Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
Exhibit No. 10.46
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
INTERNATIONAL SALES REPRESENTATIVE AGREEMENT
THIS INTERNATIONAL SALES REPRESENTATIVE AGREEMENT is made and entered into as
of February 4, 2002 (the "Effective Date"), by and between GENAISSANCE
PHARMACEUTICALS, INC., a Delaware corporation having its offices at Five
Science Park, New Haven, Xxxxxxxxxxx 00000, Xxxxxx Xxxxxx ("Genaissance"),
and Intec Web and Genome Informatics Corporation, a Japanese company having
its offices at 0-0-0, Xxxxxxxx, Xxxx-xx Xxxxx 000-0000 Xxxxx
("Representative").
WITNESSETH:
In consideration of the mutual covenants and conditions herein contained,
and intending to be legally bound hereby, Genaissance and Representative (the
"Parties") mutually agree as follows:
1. PRODUCTS, PRICES AND TERRITORY.
(a) Genaissance hereby appoints Representative on a non-exclusive basis as an
authorized sales representative for the Customers, as defined below, to promote
the sales and licensing of all the products and services compiled and/or
rendered by Genaissance (collectively the "Products"), as such Products may be
modified and supplemented from time to time and as further described in Exhibit
A hereto.
Representative may approach or otherwise contact (i) a prospective entity
customer in Japan (the "Territory"), (ii) an entity controlled, directly or
indirectly, by such prospective entity customer whether within or outside the
Territory, (iii) an entity that controls, directly or indirectly, such
prospective entity customer whether within or outside the Territory and (iv) an
entity, directly or indirectly, under common control with such prospective
entity customer (collectively "Prospective Customers"). For this purpose,
"control" of any entity means ownership of a majority of the voting power of the
entity. Before approaching or otherwise contacting a Prospective Customer,
Representative
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
shall: (i) inform Genaissance in writing; and (ii) obtain Genaissance's written
approval to pursue sales or licenses of Products from the Prospective Customer.
If Genaissance refuses for Representative to pursue sales or licenses of
Products from such Prospective Customer, Genaissance shall inform Representative
of the reason of such refusal. If Genaissance fails to reply to Representative's
notification on the Prospective Customer within one week after the notification
by Representative, approval shall be deemed given by Genaissance. For the
purposes of this Agreement, a "Customer" is a Prospective Customer approved by
Genaissance in accordance with this Section 1(a).
After the first (1st) anniversary of the Effective Date, the Parties will
discuss the possibility of granting Representative exclusive rights, or entering
into other business arrangements including without limitation a possible joint
venture between the Parties.
(b) During the term of this Agreement, Genaissance shall first contact and
negotiate with Representative for possible participation in investing a company
to be established by Genaissance or entering into other business arrangements
(including without limitation a possible joint venture between the Parties) for
the Products in the Territory.
(c) Prices furnished by Genaissance to Representative for presentation to
Customers shall be computed so as to include the commissions payable to
Representative hereunder. Representative and Genaissance may consult from time
to time on such prices, but Genaissance maintains full power to change such
prices from time to time, in its sole discretion, so long as Genaissance
provides Representative with at least sixty (60) days prior notice of each such
change. Unless prior written approval is granted by Genaissance, Representative
shall quote only the prices furnished by Genaissance and then in effect. Initial
prices for the Products are set out in Exhibit A hereto. Genaissance shall send
to Representative its final prices for the Products to a Customer for a
particular order within one week after the request by Representative to decide
the final prices for the Products for such order.
(d) Products shall only be provided to those Customers who have executed an
English language end-user agreement ("User Agreement"). User Agreement shall be
between a Customer and Genaissance. Representative shall not be a party to such
User Agreement and is not authorized to negotiate or execute such User Agreement
on behalf of Genaissance. A form of the User Agreement will be provided by
Genaissance within thirty (30) days of the Effective Date. Genaissance may amend
the form of User Agreement from time to time.
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(e) Representative shall not solicit orders for Products from a customer other
than a Customer. Representative shall not be entitled to any further commissions
on Products sold or licensed to non-Customers outside the Territory, even if
such Products are [**] into the Territory.
(f) The ultimate providing of the Products by Genaissance shall be subject to
the right and ability of Genaissance to provide such Products under all decrees,
statutes, rules and regulations of the government of the United States and the
agencies and instrumentalities thereof now or hereafter in effect which govern
exports or otherwise pertain to export controls. Any order for Products which
has been accepted by Genaissance but which cannot be fulfilled due to such
decrees, statutes, rules or regulations shall be considered to have been
rejected when submitted to Genaissance for acceptance or rejection.
