EXHIBIT 10.8
CONFIDENTIAL TREATMENT REQUESTED
SERVICE AGREEMENT
This agreement ("Agreement") made as of March 31, 1999 by and between
XXXXXX HEALTHCARE SALES INC., a New Jersey corporation ("SHS") and ADEZA
BIOMEDICAL CORPORATION, a Delaware corporation ("CLIENT")
W I T N E S S E T H:
WHEREAS, SHS provides integrated outsourced sales and marketing solutions
worldwide, including client field forces, to the healthcare industry; and
WHEREAS, CLIENT is in the healthcare industry and has need of certain
services of SHS contained in the Scope of Services set forth in Schedule A to
this Agreement, as the same may be amended from time to time; and
WHEREAS, SHS and CLIENT desire to enter into an agreement under which SHS
will provide such services to CLIENT.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, it is agreed as follows:
1. TERM
The Agreement shall be in effect as of March 31, 1999 and shall remain in
effect through and including May 14, 2001 (the "Term"). This Agreement will
automatically renew for additional periods of one year each (each an "Additional
Term"), unless CLIENT gives written notice of non-renewal to the other at least
sixty (60) days prior to the end of the Term or any Additional Term. The amount
of compensation (both fixed and variable fees) payable to SHS
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THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
under Section 3.1 of this Agreement during any Additional Term will be as
mutually agreed upon.
2. SCOPE OF SERVICES AND PROFESSIONALISM AND COMPLIANCE
2.1 The Scope of Services.
The Scope of Services to be provided under this Agreement is set forth in
Schedule A to the Agreement as the same may be amended from time to time, each
iteration of which shall be dated and signed by an authorized person of each
party to this Agreement. Included with Schedule A is a Summary of Services,
Expenses, Expense Responsibility and Reimbursements ("Summary of Services")
setting forth services, expenses, responsibility for expenses and reimbursement
obligations; the Summary of Services is a part of this Agreement and not simply
a description of what this Agreement contains. The Summary of Services may be
amended from time to time with each alteration dated and signed by an authorized
person of each party. Should CLIENT elect to change the Scope of Services to be
provided under this Agreement, the compensation paid to SHS will be
appropriately adjusted to reflect the change, upon written agreement of the
parties.
2.2 Professionalism and Compliance.
SHS shall perform the Services, and shall require each Representative to
perform the Services (i) in a professional manner consistent with industry
standards; (ii) in conformance with that level of care and skill ordinarily
exercised by other professional contract sales organizations in similar
circumstances; and (iii) in compliance with all applicable local, state and
federal laws and regulations.
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THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
3. COMPENSATION AND REIMBURSEMENT
3.1 Compensation.
CLIENT shall pay SHS compensation for the Scope of Services performed
under this Agreement. The amount of compensation to be paid to SHS shall consist
of one or more fixed fees for services and may also consist of one or more
variable fees for services, all of the fixed and variable fees being set forth
on Schedule B to this Agreement (as the same may be amended from time to time
with each iteration dated and signed by an authorized person of each party to
this Agreement).
3.2 Reimbursement.
CLIENT shall also reimburse SHS, and/or persons provided by SHS to perform
the Scope of Services, for certain expenses incurred in performing the services
to be provided under this Agreement, as more fully set on the Summary of
Services.
3.3 Payment Due
Invoices are due and payable [***] following receipt by CLIENT. Invoices
shall be sent to Accounts Payable, Adeza Biomedical Corporation, 0000 Xxxx Xx.,
Xxxxxxxxx, XX 00000. The invoices will clearly state fixed and variable costs
and their categories. Adeza shall not be liable for any fixed costs incurred
more than ninety (90) days prior to the date on the invoice. Invoices will be
remitted by CLIENT to Accounts Receivable, Xxxxxx Healthcare Sales, Inc., 000
Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000.
In addition to SHS's right to terminate this Agreement under Section 10.2
in the case of non-payment, if SHS elects not to terminate the Agreement, CLIENT
shall pay a finance charge
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
of [***] for each invoice past due for more than [***] from the receipt of
invoice by the CLIENT.
3.4 Inspection Right
Upon prior written notice and at mutually agreeable times, CLIENT has the
right to inspect the books and records of SHS which relate to this Agreement for
the purpose of auditing the documents and invoices with respect to the Scope of
Services provided hereunder.
4. REPRESENTATIONS OF THE PARTIES
4.1 SHS Representations.
SHS represents that:
a. it has the requisite expertise, experience and skill to render
the Services and that it shall use all reasonable efforts to
cause the Services to be performed in a competent, efficient
and professional manner.
b. the execution, delivery and performance of this Agreement by
SHS and the consummation of the transaction contemplated has
been duly authorized by all requisite corporate action; that
the Agreement constitutes the legal, valid, and binding
obligation of SHS, enforceable in accordance with its terms
(except to the extent enforcement is limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors'
rights generally and by general principles of equity); and
that this Agreement and performance hereunder does not violate
or constitute a breach under any organizational document of
SHS or any contract, other form of
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
agreement, or judgment or order to which SHS is a party or by
which it is bound.
c. SHS will maintain insurance with financially sound carriers in
the amounts and types (with the deductibles or retentions) as
set forth in Schedule C to this Agreement, as the same may be
amended from time to time; each iteration of which shall be
dated and signed by an authorized person of each party to the
Agreement.
4.2 Client Representations.
CLIENT represents that:
a. The execution, delivery and performance of this Agreement by
CLIENT and the consummation of the transaction contemplated has been duly
authorized by all requisite corporate action; that the Agreement
constitutes the legal, valid, and binding obligation of CLIENT,
enforceable in accordance with its terms (except to the extent enforcement
is limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights generally and by general principles of
equity); and that this Agreement and performance hereunder does not
violate or constitute a breach under any organizational document of CLIENT
or any contract, other form of agreement, or judgment or order to which
CLIENT is a party or by which it is bound.
b. CLIENT will maintain insurance with financially sound carriers
or through one or more financially sound self-insurance arrangements in
the amounts and types (and with the deductibles or retentions) as set
forth in Schedule C to this
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THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Agreement, as the same may be amended from time to time; each iteration of
which shall be dated and signed by an authorized person of each party to
the Agreement.
5. CONFIDENTIALITY
During the performance of the Services contemplated by this Agreement,
each party may learn confidential, proprietary, and/or trade secret information
of the other party ("Confidential Information"). The party disclosing
Confidential Information shall be referred to as the "Disclosing Party" and the
party receiving Confidential Information shall be referred to as the "Receiving
Party."
