Exhibit 10.14
CO-MARKETING OF SERVICES AGREEMENT
This Co-Marketing of Services Agreement (the "Agreement") is made and dated as
of July 27th 1999, between VARIAGENICS, INC., a Delaware corporation
(hereinafter referred to as "VGEN"), and NOVA MOLECULAR INC., a Canadian
corporation (hereinafter referred to as "NMI")
WHEREAS VGEN requires expertise in clinical trial genetic testing services
in connection with its business and the marketing thereof;
WHEREAS NMI owns certain proprietary rights and, as well, possesses
certain expertise required to conduct clinical genetic testing services; and
WHEREAS the parties wish to establish a basis for co-marketing such
services.
NOW THEREFORE, in consideration of these presents and the mutual covenants
and undertakings as set forth herein, the parties have agreed as follows:
ARTICLE 1 - DEFINITIONS
1.1 "Clinical Laboratory Services" shall mean clinical trial genetic testing
services for entities testing a pharmaceutical product for the purpose of
obtaining either regulatory approval to conduct human clinical trials or
regulatory approval of the sale of such product, and shall not include
either basic research and development in drug discovery, or diagnostic
laboratory services.
1.2 "NMI Technology" shall mean NMI's proprietary rights relating to its ApoE
marker as described in NMI's U.S. Patent.
1.3 "NMI U.S. Patent" shall mean the U.S. Patent entitled "Apolipoprotein E
Polymorphism and Treatment of Alzheimer's Disease" as granted pursuant to
U.S. Patent Application Serial No. 08/727,637.
1.4 "Marketing Partner" shall mean a marketing partner of VGEN with whom VGEN
has entered into a written agreement, and who is listed on Schedule 2.3.4
hereof.
ARTICLE 2- CO-MARKETING AGREEMENT
2.1 NMI and VGEN have established an initial pricing schedule for specified
minimum volume commitments of specific and defined Clinical Laboratory
Services as may be performed by NMI for and on behalf of VGEN, such
schedule is attached hereto as Schedule 2.1.
2.2 VGEN has established agreements and alliances with certain Marketing
Partners who may from time to time require Clinical Laboratory Services to
be performed by NMI.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 406 of the Securities Act.
2.3 NMI has agreed to provide Clinical Laboratory Services for and on behalf
of VGEN and its Marketing Partners subject to the following provisions:
2.3.1 the initial pricing schedule referred to in Section 2.1 shall remain
in force and effect until changed by NMI at its sole option upon
ninety (90) days written notice to VGEN, provided that no such
change by NMI shall affect any written and accepted commitment of
VGEN as communicated to NMI, with a Marketing Partner or other
customer of VGEN, prior to notice by NMI of such price change. In
all events the prices charged to VGEN and/or its Marketing Partners
shall represent the best price offered by NMI to its own customers
or to other marketers or users of Clinical Laboratory Services for
like quantities and description of services;
2.3.2 the only Clinical Laboratory Services required to be performed by
NMI shall be those consistent with the NMI U.S. Patent;
2.3.3 NMI Clinical Laboratory Services may be performed directly by NMI or
at its option, by any subcontractor designated by NMI at NMI's
option, provided the subcontractor meets VGEN's reasonable quality
control standards and performs the ApoE assay using GamidaGen Kits
or an alternative methodology, in accordance with CLIA 88 and/or CAP
validation standards.
2.3.4 VGEN has established a list of designated Marketing Partners of VGEN
as will have the right to directly request Clinical Laboratory
Services to be performed for them by NMI and as will entitle VGEN to
be paid the commission set forth in section 2.3.6 hereof. Such list
has been attached hereto as Schedule 2.3.4;
From time to time, VGEN may request the addition to Schedule 2.3.4
of other Marketing Partners of VGEN which shall be added thereto
provided NMI has not, previous to such request of VGEN, dealt or
received a request to deal, directly with such party without any
intervention of VGEN.
