EXHIBIT 10.9
EXCLUSIVE SALE AGREEMENT
EXCLUSIVE SALE AGREEMENT (this "Agreement"), dated February, 2000, between
AEG INFRAROT-MODULE GMBH, a German corporation ("AIM"), and OMNICORDER
TECHNOLOGIES, INC., a Delaware corporation ("OmniCorder").
RECITALS
A. AIM has conducted research on, and is engaged in, the development,
manufacturing and sale of quantum well infrared photodetector cameras, systems
and components (the "QWIP Devices").
B. OmniCorder has conducted research on, and is engaged in, the development
of biological applications: i) as described in issued patents owned or licensed
by OmniCorder, or patents owned or licensed by OmniCorder that have received
written patent claims allowance notification; ii) or as described in submissions
to the United States Food and Drug Administration (FDA) for which OmniCorder has
received FDA market clearance or approval; (the "DAT Applications").
C. Subject to the terms and conditions of this Agreement, ATM desires to
sell exclusively to OmniCorder, and OmniCorder desires to designate AIM as its
primary supplier and to purchase from AIM, QWIP Devices for the research,
development, making, having made, marketing, sale, distribution, manufacturing
and use of DAT Applications (the "Field"),
In consideration of the premises and the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement, the following
terms shall have the respective meanings set forth in this Section 1.1 (such
definitions to be equally applicable to both the singular and plural forms of
the terms herein defined):
"Agreement" shall mean this Exclusive Sale Agreement between AIM and
OmniCorder.
"Business Day" shall mean any day, except for a day that is a Saturday,
Sunday or national holiday in the United States of America or Germany.
"DAT Applications" has the meaning set forth in the Recitals of this
Agreement.
"Documentation" shall mean those elements of Know-How which are in writing
or other tangible form, including without limitation, drawings, blueprints,
computer programs, technical publications, manuals, designs and artwork which
are or may be useful in connection with (i) the use of the QWIP Devices
purchased by OmniCorder from AIM during the term
hereof and any renewal or extension thereof, or (ii) the use, modification
and improvement by OmniCorder of the software implemented in such QWIP Devices,
respectively.
"Field" has the meaning set forth in the Recitals of this Agreement.
"Improvements" shall mean all Know-How and Patents relating to
modifications, enhancements and changes in the QWIP Devices purchased by
OmniCorder from AIM during the term of this Agreement or the software
implemented in such QWIP Devices, as the case may be, developed by AIM during
the term hereof and any renewal or extension thereof.
"Know-How" shall mean any and all trade secrets, know-how, confidential
information, including inventions, intellectual property, discoveries,
improvements, techniques, concepts, data, technical information, specifications
including engineering, testing and manufacturing information and specifications,
diagrams, charts and lists owned controlled or otherwise licensable by either
party hereto during the term hereof and any renewal or extension thereof which
are useful in connection with the use and application of the QWIP Devices
purchased by OmniCorder from AIM during the term hereof and any renewal or
extension thereof or the software implemented in such QWIP Devices, as the case
may be.
"Patents" shall mean all patents, utility models and patent applications
and all continuations-in-part, divisionals, additions, reissues, renewals or
extensions thereof as hereto filed or issued prior to the termination of this
Agreement and controlled or otherwise licensable by AIM which are useful in
connection with the use and application of the software implemented in any such
QWIP Devices.
"Person" shall mean any natural person, corporation, firm, business trust,
joint venture, association, organization, company, partnership or other business
entity, or any government, or agency or political subdivision thereof.
"Period" shall mean each full calendar year during which this Agreement is
in effect; provided, however, that for any calendar year during which this
Agreement is not continuously in effect from January 1 through December 31 of
such calendar year, Period shall mean such shorter period during which this
Agreement is in effect during such calendar year.
"Proprietary Rights" shall mean patent rights (including, but not limited
to, all granted patents and pending patent applications), copyrights, trade
secret rights and similar rights, and licenses and sublicenses under such
rights.
"OWIP Devices" has the meaning set forth in the Recitals of this Agreement.
"Required Number of OWIP Devices" shall mean the higher number of (i) 85%
of the aggregate number of QWIP Devices purchased by OmniCorder for the use in
the Field during each Period or (ii) the number of QWIP Devices for each Period
as specified on Schedule 1.1(a) hereto, provided, however that during any Period
which is not comprised of one full calendar year, this number shall be reduced
on a pro rata basis.