Confidential Information means any information, unknown to the general
public, which is disclosed by the Disclosing Party to the Receiving Party under
this Agreement. Confidential Information includes, without limitation,
technical, trade secret, commercial and financial information about either
party's (a) research or development; (b) marketing plans or techniques, contacts
or customers; (c) organization or operations; (d) business development plans
(i.e., licensing, supply, acquisitions, divestitures or combined marketing); and
(e) products, licenses, trademarks, patents, other types of intellectual
property or any other contractual rights or interests. The Receiving Party shall
neither use nor disclose Confidential Information from the Disclosing Party for
any purpose other than is specifically allowed by this Agreement.
Upon the expiration or termination of this Agreement, the Receiving Party
shall return to the Disclosing Party all tangible forms of Confidential
Information, including any and all copies and/or derivatives of Confidential
Information made by either party or their employees as well as any writings,
drawings, specifications, manuals or other printed or electronically stored
material based on or derived from, Confidential Information. Any material or
media not subject to return
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
must be destroyed. The Receiving Party shall not disclose to third parties any
Confidential Information or any reports, recommendations, conclusions or other
results of work under this Agreement without prior consent of an officer of the
Disclosing Party. The obligations set forth in this Article 5, including the
obligations of confidentiality and non-use shall be continuing and shall survive
the expiration or termination of this Agreement and will continue for a period
of five (5) years.
The obligations of confidentiality and non-use set forth herein shall not
apply to the following: (i) Confidential Information at or after such time that
it is or becomes publicly available through no fault of the Receiving Party;
(ii) Confidential Information that is already independently known to the
Receiving Party as shown by prior written records; (iii) Confidential
Information at or after such time that it is disclosed to the Receiving Party by
a third party with the legal right to do so; (iv) Confidential Information
required to be disclosed pursuant to judicial process, court order or
administrative request, provided that the Receiving Party shall so notify the
Disclosing Party sufficiently prior to disclosing such Information as to permit
the Disclosing Party to seek a protective order.
6. INDEPENDENT CONTRACTOR
SHS and its directors, officers, and the persons providing services under
the Agreement are at all times independent contractors with respect to CLIENT.
Persons provided by SHS to perform Services shall not be deemed employees of
CLIENT. CLIENT shall not be responsible for SHS's acts or the acts of its
officers, agents and employees while performing the Services whether on CLIENT
premises or elsewhere.
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SHS shall not be responsible for any cost, however, attributable to: (i)
any actions by CLIENT that caused a person provided by SHS to perform services
under this Agreement to be reclassified as an employee of CLIENT, (ii) any
unlawful or discriminatory acts of CLIENT, and (iii) language in any CLIENT
benefit plan that is deemed to extend coverage to person provided by SHS to
perform services under the Agreement based on their activities under this
Agreement.
7. OWNERSHIP OF PROPERTY AND DEVELOPMENTS
Unless otherwise provided in a Schedule attached to this Agreement
(including without limitation Schedule A-1A), all materials and documents
supplied to either party during the Term of this Agreement, by or through the
other, which relate to the Services shall be the sole and exclusive property of
the originator of those materials and developments. Notwithstanding the
foregoing, all materials and documents or portions thereof, relating to the
fetal fibronectin technology shall be the sole and exclusive property of CLIENT.
Each party agrees to hold all such property and developments, confidential in
accordance with Section 5 of this Agreement. All property and developments,
distributed to licensed practitioners, shall be returned, delivered or assigned
to the originating party upon the expiration or termination of this Agreement.
The provisions of paragraph (b) of Schedule A-1A will survive any expiration or
termination of this Agreement.
8. FINDER'S FEE AND THIRD PARTY EMPLOYMENT
8.1 Employment or Retention by CLIENT.
CLIENT may not employ or retain any person employed by or used by SHS to
provide services under this Agreement on or prior to October 1, 1999 and may not
employ or retain such person thereafter, during the Term of this Agreement,
unless SHS is given [***] advance notice of such employment and the applicable
finder's fee is paid to SHS by CLIENT in the amount set
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THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
forth in Schedule B to this Agreement (as the same may be amended from time to
time, each iteration of which shall be dated and signed by an authorized person
of each party to this Agreement).
8.2 Employment or Retention by Third Party.
Should any third party (which provides integrated outsourced sales and
marketing solutions) with a contract with, or seeking to enter into an
arrangement with, CLIENT (under which the third party is supplying or will
supply services to CLIENT, which services are comparable to the Scope of
Services), employ or retain (as a consultant or otherwise) during the Term of
this Agreement or within [***] after the termination of this Agreement, any
person employed by or used by SHS to provide services under this Agreement, such
third party shall pay SHS [***] for each person so employed or retained as
liquidated damages. To the extent the amount payable to SHS under the immediate
prior sentence is not paid within two weeks of invoicing, CLIENT shall pay SHS
that amount.
9. INDEMNIFICATION
9.1 SHS Indemnifies.
SHS agrees to indemnify and hold CLIENT, its officers, directors, agents
and employees harmless from and against any and all liabilities, losses,
proceedings, actions, damages, claims or expenses of any kind, including costs
and attorneys' fees which result from (i) any negligent or willful acts or
omissions, (ii) acts or omissions outside the scope of this Agreement or (iii)
any breach of this Agreement by SHS, its agents, directors, officers or
employees, in connection with the representations, duties and obligations of SHS
under this Agreement.
9.2 CLIENT Indemnifies.
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
CLIENT agrees to indemnify and hold SHS, its officers, directors, agents,
and employees harmless from and against any and all liabilities, losses,
proceedings, actions, damages, claims or expenses of any kind, including costs
and attorneys' fees which result from (i) any negligent or willful acts or
omissions by CLIENT, its agents, directors, officers or employees, in connection
with the representations, duties and obligations of CLIENT under this Agreement
or (ii) products liability claims relating to any product of CLIENT involved
with the services provided by SHS under this Agreement, except to the extent
that such product liability claim would not have arisen but for any action or
omission for which SHS is obligated to indemnify CLIENT pursuant to Section 9.
1.
9.3 Indemnification Process.
Any indemnity available hereunder shall be dependent upon the party
seeking indemnity providing prompt notice to the indemnitor of any claim or
lawsuit giving rise to the indemnity provided, however that failure to comply
with this notice requirement shall not reduce the indemnitor's indemnification
obligation except to the extent that the indemnitor is prejudiced as a result.