2. COMPENSATION.
(a) Genaissance shall instruct a Customer to make any payment for the Products
in United States Dollars and to direct those payment to Genaissance. Upon
receiving such payment from a Customer, Genaissance shall pay to Representative
[**] percent of such payment as its commission within [**] after receiving by
Genaissance of each such payment. If a User Agreement concluded during the term
of this Agreement provides for a milestone payment or any other payment,
Genaissance shall pay to Representative [**] percent of such milestone payment
or any other payment excluding royalties received by Genaissance from Customers
on sales of commercial products within [**] after receiving by Genaissance of
each such payment even after the term of this Agreement.
(b) Commissions shall only be payable with respect to sales or licenses of
Products to Prospective Customers which are approved as Customers by Genaissance
in accordance with Section 1(a) above.
(c) No commission shall be payable on any orders that are canceled or terminated
for any reason not involving the fault of Genaissance. In addition,
Representative shall not be entitled to a commission on any order solicited by
Representative but which is received after the termination or expiration of this
Agreement, except in case of Section 2(a). Genaissance will discuss with
Representative the basis for reasonable cause for making such refunds on a
quarterly basis, or four (4) times per calendar year. After a commission has
been paid for a Product, if Genaissance refunds any or all of the price paid for
such Product to a Customer for reasonable cause, Genaissance shall then elect to
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
either: (i) credit the commission it paid for such Product against future
commissions which become payable in accordance with Section 2(a) above; or (ii)
ask Representative to repay to Genaissance such commission within thirty (30)
days after receiving notice of Genaissance's election.
(d) The payment of commissions as provided for in this Agreement shall at all
times be subject to such commissions being permitted and valid under the
policies, laws, orders, and regulations of the governments of the United States
and of jurisdictions in the Territory, and any agencies or instrumentalities of
such governments, in effect at the time the sales or licenses are made and at
the time the commissions become payable to Representative.
(e) Genaissance agrees to send to Representative all the copies of the User
Agreements entered into between Genaissance and Customers and, if the User
Agreements does not specify the prices therefore, the copies of the documents
showing the prices for the Products to enable amounts receivable by
Representative hereunder to be determined.
3. RELATIONSHIP OF THE PARTIES.
(a) Representative shall be considered to be an independent contractor. The
relationship between Genaissance and Representative shall not be construed to be
that of employer and employee, nor to constitute a partnership, joint venture or
agency of any kind. Neither Party shall have any right to enter into any
contracts or commitments in the name of, or on behalf of, the other Party, or
to bind the other Party in any respect whatsoever.
(b) Genaissance shall not reimburse Representative for any expenses which
Representative might incur in connection with: (i) soliciting orders for the
Products; or (ii) otherwise discharging its responsibilities under this
Agreement.
4. REPRESENTATIVE'S OTHER OBLIGATIONS.
(a) Representative shall use its best efforts to solicit orders for the Products
from the maximum number of responsible Customers in the Territory. Each order
received by Representative from a Customer shall be forwarded immediately to
Genaissance for negotiation and execution between Genaissance and such Customer.
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(b) Representative's primary function shall be to solicit orders for Products,
but Representative shall also, at the request of Genaissance, assist Genaissance
with collections and other functions. Representative shall dedicate full-time
employees as needed to learn about the Products and to take the training
provided by Genaissance in accordance with Section 5(a) below.
(c) Representative shall provide First Line Support for all of its Customers.
For the purposes of this Agreement, "First Line Support" shall mean services
responsive to Customers' initial notification that a suspected problem exists
with any Product, including without limitation: maintaining a telephone line on
an 8 hours a day, 5 days a week basis for Customers to report problems; call
logging; call validation; determining whether a solution is given in the
documentation provided by Genaissance with such Product; and a review of known
resolutions for each reported problem. Representative shall establish charges
for First Line Support as it sees fit. Genaissance shall not pay Representative
any commissions or other amounts for Representative performing First Line
Support, and Representative shall not be required to pay Genaissance any
commission, royalty or other amount on payments it receives for performing First
Line Support.
Gensaissance shall, when so requested by Representative, provide back-up
support with Representative free of charge for advice, consultation and
assistance to Representative to diagnosis and resolve the problems that a
Customer may encounter that Representative is unable to resolve.
(d) Genaissance hereby grants Representative the right to use the Products
during the term of this Agreement for demonstration purposes only.
Representative shall strictly comply with the User Agreement.
(e) Representative shall not obligate or purport to obligate Genaissance by
issuing or making any warranties or guaranties with respect to the Products to
any third party.
(f) Representative shall direct any inquiries, leads or other information
regarding potential orders of the Products outside the Territory to Genaissance.
