Common use of Marketing and Sales Clause in Contracts

Marketing and Sales. 2.1 ZEISS hereby appoints CELLOMICS to be ZEISS' exclusive dealer and distributor within North America for the items listed in Exhibit 2.0 and for accessories for such items (such items and accessories being hereinafter referred to as "Products"); and CELLOMICS hereby accepts such appointment. 2.2 ZEISS and CELLOMICS will use their best efforts to convince customers to place orders with CELLOMICS for Products to be installed in North America and with ZEISS for Products to be installed outside North America. [*] "CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED." 2.3 [*] 2.4 Production of literature, production of advertising and presentation materials for the Products shall be the sole responsibility of ZEISS with input from CELLOMICS. 2.5 CELLOMICS shall have the sole responsibility for advertising placements, shows, and other promotional activities regarding the Products in North America. Therefore, CELLOMICS shall participate at shows such as but not limited to LabAutomation, Drug Discovery, and SBS. In the case of advertising placement and exhibitions which address the international community of the drug development market (such as advertisements in the Journal of Biomolecular Screening and presentations at exhibitions such as mentioned above) ZEISS will provide a proposal which CELLOMICS shall not unreasonably refuse to implement. In addition, ZEISS reimburses Cellomics a percentage of the total costs incurred by CELLOMICS. Such percentage shall be negotiated prior to such activity. It is understood that the ZEISS logo and name shall be shown at these activities. "CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED." 2.6 Training of CELLOMICS personnel for Product application and software support will be provided by ZEISS in Jena. Each party will bear its own cost with respect to such training and support. If requested by CELLOMICS, ZEISS will provide training for any new products added to Exhibit 2.0 by mutual written agreement of the parties. 2.7 Leads for potential customers obtained by CELLOMICS for potential sales outside North America will be passed directly to ZEISS. Leads for potential customers obtained by ZEISS for potential sales in North America will be passed directly to CELLOMICS. CELLOMICS agrees to provide ZEISS with exhibition and conference reports. Additionally, CELLOMICS agrees to provide ZEISS with the minutes of customer contacts with regard to the Products if they relate to potential leads outside North America, on a timely basis. ZEISS agrees to provide such reports of customer contacts with regard to the Products if they relate to potential leads in North America on a timely basis. 2.8 CELLOMICS shall purchase within the measurement periods described in Exhibit 3.0 a minimum Deutsche Mark xxxume based on transfer prices equal to the sum described in Exhibit 3.0. In the event CELLOMICS fails to purchase such minimum volume in accordance with this Article and Exhibit 3.0, ZEISS shall review with CELLOMICS in a management meeting the purchases, open orders, and deliveries, within a period beginning at the end of such measurement period and ending thirty (30) days thereafter. After this meeting, ZEISS shall be entitled to terminate CELLOMICS exclusivity under Section 2.1 of this Agreement or, at ZEISS's option, to terminate this Agreement in its entirety as a material breach under Section 5.2 hereof. Any such election by ZEISS shall be by written notice to CELLOMICS . In the event of such termination of the Agreement in its entirety, CELLOMICS will receive compensation in the amount of 10% of the Net Sales Value for sales occurring in North America within six (6) months of termination and with regard to which CELLOMICS can prove the acquisition of the sale by CELLOMICS (e.g. by proof that CELLOMICS has

Marketing and Sales. 2.1 ZEISS hereby appoints CELLOMICS to be ZEISS' (A) ABBOTT shall have the exclusive dealer right and distributor within North America the associated responsibilities for the items listed marketing, sales, and technical support of the Product in Exhibit 2.0 the Field in the Territory, which shall include responsibility for importation, distribution, order entry, invoicing and for accessories for such items (such items and accessories being hereinafter referred to as "Products"); and CELLOMICS hereby accepts such appointment. 