Thereafter, the indemnitor shall have exclusive control over the handling of the
claim or lawsuit, and the indemnitee shall provide reasonable assistance to the
indemnitor in defending the claim, at indemnitor's expense.
10. TERMINATION
10.1 60 Day Notice
Notwithstanding any implication raised by the renewal provisions of
Section 2 of this Agreement, CLIENT may terminate this Agreement at any
time by giving sixty (60) days prior written notice to SHS.
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
10.2 Immediate Termination
This Agreement may be terminated effective immediately upon giving
written notice as follows:
a. by SHS, if payment to SHS by CLIENT is not made when due and
such payment is not made within thirty (30) days from the date
of notice to CLIENT of such nonpayment; or
b. by either party, in the event that the other party has
committed a material breach of this Agreement and such breach
has not been cured within thirty (30) days of receipt of
written notice from the non-breaching party of such breach; or
c. by either party, in the event that the other party has become
insolvent or has been dissolved or liquidated, filed or has
filed against it, a petition in bankruptcy and such petition
is not dismissed within sixty (60) days of the filing, makes a
general assignment for the benefit of creditors; or has a
receiver appointed for a substantial portion of its assets.
10.3 Survival
Upon the effective date of termination or expiration, the parties shall
have no further obligation to each other (other than those set forth in Sections
5, 7, 8 and 9), except that CLIENT shall: (a) pay the amount set forth or
provided for on Schedule B to this Agreement in the case of termination; (b) pay
the amount of any fixed and/or variable fees due under Section 3.1 of this
Agreement for Services actually performed by SHS through the date termination or
expiration is effective; and (c) pay any reimbursement amount due under Section
3.2 of this Agreement for
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
expenses related to the performance of Services through the date termination or
expiration is effective.
11. MISCELLANEOUS
11.1 Assignment.
Neither SHS nor CLIENT may assign this Agreement or any of its rights,
duties or obligations hereunder without the other party's prior written consent,
provided, however, that either SHS or CLIENT may assign its rights, duties and
obligations as part of an acquisition of SHS or CLIENT (whether by merger, sale
of all or substantially all of the assigning parties assets related to the
subject matter of this Agreement, or otherwise), as the case may be, so long as
the acquirer (i) is a financially capable business entity and (ii) expressly
assumes in writing those rights, duties and obligations under this Agreement and
this Agreement itself.
11.2 Merger.
This Agreement supersedes all prior arrangements and understandings
between parties related to the subject matter of this Agreement
11.3 Force Majeure.
Noncompliance with the obligations of this Agreement due to a state of
force majeure, the laws or regulations of any government, regulatory or judicial
authority, war, civil commotion, destruction of facilities and materials, fire,
earthquake or storm, labor disturbances, shortage of materials, failure of
public utilities or common carriers, and any other causes beyond the reasonable
control of the applicable party, shall not constitute a breach of contract.
11.4 Severability.
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
If any provision of this Agreement is finally declared or found to be
illegal or unenforceable by a court of competent jurisdiction, both parties
shall be relieved of all obligations arising under such provision, but, if
capable of performance, the remainder of this Agreement shall not be affected by
such declaration or finding. The parties shall endeavor in good faith to agree
to an enforceable provision to replace the illegal or unenforceable provision in
order to effect the intent of the parties in entering into this Agreement.
11.5 Amendment.
This Agreement, including any attachments or exhibits entered into
hereunder, contains all of the terms and conditions of the agreement between the
parties and constitutes the complete understanding of the parties with respect
thereto. No modification, extension or release from any provision hereof shall
be affected by mutual agreement, acknowledgment, acceptance of contract
documents, or otherwise, unless the same shall be in writing signed by the other
party and specifically described as an amendment or extension of this Agreement.
11.6 Governing Law.
This Agreement shall be construed according to the laws of the State of
California.
11.7 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which, when executed, shall be deemed to be an original and all of which
together shall constitute one and the same document.
11.8 Notices.
Any notices required or permitted under this Agreement shall be given in
person or sent by first class, certified mail to:
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BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SHS:
Xxxxxx Healthcare Sales, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, President
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxx, XxXxxxxxxx & Xxxxxx, P.A.
000 Xxxxx 000-000
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
CLIENT:
Adeza Biomedical Corporation
0000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, President
or to such other address or to such other person as may be designated by written
notice given from time to time during the term of this Agreement by one party to
the other.
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
WHEREFORE, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives.
XXXXXX HEALTHCARE SALES, INC.
By: Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Date: 8/31/99
ADEZA BIOMEDICAL CORPORATION
By: Xxxxx Xxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxx
Title: President
Date: 9/2/99
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A
SCOPE OF SERVICES
SHS will provide the following services (services to be provided must be
initialed).
INITIAL SCHEDULE
IF SCHEDULE SCHEDULE SUBJECT
DATE APPLIES NUMBER MATTER
---- ------- ------ ------
A-1 Detailing to Targets
A-2 Sampling of Products to Targets
A-3 Manual Design
N/A N/A A-4 Training of CLIENT personnel
N/A N/A A-5 Event Staffing
N/A N/A A-6 Additional/Special Services:
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See the Summary of Services, Expenses, Expense Responsibility and
Reimbursement attached for information concerning the services and associated
costs.