"Technology" shall mean (a) the subject matter of any and all relevant
Patents including, but not limited to, the information contained in such
Patents; and (b) any and all
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relevant inventions (whether or not patentable), ideas, processes,
formulas, technical information, trade secrets, developments, discoveries, data,
the subject matter of any all copyrights, drawings, techniques, documents,
laboratory note books, scientific and medical reports, models, and Know-How.
"Third Party Suppliers" shall mean suppliers or manufacturers of QWLP
Devices other than AIM.
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ARTICLE II
PURCHASE OF QWIP DEVICES
Section 2.1 Exclusivity. Upon the terms and subject to the conditions of
this Agreement, AIM, during the term hereof and any renewal or extension
thereof, shall exclusively sell to OmniCorder, QWIP Devices for the use in the
Field.
Section 2.2 Purchase of OWIP Devices by OmniCorder. (a) Upon the terms and
subject to the conditions of this Agreement, in particular Section 2.2(b)
hereof; OmniCorder shall purchase from AIM during each Period the Required
Number of QWIP Devices.
(b) OmniCorder shall be under no obligation to purchase QWIP Devices from
AIM as contemplated by Section 2.2(a) hereof to the extent that AIM is unable or
unwilling to sell to OmniCorder, QWIP Devices with performance terms and at
prices which are equal or more favorable to OmniCorder than the performance
terms and prices specified in written proposals or offers for the sale of QWIP
Devices from Third Party Suppliers to OmniCorder. If OmniCorder receives an
offer for QWIP Devices from a Third Party Supplier with performance terms or
prices more favorable to it than the performance terms and prices for QWIP
Devices offered to OmniCorder by AIM, OmniCorder shall give AIM the opportunity
to match the terms of such offer and shall promptly provide to AIM a copy of any
such offer that OmniCorder considers to pursue, together with an indication of
the maximum number of QWIP Devices that OmniCorder considers to purchase on the
basis of such offer. AIM, within twenty (20) Business Days after the receipt of
a copy of such offer, shall inform OmniCorder whether or not it will match the
terms of such offer. If AIM informs OmniCorder that it will not match the terms
of such offer or AIM does not respond to OmniCorder within twenty (20) Business
Days after the receipt of a copy of such offer, the number of QWIP Devices
purchased by OmniCorder pursuant to a contract that resulted from OmniCorder's
acceptance of such offer shall not count towards the aggregate number of QWIP
Devices referred to under (i) in the definition of the term "Required Number of
QWIP Devices" in Section 1.1 hereof.
(c) Nothing in this Agreement shall prevent OmniCorder from maintaining
relationships with, or purchasing QWIP Devices from, Third Party Suppliers. If,
however, OmniCorder fails to purchase the Required Number of QWIP Devices during
any Period, AIM shall have the right to terminate this Agreement pursuant to
Section 6.2(f) hereof.
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ARTICLE III
TECHNICAL ASSISTANCE, PARTS AND SERVICE
Section 3.1 Upon OmniCorder's written request, AIM shall give OmniCorder
access to the original software codes relating to the software that is
implemented in any QWIP Device manufactured by AIM for the use in the Field
during the term hereof and any renewal or extension thereof, if such access is
necessary for OmniCorder to comply with FDA or other regulatory requirements or
improve, for applications in the Field, the performance of any such QWIP Device
or the software implemented in any such QWIP Device.
Section 3.2 Language and Standards of Measurement. All Documentation
furnished by AIM to OmniCorder with respect to any QWIP Device purchased by
OmniCorder from AIM during the term hereof and any renewal or extension thereof
shall be substantially in the English language. All Documentation shall conform
to the standards of measurement then in use by AIM.
Section 3.3 Technical Assistance. AIM shall provide technical assistance to
OmniCorder with respect to any QWIP Device purchased by OmniCorder from AIM
during the term hereof and any renewal or extension thereof in accordance with
the following provisions:
Any reasonable direct cost and expenses incurred by AIM in connection with
technical assistance provided to OmniCorder in connection with such QWIP Device
and the software implemented in such QWIP Device shall be borne by OmniCorder,
unless otherwise agreed to in a separate agreement or purchase order. However,
these costs shall not exceed those charged to other AIM customers.
