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EXHIBIT 10.22
*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
LABORATORY CORPORATION OF AMERICA HOLDINGS
("LABCORP")
MASTER AGREEMENT
This Agreement between TriPath Imaging. Inc. hereinafter referred to as TriPath
and Laboratory Corporation of America Holdings, ("LabCorp"), at LabCorp's option
"LabCorp" shall also refer to any or all of LabCorp's subsidiaries. This
Agreement sets forth the terms and conditions upon which TriPath will sell to
"LabCorp" and "LabCorp" will purchase various diagnostic products. The parties
agree as follows:
A. In consideration of "LabCorp" purchasing from TriPath, the diagnostic
products specified in the attached Product Addenda during the term of
this Agreement, TriPath agrees to sell such diagnostic products to the
"LabCorp" at the purchase prices specified. This is a Primary Source
Agreement ,between the parties for products listed in the attached
Addenda. This Agreement supersedes all prior contracts between the
parties, and at LabCorp's option any prior contracts between TriPath
and LabCorp's subsidiaries.
B. "LabCorp", on a reasonable efforts basis, will notify TriPath in
writing of all acquisitions, additions, and location changes. All
previous agreements, between TriPath and the acquired "LabCorp" sites
will, at "LabCorp"'s option, become null and void and this "LabCorp"
Agreement will take effect. All acquisitions and additions shall be
eligible for the current "LabCorp" pricing.
C. The term of the Agreement shall commence on November 18, 1999 and
remain in effect until *****************.
D. TriPath shall ship to any "LabCorp" laboratory which orders diagnostic
reagent who is authorized under this Agreement. Invoices should be
mailed to the following address:
SEND INVOICES TO:
Laboratory Corporation of America Holdings
Accounts Payable Department
Caller 2280
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Payment is ****************** for AutoCyte Prep Systems and component
parts. Payment is ****************** for all disposables, (refer to
Exhibit II "AutoCyte Prep System (TM)Disposables Addenda). "LabCorp" is
taxable based on shipment destination and all applicable local/state
taxes are the responsibility of "LabCorp". In those states where
TriPath collects local/state sales taxes, TriPath will add these taxes
to the invoices and remit to the appropriate taxing authority.
E. Shipment shall be made*************************************************
******************. For the avoidance of doubt, TriPath will ship
products *********** ********************************* to designated
LabCorp processing Laboratories.
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Express shipping charges incurred due to requested airfreight orders by
LabCorp shall be borne by LabCorp.
F. Neither party shall assign or transfer this Agreement without the
consent of the other party, which consent shall not be unreasonably
withheld or delayed.
G. Notices and other communications permitted or required under this
Agreement will be deemed to be properly given if in writing and either
delivered by hand or mailed by First Class U.S. Mail, postage prepaid,
addressed to the parties as follows:
SELLER: TriPath Imaging, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
"LabCorp": Laboratory Corporation of America Holdings
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Elon College, N. C. 27244
Attention: Mrs. Gail Page
Carbon Copy to:
Laboratory Corporation of America Holdings
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Law Department
H. This Agreement may not be amended or modified except by written
agreement of both of the parties. Notwithstanding the above, if TriPath
submits to LabCorp invoices at prices lower than those previously
agreed to in this Agreement or Addenda, then LabCorp's sole
responsibility shall be payment lesser of the invoice amount or the
amount in the Agreement or Addenda.. In addition, in the event the
invoice price is lower than the previously agreed price, the lower
invoice price shall be the price for the remaining term of the
applicable Agreement or Addenda. If minimum volumes or dollar
expenditures specified in this agreement are not met, the parties will
attempt to reach a new agreement as to prices. If no agreement is
reached, TriPath may, as it's sole and exclusive remedy, terminate this
agreement. In no event shall "LabCorp" be liable for monetary damages.
I. TriPath will not be liable for any failure to perform under this
Agreement due to strikes, fire, explosion, flood, riot, lock-out,
injunction, interruption of transportation, unavoidable accidents,
inability to obtain supplies at reasonable prices or diagnostic
products set forth in this Agreement or any reason in this paragraph.