Representative shall provide a hypertext link from its Internet web site to
Genaissance's Internet web site (in a form acceptable to Genaissance).
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(g) Representative shall provide Genaissance with a report of its business
progress and technical problems with respect to the Products on a quarterly
basis, and more frequently when requested.
(h) Representative is permitted to employ sub-representatives to increase orders
for the Products in the Territory. Representative will enforce any agreements
made with such sub-representatives and will be responsible for the performance
of such sub-representatives. Representative will inform Genaissance in writing
of its entering into each such agreement with a sub-representative, and will
provide Genaissance with a copy of each such agreement. Representative shall be
responsible for any and all commissions and other amounts which may become
payable to sub-representatives.
(i) Representative may, when Representative deems necessary, translate marketing
materials provided by Genaissance into the Japanese language. Representative
will obtain Genaissance's prior written approval of such translated marketing
materials prior to using or distributing those materials.
5. GENAISSANCE'S OTHER OBLIGATIONS.
(a) For each calendar year, Genaissance shall train up to [**] of
Representative's employees each calendar year to solicit orders for Products.
Such training shall not exceed [**] weeks per year, shall be provided for no
additional charge by Genaissance and shall be offered in the United States at
times designated by Genaissance. Additional training may be requested by
Representative at such times, duration and conditions as shall be decided upon
by mutual written agreement of Genaissance and Representative. Such training
shall be provided at Genaissance's U.S. facility, and Representative shall bear
all travel, lodging and related costs incurred by its employees in attending
such training. If Representative requests that any part of such training be
provided at a facility in the Territory and Genaissance agrees to that request,
then Representative shall reimburse Genaissance for all travel (business class
air fares), lodging and related expenses incurred by Genaissance in connection
with providing such training in the Territory.
(b) Genaissance shall send at least one (1) employee each calendar year to
provide Representative's employees with marketing and sales training, visit
Customers and/or speak at a Representative-sponsored event; PROVIDED, HOWEVER,
that the Parties enter into a mutual written agreement concerning the period,
times and other conditions of such visit.
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(c) Genaissance shall provide marketing materials to Representative for the
purpose of translating such materials into the local language(s) of the
Territory, at Representative's expense.
Genaissance shall have a royalty-free right to use such translated
materials for its own use during and after the term of this Agreement.
Genaissance may not have sales representatives appointed by Genaissance use such
translated materials at any time and in any manner.
(d) Genaissance shall notify in writing Representative of a name and address of
such sales representative(s) appointed by Genaissance for the Territory.
(e) Genaissance shall direct any inquiries, leads or other information regarding
potential orders of the Products in the Territory to Representative and any
other sales representatives of Genaissance which have been appointed for the
Territory. Genaissance shall provide a hypertext link from its Internet web site
to Representative's Internet web site (in a form acceptable to Representative).
6. TRADEMARKS, TRADE NAMES AND SERVICE MARKS; PROMOTION ON THE INTERNET.
(a) Representative shall use Genaissance's trade names, trademarks and service
marks as listed in Exhibit B hereto (hereinafter referred to as the
"Trademarks") in the Territory on a non-exclusive basis only for the term of
this Agreement and solely for display or advertising purposes in connection with
soliciting orders for the Products in accordance with this Agreement.
Representative may not use any other trademarks, trade names, service marks and
commercial symbols in connection with the marketing and promotion of the
Products hereunder, except for their own trademarks, trade names, service marks
and commercial symbols, which may not be larger or more prominently displayed
than the Trademarks. Representative shall not at any time do or permit any act
to be done which may in any way impair the rights of Genaissance in the
Trademarks.
(b) In order to comply with Genaissance's quality control standards,
Representative shall: (1) use the Trademarks in compliance with all relevant
laws and regulations; (2) obtain Genaissance's prior written consent before each
use of the Trademarks; (3) accord Genaissance the right to inspect during normal
business hours, without prior advance notice, any facility used by
Representative in connection with efforts to solicit orders for the Products in
order to confirm that Representative's use of such Trademarks is in compliance
with this provision; and (3) not modify any of the Trademarks in any way and
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
not use any of the Trademarks on or in connection with any goods or services
other than the Products.
(c) Representative shall follow Genaissance's instructions with respect to each
of the following: (i) use of any information about Genaissance, the Products
available on the Internet; (ii) linking of any site on the Internet to any site
on the Internet established, operated or sponsored by Genaissance; and (iii) use
of any of the Trademarks on any site on the Internet. Representative
acknowledges that it shall cease the activities described in (i), (ii) and/or
(iii) above, if so instructed by Genaissance.
