1
EXHIBIT 10.1(i)
AGREEMENT
AGREEMENT made this 6th day of November, 1998 by and between VWR
SCIENTIFIC PRODUCTS, INC., a _______________ corporation, with offices at 0000
Xxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000 ("VWR"), and MOLECULAR
CIRCUITRY, INC., a Delaware corporation, with offices at 000 Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxxx 00000 ("MCI").
Background
On October 12, 1998, the parties entered into an agreement for the
distribution by VWR of an instrument, called the MC-18, and associated test kits
produced by MCI (hereinafter the "Prior Agreement"). Under the terms of the
Prior Agreement, VWR will engage in a variety of sales and marketing activities
and will invest certain sums specified therein for product launch and annual
marketing expenses. MCI will sell the instruments and test kits to VWR and
provide field support and certain warranties.
In exchange for worldwide distribution rights granted to VWR during the
term of the Prior Agreement, the parties provide for their joint agreement on
pricing for the instrument and test kits, 6 month and annual sales goals and a
program for sales and marketing.
The parties now wish to provide for the right of MCI to terminate the
Prior Agreement upon a change of control of VWR, a change of VWR's business
activities or VWR's failure to meet the sales objectives established by the
parties or certain other circumstances.
NOW, THEREFORE, in consideration of the above premises and of the
mutual covenants contained herein and in the Prior Agreement, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Incorporation of Prior Agreement and Background. The Prior
Agreement and the Background set forth above are hereby incorporated by
reference into this Agreement and made a part hereof.
2. Termination by MCI.
a. In the event of the occurrence of any of the
following, MCI shall have the right, by written notice to VWR, to terminate the
Prior Agreement. Such termination shall be effective on the 60th day after
notice of termination from MCI to VWR, or on such earlier date as MCI shall
specify in such notice: (i) a "change of control" of VWR; (ii) VWR shall cease
to engage in the business of the sale and distribution of laboratory and
diagnostic testing equipment; (iii) VWR shall fail to achieve the sales of
instruments or associated test kits set forth in any 6 month or 12 month sales
goal; (iv) VWR shall breach any provision of the Prior Agreement and fail to
correct the same within 30 days after notice thereof from MCI; or (v) VWR shall
become bankrupt or insolvent.
b. As used in subparagraph (a), the term "change of
control" shall mean and include any act or transaction affecting VWR or any
successor entity whereby either: (i) the shareholders of VWR immediately prior
to the occurrence of such act or transaction shall cease to be able to cast a
majority of the votes able to be cast by all shareholders of VWR at any regular
or special meeting of shareholders or VWR (or its successor entity) on all
matters presented to the shareholders for a vote; or (ii) persons constituting a
majority of the members of the Board of Directors of VWR immediately prior to
such act or transaction shall cease to constitute a majority following, or as a
consequence of, such act or transaction. VWR shall notify MCI promptly of any
"change of control" of VWR.
c. For purposes of this Agreement, achievement of a
sales goal shall be determined based on revenues received by VWR from the sales
of instruments and/or test kits during the 6 month or 12 month period in
question. Within 45 days after the end of each 6 month period, VWR shall certify
to MCI revenues received by it from such sales, indicating the number of
instruments, cartridges and reagent packs sold and the revenues derived from
each. Such determination shall be made on an accrual basis in accordance with
generally accepted accounting principles, consistently applied with past
periods.
d. As used herein, the term "bankruptcy" or
"insolvency" shall mean, with respect to an entity, an entity: (a) that (i)
makes a general assignment for the benefit of creditors; (ii) files a voluntary
bankruptcy petition; (iii) becomes the subject of an order for relief or is
declared insolvent in any federal or state bankruptcy or insolvency proceedings;
(iv) files a petition or answer seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
law; (v) files an answer or other pleading admitting or failing to contest the
material allegations of a petition filed
2
against it in a proceeding of the type described in subclauses (i) through (iv)
of this clause (a); or (vi) seeks, consents to or acquiesces in the appointment
of a trustee, receiver, or liquidator or of all or any substantial part of its
properties; or (b) against which, a proceeding seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any law has been commenced and 120 days have expired without
dismissal thereof or with respect to which, without the entity's consent or
acquiescence, a trustee, receiver, or liquidator of or for it or all or any
substantial part of its properties has been appointed and 90 days have expired
without the appointment's having been vacated or stayed, or 90 days have expired
after the date of expiration of a stay, if the appointment has not previously
been vacated.
3. Notices. All notices required or permitted to be given
under this Agreement shall be in writing and shall be deemed given or delivered
when transmitted personally, one business day after being delivered to a
nationally-recognized courier service guaranteeing overnight delivery or sent by
facsimile machine with confirmation of receipt and with a copy sent by certified
mail as herein provided, or 4 business days after being deposited in the United
States mail, sent by first-class, certified or registered mail, in all events
addressed to the parties at the addresses set forth at the introduction to this
Agreement as follows:
a. If to VWR: c/o Xxxxxx X. Xxxxxxxxx, Senior Vice
President; Facsimile No.: (610) _____-____.
b. If to MCI, to: Xxxxxxx X. Xxxxxx, President;
Facsimile No.: (000) 000-0000, or to such other person or at such other address
as either party shall, from time-to-time, designate to the other by due notice,
such notice to be effective 10 days after having been given.
4. Miscellaneous.
a. This Agreement shall and the Prior Agreement shall
be governed and construed by, and in accordance with, the laws of the
Commonwealth of Pennsylvania.
b. This Agreement and the Prior Agreement shall be
binding upon, and inure to the benefit of, the parties and their respective
successors and assigns, provided that neither this Agreement, nor the Prior
Agreement, nor any rights, duties or obligations hereunder or thereunder, may be
assigned by either party, including assignments by operation of law, without the
express written consent of the other. This Agreement and the Prior Agreement may
only be amended or modified by an instrument in writing, signed by both parties
hereto.
c. No waiver by any party to this Agreement or the
Prior Agreement of any condition, or the breach of any term or covenant
contained in this Agreement or the Prior Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed or construed as a
further or continuing waiver of any such condition or breach or waiver of any
other condition.
d. This Agreement and the Prior Agreement constitute
the entire agreement and understanding of the parties with respect to the
subject matter hereof and thereof and supersede all prior or contemporaneous
agreements, understandings, inducements or conditions, express or implied, oral
or written.
e. Except as specifically herein provided, the Prior
Agreement shall remain in full force and effect and shall not be deemed amended
or modified hereby.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed by its duly authorized officer on and as of the day and year first
above written.
VWR SCIENTIFIC PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Marketing
MOLECULAR CIRCUITRY, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman
-2-