Section 3.4 Parts and Service. AIM shall provide parts and service to
OmniCorder with respect to any QWIP Device purchased by OmniCorder from AIM
during the term hereof, and any renewal or extension thereof. Any reasonable
direct cost and expenses incurred by AIM in connection with the parts and
service provided to OmniCorder in connection with such QWIP Device and the
software implemented in such QWIP Device shall be borne by OmniCorder unless
otherwise agreed to in a separate agreement or purchase order. However, these
costs shall not exceed those charged to other AIM customers.
Section 3.5 Parts, Service, and Technical Support in the Event of AIM's
Departure From the Market. AIM, its assigns or successors shall notify
OmniCorder within 5 business days if they, for any reason, make a decision to
cease manufacturing, supplying, or supporting QWIP Devices or components. AIM
shall, subject to the right of third parties; i) provide OmniCorder the
opportunity to purchase AIM's inventories of parts and components which are to
be discontinued; ii) train OmniCorder's personnel to repair and replace
components; iii) train OmniCorder's personnel to repair or modify QWIP Device
software. Any reasonable direct cost and expenses incurred by AIM in connection
with this provision shall be borne by OmniCorder unless otherwise agreed to in a
separate agreement or purchase order. However, these costs shall not exceed
those charged to other AIM customers.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Warranties. (a) AIM warrants to OmniCorder that it will use its
best efforts to assure validity of materials and other information provided to
OmniCorder under this Agreement, including all written and oral communication
made therein.
(b) AIM warrants to OmniCorder that each QWIP Device purchased by
OmniCorder from AIM during the term hereof and any renewal or extension thereof
shall (i) comply with the mutually agreed upon specification, a current version
of which is attached hereto as Exhibit A, as such may be amended from time to
time by agreement between OmniCorder and AIM; and (ii) be free from
imperfections in their manufacture and defects in material and workmanship for a
period of 12 months after shipment by AIM or 4,000 hours of operation of the
cooling pump implemented in such QWIP Device, whichever occurs earlier.
Section 4.2 Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.1(a) OF
THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND,
WRITTEN OR ORAL, EXPRESS OR IMPLIED, WITH REGARD TO THE TECHNOLOGY LICENSED TO
THE OTHER PARTY HEREUNDER.
ARTICLE V
COVENANTS
Section 5.1 Regulatory Matters. AIM and OmniCorder shall cooperate with
each other and shall use their commercially reasonable efforts to obtain as
promptly as practicable any permit, consent, approval, waiver or authorization
of any governmental authority which is necessary or advisable to consummate the
transactions contemplated by this Agreement.
Section 5.2 Delay. AIM shall make best efforts to deliver Documentation to
OmniCorder without undue delay.
ARTICLE VI
TERM AND TERMINATION
Section 6.1 Term of Agreement. This Agreement shall become effective on
March 1, 2000 and shall continue in full force and effect until terminated in
accordance with Section 6.2 hereof.
Section 6.2 Early Termination. This Agreement may be terminated pursuant to
any of the following terms and conditions:
(a) This Agreement may be terminated at any time upon the mutual written
consent of the parties hereto;
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((b) This Agreement may be terminated by either party upon six months prior
written notice to the other party; provided, however, that a termination
pursuant to this Section 6.2(b) shall not become effective prior to December 31,
2003.
(c) This Agreement may be terminated by either party immediately upon
written notice to the other party in the event that the other party shall have
breached any material warranty or covenant under this Agreement and shall have
failed to remedy such material breach to the non-breaching party's satisfaction
within sixty (60) days of receiving written notice thereof from the
non-breaching party specifying the nature of the breach.
(d) Either party hereto may terminate this Agreement immediately upon
written notice to the other party in the event that the other party (i) files a
petition of any type as to its bankruptcy, (ii) is declared bankrupt, (iii)
becomes insolvent, (iv) makes an assignment for the benefit of its creditors,
(v) goes into liquidation or receivership or (vi) otherwise loses legal control
of its business; provided, however, that the acquisition by a third party of
either party or either party's business shall not be considered a loss of legal
control for the purposes of Section 6.2(e)(vi).
(e) AIM may terminate this Agreement if OmniCorder fails to purchase the
Required Number of QWIP Devices during any Period, as contemplated by Section
2.2 hereof.
Section 6.3 Rights and Obligations on Termination. In the event of the
termination of this Agreement for any reason, Sections 3.1, 3.2, 3.3, 3.4, 3.5,
and 4.1 hereof shall survive the termination of this Agreement.