(d) In no event shall Representative: (i) establish, operate, sponsor or
contribute content to any site on the Internet which incorporates the word
"genaissance," any of Genaissance's trademarks, service marks or trade names
(the "Marks") or any variation or part of such word or Xxxx as its URL address
or any part of such address; (ii) register any domain name which incorporates
the word "genaissance" or the Marks (and Representative hereby agrees to
transfer such domain name to Genaissance if it breaches this provision); (iii)
register any of Genaissance's Marks or any Marks that are confusingly similar to
any of the word "genaissance" or Genaissance's Marks; (iv) form (or change the
name of) any corporation or other entity under or to a name which incorporates
any of the word "genaissance" or Genaissance's Marks; or (v) upon termination or
expiration of this Agreement, use "genaissance", any Marks or any variation
thereof or part thereof as a meta-tag in order to attract visitors to any site
on the Internet.
(e) Genaissance shall use trade names, trademarks, service marks and commercial
symbols of Representative in connection with the marketing and promotion of the
Products in the Territory hereunder
7. CONFIDENTIALITY; PUBLICITY.
(a) Representative agrees that Genaissance has a proprietary interest in any
information provided to Representative by Genaissance, whether in connection
with this Agreement or otherwise, whether in written, oral or visual form, which
is (i) a trade secret, confidential or proprietary information, (ii) not
publicly known, and (iii) annotated by a legend, stamp or other written
identification as confidential or proprietary information, or if disclosed
orally or visually, is followed by a written statement within thirty (30) days
after its disclosure that it is confidential or proprietary (hereinafter
referred to as "Proprietary Information"). Representative shall disclose the
Proprietary Information
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
only to those of its sub-representatives, agents and employees to whom it is
necessary in order properly to carry out their duties as limited by the terms
and conditions hereof. Both during and after the term of this Agreement, all
disclosures by Representative to its sub-representatives, agents and employees
shall be held in strict confidence by such agents and employees. During and
after the term of this Agreement, Representative, its sub-representatives,
agents and employees shall not use the Proprietary Information for any purpose
other than in connection with Representative's activities in the Territory
pursuant to this Agreement. Representative shall, at its expense, return to
Genaissance the Proprietary Information as soon as practicable after the date of
termination or expiration of this Agreement. All such Proprietary Information
shall remain the exclusive property of Genaissance during the term of this
Agreement and thereafter. This Section shall also apply to any consultants or
subcontractors that Representative may engage in connection with its obligations
under this Agreement.
(b) Notwithstanding anything contained in this Agreement to the contrary,
Representative shall not be liable for a disclosure of the Proprietary
Information of Genaissance, if the information so disclosed: (i) was in the
public domain at the time of disclosure without breach of this Agreement; or
(ii) was known to or contained in the records of Representative from a source
other than Genaissance at the time of disclosure by Genaissance to
Representative and can be so demonstrated; or (iii) becomes known to
Representative from a source other than Genaissance without such source
breaching its own confidentiality obligations to Genaissance and can be so
demonstrated; or (v) to the extent required by court order or as otherwise
compelled by law, after giving Genaissance prior written notice of such required
disclosure and after assisting Genaissance in its reasonable efforts to prevent
or limit such disclosure.
(c) Representative agrees that any publicity or advertising in which Genaissance
or the Products are identified shall be in accordance with the terms of this
Agreement and with any information or data which Genaissance has furnished in
connection with this Agreement. Representative shall obtain Genaissance's prior
written approval of all such publicity, such approval not to be unreasonably
withheld or delayed.
8. TERM AND TERMINATION.
(a) The term of this Agreement shall begin on the Effective Date and shall end
on the [**] anniversary of the Effective Date, unless terminated earlier
pursuant to the terms of this Section 8. At the end of the [**] year initial
term, the term will be automatically
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
extended for [**], unless either Party gives written notice to the other Party
60 days prior to the expiration of the [**] year initial term or any subsequent
term that it does not wish to this Agreement to continue in effect.
(b) Upon the occurrence of a material breach or default as to any obligation
hereunder by either Party and the failure of such breaching Party to promptly
pursue (within thirty (30) days after receiving written notice thereof from the
non-breaching Party) a reasonable remedy designed to cure (in the reasonable
judgment of the non-breaching Party) such material breach or default, this
Agreement may be terminated by the non-breaching Party by giving written notice
of termination to the breaching Party, such termination immediately effective
upon the giving of such notice of termination.
(c) Upon the filing of a petition in bankruptcy, insolvency or reorganization
against or by a Party, or a Party becoming subject to a composition for
creditors, whether by law or agreement, or a Party going into receivership or
otherwise becoming insolvent, this Agreement may be terminated by the other
Party by giving written notice of termination to the Party subject to such
event, such termination immediately effective upon the giving of such notice of
termination.