In addition, NMI will pay commissions as set forth in Section 2.3.6
hereof in respect of Clinical Laboratory Services specifically
undertaken to be performed by NMI for customers of VGEN as a result
of specific orders generated by VGEN, even where such customers were
previously direct customers of NMI;
2.3.5 NMI shall be free at its discretion to accept or reject any proposal
for Clinical Laboratory Services received from VGEN or any Marketing
Partner on any reasonable ground including, without limitation,
price (other than as specified below), volume, conditions, credit,
or otherwise. NMI shall not reject any proposal on the basis of
pricing that meets the price schedule referred to in Section 2.1. In
the case of such rejection, NMI agrees that it will not bypass
either VGEN or any Marketing Partner of VGEN to provide the proposed
Clinical Laboratory Services directly to the client without paying
to VGEN the commissions outlined in Section 2.3.6;
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2.3.6 The full price of Clinical Laboratory Services as established
pursuant to Sections 2.1 and 2.3.1, or otherwise accepted by NMI at
its sole discretion shall be payable to NMI. Against receipt of such
payment, NMI shall remit within fifteen (15) days of such receipt to
VGEN [ ] of the amount so received as a commission, for sales
of Clinical Laboratory Services generated by VGEN or to its
Marketing Partners. In calculating such commission, there shall be
deducted from the amount received by NMI, all charges and payments
for transportation, and all applicable taxes, including GST and PST.
Commissions will be due to VGEN on all payments resulting from
proposals generated during the Term and as a result of this
Agreement including payments which are made after the effective
termination date on said projects which are awarded after the
effective termination date or payments on said projects which are
not yet completed as of the effective termination date;
2.3.7 VGEN shall have no right nor authority to bind NMI to provide any
Clinical Laboratory Services to any party whatever. All requests for
Clinical Laboratory Services shall be made by written proposal of
VGEN or a Marketing Partner in a form prescribed by NMI as shown on
Schedule 2.3.7, and shall be consistent as to pricing with Schedule
2.1 as modified from time to time. In order to be valid and binding
upon NMI, such proposal shall require the written acceptance of NMI
which shall be returned to VGEN within five (5) business days of
receipt of such Clinical Laboratory Services;
2.3.8 This Agreement is applicable for VGEN and its Marketing Partners
worldwide. Once a client proposal ("Original Proposal") has been
accepted by NMI according to Section 2.3.5, or has been rejected and
subsequently bypassed by NMI as outlined in Section 2.3.5 without
payment of VGEN's commissions as therein contemplated, then VGEN and
its Marketing Partners will have the right to commissions on any
subsequent accepted proposal ("Subsequent Proposal") from that
specific client in respect of the specific compound(s) which was
involved in the Original Proposal for as long as this Agreement is
in effect, provided, however, that the interval of time between the
acceptance date of the Original Proposal and acceptance date of the
Subsequent Proposal is no more than twelve (12) months.
ARTICLE 3- CONFIDENTIALITY
3.1 In connection with the providing of Clinical Laboratory Services or
otherwise in connection with this Agreement, each party (the "Recipient")
may receive, either intentionally or unintentionally, certain oral and
written proprietary and confidential information of the other party (the
"Disclosing Party") which is not part of the public domain ("Proprietary
Information"). Proprietary Information includes, but is not limited to,
intellectual property, know-how, trade secrets, computer software, pricing
information, physician lists, investigation/nurse coordinator network
lists, mailing lists, subject and patient lists, employee lists, fee
schedules, client and customer lists, programmatical information and
structure, utilization review procedures, proprietary sequence
information, variance discovery and variance detection techniques,
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pharmacogenomics, pharmacogenetics, predictive medicine, algorithms,
applications and procedures, formats and structure and related information
and documents concerning the planning structure and operations of the
Disclosing Party or relating to its business affairs.
3.2 Each party (for itself, its affiliates and its and their respective
directors, officers, employees, agents, subcontractors, affiliates and
representatives) agrees that all Proprietary Information shall be
disclosed to the Recipients directors, officers, employees, agents,
subcontractors, affiliates and representatives only on a need-to-know
basis for the purposes of carrying out the purposes of this Agreement.
Each party further agrees to keep all Proprietary Information in the
strictest confidence, to use the Proprietary Information only in
furtherance of the purposes of this Agreement, not to duplicate, transmit,
reverse engineer, decompile, or disassemble any Proprietary Information,
and not to, directly or indirectly, divulge, disclose, reveal, report, or
transfer such Proprietary Information to any third party without, in each
instance, obtaining specific, prior written authorization of the
Disclosing Party. Each party further agrees that all health records of
patients or subjects of the investigators participating in any provincial
Clinical Laboratory Services shall be treated as confidential so as to
comply with all state and federal laws and regulations and industry
standards regarding the confidentiality of patent health records and
research records.