2.2 ZEISS and CELLOMICS will collection regarding sales of the Product. ABBOTT shall use their its reasonable best efforts to convince customers optimize sales, profitability, and market share of the Product in the Territory. The efforts of ABBOTT shall be evidenced by carrying out those specific tasks as mutually agreed to place orders with CELLOMICS by the parties. ABBOTT shall prepare pre-and post-launch marketing plans by Area for Products the Territory which shall be reviewed and approved by SONUS prior to implementation, such approval not to be installed in North America and with ZEISS for Products unreasonably withheld. ABBOTT shall provide such marketing plans to be installed outside North America. [*] "CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENTSONUS no later than one hundred twenty (120) days after the Effective Date. (i) SONUS may, MARKED BY BRACKETSat its election, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED." 2.3 [*] 2.4 Production of literature, production of advertising and presentation materials provide additional technical support for the Products Product in the Field in Major Countries in the Territory, at SONUS's expense. SONUS shall give ABBOTT advance notice of each instance of SONUS's intention to do so, and, for each instance, SONUS shall not begin providing such additional technical support without first obtaining ABBOXX'x xxxroval of SONUS's plans for such technical support, which approval will not be the sole responsibility of ZEISS with input from CELLOMICSunreasonably withheld. 2.5 CELLOMICS (B) SONUS shall have the sole responsibility for advertising placements, shows, and other promotional activities regarding right to co-promote (as defined in Article 3.2(D) below) the Products Product at its own expense in North America. Therefore, CELLOMICS shall participate at shows such as but not limited to LabAutomation, Drug Discovery, and SBS. In the case of advertising placement and exhibitions which address Territory only under the international community following circumstances: (i) After the first anniversary of the drug development market (such as advertisements First Sale Date by an ABBOTT Affiliate to a Third Party in a Major Country in the Journal of Biomolecular Screening and presentations at exhibitions such as mentioned aboveTerritory, ABBOTT shall make minimum royalty payments to SONUS based on fifty percent (50%) ZEISS will provide a proposal which CELLOMICS shall not unreasonably refuse to implement. In addition, ZEISS reimburses Cellomics a percentage of the total costs incurred by CELLOMICS. Such percentage shall be negotiated prior to such activity. It is understood mutually agreed annual Net Sales forecast for that the ZEISS logo and name shall be shown at these activities. "CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED." 2.6 Training of CELLOMICS personnel for Product application and software support will be provided by ZEISS in Jena. Each party will bear its own cost with respect to such training and supportMajor Country. If requested by CELLOMICSABBOTT fails to make such minimum royalty payments, ZEISS will provide training then SONUS may, as its sole remedy for any new products added such failure, elect to Exhibit 2.0 by mutual written agreement co-promote the Product in the Major Country for which ABBOTT failed to make such minimum royalty payments. (a) SONUS shall notify ABBOTT in writing within sixty (60) days of the parties. 2.7 Leads for potential customers obtained by CELLOMICS for potential sales outside North America will date on which ABBOXX'x xxxsed minimum royalty payment was due, of SONUS's intention to co-promote the Product in that Major Country. SONUS' right to co-promote would be passed directly to ZEISS. Leads for potential customers obtained by ZEISS for potential sales in North America will be passed directly to CELLOMICS. CELLOMICS agrees to provide ZEISS with exhibition and conference reports. Additionally, CELLOMICS agrees to provide ZEISS with the minutes of customer contacts with regard to the Products if they relate to potential leads outside North America, on a timely basis. ZEISS agrees to provide such reports of customer contacts with regard to the Products if they relate to potential leads in North America on a timely basis. 2.8 CELLOMICS shall purchase within the measurement periods described in Exhibit 3.0 a minimum Deutsche Mark xxxume based on transfer prices equal to the sum described in Exhibit 3.0. In the event CELLOMICS fails to purchase such minimum volume in accordance with this Article and Exhibit 3.0, ZEISS shall review with CELLOMICS in a management meeting the purchases, open orders, and deliveries, within a period beginning at the end of such measurement period and ending effective thirty (30) days thereafterafter the date of ABBOXX'x xxxeipt of notice from SONUS. (b) If SONUS does not so inform ABBOTT, then SONUS shall have waived its right to co-promote the Product with regard to that specific failure of ABBOTT to make its minimum royalty payments. (c) Notwithstanding the foregoing provisions of this Article 3.2(B)(i), SONUS shall not have the right to co-promote if either of the following occur: (1) ABBOXX'x xxxlure to make the minimum royalty payment in a Major Country in the Territory