Nothing shall prohibit "LabCorp" from obtaining the same or similar
products from any source of "LabCorp"'s choosing during the period that
TriPath is unable to perform under this Agreement.
J. TriPath guarantees "LabCorp" the products supplied shall not be
adulterated or misbranded within the meaning of the U.S. Food, Drug,
and Cosmetic Act.
K. TriPath and "LabCorp" will conduct quarterly business reviews to
discuss technical performance of all products included in this
Agreement. In the event that technical
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*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
problems are identified or a TriPath product is unavailable, "LabCorp"
will notify TriPath of the problem in writing, TriPath will, within the
course often (10) working days, identify an action plan to correct the
problem and deliver this, in writing, to "LabCorp". If, after an
additional twenty (20) working days, progress is not demonstrated in
resolving the problem or product performance does not meet package
insert claims, then "LabCorp" may discontinue use of that product
without affecting the terms and conditions of the Agreement.
L. This Agreement may be terminated by either party with or without cause
at any time with ninety (90) days written notice unless there are
quality or shipment problems. If quality or shipment problems occur,
then Paragraph K (K on page 2) applies. Quality or shipment problems
are defined as inconsistent shipments, inadequate product availability,
products that do not meet package insert claims or performance
specifications as published in the manufacturers' publications.
M. If an individual product becomes standardized across all Laboratory
Corporation of America Holdings laboratories, both parties will
negotiate a price change for that product and amend or add a product
addendum.
N. Items defined as products listed on Addenda or added on Addenda (added
at a later date) will have guaranteed pricing through the term of the
agreement.
O. If any terms of this Agreement are not met by "LabCorp" and the parties
cannot agree on a resolution, TriPath may, as its sole and exclusive
remedy, terminate this Agreement.
P. TriPath warrants that during their applicable shelf life, the test will
conform with the Specifications set forth in the package insert.
FURTHERMORE, TRIPATH HEREBY REPRESENTS AND WARRANTS THAT***************
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*******************. TRIPATH HEREBY REPRESENTS AND WARRANTS THAT THE
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Q. TriPath shall give "LabCorp" a 120 day written notification of any
product changes.
R. TriPath agrees to make the following Year 2000 Compliance Warranties
with respect to any products covered by this Agreement (the
"Products").
1. DEFINITIONS. As used in this Section:
a. "Date Data" shall mean any data or input which includes an
indication of or reference to date.
b. "Four Digit Year Format" shall mean a format that allows entry
or processing of a four digit year in which the first two
digits will designate the century and the second two digits
shall designate the year within the century.
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c. "Leap Year" shall mean the year during which an extra day is
added in February. Leap Year occurs in all years divisible by
400 or evenly divisible by 4 and not evenly divisible by 100.
d. "Year 2000 Capabilities" shall mean that the Products:
(i) will manage, store and manipulate Date Data,
including single-century and multi-century
formats, and will not cause an abnormal ending
within applications or format incorrect values
or invalid results involving such dates; and
(ii) ensures that all Date Data fields, all
date-related user interface functionalities
and all date-related data interface
functionalities include the indication of
century.
e. "Year 2000 Compliant" or "Year 2000 Compliance" shall mean
that the Date Data outside of the range 1990-1999 will be
correctly processed in any level of computer hardware or
software including, but not limited to, microcode, firmware,
application programs, files and databases.
2. YEAR 2000 COMPLIANCE WARRANTIES.
a. TriPath represents and warrants that the Products are designed
to be used prior to, during, and after the calendar year 2000
A.D., and that the Products will operate during any such time
period without error relating to Date Data, including, but not
limited to, any error that relates to, or is the product of,
Date Data which represents or references different centuries
or more than one century.
b. Without limiting the generality of the foregoing, TriPath
further represents and warrants:
(1) that the Products will not abnormally end or
provide invalid or incorrect results as a
result of Date Data, including, but not
limited to, Date Data which represents or
references different centuries or more than
one century;
(2) that the Products have been designed to ensure
Year 2000 Compliance, including, but not
limited to, Date Data century recognition,
calculations which accommodate same-century
and multi-century formulas and date values,
and Date Data interface values that reflect
the century;
(3) that the Products are and will continue to be
Year 2000 Compliant; that all date processing
by the Products will include Four Digit Year
Format and recognize and correctly process
dates for Leap Year; and that all sorting data
that includes a year category shall be done
based on the Four Digit Year Format code; and
(4) that the Products include "Year 2000
Capability".