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SUMMARY OF SERVICES, EXPENSES, EXPENSE
RESPONSIBILITY AND REIMBURSEMENTS
SHS and CLIENT agree to the following Services, Expenses, Expense
Responsibility and Reimbursement obligations set out under headings in
alphabetical order. CLIENT shall promptly reimburse SHS (including reimbursement
for the reasonable expenses of individuals employed by SHS or provided by SHS to
perform the Scope of Services under the Agreement to which this Schedule is
attached) for the reasonable cost of the following items listed below under the
heading "SHS Passthrough Expense to CLIENT" within thirty (30) days of receipt
of timely submission of adequate documentation or as may be agreed to by the
parties:
SHS PASSTHROUGH
CATEGORY CLIENT EXPENSE EXPENSE TO CLIENT INCLUDED IN SHS FEE
-------- -------------- ----------------- -------------------
ADMINISTRATIVE [***] [***] [***]
Business Cards
Copies
Office Supplies
Phone
Postage
Printing
Stationary
Overnight Courier
Other
ANALYTICS/HPR [***] [***] [***]
Alignment
Call Plan
ROI Analysis
Other
AUTO COSTS [***] [***] [***]
Mileage
Parking
Tolls
Other
BENEFITS [***] [***] [***]
Medical
Dental
401(k)
Other
BILLABLE HRS [***] [***] [***]
PROJECTED
BONUS INCENTIVES [***] [***] [***]
SHS
Managers
Representatives
Client Server
Other
CALL REPORTING [***] [***] [***]
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SHS PASSTHROUGH
CATEGORY CLIENT EXPENSE EXPENSE TO CLIENT INCLUDED IN SHS FEE
-------- -------------- ----------------- -------------------
CLIENT OVERHEAD [***] [***] [***]
CONFERENCE CALLS [***] [***] [***]
EQUIPMENT [***] [***] [***]
Computer
Detail Bags
Faxes
Printer
Other
INSURANCE [***] [***] [***]
Auto
Employment
Liability
Life
Travel
Workers Comp
Other
MAILOUT [***] [***] [***]
Correspondence
Materials
Samples
Other
MANAGERS [***] [***] [***]
Number
Full/Flex time
Dedicated/
Syndicated
MARKETING [***] [***] [***]
MEETINGS [***] [***] [***]
Client
Launch
Manager
Medical
Nat'l
POA
Training
Others
NATIONAL BUSINESS [***] [***] [***]
DIRECTORS
Full/Part time
OTHER SERVICES [***] [***] [***]
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SHS PASSTHROUGH
CATEGORY CLIENT EXPENSE EXPENSE TO CLIENT INCLUDED IN SHS FEE
-------- -------------- ----------------- -------------------
PROMOTIONAL [***] [***] [***]
Entertainment
Gifts
Meals
Programs
Other
RECRUITING [***] [***] [***]
Ads
Interviews
Referrals
Reference checks,
screens
Ride alongs
Other
REPORTING SYSTEM [***] [***] [***]
Paper Based
SALARIES/WAGES [***] [***] [***]
Managers
Reps
Client Services
Other
SALES MATERIALS [***] [***] [***]
SALES REPRESENTATIVES [***] [***] [***]
Number
Full/Flex time
Dedicated/
Syndicated
SAMPLES [***] [***] [***]
SEVERANCE [***] [***] [***]
SHS OVERHEAD [***] [***] [***]
SPECIAL CLIENT [***] [***] [***]
REQUESTS
STAFFING SERVICES [***] [***] [***]
Number of Persons
Type of Event
Location
Dates
TARGETS [***] [***] [***]
Physicians
Hospitals
Managed Care Entity
Other customers of
Adeza Products
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OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SHS PASSTHROUGH
CATEGORY CLIENT EXPENSE EXPENSE TO CLIENT INCLUDED IN SHS FEE
-------- -------------- ----------------- -------------------
TAXES [***] [***] [***]
Payroll
(FICA)
Other
TRAINING [***] [***] [***]
Manager
rep
Home Study
Initial Training
Advanced Training
Computer
Selling Skills
Training Materials
Other
TRAVEL EXPENSES [***] [***] [***]
Air
Auto
Hotel
Meals
Shuttle/Taxi
Tips
Incidentals
Other
VOICE MAIL [***] [***] [***]
ALL OTHER FIELD [***] [***] [***]
EXPENSE
TERM OF AGREEMENT
-------------------------------------------------------------------
TERM DATE
---- ----
Start Date
Implementation Date March 31, 1999
End/Renew Date May 14, 1999
May 14, 2001
-5-A-5-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Date: 8/31/99 Date: 9/2/99
Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxxx
------------------------ ------------------------
Authorized SHS Person Authorized SHS Person
-6-A-6-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A-1
SCOPE OF SERVICES - DETAILING TO TARGETS
Under the Agreement to which this Schedule A-1 is attached SHS will
provide individuals to serve as Sales Representatives to make Calls pursuant to
the Call Plan on Targets.
DEFINITIONS
1. "Call" means [***].
2. "Call Plan" means [***].
3. "Manager" means [***].
4. "National Business Director" means [***].
5. "Product" shall mean [***].
6. "Product Literature" shall mean [***].
7. "Reports" means [***].
8. "Sales Representative" means [***].
9. "Targets" means [***].
HIRE STATUS AND WORK SCHEDULE
[***]
[***]
CALLS AND TARGETS
[***]
[***]
- [***]
CALL ACTIVITY
[***]
CLIENT SERVICES MANAGER
[***]
-1-A1-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
ALIGNMENT
[***]
HIRING PROFILE
[***]
TRAINING
[***]
MEETINGS
[***]
[***]
PERFORMANCE
[***]
CALL REPORTING
[***]
REPRESENTATIONS AND UNDERTAKINGS
In connection with this Schedule A-1:
a. SHS represents:
i. [***]
b. SHS will:
i. [***]
ii. [***]
iii. [***]
iv. [***]
c. CLIENT will:
i. [***]
ii. [***]
-2-A1-2-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
iii. [***]
SALES FORCE STATUS
[***]
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-3-A1-3-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A-1A
PRODUCTS and SERVICES
"Products and Services" for purposes of Schedule A-1 (to which this Schedule
A-1A is attached) and the Agreement to which Schedule A-1 (including this
Schedule A-1A) is attached means:
Products Description
-------- -----------
Fetal fibronectin tests Diagnostic Tests
Etegrity Services Diagnostic Service
Other CLIENT Products or Services
(a) The Products and Services shall be promoted by SHS under trademarks
owned by or licensed to CLIENT. This Agreement does not constitute a grant to
SHS of any property right or interest in the Products and Services or the
trademarks owned by or licensed to CLIENT or an Affiliate of CLIENT and/or any
other intellectual property rights which CLIENT owns now or in the future. SHS
recognizes the validity of and the title of CLIENT to all their trademarks and
trade names in any country in connection with the Products and Services, whether
registered or not.
(b) All information, data, writings, inventions and other work products,
in any form whatsoever, both tangible and intangible, developed as a result of
or in connection with SHS's performance of the Services, including without
limitation the Product Literature and all information gathered or developed by
the Representatives in the course of the Services (collectively, the "Works"),
shall be considered works made for hire pursuant to the Copyright Act of 1976
(if applicable), and/or shall be the sole and exclusive property of CLIENT.
