Exhibit 10.17
*** Text Omitted and filed Separately
Confidential Treatment Requested
Under 17 C.F.R. (Sections) 200.80 (b)(4),
200.83 and 240.24(b)-2.
FIRST AMENDMENT AND FURTHER TERMS TO THE PRODUCT
DEVELOPMENT AND RESELLER AGREEMENT
This FIRST AMENDMENT AND FURTHER TERMS TO THE PRODUCT DEVELOPMENT AND
RESELLER AGREEMENT ("Amendment"), dated this 30th day of March, 2001, amends the
Product Development and Reseller Agreement dated April 7, 2000 ("Reseller
Agreement") that was executed by and between Genomica Corporation ("Genomica")
and PE Corporation, by and through its PE Biosystems divisions, as follows:
WHEREAS, the parties wish to amend certain terms of the Reseller Agreement;
THEREFORE, the parties agree as follows:
1. Name Change Amendment. All relevant Sections of the Reseller Agreement
shall be amended to incorporate the name change executed by PE Corporation,
changing PE Biosystems to "Applied Biosystems, Inc." (hereinafter "ABI"). In
the Reseller Agreement, all references to "PE Biosystems" are hereby amended to
"Applied Biosystems, Inc." and all references to "PEB" are hereby amended to
"ABI."
2. Consulting and Services Further Terms - ABI acknowledges that Genomica
has, since the execution of the Reseller Agreement until the date of this
Amendment, allocated substantial resources and incurred costs in support of ABI
achieving the Sales Milestones under the Agreement. These resources and costs
include, but are not limited to, Genomica employees' ongoing time and effort
associated with developing marketing collateral, travel, training the ABI sales
force, participating in joint ABI/Genomica marketing meetings, and resolving
product integration issues, which are deemed by the parties to be over and above
that otherwise required of Genomica in the Reseller Agreement ("Extraordinary
Services"). ABI agrees to compensate Genomica for these Extraordinary Services
incurred in the first calendar quarter of 2001 by paying Genomica a one-time fee
of [***], payable within a reasonable time.
3. Sales Milestones Amendment. Section 2.2 ("Conditional Exclusivity") is
hereby amended and replaced in its entirety by the following:
2.2 Conditional Exclusivity
ABI and Genomica acknowledge and agree that the grant of Exclusive
distribution rights under Section 2.1 herein is in consideration of ABI's
on-going achievement of the Sales Milestones, as defined in Exhibit D.
In the event that ABI fails to either (i) achieve a Sales Milestone in
two (2) consecutive quarters, or (ii) achieve 75% of the aggregate Sales
Milestones for four (4) consecutive quarters, Genomica may, at its sole
discretion, elect to cause this Agreement to change from conditionally
Exclusive to a
* Confidential Treatment Requested
non-exclusive Agreement for the remainder of the term of the Agreement.
For the period from the second quarter of 2001 through the first quarter
of 2002, inclusive, ABI may choose to fulfill its Sales Milestone
obligations by remitting quarterly payments to Genomica equal to the
number of Genomica Product and Technical Support and Maintenance
contracts that were to be sold by ABI for that quarter multiplied by the
agreed upon fees for Genomica Product and Technical Support and
Maintenance contracts to be paid to Genomica pursuant to Exhibit D.
4. Conditional Exclusivity Payment Further Terms.
Genomica agrees to accept from ABI a one-time payment of [***], payable
promptly following execution of this Amendment and in lieu of any other
payment or consideration that may otherwise be called for under the
Reseller Agreement or this Amendment, thereby allowing ABI to maintain
its conditional exclusivity under the Reseller Agreement and nullifying
any consequence under the Reseller Agreement for failing to meet any
requirements for retention of exclusivity. Following this payment of
[***], ABI's responsibility to meet its Sales Milestones pursuant to
Exhibit D, or to fulfill its milestone obligations by making the
quarterly payments specified in Section 2.2, shall commence on April 1,
2001, as noted under Section 3 above of this Amendment.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.]
* Confidential Treatment Requested
5. Exhibit D. Both tables in Exhibit D shall be amended as follows:
Product Description Price
-----------------------------------------------------------------------------------------
Genomica Product - List Price [***] list price per unit
Genomica to receive [***] of the [***] price.
-----------------------------------------------------------------------------------------
Genomica Product - Package Price [***] package price per unit
[***] when [***] with AB hardware [***] to Genomica to receive [***] of the [***] price.
GeneMapper (e.g. [***])
-----------------------------------------------------------------------------------------
Genomica Product - Multiple Units [***] multiple units price per unit
Price
[***] for any [***] that [***] or more Genomica to receive [***] of the [***] price.
LinkMapper [***] at [***]. This price
applies only to [***] purchased [***]
the [***]. The [***] is priced per
boxes one or two above.
-----------------------------------------------------------------------------------------
Technical Support and Maintenance [***] per Genomica Product per year
Agreement
[***] Genomica Product units [***] be Genomica to receive [***] of [***] price
sold with the Technical Support North America and Europe for the first
and Maintenance fee. year, and 100% in subsequent years.
Genomica will be responsible for customer
invoicing and collections beginning on
the anniversary date of year 1 and in all
subsequent years in North America and
Europe.
Genomica to receive [***] of [***] price for
outside of North America and Europe for
the first and subsequent years.
ABI will be responsible for customer
invoicing and collections for all support
contracts sold outside of North America
and Europe.
-----------------------------------------------------------------------------------------
*Confidential Treatment Requested
Sales Milestones
Sales Milestone
----------------------------------------------------------------------------
Q2'01 [***] product and maintenance agreements sold
----------------------------------------------------------------------------
Q3'01 [***] product and maintenance agreements sold
----------------------------------------------------------------------------
Q4'01 [***] product and maintenance agreements sold
----------------------------------------------------------------------------
Q1'02 [***] product and maintenance agreements sold
----------------------------------------------------------------------------
Q2'02 [***] product and maintenance agreements sold
----------------------------------------------------------------------------
Q3'02 TBD 30 days prior to Q3'02
----------------------------------------------------------------------------
Q4'02 TBD 30 days prior to Q3'02
----------------------------------------------------------------------------
Q1'03 TBD 30 days prior to Q3'02
----------------------------------------------------------------------------
Q2'03 TBD 30 days prior to Q3'02
----------------------------------------------------------------------------
6. Entire Agreement. This Amendment, together with the Reseller
Agreement, constitutes the final, complete and exclusive statement of the
agreement between the parties pertaining to their subject matter and supersedes
any and all prior and contemporaneous understandings or agreements of the
parties.
7. Modification. This Amendment may be supplemented, amended or modified
only by the mutual agreement of the parties. No supplement, modification or
amendment of this Amendment shall be binding unless it is in writing and signed
by both parties.
8. Inconsistency. In the event of any conflict between this Amendment and
the Reseller Agreement, the terms of this Amendment shall govern.
9. Reseller Agreement Continuance. Except with respect to the changes
effected by this Amendment, the Reseller Agreement continues to remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be signed
by duly authorized officers or representatives on March 30, 2001.
[GENOMICA] [APPLIED BIOSYSTEMS, INC.]
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
--------------------------------------- ---------------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: EVP of Commercial Development Title: Vice President
Date: March 30, 2001 Date: March 30, 2001
*Confidential Treatment Requested
