including without limitation,
a DAKO Autostainer or any other product of DAKO), DAKO and DAKO Corporation and
their affiliates cannot be held liable if the customer uses products supplied by
DAKO or DAKO Corporation or their affiliates on Instruments which are part of
the BioTek Installed Base. Nothing herein will be construed to restrict DAKO or
DAKO Corporation or their affiliates or distributors from supplying any other
products to customers with Instruments in the BioTek Installed Base, including
without limitation, slide staining instruments competitive with the Instruments.
4.3. CONFIDENTIALITY. Each party acknowledges the confidential
nature of certain of the information which may be disclosed hereunder or which
may have been disclosed under the Distribution Agreement (including, but not
limited to, names of customers and other marketing-related information) and
agrees to retain such information in confidence; provided, however, that no
information will be deemed confidential unless so designated at the time of
disclosure. This provision shall survive the termination of this Agreement for a
period of three (3) years. Confidential information (especially technical
information) may also be the subject of separate confidentiality agreements
which the parties enter into. The foregoing provisions to the contrary
notwithstanding, the term "confidential information" does not include
information of a party (the "Disclosing Party") which: (i) becomes generally
available to the public other than as a result of a disclosure by the other
party or its employees, agents, officers or directors; (ii) was rightfully
available to such other party on a non-confidential basis prior to disclosure to
such other party by the Disclosing Party or its employees, agents, officers or
directors; or (iii) becomes rightfully available to such other party from a
source other than the Disclosing Party or its employees, agents, officers or
directors. Nothing herein shall be construed to limit the rights of a party to
protect information which constitutes "trade secrets" under applicable laws,
which such trade secrets shall be protected to the extent provided by such
applicable laws.
4.4. REMEDIES. Each party recognizes that any breach by it or
its affiliates of the restrictions imposed by this Paragraph 4 may result in
irreparable injury to the other party. Accordingly, each party agrees that if it
or its affiliates shall engage in any acts in violation of this Paragraph 4, the
other party shall be entitled, in addition to such other remedies and damages as
may be available to it, to an injunction prohibiting the breaching party from
engaging in any such acts.
5. TRADEMARKS; LICENSES.
5.1. TRADE MARKS. DAKO shall not have any right to use any
trademark or trade name or symbol of BioTek or any translation thereof now or
hereafter applied or used in relation to any of the Products or otherwise,
except as provided in this Paragraph and in Paragraph 2.9, above. DAKO may use
the trademarks or trade names of BioTek in the advertising and promotion of the
Products and DAKO is hereby licensed by BioTek to use
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BioTek's trademarks and trade names as reasonably necessary to advertise and
promote the Products. In the use of these trademarks and trade names of BioTek,
DAKO will adhere to the standards and guidelines consistent with past practices.
5.2. LICENSES.
5.2.1. The Parties agree that:
(a) DAKO, its affiliates and distributors shall perpetually be
allowed to:
(i) Market, sell, lease and otherwise supply to the
customers in the Territory Instruments supplied from Ventana
or BioTek to DAKO.
(ii) Service the needs of Instruments which are part
of the DAKO Installed Base in any way, hereunder by way of
rendering Scientific Services and Technical Services and
supplying accessories, reagents and Parts (hereunder other
accessories, reagents and Parts than those sourced from
Ventana or BioTek as well as other accessories and reagents
than those used with the Instruments at present).
(iii) Upgrade the Instruments and any software used
with the Instruments.
(b) DAKO, its affiliates and distributors and their customers
in the Territory shall perpetually be allowed to use the Instruments,
and to use any accessories, reagents and Parts (no matter from which
supplier they are sourced) with the Instruments, and to use any methods
related to the use of the Instruments, no matter whether such
manufacture, marketing, sale/lease/supply and use is restricted due to
proprietary rights of Ventana and/or BioTek and/or third parties.
5.2.2. Ventana and BioTek hereby grant to DAKO, its affiliates
and distributors and their customers, perpetually, non-exclusively and
royalty-free, any and all licenses and sub-licenses under any proprietary rights
necessary for DAKO, its affiliates and distributors and their customers in order
to exploit their rights according to this Paragraph 5.2. Hereunder, BioTek
grants to DAKO, its affiliates and distributors and their customers a perpetual,
nonexclusive, royalty-free license to use BioTek's patented "cap gap" art on all
Instruments sold or otherwise furnished to DAKO by BioTek or Ventana, or by
others. This license will not extend to any other instruments or products and,
in particular, DAKO, its affiliates and distributors and their customers shall
have no right to the use of that art for manufacturing, marketing or
selling/leasing/supplying and using a DAKO proprietary slide staining
instrument.