CLIENT shall be the sole owner of all the rights to such Works in any form and
in all fields of use known or hereafter existing. Upon the request of CLIENT,
and at CLIENT's sole expense, SHS will assist CLIENT in documenting or
perfecting CLIENT's ownership of the Works. Notwithstanding the foregoing,
intellectual property owned by or licensed to SHS prior to the issuance of any
task order, and which is used by SHS to develop any Works, shall remain the
property of SHS (the "Components"). CLIENT agrees not to assert against SHS and
its licensees any ownership interest in the Components. Notwithstanding the
foregoing, CLIENT shall have a non-exclusive, irrevocable, perpetual,
non-transferable (except to affiliates and to other persons CLIENT transfers or
authorizes to use the Works), worldwide, royalty-free license to use such
Components in conjunction with the Works and any subsequent versions or
derivative Works thereof. Upon the termination of this Agreement, SHS shall
return to CLIENT all Works.
-6-A1-6-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-7-A1-7-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A-1B
REPORTS
The Reports required under the Agreement to which Schedule A-1 (including
this A-1B) is attached are:
Report By Whom Frequency Other Information
------ ------- --------- -----------------
[***] [***] [***] [***]
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-1-A1B-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A-1C
PREFERRED HIRING PROFILE
Qualifiers
Must have: [***]
[***]
[***]
[***]
[***]
Business Experience Preferences
Most preferable to least preferable:
[***]
[***]
[***]
[***]
Professional Skills
Desired: [***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-1-A1C-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A-1E
MEETINGS INCLUDED IN AGREEMENT
(indicate number; type, whether national, regional or district, and length
of training and sales meetings; also indicate the party responsible for the
costs incurred in attending)
Party Responsible for Costs
[***] [***]
Other Meetings, as requested by CLIENT CLIENT
See the Summary of Services, Expenses, Expense Responsibility and
Reimbursement attached to the Agreement for information concerning CLIENT
responsibility for costs.
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-1-A1E-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A-1F
CALL REPORTING SYSTEM
The Call reporting system to be used is:
[***]
[***]
[***]
[***]
[***]
[***]
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-1-A1F-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A-3
SCOPE OF SERVICES - MANUAL DESIGN
[***]
[***]
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-1-A3-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE B
COMPENSATION - FIXED FEES, VARIABLE FEES AND FINDER'S FEES
FIXED FEES
CLIENT shall pay SHS Fixed Fees (subject to reduction in the part of the
Term ending May 14, 2000) as follows:
1. For so much of the Term as ends May 14, 2000 [***] payable as
follows:
(i) [***] by April 14, 1999
[***] by May 1, 1999
[***] by June 1, 1999
(ii) [***] per month beginning June 1, 1999
Subject, however, to reduction as follows:
SHS will conduct [***].
Number of Sales
Representatives hired Amount of
for First Class Reduction
--------------- ---------
[***] [***]
[***] [***]
[***] [***]
[***] [***]
Number of Sales
Representatives hired Amount of
for Second Class Reduction
---------------- ---------
[***] [***]
[***] [***]
2. [***]
[***]
VARIABLE FEES
[***]
[***]
[***]
-1-B-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Percent of Forecast Percent of Available
Achieved Amount of Payment
------------------------- -------------------------
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
-2-B-2-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
FINDER'S FEES
[***]
Employed by Finder's Fee and
CLIENT Other Consequence
-------------------- --------------------
[***] [***]
[***] [***]
[***]
[***] [***]
[***]
[***] [***]
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-3-B-3-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE C
INSURANCE REQUIREMENTS
SHS shall maintain the following insurance during the Term of the
Agreement to which this Schedule is attached:
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***]
SHS will provide CLIENT with evidence of SHS's insurance. SHS will name
CLIENT as an additional insured party under SHS's insurance policy, and will
provide to CLIENT at least thirty (30) days prior, written notice of any change
or cancellation to the SHS's insurance program.
CLIENT:
CLIENT shall maintain the following insurance or self-insurance during the
Term of the Agreement to which this Schedule is attached:
[***]
-1-C-1-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
CLIENT will provide SHS with evidence of CLIENT's insurance. CLIENT will
name SHS as an additional insured party under CLIENT's insurance policy, and
will provide to SHS at least thirty (30) days prior, written notice of any
change or cancellation to the CLIENT's insurance program.
Date: 8/31/99 Date: 9/2/99
--------------------- ---------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
-2-
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
FIRST AMENDMENT
TO
SERVICE AGREEMENT
This first amendment ("First Amendment") made as of March 8, 2002, by and
between VENTIV HEALTH U.S. SALES INC., (formerly known as Xxxxxx Healthcare
Sales, Inc.), a New Jersey corporation ("VHS") and ADEZA BIOMEDICAL CORPORATION,
a Delaware corporation ("CLIENT") to a certain Service Agreement made as of
March 31, 1999 (the "Agreement") by and between VHS and CLIENT.
WITNESSETH:
WHEREAS, Xxxxxx Healthcare Sales, Inc. changed is corporate name in 1999
to Ventiv Health U.S. Sales, Inc.; and
WHEREAS, the Agreement by its terms expires May 14, 2001; and
WHEREAS, VHS and CLIENT desire to amend and extend the Agreement as set
forth in this First Amendment.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, it is agreed as follows:
1. Wherever "Xxxxxx Healthcare Sales, Inc." appears in the Agreement that
text shall be amended and deemed to read "Ventiv Health U.S. Sales, Inc."
and wherever "SHS" appears in the Agreement that text shall be amended and
deemed to read "VHS".
2. The Term of the Agreement shall be extended until May 14, 2003, unless
earlier terminated as provided in the Agreement.
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
3. The Summary of Services in the Agreement shall be amended effective May
15, 2001 by the Amended Summary of Services attached hereto as Exhibit A.
4. The definition "National Business Director" on Schedule A-1 shall be
replaced effective May 15, 2001 with "Specialty Business Unit" which means
the [***]. The definition "Reports" on Schedule A-1 shall be amended to
read:
[***].
5, The paragraph in Schedule A-1 under the heading "CLIENT SERVICES MANAGER"
shall be deleted from the Agreement effective May 15, 2001. This function
is included in the services provided by the Specialty Business Unit.
6. Schedule A-1B shall be amended effective May 15, 2001 by the Amended
Schedule A-1B attached hereto as Exhibit B.
7. Schedule A-1F shall be deleted from the Agreement effective May 15, 2001;
VHS will not provide Call Reports from a Call Reporting System. Instead
VHS shall file period Sales Reports with CLIENT.