3.3 Notwithstanding the foregoing, the obligations set forth above shall not
prevent either party from disclosing information:
3.3.1 which is or becomes generally available to the public other than as
a result of a disclosure by or at the direction of, the Recipient or
its affiliates or their respective directors, officers, employees,
agents, advisors, and other representatives;
3.3.2 was or becomes available to the Recipient on a non-confidential
basis from a source other than the Disclosing Party or its
representatives, provided that such source is not bound by a
confidentiality agreement with the Disclosing Party in respect
thereof (unless the Recipient did not know or have reason to know of
the existence of such a confidentiality agreement);
3.3.3 was within the Recipients possession prior to its being furnished to
the Recipient by or on behalf of the Disclosing Party, provided that
the source of such information was not bound by a confidentiality
agreement with the Disclosing Party in respect thereof (unless the
Recipient did not know or have reason to know of the existence of
such a confidentiality agreement); or
3.3.4 which the Recipient can demonstrate was developed independently of
any disclosure by the Disclosing Party by persons having no access
to any disclosure of the Disclosing Party.
3.4 Notwithstanding any provisions herein to the contrary, in the event that
any recipient of Proprietary Information becomes obligated by mandatory
applicable law, regulatory rule
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or judicial or administrative order to disclose such Proprietary
Information, or any portion thereof, the Recipient shall promptly notify
the Disclosing Party thereof, so that the Disclosing Party may seek an
appropriate protective order or other remedy with respect to resisting or
narrowing the scope of such requirement. In the absence of such a
protective order or other remedy, the Recipient may disclose such
Proprietary Information without liability hereunder, provided that the
Recipient furnishes only such portion of the Proprietary Information as is
legally required to be disclosed.
ARTICLE 4- PROPRIETARY RIGHTS
4.1 Ownership of all intellectual property, technology, NMI Technology, NMI
U.S. Patent, data and information used, determined and/or derived by or
from the provision by NMI of Clinical Laboratory Services shall be and
remain the sole and absolute property of NMI.
4.2 No license is intended nor granted by NMI to VGEN nor to any Marketing
Partner with respect to NMI Technology, NMI U.S. Patent, NMI logo nor NMI
name.
4.3 VGEN shall have the right during the term of this Agreement, to describe
itself as a representative of NMI for purposes of offering Clinical
Laboratory Services only and shall have the right to utilize the NMI name
and logo for this purpose. VGEN may utilize the NMI name and logo for this
purpose for the specific instances and modalities specified in Schedule
4.3, any additional uses by VGEN of such name and logo to require the
express written consent of NMI. In all events of such use by VGEN, VGEN
shall indicate and acknowledge in a manner satisfactory to legal counsel
of NMI that all rights in and to NMI's name and logo are proprietary
intellectual property, trade names and trademarks of NMI.
ARTICLE 5- INDEMNIFICATION; LIMITATION OF LIABILITY
5.1 NMI shall defend, indemnify and hold harmless VGEN from and against any
claim brought by any party against VGEN arising from NMI's provision of
Clinical Laboratory Services, and based upon the infringement or
violation, or alleged infringement or violation resulting from the use by
NMI of NMI Technology, of any patents, or of any copyright, trademark,
trade secret or other intellectual property right.
5.2 To avail itself of its rights pursuant to Section 5.1, VGEN shall:
5.2.1 give NMI prompt notice of any such claim or law suit including a
copy thereof served upon VGEN;
5.2.2 fully cooperate with NMI and its legal representations in the
investigation and defence of any matter the subject of
indemnification;
5.2.3 permit NMI to defend and settle the claim at the expense of NMI and
at its discretion.
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5.3 In no event shall any liability of NMI to VGEN hereunder include any
special, incidental or consequential damages, including without
limitation, loss of opportunity, loss of revenue or profit, loss of the
use of any data or information supplied in connection with this Agreement,
even if NMI shall have been advised of the possibility of such damages;
and in no event shall the aggregate of all costs, damages and liability of
NMI hereunder exceed the aggregate net amount received by NMI from all
Clinical Laboratory Services rendered by NMI hereunder, less all amounts
paid to VGEN pursuant to Section 2.3.6 hereof.
ARTICLE 6- TERM
6.1 This Agreement shall continue for a term of three (3) years and shall
continue annually thereafter unless terminated by written notice of either
party to the other at least ninety (90) days prior to any such renewal.
6.2 This Agreement shall survive any change of control of NMI and be
applicable to NMI, its successors, and any affiliates thereof.