5.2.3. If certain suppliers of Excluded Items and/or TechMate
1000/500/250 Parts are not allowed to supply certain Excluded Items/Parts to
DAKO without the prior consent of Ventana or BioTek, then Ventana and BioTek
shall, if so requested by DAKO, have an obligation to grant the consent
necessary.
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6. PRODUCT WARRANTIES.
6.1. INSTRUMENTS. In full satisfaction of the warranty
obligations of BioTek or Ventana to DAKO, or any distributor or affiliate of
DAKO, for Instruments sold and/or to be sold by BioTek or Ventana, including
without limitation, warranty claims with respect to the Instruments mentioned in
Paragraph 2.1, above, or any payment for any claims for warranty work performed
by DAKO prior to the date of this Agreement with respect to Instruments, BioTek
shall pay to DAKO the amount of $110,000.00, in cash, by wire transfer, within
ten (10) days after the date of this Agreement.
6.2. PARTS AND ACCESSORIES. With respect to Parts and
Accessories sold by BioTek or Ventana to DAKO, or its affiliates, the product
warranties set forth in attached SCHEDULE 6.2 shall apply.
6.3. INTELLECTUAL PROPERTY. BioTek represents and warrants
that the Products supplied to DAKO under this Agreement shall not infringe upon
the patents or proprietary rights of any third party.
7. DEFAULT. This Agreement may be terminated early as follows:
(a) by either party, at its option, by notice in writing to
the other party, in the event of a material breach of the terms hereof
by the other party; provided, however, that if such breach is of a
nature such that it is curable, such notice of termination shall not be
effective if the breach is corrected within ninety (90) days after the
giving of such notice, except that such 90-day period shall be
automatically extended for an additional period of time reasonably
necessary to cure such default, if such curable default cannot be cured
within such 90-day period, provided the defaulting party commences the
process of curing such default within said 90-day period and
continuously and diligently (as determined by the nonbreaching party in
its reasonable discretion) pursues such cure to completion; or
(b) by either party, if the other party shall make a general
assignment for the benefit of creditors or shall become the subject of
an "order for relief" within the meaning of the United States
Bankruptcy Code, or shall voluntarily file a petition in bankruptcy or
for reorganization or effect a plan or other arrangement with
creditors.
The rights and duties of each party under this Agreement in respect of
performance prior to termination shall survive and be enforceable in accordance
with the terms of this Agreement.
8. VENTANA GUARANTY. Ventana guaranties the fulfillment of any and all
of BioTek's obligations according to this Agreement.
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9. MISCELLANEOUS.
9.1. ENTIRE AGREEMENT. This Agreement (together with any
documents to which it refers) constitutes the entire Agreement between the
parties with respect to the subject matter hereof.
9.2. DISTRIBUTION AGREEMENT SUPERSEDED. This Agreement
supersedes any prior agreement between the parties or their predecessors with
respect to the subject matter hereof, oral or written, including without
limitation, the Distribution Agreement (which will terminate with the signing of
this Agreement and cease to have any effect whatsoever). In connection with this
Agreement, no party has relied upon any representation of any other party, save
for any representation or warranty expressly set forth in this Agreement. After
the end of the Exclusivity Period, no party shall have any rights and
obligations towards the other parties except for those specified in this
Agreement.
9.3. ASSIGNMENT AND SUCCESSION. This Agreement shall not be
assigned or transferred by either party, voluntarily or by operation by law,
without the prior written consent of the other party, except that BioTek may
assign its rights and obligations under this Agreement to Ventana (or any
subsidiary of Ventana, provided Ventana guaranties the obligations of that
subsidiary), or Ventana or any such subsidiary may succeed to this Agreement by
merger, consolidation or other similar transaction. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their permitted
successors and assigns.
9.4. NOTICES. Any notice, demand or other communication to be
served under this Agreement may be served upon any party hereto only by
delivering the same by hand (directly or through an agent such as DHL) to the
party to be served at its address (as set out below), or by sending the same by
facsimile transmission to its facsimile number (as set out below) (followed by a
hand-delivered copy as soon as practicable) or at such other address or number
as it may from time to time notify in writing to the other party hereto. A
notice or demand sent by facsimile transmission shall be deemed to have been
served at the time of transmission and in proving service of the same, it will
be sufficient to prove that such facsimile was duly transmitted to a current
facsimile number of the relevant party:
Address and facsimile number of Ventana and BioTek:
Chief Financial Officer With a Copy to:
Ventana Medical Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C.