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*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
TriPath agrees to pay liquidated damages in the amount of $_____ per
day for each day the Products fail to maintain and uphold the Year 2000
Compliance Warranties described in this Section.
S. TriPath agrees to defend, indemnify, and hold "LabCorp" and
subsidiaries, directors, officers, employees, an agents wholly harmless
from and against third-party claims, losses, DAMAGES, lawsuits,
settlements, demands, causes, judgments, expenses, and cost (including
reasonable attorney fees) arising OR ALLEGED under or in connection
with this Agreement or LABCORP'S USE OF PRODUCTS UNDER THIS AGREEMENT
in the event that such cost and liabilities are caused by a) TriPath 1
reach of any of its warranties in this Agreement, b) the failure of
products to function properly for "LabCorp's intended use, c) any
negligence or willful misconduct of TriPath, or d) any other liability
resulting from "LabCorp's use of the PRODUCTS. However, such rights to
indemnify shall not apply to the extent that such claim, loss, lawsuit
or settlement results from "LabCorp's sole negligence or willful acts
including the sole negligence of LabCorp employees.********************
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T. ***********************************************************************
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U. TriPath acknowledges that LabCorp has a proprietary interest in its
legal and business name and REPUTATION. Therefore, TriPath agrees that
it shall not use LabCorp's name nor shall TriPath mention or describe
this Agreement or its relationship with LabCorp in any press release,
advertising, marketing, and promotional materials or other publications
or materials without first obtaining the prior written approval of
LabCorp's Senior Vice-President of Automation and Diagnostics. A
violation of this paragraph shall be considered a material breach of
this Agreement by LabCorp, and LabCorp shall be entitled to pursue any
and all legal or equitable remedies, including an injunction, as a
result of such breach.
IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THIS AGREEMENT AND THE APPENDED
TERMS & CONDITIONS, THIS MASTER AGREEMENT SHALL CONTROL.
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LABORATORY CORPORATION OF TRIPATH IMAGING, INC.
AMERICA HOLDINGS
By:______________________________ By:____________________________________
Title:___________________________ Title:_________________________________
Date:____________________________ Date:__________________________________
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*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
PRODUCT ADDENDUM A TO LABORATORY CORPORATION OF AMERICA HOLDINGS ("LABCORP")
MASTER AGREEMENT WITH TRIPATH IMAGING, INC. ("TRIPATH")
PRODUCTS COVERED IN THIS ADDENDUM: AUTOCYTE PREP SYSTEM(TM)
AND RELATED DISPOSABLES
DATE OF ADDENDUM: NOVEMBER 18, 1999
As part of the above-referenced agreement, TriPath will provide LabCorp
and its subsidiaries with the AutoCyte PREP SystemTM ("PREP") and related
disposables for gynecological ("GYN") cytology. The terms and conditions of sale
are as stated in the Master Agreement, along with the following terms and
conditions.
1. PRODUCTS COVERED BY THIS AGREEMENT, AND RELATED PRICING:
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(1) As more fully described in Exhibit I
(2) As more fully described in Exhibit II
2. UPDATING AND RESTORATION: TriPath has agreed to update and restore to
the current GYN approved specifications all AutoCyte PREP Systems
owned by LabCorp at TriPath expense. This includes the replacement of
all tubing, valves, slide platters and installation of the new Gyn
software. This will be accomplished by November 15, 1999 on the ***
instruments purchased by LabCorp prior to 1996 for use with non-gyn
preparations.
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*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
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4. ADDITIONAL SUPPORT PROVIDED BY TRIPATH: TriPath agrees to support
LabCorp in the following ways:
a. Technical training at TriPath for a pathologist,
cytotechnologist and prep technician from each site. TriPath
will pay for all meals, lodging and training at its site.