8. Schedule A-3 concerning Manual Design shall be deleted from the Agreement
effective May 15, 2001; those services have been completed.
9. Schedule B in the Agreement shall be amended effective May 15, 2001 by the
Amended Schedule B attached hereto as Exhibit C.
10. Except as expressly amended or revised by this First Amendment the
Agreement shall remain in full force and effect.
2
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
WHEREFORE, the parties hereto have caused this First Amendment to be
executed by their duly authorized representatives.
VENTIV HEALTH U.S. SALES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
Dated: 3/14/02
ADEZA BIOMEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
Dated: 3/8/02
3
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Exhibit A
AMENDED SUMMARY OF SERVICES, EXPENSES
EXPENSE RESPONSIBILITY AND REIMBURSEMENTS
VHS and CLIENT agree to the following Services, Expenses, Expense
Responsibility and Reimbursement obligations set out under headings in alpha
order. CLIENT shall promptly reimburse VHS (including reimbursement for the
reasonable expenses of individuals employed by VHS or provided by VHS to perform
the Scope of Services under the Agreement to which this Schedule is attached)
for the reasonable cost of the following items listed below under the heading
"VHS Passthrough Expense to CLIENT":
--------------------------------------------------------------------------------
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
--------------------------------------------------------------------------------
ADMINISTRATIVE [***] [***] [***]
Business Cards
Photocopies
Office Supplies
Phone
Postage
Printing
Stationary
Overnight Courier
Other
--------------------------------------------------------------------------------
ANALYTICS/HPR [***] [***] [***]
Alignment
Call Plan
ROI Analysis
Other
--------------------------------------------------------------------------------
AUTO COSTS [***] [***] [***]
Mileage
Parking
Tolls
Other
--------------------------------------------------------------------------------
A-1
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
--------------------------------------------------------------------------------
BENEFITS [***] [***] [***]
Medical
Dental
401(k)
Other
--------------------------------------------------------------------------------
BILLABLE CALLS [***] [***] [***]
(Hrs) Projected
Group Calls
--------------------------------------------------------------------------------
BONUS INCENTIVES [***] [***] [***]
VHS
Managers
Representatives
Client Serv
Other
--------------------------------------------------------------------------------
CLIENT OVERHEAD [***] [***] [***]
--------------------------------------------------------------------------------
CONFERENCE CALLS [***] [***] [***]
--------------------------------------------------------------------------------
EQUIPMENT [***] [***] [***]
Computer
Detail Bags
Faxes
Printer
Other
--------------------------------------------------------------------------------
INSURANCE [***] [***] [***]
Auto
Employment
Liability
Life
Travel
Workers Comp
Other
--------------------------------------------------------------------------------
MAILOUT [***] [***] [***]
Correspondence
Materials
Samples
Other
--------------------------------------------------------------------------------
MARKETING [***] [***] [***]
--------------------------------------------------------------------------------
A-2
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
--------------------------------------------------------------------------------
MEETINGS [***] [***] [***]
Client
Launch
Manager
Medical
Nat'l
POA
Training
Others
--------------------------------------------------------------------------------
NATIONAL BUSINESS [***] [***] [***]
DIRECTOR
Full/Part Time
--------------------------------------------------------------------------------
OTHER SERVICES [***] [***] [***]
--------------------------------------------------------------------------------
PROMOTIONAL [***] [***] [***]
Entertainment
Gifts
Meals
Programs
Other
--------------------------------------------------------------------------------
RECRUITING [***] [***] [***]
Ads
Interviews
Referrals
Reference checks, screens
Ride alongs
Other
--------------------------------------------------------------------------------
REPORTING SYSTEM [***] [***] [***]
Paper Based
Back Up
Automated
------------
(type)
--------------------------------------------------------------------------------
SALARIES/WAGES [***] [***] [***]
Managers
Reps
Client Services
Other
--------------------------------------------------------------------------------
A-3
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
--------------------------------------------------------------------------------
SALES MATERIALS [***] [***] [***]
--------------------------------------------------------------------------------
SALES REPRESENTATIVES [***] [***] [***]
--------------------------------------------------------------------------------
Number
Full/Flex time
Dedicated/
Syndicated
--------------------------------------------------------------------------------
SALES REPORTS [***] [***] [***]
--------------------------------------------------------------------------------
SAMPLES [***] [***] [***]
--------------------------------------------------------------------------------
SEVERANCE [***] [***] [***]
--------------------------------------------------------------------------------
VHS OVERHEAD [***] [***] [***]
--------------------------------------------------------------------------------
SPECIAL CLIENT REQUESTS [***] [***] [***]
--------------------------------------------------------------------------------
STAFFING SERVICES [***] [***] [***]
Number of Persons
Type of Event
Location
Dates
--------------------------------------------------------------------------------
TARGETS [***] [***] [***]
Physician
Specialty(ies)
PA's/NP's
Pharmacists
Hospitals
Clinics
Managed Care
Entity
--------------------------------------------------------------------------------
TAXES [***] [***] [***]
Payroll
(FICA,...)