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Fax NO.: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax NO.: ▇▇▇-▇▇▇-▇▇▇▇
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▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ With a Copy to:
President and CEO
DAKO A/S ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
Produktionsvej 42 Executive Vice President,
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ Sales and Marketing
Denmark DAKO A/S
Telephone No.: ▇▇ ▇▇ ▇▇ ▇▇▇▇ Produktionsvej 42
Fax NO.: ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone No.: ▇▇ ▇▇ ▇▇ ▇▇▇▇
Fax NO.: ▇▇ ▇▇ ▇▇ ▇▇▇▇
9.5. WAIVER. No term, provision or condition of this Agreement
shall be waived unless such waiver is evidenced in writing and signed by the
waiving party.
9.6. DELAY. An omission or delay by any party to the Agreement
in exercising any right, power or privilege shall not operate as a waiver of
such right, power or privilege. Any single or partial exercise of any such
right, power or privilege shall not preclude any other or further exercise
thereof or of any other right, power or privilege. The rights and remedies
provided in the Agreement are cumulative with and not exclusive of any rights or
remedies provided by law.
9.7. AMENDMENT. No amendment to this Agreement shall be
effective unless made in writing and signed by both parties.
9.8. CURRENCY; INTEREST. All sales and prices shall be
calculated, purchase prices and royalties determined, and purchase price and
royalty payments made in United States Dollars. The term of all sales under this
Agreement are net 30 days after the later of the date of delivery or invoice,
unless and to the extent the provisions of this Agreement specifically provide
otherwise. Any amounts due under this Agreement will accrue interest from the
date due to the date paid at the rate of 12% per annum. In addition, the debtor
shall reimburse the creditor upon demand for all costs incurred by the creditor
in collecting such past due amounts, including without limitation, reasonable
attorneys' fees and expenses.
9.9. SET-OFF. Each party may set-off any amounts owed to it
and which is due for payment from the other party against any amounts it owes to
the other party and which is due for payment. Hereunder, DAKO may set-off any
amount owed to it and due from Ventana against any amounts it owes and which are
due to BioTek or BioTek's assigns.
9.10. LIABILITY LIMITATION. Neither party to this Agreement or
its affiliates (including without limitation, Ventana and DAKO Corporation)
shall have any liability whatsoever for any incidental or consequential damages
as a result of its breach of any agreement, covenant, warranty or representation
in this Agreement.
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9.11. FORCE MAJEURE. The obligations of either party to
perform under this Agreement shall be excused during each period of delay caused
by such matters acts of God, fires, explosions, bombing, floods, civil
commotion, riots, labor disputes, strikes, lockouts, boycotts, picketing or
other industrial disturbances, declared or undeclared wars, military or police
actions, blockages, embargoes, insurrections, delays or carriers, breakdown of
machinery, failure or curtailment or delay of manufacturers or suppliers,
regulations or other governmental restrictions or controls and/or interruptions
of business which are reasonably beyond the control of the party obligated to
perform (a "Force Majeure"), except that nothing herein shall be construed to
relieve a party from its obligation to pay when due any amount payable by that
party to the other party. The affected party shall make best efforts to remedy
the effects of such Force Majeure. Any Force Majeure event shall not excuse
performance by the party, but shall delay performance, unless such Force Majeure
continues for a period in excess of ninety (90) days. In such event, the party
seeking performance may cancel its obligations hereunder. In addition, during
the period BioTek's obligations hereunder are suspended as a result of any Force
Majeure, DAKO may obtain Parts and Accessories from third parties to the extent
BioTek is unable to meet DAKO's requirements (and the intellectual property
licenses granted hereunder shall permit DAKO to do so).
9.12. AMENDMENTS. No amendment or modification of the terms of
this Agreement shall be binding on either party, unless reduced to writing and
signed by an authorized officer of the party to be bound.
9.13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with laws of the State of Arizona (excluding the rules
on conflicts of laws).
9.14. NO CIRCUMVENTION. Each party agrees that it shall act in
good faith with respect to its obligations under this Agreement and will not
take any action with the intent to avoid its obligations under this Agreement or
any provisions hereof restricting its actions.