(d) In the event of the occurrence of a material change in control or management
or operating personnel of either Party (the "changed Party"), such party shall
notify the other Party of such occurrence in writing within ten (10) calendar
days thereafter. If, in the reasonable opinion of the other Party, such change
in control or management or operating personnel of the changed Party could have
a material adverse effect on the business, prospects or operations of the
changed Party and if the changed Party fails to promptly pursue (within ninety
(90) days after receiving written notice thereof from the other Party) a remedy
designed to cure (in the sole judgement of the other party) the other Party's
objections to such change, this Agreement may be terminated by the other Party
by giving written notice of termination to the changed Party, such termination
being immediately effective upon the giving of such notice of termination. For
the purposes of this provision, "control" shall mean (i) when the changed Party
is a corporation, where an organization owns or controls a majority of the
voting shares of such Party directly or indirectly; or (ii) when the changed
Party is a partnership, where an organization directly or indirectly owns or
controls a majority-in-interest of such partnership.
(e) Expiration or termination of this Agreement shall not affect the right or
obligation of either Party which has accrued prior to such expiration or
termination.
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(f) In the event of a termination or upon expiration of this Agreement,
Genaissance shall not have any obligation to Representative, or to any employee
or sub-representative of Representative, for compensation or for damages of any
kind, whether on account of the loss by Representative or such employee
sub-representative of present or prospective sales, licenses, investments,
compensation or goodwill as a result of such termination or expiration.
Representative, for itself and on behalf of each of its employees and
sub-representatives, hereby waives any rights which may be granted to it or them
under the laws and regulations of United States, any jurisdiction in the
Territory or otherwise which are not granted to it or them by this Agreement.
Representative hereby indemnifies and holds Genaissance harmless from and
against any and all claims, costs, damages and liabilities whatsoever asserted
by any employee, sub-representative or agent of Representative under any
applicable termination, labor, social security or other similar laws or
regulations.
(g) Notwithstanding anything else in this Agreement to the contrary, the Parties
agree that Sections 1(b), 2(a), 7, 8(e), (f) and (g) and 9 shall survive the
termination or expiration of this Agreement, as the case may be.
9. MISCELLANEOUS.
(a) This Agreement supersedes and cancels any previous agreements or
understandings, whether oral, written or implied, heretofore in effect between
the Parties and sets forth the entire agreement between the Parties. No
modification or change may be made in this Agreement except by written
instrument duly signed by a duly authorized representative of each Party.
(b) This Agreement may not be assigned, delegated, sublicensed or transferred,
whether by operation of law or otherwise, by either Party without the prior
written consent of the other Party, and any attempted assignment, delegation,
sublicense or transfer without such written consent shall be void and of no
effect; PROVIDED, HOWEVER, that Representative's consent shall not be required
with respect to any assignment, delegation or transfer by Genaissance to: (i)
any companies, natural persons, partnerships and other business entities
controlled by, under common control with or controlling Genaissance; or (ii) the
acquirer of all or substantially all of the capital stock or assets of
Genaissance related to the Products, through purchase, merger, consolidation or
otherwise. To the extent permitted by this provision, this Agreement shall inure
to the benefit of the successors and assigns of each Party.
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(c) This Agreement and any and all rights and obligations of the Parties in
respect of this Agreement shall be construed and governed according to, and any
arbitration or court action hereunder shall apply, the laws of the State of
Connecticut, U.S.A. applicable to contracts made and to be fully performed
therein.
(d) All disputes, controversies or differences which may arise between the
parties hereto, out of or in relation to or in connection with this Agreement,
or for the breach thereof, shall be finally settled by arbitration in Honolulu,
Hawaii in accordance with the commercial arbitration rules of the United Nations
Commission on International Trade Law. Each Party shall appoint an arbitrator
and the two arbitrators so appointed shall jointly appoint a third arbitrator;
PROVIDED, HOWEVER, that if they cannot agree (or if one party refuses to appoint
an arbitrator) within thirty (30) days after the initiation of the arbitration,
then this third arbitrator shall be appointed by the Presiding Judge of the
London Court of International Arbitration. The arbitrator(s) may proceed to an
award notwithstanding the failure of the either Party to participate in the
proceedings. Discovery shall be limited to mutual exchange of documents relevant
to the dispute, controversy or claim; depositions shall not be permitted unless
agreed to by both Parties. The arbitrators shall be authorized to grant interim
relief, including to prevent the destruction of goods or documents involved in
the dispute, protect trade secrets and provide for security for a prospective
monetary award. In no event shall punitive damages (including without limitation
multiple damages) be assessed against either Party. The prevailing Party shall
be entitled to an award of reasonable attorney fees incurred in connection with
the arbitration in such amount as may be determined by the arbitrators. The
award of the arbitrators shall be the sole and exclusive remedy of the Parties
and shall be enforceable in any court of competent jurisdiction, subject only to
revocation on grounds of fraud or clear bias on the part of the arbitrators.