Other
--------------------------------------------------------------------------------
A-4
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
--------------------------------------------------------------------------------
TRAINING [***] [***] [***]
Manager
Rep
Home Study
Initial Training
Advanced Training
Computer
Selling Skills
Training
Materials
Other
--------------------------------------------------------------------------------
TRAVEL EXPENSES [***] [***] [***]
Air
Auto
Hotel
Meals
Shuttle/Taxi
Tips
Incidentals
Other
--------------------------------------------------------------------------------
VOICE MAIL [***] [***] [***]
--------------------------------------------------------------------------------
ALL OTHER FIELD EXPENSE [***] [***] [***]
--------------------------------------------------------------------------------
A-5
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
TERMS OF AGREEMENT
--------------------------------------------------------------------------------
TERM Date
Start Date May 15, 2001
End/Renew Date May 14, 2003
--------------------------------------------------------------------------------
Date: 3/14/02 Date: 3/8/02
--------------------- ---------------------
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Authorized SHS Person Authorized CLIENT Person
A-6
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Exhibit B
AMENDED SCHEDULE A-1B
REPORTS
The Reports required under the Agreement to which Schedule A-1
(including this A-1B) is attached are:
Report By Whom Frequency Other Information
[***] [***] [***] [***]
Date: 3/14/02 Date: 3/8/02
-------------------- --------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
------------------------- -------------------------
Authorized VHS Person Authorized CLIENT Person
A-1B-1
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Exhibit C
AMENDED SCHEDULE B
COMPENSATION - FIXED FEES, VARIABLE FEES AND FINDER'S FEES
FIXED FEES
CLIENT shall pay VHS Fixed Fees as follows:
for the period May 15, 2001 to May 14, 2002
-------------------------------------------
[***]
for the Period May 15, 2002 to Mgy 14, 2003
-------------------------------------------
[***]
VARIABLE FEES
[***]
Adeza-Ventiv Risk Share Pool
RISK POOL CRITERIA
[***]
[***]
[***]
Sales Targets (Pool A)
PERFORMANCE PAYOUT
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
Non-Sales Performance
GOAL PAYOUT
[***] [***]
B-1
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
[***] [***]
Example
[***]
PERFORMANCE PAYOUT
[***] [***]
[***] [***]
[***] [***]
[***]
B-2
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
FINDERS' FEES
[***]
Date: 3-14-02 Date: 3/8/02
-------------------- --------------------
/s/ Illegible /s/ Xxxxx X. Xxxxxxxx
------------------------- -------------------------
Authorized VHS Person Authorized CLIENT Person
B-3
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
SECOND AMENDMENT
TO
SERVICE AGREEMENT
This second amendment ("Second Amendment") made as of July 22, 2002, by
and between VENTIV HEALTH U.S. SALES LLC, a New Jersey limited liability company
and successor by merger to Ventiv Health U.S. Sales, Inc., A New Jersey
corporation ("VHS') and ADEZA BIOMEDICAL CORPORATION, a Delaware corporation
("CLIENT') to a certain Service Agreement made as of March 31, 1999 (the
"Agreement') by and between VHS and CLIENT and previously amended by a certain
First Amendment made as of March 8, 2001 (the "First Amendment", the Agreement
as so amended being the "Amended Agreement") by and between VHS and CLIENT.
WITNESSETH:
WHEREAS, the Amended Agreement by its terms expires May 14, 2003; and
WHEREAS, VHS and CLIENT desire to amend the Agreement to add a second
field force of VHS personnel (the "Direct Force"; the original field force of
VHS personnel being the "General Force") and to extend the Agreement as set
forth in this Second Amendment.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, it is agreed as follows:
1. Wherever "Ventiv Health U.S. Sales, Inc." appears in the Amended Agreement
that text shall be amended and deemed to read "Ventiv Health U.S. Sales
LLC".
2. The Term of the Agreement shall be extended until May 14, 2004, unless
earlier terminated as provided in the Agreement.
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
3. The Summary of Services in the Agreement shall be amended effective May
15, 2002 by the Second Amended Summary of Services attached hereto as
Exhibit A.
4. The text of Schedule A-1 in this Agreement under the headings "HIRE STATUS
AND
WORK SCHEDULE" and "CALLS AND TARGETS" is replaced in its entirety by the
following:
HIRE STATUS AND WORK SCHEDULE
[***]
[***]
[***]
CALLS AND TARGETS
[***]
[***]
5. The heading "CALL ACTIVITY" in Schedule A-1 and the text thereunder are
deleted and the heading "SALES FORCE STATUS" is revised to read "STATUS OF
SALES FORCES."
6. Schedule B in the Agreement shall be amended effective May 15, 2002 by the
Second Amended Schedule B attached hereto as Exhibit B.
2
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
7. Except as expressly amended or revised by this First Amendment the
Agreement shall remain in full force and effect.
3
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
WHEREFORE, the parties hereto have caused this First Amendment to be
executed by their duly authorized representatives.
VENTIV HEALTH U.S. SALE LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Dated: July 24, 2002
ADEZA BIOMEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
Dated: July 22, 2002
4
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Exhibit A
SECOND AMENDED SUMMARY OF SERVICES, EXPENSES
EXPENSE RESPONSIBILITY AND REIMBURSEMENTS
VHS and CLIENT agree to the following Services, Expenses, Expense
Responsibility and Rcimbursement obligations set out under headings in alpha
order. CLIENT shall promptly reimburse VHS (including reimbursement for the
reasonable expenses of individuals employed by VHS or provided by VHS to perform
the Scope of Services under the Agreement to which this Schedule is attached)
for the reasonable cost of the following items listed below under the heading
"VHS Passthrough Expense to CLIENT":
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
ADMINISTRATIVE [***] [***] [***]
Business Cards
Photocopies
Office Supplies
Phone
Postage
Printing
Stationary
Overnight Courier
Other
ANALYTICS/HPR [***] [***] [***]
Alignment
Call Plan
ROI Analysis
Other
A-5
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
AUTO COSTS [***] [***] [***]
Mileage
Parking
Tolls
Other
BENEFITS [***] [***] [***]
Medical
Dental
401(k)
Other
BILLABLE CALLS [***] [***] [***]
(Hrs) Projected
Group Calls
BONUS INCENTIVES [***] [***] [***]
VHS
Managers
Representatives
Client Serv
Other
CLIENT OVERHEAD [***] [***] [***]
CONFERENCE CALLS [***] [***] [***]
EQUIPMENT [***] [***] [***]
Computer
Detail Bags
Faxes
Printer
Other
INSURANCE [***] [***] [***]
Auto
Employment
Liability
Life
Travel
Workers Comp
Other
MAILOUT [***] [***] [***]
Correspondence
Materials
Samples
Other
MARKETING [***] [***] [***]
A-6
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
MEETINGS [***] [***] [***]
Client
Launch
Manager
Medical
Nat'l
POA
Training
Others
NATIONAL BUSINESS DIRECTOR [***] [***] [***]
Full/Part Time
OTHER SERVICES [***] [***] [***]
PROMOTIONAL [***] [***] [***]
Entertainment
Gifts
Meals
Programs
Other
RECRUITING [***] [***] [***]
Ads
Interviews
Referrals
Reference checks, screens
Ride alongs
Other
REPORTING SYSTEM [***] [***] [***]
Paper Based
Back Up
Automated
______________
(type)
SALARIES/WAGES [***] [***] [***]
Managers
Reps
Client Services
Other
SALES MATERIALS [***] [***] [***]
SALES REPRESENTATIVES [***] [***] [***]
Number
Full/Flex time
A-7
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
Dedicated/
Syndicated
SALES REPORTS [***] [***] [***]
SAMPLES [***] [***] [***]
SEVERANCE [***] [***] [***]
VHS OVERHEAD [***] [***] [***]
SPECIAL CLIENT REQUESTS [***] [***] [***]
STAFFING SERVICES [***] [***] [***]
Number of Persons
Type of Event
Location
Dates
TARGETS [***] [***] [***]
Physician
Specialty(ies)
PA's/NP's
Pharmacists
Hospitals
Clinics
Managed Care
Entity
TAXES [***] [***] [***]
Payroll
(FICA,...)