9.15. ARBITRATION. All disputes arising in connection with
this Agreement, including any question regarding its existence, validity,
enforcement or termination, will be referred to and finally resolved by
arbitration under the rules of the International Chamber of Commerce, which
rules are deemed to be incorporated by reference into this Section. The
arbitration tribunal will consist of three (3) arbitrators. Each party will
select an arbitrator and the third will be selected by the mutual agreement of
the parties. If the parties are unable to agree on the third arbitrator, that
arbitrator will be appointed by the International Chamber of Commerce. The place
of arbitration will be selected by the nonreferring party, and the language of
arbitration will be English. The foregoing to the contrary notwithstanding, a
party may bring legal action against the other party for injunctive relief to
enforce any applicable provision of this Agreement.
9.16. RELATIONSHIP OF THE PARTIES. Nothing herein contained
shall be deemed to be or construed as constituting either party as the agent or
partner of the other.
9.17. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original for all purposes.
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IN WITNESS WHEREOF, the parties have caused their names to be
subscribed on one or more counterparts of this Agreement, all of which such
counterparts will be read together and construed as but one and the same
instrument as of the day, month and year first above written.
DAKO A/S
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
BIOTEK SOLUTIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman
VENTANA MEDICAL SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President
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DAKO CORPORATION AGREEMENT
The undersigned, DAKO Corporation, a California corporation, hereby
agrees to be bound by the provisions of Paragraph 4, above, and any other
provisions of the Agreement applicable to it and acknowledges the release
pursuant to Paragraph 3.6(a) , above, of the claims it may have against the
BioTek Parties, or any of them (and concurs in such release).
IN WITNESS WHEREOF, the undersigned has caused its name to be
subscribed on one or more counterparts of this Agreement, all of which such
counterparts will be read together and construed as but one and the same
instrument as of the day, month and year first above written.
DAKO CORPORATION
By: ____________________________________
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SCHEDULE 2.2(a)
ACCESSORY PRICING
===============================================================================
PART # DESCRIPTION PRICE IN USD
-------------------------------------------------------------------------------
1402300 Hematoxylin, 350 mL $35.39
-------------------------------------------------------------------------------
1403300 Reagent ▇▇▇▇▇ (250/Box) $26.70
-------------------------------------------------------------------------------
POP075 Cap Gap Slides (1/2 gross) $14.35
-------------------------------------------------------------------------------
POP100 Cap Gap Slides (1/2 gross) $14.35
-------------------------------------------------------------------------------
POP130 Cap Gap Slides (1/2 gross) $20.25