ARTICLE VII
GOVERNING LAW; ARBITRATION; JURISDICTION
Section 7.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF GERMANY, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, EXCLUDING THE U.N. CONVENTION ON THE INTERNATIONAL SALE OF
GOODS.
Section 7.2 Arbitration. All disputes or controversies arising under, out
of, in connection with, or in relation to, this Agreement which cannot be
resolved between the parties shall be finally settled by arbitration, to be held
in Stuttgart, Germany and judgment upon the award rendered may be entered in any
court having jurisdiction thereof.
Section 7.3 Submission to Jurisdiction; Selection of Forum. EACH PARTY
HERETO AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY
CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED
IN OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR
IN EQUITY, EXCLUSIVELY IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
SITTING IN GERMANY AND (I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS, (U) WAIVES ANY OBJECTION OF LAYING VENUE IN ANY SUCH ACTION OR
PROCEEDING IN SUCH COURTS, (III) WAIVES ANY OBJECTION THAT
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SUCH COURTS ARE AN INCONVENIENT FORM OR DO NOT HAVE JURISDICTION OVER ANY
PARTY HERETO, AND (IV) AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY IN ANY
SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE
WITH SECTION 8.6 HEREOF.
ARTICLE VIII
GENERAL TERMS AND CONDITIONS
Section 8.1 Amendment. Any amendment, modification, extension, revision or
waiver of any term of this Agreement shall be valid and binding only if in
writing and duly executed by both parties hereto.
Section 8.2 Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the parties hereto relating to the subject
matter hereof and merges all prior oral and written understandings, discussions
and negotiations between them.
Section 8.3 Severability. The decision of any court of law or other
governmental authority invalidating any portion of this Agreement shall not
affect the validity of any remaining portion. The remaining portion shall
continue in full force and effect as if the invalid portion were not a part of
this Agreement when it was executed. In the event that the severance of any
portion of this Agreement materially affects any of the material rights and
obligations of the parties hereunder, the parties hereto will negotiate in good
faith to amend this Agreement in a manner satisfactory to the parties. If the
parties are unable to agree to amend this Agreement in a manner satisfactory to
the parties, they may terminate this Agreement under a mutually agreed to
phase-out plan with sufficient lead times to avoid inequity to any party.
Section 8.4 Waiver. The failure of either party hereto to require
performance by the other party of any provision of this Agreement shall in no
way affect the right of such party to subsequently require performance of that
provision. The failure of either party to assert a right in respect of a breach
hereunder by the other party shall not be deemed to be a waiver of such breach
or of any continuing or succeeding breach or any right under this Agreement.
Section 8.5 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one (1) and the same instrument.
Section 8.6 Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given on the
date of dispatch if sent by telefax or delivered personally, or five (5)
Business Days after the date of dispatch if mailed, postage prepaid, by
registered or certified air mail as follows:
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To OmniCorder:
OmniCorder Technologies, Inc.
00 Xxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attention: President and Chief Executive Officer
Xx. Xxxx X. Xxxxx
Facsimile: (000) 000-0000
With a concurrent copy to:
Xxxxxx X. Thai, Esq.
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx, XX, XX 00000
Facsimile: (000) 000-0000
To AIM:
AEG Infrarot-Module GmbH
Xxxxxxxxxxxxxxxx 0
X-00000 Xxxxxxxxx
Xxxxxxx
Attention: Manager Matrix Modules
Xx. Xxxxxxxx Xxxxxxxx
Facsimile: x00 (0)0000 0000-000
Either party hereto may notify the other in the manner set forth above of
any other address to which notices shall be addressed to it hereunder.
Section 8.7 Assignment. Neither party shall assign or transfer any of its
rights or obligations under this Agreement except with the prior written consent
of the other party; provided, however, that a successor in interest by merger,
purchase or otherwise of substantially all of the stock or assets of either
party shall acquire all of the rights and obligations of said party hereunder.
Section 8.8 Expenses. OmniCorder and AIM shall each bear their respective
direct and indirect expenses incurred in connection with the preparation and
negotiation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
OMNICORDER TECHNOLOGIES, INC.
By:_____________________________________
Name: Xxxx X. Xxxxx
Title: President
AEG INFRAROT-MODULE GMBH
By:_____________________________________
Name: ppa. Xxxxxx Xxxxx
Title: Manager Sales
By:_____________________________________
Name: i.V. Xx. Xxxxxxxx Xxxxxxxx
Title: Manager Matrix Modules
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