6.3 In the event of default hereunder, written notice shall be provided to the
defaulting party and if such default is not remedied within thirty (30)
days of such notice, this Agreement shall terminate ipso facto under
reserve of and without prejudice to the non-defaulting party's rights,
remedies and recourses in the circumstances.
Events of defaults shall include:
6.3.1 the filing of a voluntary petition or the commencement of a
voluntary case seeking liquidation, reorganization, dissolution,
arrangement, readjustment of debts or any other relief under
bankruptcy or similar legislation now or hereafter in effect;
6.3.2 consent to the appointment of, or taking possession by a custodian,
trustee, receiver or similar official for all or a substantial part
of the property of the defaulting party;
6.3.3 the failure to generally pay debts as they become due or the
admission in writing of the inability to pay debts generally as they
become due;
6.3.4 the making of a general assignment for the benefit of creditors;
6.3.5 the authorization or approval by the defaulting party of any of the
actions described above;
6.3.6 any involuntary petition or case filed or commenced against a party
seeking any of the foregoing remedies that is not dismissed, bonded
or discharged within sixty (60) days of the date of filing;
6.3.7 the dissolution, liquidation or winding-up of any party.
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ARTICLE 7 - ARBITRATION
7.1 Any controversy, dispute or claim arising out of or in connection with
this Agreement or the breach, termination or validity hereof shall be
settled by final and binding arbitration in Montreal conducted pursuant to
the Code of Civil Procedure of the Province of Quebec.
ARTICLE 8- GOVERNING LAW
8.1 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Quebec.
ARTICLE 9- AUDIT
9.1 Both VGEN and NMI shall have the right to audit the pertinent records of
the other party in connection with such party's express obligations to the
other hereunder.
ARTICLE 10- LANGUAGE
10.1 The parties hereto acknowledge that they have required this Agreement to
be drawn up in the English language. Les parties reconnaissent avoir
demande que le present contrat soit redige dans la langue anglaise.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as
of the date first above written.
VARIAGENICS, INC.
Per: /s/ Xxxxxx X. Xxxxxx
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Per: /s/ Xxxxxxx X. Xxxx
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NOVA MOLECULAR INC.
Per: /s/ Xxxxxxx Xxxxxx
-------------------------------
Per: /s/ Xxxxxx X. Xxxxxx
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SCHEDULE 2.1
Pricing Guidelines for ApoE Genotyping
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Cost / patient
Number of Patients Total Cost to end users
------------------ ---------- ------------
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Minimum of [ ] patients US$ [ ] $[ ]
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For quantities in excess of [ ] patients, total cost will be negotiated in
good faith between NMI and VGEN, subject always to the following guidelines:
1. cost/patient to end users shall never be less than $[ ];
2. in the event cost/patient to end users is accepted by NMI at less than
$[ ] based on an anticipated minimum quantity, not less than
[ ]% of such minimum quantity must be guaranteed in order to maintain
such agreed price;
3. payment terms shall be 1/3 payable on signing of contract; 1/3 upon
delivery of 1/2 of the commitment; and 1/3 on delivery of last test result
as set forth on Schedule 2.3.7.;
4. in the event that a price is accepted by NMI at less than $[ ]
cost/patient to end users, NMI's name and logo may not be used by VGEN in
connection with such order notwithstanding Section 4.3.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 406 of the Securities Act.
SCHEDULE 2.3.4
MARKETING PARTNERS OF VGEN
Quintiles Transnational, Inc.
Covance, Inc. (subject to the conclusion and submission to NMI
of a written agreement)
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 406 of the Securities Act.
SCHEDULE 2.3.7
REQUEST FOR CLINICAL LABORATORY SERVICES
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 406 of the Securities Act.
SCHEDULE 2.3.7
REQUEST FOR CLINICAL LABORATORY SERVICES
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Name of sponsor
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Name of the CRO or the Central Lab and
contact person
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Protocol number
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Number of patients
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Expected date for the reception of the
first samples
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Expected ending date for the reception
of the last samples
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Total revenue of the contract $
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Minimum contractual obligation
(66 2/3% of the total contract revenue) $
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Payment terms:
- 1/3 upon signing of contract
- 1/3 earliest of, 6 months from
date of contract or receipt of
50% of samples by NMI $
- 1/3 upon delivery of the results
to Variagenics or client $
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SCHEDULE 4.3
Use of Name and Logo of NMI
Brochures, Standard PowerPoint presentations, client mailings, exhibits,
Website, computer demonstrations.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 406 of the Securities Act.