LabCorp will pay for all transportation.
b. On-site training of additional Cytotechnologists and technical
support as REASONABLY REQUIRED BY LABCORP to initiate the
technology at each LabCorp site at TriPath expense.
c. Sales and promotional support including sales training and
joint calling of key accounts for each LabCorp region. TRIPATH
SHALL ADD A MINIMUM OF TEN ADDITIONAL TECHNICAL SALES
SPECIALISTS TO ITS STAFF WITHIN 90 DAYS OF SIGNING THIS
AGREEMENT FOR PURPOSES OF MARKETING TRIPATH'S SERVICES TO
THIRD PARTIES.
d. TriPath will conduct regional sales training as requested by
regional LabCorp management and will work to support LabCorp
sales representatives in the field as mutually agreed upon by
the parties. This training SHALL PROVIDE THE LABCORP SALES
REPRESENTATIVES WITH THE NECESSARY KNOWLEDGE OF THE FEATURES
AND BENEFITS OF THE TRIPATH PRODUCTS.
e. THROUGHOUT THE TERM OF THIS AGREEMENT, TRIPATH SHALL RETAIN A
COMPANY WITH SIGNIFICANT REIMBURSEMENT EXPERIENCE TO ASSIST
THE PARTIES WITH NON-PAYMENT OR REIMBURSEMENT ISSUES.
5. PAYMENT TERMS:
a. LabCorp will determine on a lab-by-lab basis the amount of lab
supplies that it will purchase by issuance of a purchase order
and which TriPath will then ship and invoice according to the
Terms and Conditions of the purchase order. TriPath and
LabCorp agree to make the shipment amounts based upon an
estimated usage, but never less than a 480 test kit. The
shipment quantities will be increased once experience
demonstrates levels of usage.
b. **************************************************************
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6. WARRANTY:
a. EQUIPMENT: TriPath warrants that the AutoCyte PREP System
and all component parts will perform in accordance with
product specifications and FDA-approved product labeling for a
period of twelve (12) months after the purchase date, provided
that LabCorp uses no reagents, consumables and/or accessories
on the Equipment other than those from TriPath or its
authorized agents. During such twelve (12) month period, at no
cost to LabCorp, TriPath or TriPath appointed personnel shall
service, alter or replace the Equipment and/or accessories
which are necessary to keep the equipment in good running
order, excluding consumable items which require replacement
with normal use. No other persons are authorized to perform
service on the EQUIPMENT. Excepting repair expense arising
from normal use, LabCorp shall reimburse TriPath or pay for
the reasonable expenses of repairing any damage or alteration
to the Equipment caused by LabCorp, it's employees, agents,
contractors or any unauthorized personnel. TriPath will
provide at no charge to LabCorp one scheduled preventive
maintenance visit per system after six (6) months of
operation.
b. REAGENTS: TriPath warrants that for a period of six (6)
months after the date of shipment from TriPath, all
disposables sold by TriPath to LabCorp shall, under normal
use, materially conform with TriPath's published
specifications and FDA-approved product labeling as of the
date of shipment of the Reagent and shall be free from
manufacturing and material defects.
c. WARRANTY CONDITIONS PRECEDENT: TriPath shall bear no
responsibility for correcting, curing, or otherwise remedying
any nonconformity or defect in the AutoCyte PREP System (the
"Product") (or any other breach with respect to the condition
or operation of the Products) if (1) with respect to Equipment
and Software, such Product is not installed and maintained by
TriPath or its authorized agents; (2) the Product is not
OPERATED IN A MANNER CONSISTENT WITH PACKAGE INSERT AND
PRODUCT SPECIFICATIONS; (3) the Product incorporates spare or
replacement parts or utilizes reagents other than those
purchased from or recommended by TriPath.
7. SOFTWARE LICENSE: TriPath provides LabCorp a nontransferable,
nonexclusive, royalty free license to the software KNOWN AS THE PREP
GYN OPERATING SOFTWARE. LabCorp may not copy, modify, decode, reverse
engineer, decompile or disassemble the Software for any purpose.
a. Title and Ownership. TRIPATH REPRESENTS AND WARRANTS
THAT IT HAS THE UNENCUMBERED RIGHT TO LICENSE THE
SOFTWARE AND SUCH LICENSE DOES NOT VIOLATE THE RIGHTS
OF ANY THIRD PARTY. All title and ownership of
proprietary and intellectual property rights in the
Software and related documentation are and shall at
all times remain the sole
and exclusive property of TriPath.
b. License Term. The license granted under this
Agreement shall commence upon delivery of the
Software to LabCorp by TriPath and shall continue
indefinitely unless terminated sooner. LabCorp may
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terminate this license at any time by written notice
to TriPath. TriPath may terminate this license at any
time upon the delivery of written notice to LabCorp
if LabCorp falls to fulfill any of its material
obligations hereunder and does not cure such failure
within thirty (30) days following written notice
thereof.