Notwithstanding anything contained in this Section 9(d) to the contrary,
Genaissance shall have the right to institute judicial proceedings against
Representative or anyone acting by, through or under Representative, in order to
enforce Genaissance's rights hereunder through reformation of contract, specific
performance, injunction or similar equitable relief.
(e) All notices given under this Agreement shall be in writing and shall be
addressed to the Parties at their respective addresses set forth above, to
the attention of Senior Manager, Business Development on behalf of
Genaissance and to the attention of General Manager, Sales Department on
behalf of Representative, and shall be deemed given only if delivered by
hand, sent by facsimile transmission or mailed by registered or recorded
delivery international air mail letter, return receipt requested. Any such
notice: (i) if
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
given or made by registered or recorded delivery international air mail
letter shall be deemed to have been received on the earlier of the date
actually received and the date fifteen (15) calendar days after the same was
posted (and in proving such it shall be sufficient to prove that the envelope
containing the same was properly addressed and posted as aforesaid); (ii) if
hand delivered shall be deemed to have been received upon personal receipt
thereof; and (iii) if given or made by telecopy transmission shall be deemed
to have been received at the time of dispatch, unless such date of deemed
receipt is not a day on which banks are open for business in New Haven,
Connecticut, in which case the date of deemed receipt shall be the next
succeeding day on which banks are open for business in New Haven,
Connecticut. Either Party may change its address, telecopy number or contact
person for purposes of this Agreement by giving the other Party written
notice of its new address, telecopy number or contact person.
(f) None of the conditions or provisions of this Agreement shall be held to have
been waived by any act or knowledge on the part of either Party, except by an
instrument in writing signed by a duly authorized officer or representative of
such Party. Further, the waiver by either Party of any right hereunder or the
failure to enforce at any time any of the provisions of this Agreement, or any
rights with respect thereto, shall not be deemed to be a waiver of any other
rights hereunder or of any breach or failure of performance of the other Party.
(g) No rights or licenses with respect to the Products or the Trademarks are
granted or deemed granted hereunder or in connection herewith, other than those
rights expressly granted in this Agreement.
(h) Representative and its employees and sub-representatives agree to abide by,
the obligations imposed by the laws of the United States and jurisdictions in
the Territory dealing with payments to governments, political parties and
candidates, public international organizations, or related persons for the
purpose of obtaining or retaining business for or with, or directing business
to, any person, or for the purpose of securing any improper advantage.
Accordingly, Representative hereby warrants and represents to Genaissance that
no portion of any monies paid or payable to, or retained by, Representative in
connection with this Agreement shall, directly or indirectly, be paid, received,
transferred, loaned, offered, promised or furnished (hereinafter collectively
described as "paid"):
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(i) to or for the use of any officer or employee of a foreign government
or any department, agency, instrumentality or corporation thereof or
controlled thereby, or of a public international organization, or any
foreign political party or official of a foreign political party or any
candidate for a foreign political office, or any person acting for or on
behalf of any of the foregoing, or any person or firm who has paid or
will pay any portion thereof to any of the foregoing, for the purpose of
obtaining or retaining business for or with, or directing business to,
any person, or for the purpose of obtaining any improper advantage. This
subsection (i) does not apply to payments of nominal amount made to such
foreign officials the purpose of which is to expedite or secure the
performance of a routine governmental action; or
(ii) in any other manner which will violate the tax, currency, exchange,
commercial bribery, or other laws of the United States, any jurisdiction
in the Territory or any other applicable jurisdiction.
Representative shall keep complete and accurate records of all payments of any
kind made by it from or with respect to commissions received hereunder and such
records shall be subject to inspection and audit by Genaissance and its
representatives at any time for the purpose of confirming the compliance by
Representative with the U.S. Foreign Corrupt Practices Act. Representative shall
comply, and shall cause its personnel to comply, with all of Genaissance's
policies and standards of business conduct with respect to which Representative
may from time to time be notified.
(i) Each of Representative and Genaissance covenants that all of its activities
under or pursuant to this Agreement shall comply with all applicable laws, rules
and regulations. In particular, but without limitation, Representative shall be
responsible for obtaining all licenses, permits and approvals which are
necessary or advisable for the solicitation of orders for the Products in the
Territory and for the performance of its duties hereunder.