Other
A-8
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
CATEGORY CLIENT VHS PASSTHROUGH INCLUDED IN
EXPENSE EXPENSE TO CLIENT VHS FEE
TRAINING [***] [***] [***]
Manager
Rep
Home Study
Initial Training
Advanced Training
Computer
Selling Skills
Training
Materials
Other
TRAVEL EXPENSES [***] [***] [***]
Air
Auto
Hotel
Meals
Shuttle/Taxi
Tips
Incidentals
Other
VOICE MAIL [***] [***] [***]
ALL OTHER FIELD EXPENSE [***] [***] [***]
TERMS OF AGREEMENT
TERM Date
Start Date May 15, 2002
End/Renew Date May 14, 2004
Date: 7/23/02 Date: July 22, 2002
-------------------- --------------------
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------- -------------------------
Authorized VHS Person Authorized CLIENT Person
A-9
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Exhibit B
SECOND AMENDED SCHEDULE B
COMPENSATION - FIXED FEES, VARIABLE FEES AND FINDER'S FEES
FIXED FEES
CLIENT shall pay VHS Fixed Fees as follows:
A. For the Wave I Force:
--------------------
1. For the period May 15, 2001 to May 14, 2002
-------------------------------------------
[***]
2. For the period May 15, 2002 to May 14, 2003
-------------------------------------------
[***]
3. For the period May 15, 2003 to May 14, 2004
-------------------------------------------
[***]
B. For the Wave II Force 1.
-----------------------
1. For the period May 15, 2002 to May 14, 2003
-------------------------------------------
[***]
2. For the period May 15, 2003 to May 14, 2004
-------------------------------------------
[***]
VARIABLE FEES
[***]
B-2
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
FINDERS' FEES
[***]
Date: 7/23/02 Date: July 22, 2002
-------------------- --------------------
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------- -------------------------
Authorized VHS Person Authorized CLIENT Person
B-3
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Exhibit B
Adeza-Ventiv Risk Share Pool
RISK POOL CRITERIA
Through May 14, 2003
[***]
[***]
[***]
Through May 15, 2003
[***]
[***]
[***]
Sales Targets (Pool A)
PERFORMANCE PAYOUT
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
Non-Sales Performance
GOAL PAYOUT
[***] [***]
[***] [***]
Example (computed prior to May 15, 2003)
[***]
B-3
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
THIRD AMENDMENT
TO
SERVICE AGREEMENT
This third amendment ("Third Amendment") made as of May 15, 2004, by and
between VENTIV HEALTH U.S. SALES LLC, a New Jersey limited liability company
("VHS") and ADEZA BIOMEDICAL CORPORATION, a Delaware corporation ("CLIENT"`) to
a certain Service Agreement made as of March 31, 1999 (the "Agreement") by and
between VHS and CLIENT, as amended by a First Amendment made as of March 8, 2001
(the "First Amendment") and a Second Amendment made as of July 22, 2002 (the
"Second Amendment").
WITNESSETH:
WHEREAS, on or about February 2, 2004, VHS commenced providing sales force
automation services to CLIENT.
WHEREAS, VHS and CLIENT desire to further amend the Agreement by extending
the term and changing the [***] as set forth in this Third Amendment (the
Agreement as amended by the First Amendment, Second Amendment and this Tbird
Amendment referred to herein as the "Amended Agreement").
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, it is agreed as follows:
1. Construction. All terms not otherwise defined in this Amendment shall have
the meanings set forth in the Amended Agreement. Except as set forth herein, the
Amended Agreement shall remain unaffected by execution of this Third Amendment.
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
2. The Extended Term. The Term of the Amended Agreement shall be extended until
May 14, 2006 (the "Extended Term"), unless earlier terminated as provided in the
Amended Agreement.
3. The Fixed Fess payable by CLIENT to VHS during the Extended Term, as set
forth in Exhibit B attached to the Second Amendment ("Second Amended Schedule B,
Compensation -Fixed Fees, Variable Fees and Finder's Fees), are revised to
provide for the payment of the following Fixed Fees from CLIENT to VHS:
PERIOD YEARLY COST PER
SALES YEARLY COST PER
REPRESENTATIVE DISTRICT MANAGER
May 15, 2004 - [***] [***]
May 15, 2005 - [***]
May 14, 2006 [***]
4. The Variable Fees payable by CI.JFNT to VHS during the Extended Term are as
follows: [***].
5. Schedule A-1F Call Reporting System shall be replaced by the First Amendcd
Schedule A-1F attached to this Third Amendment as Exhibit I. [***].
6. Representatives must be provided with internet service [***].
7. In the event of termination of the Amended Agreement in accordance with
Sections 10.1 or Section 10.2, or at the end of the Extended Term, CLIENT shall
be [***].
2
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
8. In the event a Sales Representative is terminated (voluntarily or
involuntarily), VHS shall [***].
9. If CLIENT converts any or all Sales Representatives, [***].
10 Notwithstanding anything to the contrary set forth in this Amended Agreement
all office supplies, printing, postage, costs associated with phone service, in
addition to all travel costs, Sales Representative and District Manager bonuses
(including employer portion of travel), and marketing funds will be [***].
11. All references in the Amended Agreement to a maximum number of Sales
Representatives or District Managers are hereby removed, it being understood
that the CLIENT and VHS may agree, in writing, to increase the number of VHS
employees providing services under the Amended Agreement.
WHEREFORE, the parties hereto have caused this Third Amendment to be
executed by their duly authorized representatives.
VENTIV HEALTH U.S. SALE LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Dated: 7/29/04
ADEZA BIOMEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
Dated: 7/27/04
3
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
CONFIDENTIAL TREATMENT REQUESTED
Exhibit I
First Amended SCHEDULE A-IF
CALL REPORTING SYSTEM
The Call Reporting system to be used is hand held solution (does not
include laptops) that is:
[***]
[***]
[***]
Date: 7/29/04 Date: 7/27/04
-------------------- --------------------
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------- -------------------------
Authorized VHS Person Authorized CLIENT Person
A1F-1
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