-------------------------------------------------------------------------------
1400003 2X HP, 6 mL $28.50
-------------------------------------------------------------------------------
1400004 50X DAB, 6 mL $66.00
-------------------------------------------------------------------------------
1400008 Biotek Red #1, 8 mL $88.00
-------------------------------------------------------------------------------
1400009 Biotek Red #2, 8 mL $88.00
-------------------------------------------------------------------------------
1400010 Biotek Red #3, 8 mL $88.00
-------------------------------------------------------------------------------
1400402 Tris Buffer, 250 mL $28.00
-------------------------------------------------------------------------------
1400403 Alk Phos Tris Buffer $28.00
-------------------------------------------------------------------------------
1403704 Levamisole, 1 mL $28.00
-------------------------------------------------------------------------------
RWP101 Reagent Wicking Pads (50/box) $107.00
-------------------------------------------------------------------------------
RWP250 TM Horizon Wicking Pads (100/box) $145.00
===============================================================================
22
SCHEDULE 2.2(b)
TECHMATE 1000 & 500 PARTS PRICING
------------------------------------------------------------------------------------------
USED ON
PART NUMBER DESCRIPTION TECHMATE UNIT PRICE IN USD
------------------------------------------------------------------------------------------
100075-001 Charcoal Filter 1000 $211.70
100207-500 Pully Block Assembly 1000 $578.92
100380-001 X1 Drive Cable 1000 $164.20
100380-002 X2 Drive Cable 1000 $178.75
100380-003 Y Drive Cable 1000 $277.65
100380-004 Z Drive Cable 1000 $257.15
100380-005 X1 Drive Cable 500 $179.44
100380-006 X2 Drive Cable 500 $196.63
100380-007 Y Drive Cable 500 $268.62
100380-008 Z Drive Cable 500 $267.00
100410-500 Power Board/ MB Assy 1000 & 500 $1,875.00
100411-001 X Blocker Sensor Board 1000 & 500 $268.86
100412-001 Z Blocker Sensor Board 1000 & 500 $276.00
100501-001 Tile 1000 & 500 $49.80
100503-001 Insert, Large 1000 & 500 $19.30
100503-002 Insert, Small 1000 & 500 $19.30
100600-500 Effector Assembly 1000 & 500 $1,885.17
100601-001 Effector Boot 1000 & 500 $110.08
100710-001 Power Board X Block Flex 500 $324.50
100711-001 X Block Z Block Flex 500 $222.88
100713-001 Cable, LED Effector Flex 500 $100.00
100713-500 LED, Effector Flex 500 $236.95
200018-001 Charcoal Filter 500 $255.60
200115-500 Motor Drive Assembly 1000 & 500 $1,867.50
200207-500 Pully Block Assembly 500 $426.21
200222-500 Tension Arm 1000 & 500 $322.52
▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & 500 $456.00
200710-001 Power Board X Block Flex 500 $207.96
900018-001 Gas Shock 1000 & 500 $193.44
900213-500 Slideholder Assy., 60 Slides 1000 & 500 $1,503.00
900408-001 Computer 1000 & 500 $2,697.00
900464-001 Motor Drive Module 1000 & 500 $1,072.20
900471-001 Optical Encoder 1000 & 500 $245.00
23
SCHEDULE 2.4
TECHMATE 250 PARTS
-------------------------------------------------------------------------------------------------------------
PER UNIT
PART PRICE
NUMBER PART DESCRIPTION US QTY EURO QTY TOTAL QTY (OLD)
-------------------------------------------------------------------------------------------------------------
▇▇-▇▇▇-▇▇▇▇ LEVELING FEET 0 12 12 $41.00