(j) If any provision of this Agreement is declared invalid or unenforceable by a
court having competent jurisdiction, it is mutually agreed that this Agreement
shall endure except for the part declared invalid or unenforceable by order of
such court. The Parties shall consult and use their best efforts to agree upon a
valid and enforceable provision which shall be a reasonable substitute for such
invalid or unenforceable provision in light of the intent of this Agreement.
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
(k) The party who is required to pay any taxes in the United States now or
hereafter imposed with respect to the commissions paid hereunder shall pay such
taxes. If Genaissance is required to withhold any taxes with respect to the
commission paid hereunder on behalf of Representative, Genaissance shall send to
Representative the appropriate certificates showing the payment of such taxes.
(l) This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(m) Neither Party shall be liable in damages, or shall be subject to termination
of this Agreement by the other Party, for any delay or default in performing any
obligation hereunder if that delay or default is due to any cause beyond its
reasonable control and without the fault or negligence of that Party; PROVIDED,
HOWEVER, that in order to excuse its delay or default hereunder, a Party shall
notify the other of the occurrence or the cause, specifying the nature and
particulars thereof and the expected duration thereof; and PROVIDED, FURTHER,
that within fifteen (15) calendar days after the termination of such occurrence
or cause, such Party shall give notice to the other Party specifying the date of
termination thereof. All obligations of both Parties shall return to being in
full force and effect upon the termination of such occurrence or cause. For the
purposes of this Section 9(l), a "cause beyond the reasonable control" of a
Party shall include, without limiting the generality of the phrase, any act of
God, act of any government or other authority or statutory undertaking,
industrial dispute, fire, explosion, accident, power failure, flood, riot or war
(declared or undeclared).
(n) All written material, correspondence, notices and oral assistance supplied
by either Party to the other Party hereunder shall be in the English language.
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement.
GENAISSANCE PHARMACEUTICALS, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: President and CEO
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
INTEC WEB AND GENOME
INFORMATICS CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: President
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
EXHIBIT A Description of Products and Initial Prices
PRODUCTS
HAP-TM- DATABASE
Customers will have non-exclusive access to part or all of the HAP-TM-
Database, a comprehensive catalog of HAP-TM- Markers in thousands of key
pharmaceutical genes. HAP-TM- Database includes (but is not limited to) key
pharmaceutical targets in the ADME, G-protein coupled receptor (GPCR),
immunomodulator, and nuclear receptor gene families. As of October 2001,
Genaissance has catalogued the variation in approximately 5,000 key
pharmaceutical genes. These HAP-TM -Markers are based on a reference
population, Genaissance's proprietary Index Repository, whiCH includes
individuals of diverse population groups. This population-based approach
allows Genaissance to generate HAP-TM- Markers that are valid for any
clinical trial, regardless of the makeup of the patient cohort.
The HAP-TM- Database is organized by gene. For each gene Genaissance portrays:
>> The genomic organization
>> The location of each SNP discovered in the index repository
>> The frequencies of the SNPs in each population group
>> The HAP-TM- Markers discovered for the gene
>> The HAP-TM- Markers' frequencies broken down by population group
For a gene entering into the HAP-TM- Database the starting point is knowledge
of the genomic organization. Where mapping information is unavailable (cDNA
to genomic DNA), a proprietary program called GeneBuilder-TM- is used TO
build and map genes, using public domain or proprietary sequence information.
Genaissance then performs sequence analysis for each exon, including
approximately 100 bp into the intron on either side; approximately 500 bp
upstream of the ATG; and approximately 500 bp downstream of the stop codon
for SNP variants.
The SNP and HAP-TM- Marker discovery process is applied to a subset of the
Index Repository, which includes over 500 individuals in total. This
repository is designed to be representative of the people who constitute the
major pharmaceutical markets of the world. To that end, the repository
consists of a distribution of individuals representing
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
four major population groups: Caucasian, Asian, African-American and
Hispanic/Latino. The standard discovery process is carried out using 93
humans from these four major groups, plus two non-human primates (a
chimpanzee and gorilla). Using the multi-SNP genotypes discovered in this
repository, Genaissance then determines haplotypes using a proprietary
program called HAP-TM- Builder.
Genaissance also `mines' SNP information from public databases such as the
SNP Consortium and dbSNP. In addition to gene variation data, we include gene
expression data, mined from GeneLogic's GeneExpress-TM- database, as well as
a variety of public domain gene annotations.
Any commercial use of HAP-TM- Marker data (i.e., for drug or diagnostic
products) by Customers will be the subjeCT of a separate agreement.