Laboratory Corporation of America Holdings TriPath Imaging, Inc.
By:_______________________________________ _________________________________
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EXHIBIT I
AUTOCYTE PREP SYSTEM(TM) COMPONENTS AND SPECIFICATIONS
The AutoCyte PREP System is a batch oriented sample-processing device capable of
producing up to 48 stained thin layer slides in approximately one hour. The
AutoCyte PREP System includes the PREP sample processor instrument and
accessories, a personal computer with PREP GYN operating software pre- installed
and a ▇▇▇▇▇▇▇ programmable centrifuge capable of performing all functions
necessary to prepare cytological samples for the AutoCyte PREP System
1. PREP SAMPLE PROCESSOR INSTRUMENT
- Quad assembly with tips
- Base Plate
- (4) Interlocking Slide Racks
- Disposable tip rack, holder and loading tool
- Waste trough
- Specimen Accessioning Rack
- (2) Vacuum pumps and tube vac head
- Slide rack for 25 slides
- Slide coat tank with lid
- 6 position bottle holder
- (2) 500m1 cleaning bottles
- 0-5ml Dispenser
Voltage: 120v or 220v / 50-60 Hz
Power: 800 VA
Weight: 168 lbs.
Dimensions: Height- 30" Width- 38" Depth- 25"
Throughput: Up to 48 Stained thin layer slides per run
2. SYSTEM CONTROL MODULE
- IBM compatible PC (80386 or greater)
- 14 inch color monitor
- Qwerty keyboard
- IBM compatible mouse
Voltage: 120v or 220v / 50-60 Hz
Power: 50-60 W
Weight: Subject to change based on availability
3. ▇▇▇▇▇▇▇ PROGRAMMABLE CENTRIFUGE
- (4) Red plastic buckets
- (4) 12 place tube holder
- (4) Centrifuge bucket covers
Voltage: 120 v or 220v / 50C60 Hz
Power: 400 W
Weight: 110 lbs.
Dimensions: Height- 17" Width- 24" Depth- 21"
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*CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT II
AUTOCYTE PREP SYSTEM(TM) DISPOSABlES
EXHIBIT B
ADDENDUM TO EXHIBIT D FROM ORIGINAL CONSIGNMENT OF EQUIPMENT AND PURCHASE
OF RELATED DISPOSABLES AGREEMENT
PART # DESCRIPTION PRICE
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GYN-0480DS GYN 480 TEST KIT LABPACK $********
THIS KIT CONTAINS DISPOSABLES NECESSARY TO PRODUCE
480 GYN THIN-LAYER SLIDE PREPARATION, AS FOLLOWS:
Slide Coat Reagent (275ml)
Density Reagent (4 x 480ml)
Hematoxylin (2 x 480ml)
Orange G Stain (2 x 480ml)
Modified EA Stain (2 x 480ml)
Settling ▇▇▇▇▇▇▇▇ (480)
Cyringes (500)
Slides (500)
Centrifuge Tubes (500)
Disposable Transfer Tips (480)
Aspirator Tips (200)
ADDITIONAL ITEMS THAT CAN BE PURCHASED SEPARATELY:
GYN-0500-C 500 GYN BRUSH & VIAL KIT $********
05CR000029 ALCOHOL RINSE SOLUTION (3600ML) $********
05CR000031 ALCOHOL RINSE SOLUTION (480ML) $********
90CR000006 SLIDE COAT REAGENT (275ML) $********
90CR000037 GYN PRESERVATIVE FLUID (3600ML) $********
90CR000001 GYN PRESERVATIVE FLUID (480ML) $********
80CR000022 BUFFERED WATER $********