▇▇-▇▇▇-▇▇▇▇ BEARING, SLEEVE 9 9 18 $2.40
▇▇-▇▇▇-▇▇▇▇ MAIN HARNESS 6 1 7 $180.80
▇▇-▇▇▇-▇▇▇▇ PRINTER CABLE 9 4 13 $128.00
▇▇-▇▇▇-▇▇▇▇ CABLE, FRONT PANEL 9 1 10 $144.00
▇▇-▇▇▇-▇▇▇▇ FLOPPY CABLE 7 7 14 $160.00
▇▇-▇▇▇-▇▇▇▇ OUTPUT POWER CABLE 6 5 11 $96.00
▇▇-▇▇▇-▇▇▇▇ FRONT PANEL CONTROL CABLE 0 6 6 $144.00
▇▇-▇▇▇-▇▇▇▇ AC INPUT CABLE 6 4 10 $80.00
▇▇-▇▇▇-▇▇▇▇ CABLE, MOTORS 9 4 13 $150.00
▇▇-▇▇▇-▇▇▇▇ FRONT PANEL, JUMPER CABLE 6 1 7 $80.00
▇▇-▇▇▇-▇▇▇▇ POWER ENTRY MOD 6 4 10 $126.88
▇▇-▇▇▇-▇▇▇▇ BLOWER, BRUSHLESS DC 0 5 5 $188.86
▇▇-▇▇▇-▇▇▇▇ STEPPER MOTOR 19 11 30 $256.90
▇▇-▇▇▇-▇▇▇▇ POWER SUPPLY 5 12 17 $432.00
▇▇-▇▇▇-▇▇▇▇ DISK, FLOPPY 3.5 0 1 1 $164.16
▇▇-▇▇▇-▇▇▇▇ FILTER, ORGANIC VAPOR 0 7 7 $63.60
▇▇-▇▇▇-▇▇▇▇ FRONT PANEL CONTROLER CHIP 10 1 11 $90.00
▇▇-▇▇▇-▇▇▇▇ IC, MOTION CONTROL 20 0 20 $80.00
▇▇-▇▇▇-▇▇▇▇ DISPLAY SHIELD 4X40 0 5 5 $50.00
▇▇-▇▇▇-▇▇▇▇ CPU PCB, 386SX 5 5 10 $968.40
▇▇-▇▇▇-▇▇▇▇ ASSY PCB, 1X16 DISPLAY 6 10 16 $886.25
▇▇-▇▇▇-▇▇▇▇ ASSY PCB, 4X40 DISPLAY 10 9 19 $669.78
▇▇-▇▇▇-▇▇▇▇ ASSY PCB, CONTROLLER 0 8 8 $588.54
▇▇-▇▇▇-▇▇▇▇ SENSOR, SLOTTED, SHIELDED - NARROW 20 11 31 $47.40
▇▇-▇▇▇-▇▇▇▇ SENSOR, SLOTTED, SHIELDED - WIDE 2 4 6 $64.80
▇▇-▇▇▇-▇▇▇▇ SENSOR, SLOTTED, UNSHIELDED - WIDE 5 3 8 $53.50
▇▇-▇▇▇-▇▇▇▇ HUB, GEAR MOLDED 9 10 19 $20.00
▇▇-▇▇▇-▇▇▇▇ SLIDE HOLDER ARM 0 3 3 $189.00
▇▇-▇▇▇-▇▇▇▇ GASKET, FILTER 16 0 16 $10.00
▇▇-▇▇▇-▇▇▇▇ SPLASH GUARD 2 0 2 $592.50
▇▇-▇▇▇-▇▇▇▇ BEZEL 2 0 2 $713.75
▇▇-▇▇▇-▇▇▇▇ CARRIER, TRAYS 4 0 4 $357.00
▇▇-▇▇▇-▇▇▇▇ REAGENT TRAY CARRIER 0 2 2 $1,878.00
▇▇-▇▇▇-▇▇▇▇ BEZEL 0 3 3 $3,132.00
----------------------------------------------------------------------------------------------
TOTALS 208 168 376
----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
VALUE AT
PART PER UNIT PRICE LESS DISCOUNTED EXTENDED
NUMBER PART DESCRIPTION PRICE 20% PRICE PRICE
-----------------------------------------------------------------------------------------------------------------------
AMOUNTS
IN USD
▇▇-▇▇▇-▇▇▇▇ LEVELING FEET $17.27 $32.80 $393.60 $207.22
▇▇-▇▇▇-▇▇▇▇ BEARING, SLEEVE $1.01 $1.92 $34.56 $18.19
▇▇-▇▇▇-▇▇▇▇ MAIN HARNESS $76.15 $144.64 $1,012.48 $533.04
▇▇-▇▇▇-▇▇▇▇ PRINTER CABLE $53.91 $102.40 $1,331.20 $700.84
▇▇-▇▇▇-▇▇▇▇ CABLE, FRONT PANEL $60.65 $115.20 $1,152.00 $606.49
▇▇-▇▇▇-▇▇▇▇ FLOPPY CABLE $67.39 $128.00 $1,792.00 $943.43
▇▇-▇▇▇-▇▇▇▇ OUTPUT POWER CABLE $40.43 $76.80 $844.80 $444.76
▇▇-▇▇▇-▇▇▇▇ FRONT PANEL CONTROL CABLE $60.65 $115.20 $691.20 $363.90
▇▇-▇▇▇-▇▇▇▇ AC INPUT CABLE $33.69 $64.00 $640.00 $336.94
▇▇-▇▇▇-▇▇▇▇ CABLE, MOTORS $63.18 $120.00 $1,560.00 $821.29
▇▇-▇▇▇-▇▇▇▇ FRONT PANEL, JUMPER CABLE $33.69 $64.00 $448.00 $235.86
▇▇-▇▇▇-▇▇▇▇ POWER ENTRY MOD $53.44 $101.50 $1,015.04 $534.39
▇▇-▇▇▇-▇▇▇▇ BLOWER, BRUSHLESS DC $79.54 $151.09 $755.44 $397.72
▇▇-▇▇▇-▇▇▇▇ STEPPER MOTOR $108.20 $205.52 $6,165.60 $3,246.01
▇▇-▇▇▇-▇▇▇▇ POWER SUPPLY $181.95 $345.60 $5,875.20 $3,093.12
▇▇-▇▇▇-▇▇▇▇ DISK, FLOPPY 3.5 $69.14 $131.33 $131.33 $69.14
▇▇-▇▇▇-▇▇▇▇ FILTER, ORGANIC VAPOR $26.79 $50.88 $356.16 $187.51
▇▇-▇▇▇-▇▇▇▇ FRONT PANEL CONTROLER CHIP $37.91 $72.00 $792.00 $416.96
▇▇-▇▇▇-▇▇▇▇ IC, MOTION CONTROL $33.69 $64.00 $1,280.00 $673.88
▇▇-▇▇▇-▇▇▇▇ DISPLAY SHIELD 4X40 $21.06 $40.00 $200.00 $105.29
▇▇-▇▇▇-▇▇▇▇ CPU PCB, 386SX $407.87 $774.72 $7,747.20 $4,078.67
▇▇-▇▇▇-▇▇▇▇ ASSY PCB, 1X16 DISPLAY $373.27 $709.00 $11,344.00 $5,972.28