was due to the fact that Regulatory Approval was not obtained within the time frame contemplated by the parties as set forth in the Plan for that Major Country. After this meeting, ZEISS The Net Sales forecast shall be entitled adjusted as mutually agreed by the parties to terminate CELLOMICS exclusivity reflect the actual times that Regulatory Approvals are obtained and the actual indications approved, and any material changes to the assumptions for the Net Sales forecast. If the parties are unable to agree on such adjustment within thirty (30) days of the date on which they began discussing such adjustment, then the parties will utilize the Dispute Resolution Procedure under Section 2.1 of this Agreement orArticle 20 to determine such adjustment. (2) ABBOTT pays the amount due, plus interest running from the date on which payment was due, at ZEISS's optionthe United States prime rate of interest as published in the Wall Street Journal Midwest Edition, within thirty (30) days of ABBOXX'x xxxeipt of notice from SONUS that SONUS intends to co-promote. (ii) After the second anniversary of the first sale by an ABBOTT Affiliate to a Third Party in a Major Country in an Area of the Territory, ABBOTT shall make minimum royalty payments to SONUS based on fifty percent (50%) of the mutually agreed annual Net Sales forecast for total Net Sales in the Minor Countries in that Area. If ABBOTT fails to make such minimum royalty payments, then SONUS may, as its sole remedy for such failure, elect to terminate this Agreement with respect to all of the Minor Countries in the Area for which ABBOTT failed to make such minimum royalty payments. (a) SONUS shall notify ABBOTT in writing within sixty (60) days of the date on which ABBOXX'x missed minimum royalty payment was due, of SONUS's intention to terminate the Agreement with respect to the Minor Countries in that Area. SONUS' right to terminate would be effective thirty (30) days after the date of ABBOXX'x xxxeipt of notice from SONUS. (b) If SONUS does not so inform ABBOTT, then SONUS shall have waived its entirety right to terminate the Agreement with respect the Minor Countries in that Area with regard to that specific failure of ABBOTT to make its minimum royalty payments. (c) Notwithstanding the foregoing provisions of this Article 3.2(B)(ii), SONUS shall not have the right to terminate if either of the following occur: (1) ABBOXX'x xxxlure to make the minimum royalty payment for the Minor Countries in that Area in the Territory was due to the fact that Regulatory Approval was not obtained within the time frame contemplated by the parties as a material breach under Section 5.2 hereofset forth in the Plan for that Area. Any such election by ZEISS The Net Sales forecast shall be adjusted as mutually agreed by written notice the parties to CELLOMICS . In reflect the event of such termination of actual times that Regulatory Approvals are obtained and the Agreement in its entiretyactual indications approved, CELLOMICS will receive compensation and any material changes in the amount of 10% of assumptions to the Net Sales Value for sales occurring in North America forecast. If the parties are unable to agree to such adjustment within six thirty (630) months of termination and with regard to which CELLOMICS can prove the acquisition days of the date on which they began discussing such adjustment, the parties shall utilize the Dispute Resolution Procedure under Article 20 to determine such adjustment. (2) ABBOTT pays the amount due, plus interest running from the date on which payment was due, at the United States prime rate of interest as published in the Wall Street Journal Midwest Edition within thirty (30) days of ABBOXX'x xxxeipt of notice from SONUS that SONUS intends to terminate. (iii) SONUS may co-promote the Product in the Territory at any time for any one or more of the new indications specified in Article 2.2 above, if ABBOTT has declined to provide financial support for research for such new indication(s). (C) SONUS's rights to co-promote the Product as set forth in Article 3.2(B)(i) and (iii) include the right of SONUS to sublicense, transfer, or grant, directly or indirectly, such rights to a Third Party in a Major Country in the Territory. (D) For purposes of this Agreement, "co-promotion" means the detailing of the Product to a Third Party customer including providing promotional materials and technical assistance, but does not include any activity relating to the pricing, distribution or actual sale by CELLOMICS (e.g. by proof that CELLOMICS hasof the Product, such as offering or negotiating pricing for the Product and accepting sales orders. SONUS shall inform all such customers to place all sales resulting from SONUS' co-promotion of the Product directly with ABBOTT and provide the necessary sales processing information to the customer.