DECOGEN-TM- Informatics SystEM
The DECOGEN-TM- Informatics System is a proprietary software package that can
be used by Customers and Genaissance for viewing and analyzing a variety of
pharmacogenomic data. The DECOGEN-TM- Informatics System includes tools for
examining structural gene-based data, HAP-TM- Marker sequences and
frequencies, population based data (linkage disequilibrium, phylogenetic
relationships), clinical data (drug response, disease severity, adverse
events) and combinations of these three parameters.
The DECOGEN-TM- Informatics System serves the following functions:
>> Defines the project objectives and allows analysis of a selected set of
candidate genes
>> Designs the optimal HAP-TM- Typing strategy for the desired genes from
patient DNA samples
>> Allows patient HAP-TM-) Markers to be imported together with relevant
patient clinical data
>> Provides exploratory clinical tools that are used to find correlations
between HAP-TM- Markers and drug response
>> Includes full integration with SAS (Statistical Analysis Software package)
>> Is also compatible with all forms of SNP data, from either public or
client databases
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Proprietary and Confidential to Genaissance Pharmaceuticals, Inc.
These tools are intuitive and rapidly provide visual reports. The software
runs on typical desktop computers that are connected to a server that houses
the HAP-TM- Database and DECOGEN-TM- Informatics System. The DECOGEN-TM-
Informatics System allows the user to input data for each trial to generate
correlations with specific HAP-TM- Markers.
Drug Specific Partnership Programs
Genaissance also engages in partnerships focused on enhancing the value of a
customer's drug product(s). These products can either be in development or on
the market. In general, Genaissance brings significant clinical and genomics
expertise to the program, and will assist in the design, execution and
commercialization of the data and associations derived from the partnership. The
end strategy is customized to the customer's needs and will add value to the
drug product(s) that are the subject of the collaboration.
The two most frequent issues that impact a customer's specific drug development
programs are efficacy and safety (although other issues, such as dose ranging,
reformulation, etc. can also be addressed). Genaissance thus designs projects
around the customer's drug(s) that are designed to reveal associations between
specific genomic markers and drug response. For example, Genaissance can work
with a customer to identify genomic markers (haplotypes or SNPs) that are
predictive of an adverse event. Alternatively, genomic markers predictive of
good efficacy can be identified. The associations between genomic markers and
drug response can then be used to identify patients that will respond well to a
drug or patients that are less likely to experience an adverse event.
We envision these markers being formatted in a diagnostic test that is used to
drive uptake of the customer's drug in the appropriate patient population.
Diagnostic tests measuring markers for rare adverse events can be used to screen
out patients for which the drug is not safe, thus eliminating major safety
concerns in the remaining patient population. Either strategy can be tailored to
maximize the sales of the customer's drug, thus adding value to the customer and
further validating Genaissance's clinical genomics technology.
Genaissance has built an internal Medical Affairs group composed of clinicians,
statisticians, project managers and data analysts. In addition to overseeing the
company's internal drug development programs, this group also plays a major role
in the design and execution of drug specific partnerships. The Genaissance
medical staff will actively work with the customer to ensure that the partner's
needs are met and an open, transparent relationship is maintained. A Ph.D.-level
project manager will also be assigned to over
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see the Genaissance activities related to the partnership and serve as the key
relationship management contact.
The business model Genaissance applies to drug specific partnerships is very
flexible. We are willing to share risk and reward with the partner. Genaissance
generally expects to receive some or all of the following financial terms in a
drug specific partnership:
[**]INITIAL PRICES
HAP-TM- Partnership, including access to all data in the HAP-TM- Database and
non-exclusive license to DECOGEN-TM- Informatics System: [**] per year.
HAP FOCUS-TM- Partnership, non-exclusive access to HAP-TM- Marker data for
selected genes for research and development use only (maximum of [**] genes
per year): [**] per gene per year.
Non-exclusive license to DECOGEN-TM- Informatics System (not available as a
separate product in the absence OF access to HAP-TM Marker data): [**] per
year.
Drug Specific Partnership Programs: Prices will be determined after
discussions with potential partners.
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EXHIBIT B Genaissance Trademarks, Trade Names and Service Marks
DECOGEN
GENAISSANCE
G AND DESIGN
G GENAISSANCE PHARMACEUTICALS AND DESIGN
HAP
HAP FOCUS
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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
(Detach Certificate Here)
This document certifies that REPRESENTATIVE has received from Genaissance
Pharmaceuticals, Inc., a copy of the international sales representative
agreement between them dated _______________________.
INTEC WEB AND GENOME
INFORMATICS CORPORATION
By:
---------------------------------
Name:
Title:
Date:
-------------------------------
(Representative): Return Certificate to:
Genaissance Pharmaceuticals, Inc.
Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000
X.X.X.
Attention: Xxxxxxx X. Xxxxx
Senior Manager, Business Development
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