▇▇-▇▇▇-▇▇▇▇ ASSY PCB, 4X40 DISPLAY $282.10 $535.82 $10,180.66 $5,359.81
▇▇-▇▇▇-▇▇▇▇ ASSY PCB, CONTROLLER $247.88 $470.83 $3,766.66 $1,983.03
▇▇-▇▇▇-▇▇▇▇ SENSOR, SLOTTED, SHIELDED - NARROW $19.96 $37.92 $1,175.52 $618.88
▇▇-▇▇▇-▇▇▇▇ SENSOR, SLOTTED, SHIELDED - WIDE $27.29 $51.84 $311.04 $163.75
▇▇-▇▇▇-▇▇▇▇ SENSOR, SLOTTED, UNSHIELDED - WIDE $22.53 $42.80 $342.40 $180.26
▇▇-▇▇▇-▇▇▇▇ HUB, GEAR MOLDED $8.42 $16.00 $304.00 $160.05
▇▇-▇▇▇-▇▇▇▇ SLIDE HOLDER ARM $79.60 $151.20 $453.60 $238.81
▇▇-▇▇▇-▇▇▇▇ GASKET, FILTER $4.21 $8.00 $128.00 $67.39
▇▇-▇▇▇-▇▇▇▇ SPLASH GUARD $249.55 $474.00 $948.00 $499.09
▇▇-▇▇▇-▇▇▇▇ BEZEL $300.61 $571.00 $1,142.00 $601.23
▇▇-▇▇▇-▇▇▇▇ CARRIER, TRAYS $150.36 $285.60 $1,142.40 $601.44
▇▇-▇▇▇-▇▇▇▇ REAGENT TRAY CARRIER $790.97 $1,502.40 $3,004.80 $1,581.94
▇▇-▇▇▇-▇▇▇▇ BEZEL $1,319.12 $2,505.60 $7,516.80 $3,957.37
--------------------------------------------------------------------------------------------------------
TOTALS $10,263.62 $75,977.68 $40,000.00
--------------------------------------------------------------------------------------------------------
23
24
SCHEDULE 2.5(a)
XYLENE RESISTANCE TEST PROTOCOL
The Horizon bezels, trays, and splashguards, known herein as panels, are said to
be xylene resistant if they do not display any visible degradation after being
subjected to xylene for a period not to exceed 5 minutes. The test is conducted
by applying xylene to the panels and allowing the xylene to remain in contact
with the panel for a period, not to exceed five minutes. After the five-minute
contact period, the xylene is wiped clean from the panel being tested. If no
visual degradation is noticed, the panel passes the resistance test. If a panel
fails, the panel is to be shipped to Ventana for further evaluation and testing.
The area tested, on the panel, must be marked and no more than 50% percent of
the panel should be subjected to the initial test thus providing an area for
re-testing.
24
25
SCHEDULE 2.5(b)
METAL SKIN DISCOUNT BASED ON RESULTS OF XYLENE RESISTANCE TEST
COMPONENT NOT RESISTANT TO XYLENE DISCOUNT TO METAL SKIN PURCHASE PRICE
One tray holder 15%
Two tray holders 30%
The splashguard 30%
The bezel 40%
All plastic components in one unit 100%
25
26
SCHEDULE 2.10(c)
DOCUMENTATION TO BE SUPPLIED BY BIOTEK TO DAKO
TM 250 TM 500
1. Source codes of the PC-Software. YES YES
2. Source codes for Microcontrollers of the Z-World Board
of the TechMate 500. N/A YES
3. Source codes for PIC Microcontrollers on the Stepper
Motor Controller Board of the TechMate 250. YES N/A
4. Layout files or layout prints of the various electronical
boards. NO YES
5. Schematic files and/or Schematic printouts for the
electronics. NO YES
6. Exposure drawings of both instruments. NO YES
7. Manufacturing data on mechanical parts (such as
strength of steel cables). NO YES
8. Detailed mechanical drawings of the various parts of
both systems as well as the matching mechanical limit
data. NO YES
9. A detailed list of original part suppliers together with
order number and purchase prices. NO YES
10. A list of quality control test after manufacturing. NO YES
11. File format for Protocol files in the TechMate 250. NO N/A
12. List of error codes and messages, with explanations. NO YES
NOTE: BioTek's obligation to supply documentation limited to documentation
already in its possession.
26
27
SCHEDULE 3.4
TECHMATE 500 AND TECHMATE 1000 ROYALTY SCHEDULE
STANDARD ROYALTY $ PER MONTH PER INSTRUMENT
---------------- --------------------------
Installation to end of the calendar month 0
(Installation month)
First and second calendar months 0
Third and fourth calendar months 250
Fifth, sixth, seventh and eighth calendar months 500
Ninth, tenth, eleventh and twelfth calendar months 734
Thereafter 734
Notwithstanding the terms of the above table of royalties, the
following royalty terms shall apply for the following countries:
UK
FRANCE
ITALY SWITZERLAND GERMANY SWEDEN
=====================================================================================================================
Installation month 0 0 0 0
---------------------------------------------------------------------------------------------------------------------
First calendar month 0 0 0 0
---------------------------------------------------------------------------------------------------------------------
Second, third, and fourth
calendar months 300 250 200 150
---------------------------------------------------------------------------------------------------------------------
Fifth and sixth calendar
months 600 500 400 300
---------------------------------------------------------------------------------------------------------------------
Thereafter 734 634 534 334
---------------------------------------------------------------------------------------------------------------------
27
28
SCHEDULE 3.8
INTERNATIONAL CHAMBER OF COMMERCE
CASE NO. 9695/AMW
--------------------------------------------------------------------------------
DAKO A/S,
Claimant,
STIPULATION OF DISMISSAL
-and- WITH PREJUDICE
BIOTEK SOLUTIONS, INC. and
VENTANA MEDICAL SYSTEMS, INC.,
Defendants.
--------------------------------------------------------------------------------
IT IS HEREBY STIPULATED AND AGREED that the above proceeding be
dismissed with prejudice on the merits, each party to bear its own costs and
attorneys fees. The costs assessed by the International Chamber of Commerce in
connection with the above proceeding shall be borne by each side equally.
Dated New York, New York USA ▇▇▇▇▇ & ▇▇▇▇ LLP
May , 1998. I. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By_____________________________
I. ▇▇▇▇▇ ▇▇▇▇▇▇
Attorneys for Claimant, DAKO A/S
29
Dated Milwaukee, Wisconsin USA ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C.
May ___, 1998. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ O'▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Attorneys for Defendants, BioTek
Solutions Inc. and Ventana
Medical Systems, Inc.
30
SCHEDULE 6.2
WARRANTY
1. WARRANTY FOR PARTS. Parts are warranted against defects in materials or
workmanship for 12 months after the date of delivery to the end-user
("Buyer"), subject to all the terms and conditions set forth in this
Warranty.
2. WARRANTY FOR ACCESSORIES. The Accessories are warranted, subject to all
terms and conditions set forth in this Warranty, as follows: (1) only
to conform to the quantity and content stated on the label and in the
technical product inserts at the time of delivery to the Buyer and (2)
against defects for 12 months after delivery to the Buyer:
3. REFUND, REPLACEMENT OR REPAIR. If any Part or Accessory is shown to
have a defect covered by this Warranty, BioTek will refund DAKO's
purchase price.
4. These warranties extend only to DAKO, DAKO's affiliates, DAKO's
distributors and the buyer of the Product and may not be assigned or
extended to a third person without the written consent of BioTek.
5. All warranties set forth herein are null and void unless a Warranty
Claim has been made in writing by DAKO within 30 days after DAKO or an
affiliate of DAKO has become aware of the defect.
IT IS EXPRESSLY AGREED THAT ALL WARRANTIES SET FORTH HEREIN SHALL BE IN
LIEU OF ALL WARRANTIES OF FITNESS AND OF THE WARRANTY OR
MERCHANTABILITY AND THAT BIOTEK AND ITS DEALERS SHALL HAVE NO LIABILITY
FOR SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR FROM ANY CAUSE
WHATSOEVER ARISING OUT OF THE MANUFACTURE, ▇▇▇, SALE, HANDLING, REPAIR,
MAINTENANCE OR REPLACEMENT OF ANY OF THE PRODUCTS. THERE ARE NO
WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE LABEL OF THE
ACCESSORIES OR THE TECHNICAL PRODUCT INSERTS PACKED WITH THE
ACCESSORIES OR EXTEND BEYOND THE PROVISIONS OF THIS WARRANTY.