Exhibit 10.18
MEMORANDUM OF AGREEMENT
FOR STRATEGIC COLLABORATION
This Memorandum of Agreement ("Agreement") made as of October 16th, 2001
(the "Effective Date") by and between XXXXXXXXX IMAGING, INC., a Delaware
corporation, with a place of business at 0000 XxXxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx ("XXXXXXXXX IMAGING") and BRUKER AXS INC., a Delaware corporation,
with a place of business at 0000 Xxxx Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000
(hereinafter "BAXS"); collectively, the "Parties", severally, a "Party".
WHEREAS, XXXXXXXXX IMAGING has been a supplier to BAXS for certain CCD
Image detectors and devices in the field of X-Ray Crystallography ("Devices"
and/or "Products"), necessary to BAXS's successful prosecution of its business;
and
WHEREAS, BAXS wishes to be a preferred customer and assured of a source of
supply of these Products and Devices; and
WHEREAS, XXXXXXXXX IMAGING wishes to be a preferred R&D and Supply partner
to BAXS in the field of X-Ray Crystallography; and
WHEREAS, the Parties desire to establish a mutually exclusive agreement to
assure BAXS an exclusive source of supply, and assure XXXXXXXXX IMAGING an
exclusive right to sell the Products, and to provide a framework document under
which the Parties may expeditiously process and administer orders;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the Parties hereby agree as follows:
1.0 SCOPE OF EXCLUSIVITY.
1.1 XXXXXXXXX IMAGING agrees during the term of this Agreement not to
sell the Products identified herein, or any improvements thereof,
for X-Ray Crystallography without the prior consent of BAXS.
1.2 BAXS agrees to purchase CCD based detector Products exclusively from
XXXXXXXXX IMAGING.
1.3 XXXXXXXXX IMAGING and BAXS acknowledge the contracts with other
parties that predate this Agreement. Said contracts may continue
through their natural expiration.
2.0 CONDITIONS OF EXCLUSIVITY:
2.1 XXXXXXXXX IMAGING SHALL:
a) Provide competitive technology at competitive prices;
b) Maintain an active research and development activity in CCD
based imaging detectors;
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS
EXHIBIT, WHICH PORTIONS HAVE BEEN OMITTED AND REPLACED WITH [**] AND FILED
SEPARATELY WITH THE COMMISSION.
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c) Consistently deliver Products meeting the camera performance
specifications incorporated into any current or resulting
order;
d) Provide BAXS preferred customer status;
e) Provide training and warranty service for Products as agreed
to in any current or resulting order.
2.2 BAXS SHALL:
a) Provide orders so as to generate no less than the following
annual revenue to Xxxxxxxxx Imaging:
YEAR MINIMUM REVENUE
---- ---------------
2002 $[**]M
2003 $[**]M
2004 $[**]M
2005 $[**]M
b) Honor existing Orders/Agreements and issue new orders
sufficient to attain the annual revenue levels
c) Provide XXXXXXXXX IMAGING the right of first refusal on new
CCD detector development projects for the field of X-ray
Crystallography; and
d) Meet all credit, financial and payment obligations from any
resulting purchase order or subcontract.
3.0 RELEASE OF EXCLUSIVITY:
3.1 The purchase and sale obligations of this Agreement shall be on a
mutually exclusive basis for the Products for so long as the
conditions set forth in Section 2.0 hereto are met. Solely with
respect to the exclusivity provisions provided herein, in the event
that either party does not satisfy the requirements of Section 2.0,
the other party may terminate its exclusivity obligations under
Section 1.0 hereof by written notice to the other. If within ninety
(90) days after such notice the party in violation of this
Exclusivity clause has not cured the default within said notice
period, such termination shall be effective for the remaining term
of this Agreement and for any extensions hereof.
3.2 Any termination of this Agreement shall have no effect on any
outstanding Purchase Orders or Supply Agreements in effect at the
time of said termination.
3.3 Except as limited by Section 1.0, it is understood that neither
party shall be precluded from its normal marketing and/or purchasing
efforts in connection with the sale of its products and/or services.
3.4 Each party shall act as an independent contractor. No agency,
partnership, joint venture or other joint relationship is created by
this Agreement. Except as may be specifically contracted under
separate order or agreement, neither party shall be liable to the
other for any costs, expenses, risks or liabilities, including
special, consequential, or incidental damages, arising out of the
other parties efforts in connection with this Agreement.
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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4.0 PLACEMENT OF ORDERS. BAXS will purchase additional Products by issuance
of BAXS's Purchase Order or Subcontract (herein "Order") which shall be in
writing and contain the following information: (i) identity of Products by
quantity, part number, description and charges, (ii) shipment instructions
(including destination, and requested delivery dates in accordance with
XXXXXXXXX IMAGING's standard or quoted lead times), and (iii) "special
provisions" to any given Order upon mutual agreement of the parties. The
parties agree to establish mutually agreeable terms and conditions for
each Order and/or Supply Agreement, including the 486 CCD Backside Thinned
Camera Supply Agreement. Any new Orders placed and accepted pursuant to
this Agreement shall be subject to the terms and conditions as negotiated
therein
5.0 ORDER OF PRECEDENCE. Once accepted by XXXXXXXXX IMAGING, each new Order is
a separate contract between BAXS and XXXXXXXXX IMAGING. With respect to
any New Order accepted by XXXXXXXXX IMAGING, in the event of any conflict
between the terms of this Agreement and the Order Terms and Conditions as
described and identified in Section 4.0 above, the Order Terms and
Conditions shall take precedence and control. In the event of conflict
between any provision of this Agreement itself and/or the Product
Specification set forth as part of any new Order, the conflict will be
resolved by giving precedence to the Product Specification.
6.0 PLANNING.
6.1 During the term of this Agreement the parties agree to meet no less
frequently than semiannually to discuss and update its business
strategies and forecast. The areas of discussion shall be: Market
requirements, technology, production planning, product development
and other items as mutually agreed upon.
6.2 BAXS shall provide on a monthly basis a rolling 12 month forecast of
Product requirements. The requirements of the first three months
shall be firm with the remaining 9 months deemed as advisory.
7.0 TERM OF AGREEMENT. This Agreement becomes effective upon the Effective
Date and, unless otherwise agreed to in writing by the parties, will
continue through December 31, 2005 (the "Term"), unless sooner terminated
in accordance with Section 3.1 herein.
8.0 PROPRIETARY INFORMATION. In carrying out the terms of this Agreement, each
party contemplates that it may be necessary to disclose proprietary
information to the other. The parties wish to protect such proprietary
information from unauthorized use and disclosure and accordingly, neither
party shall disclose to any person or persons outside its organization, or
to any person or persons within its organization not having a need to know
for the purposes of this Agreement, any information or data which is
submitted in writing and designated by an appropriate stamp, marking, or
legend thereon to be of a proprietary nature or, which is orally submitted
and identified as proprietary provided that the disclosing party notifies
the receiving party in writing specifically identifying such proprietary
information so orally submitted within thirty (30) days of the oral
submission or disclosure. In addition, the receiving party shall use
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such information only as contemplated by this Agreement. This section 8.0
shall remain in full force and effect after any expiration or termination
of the agreement.
9.0 SUCCESSORS AND ASSIGNS. Except as expressly provided in this Agreement,
the provisions of this Agreement shall be binding upon, and inure to the
benefit of, the Parties and their respective successors and assigns;
provided, however, that no Party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
written consent of the other Party. Notwithstanding the foregoing, either
Party may freely assign this Agreement and the rights and obligations
hereunder to any successor or through merger or otherwise or acquisition
of all, or substantially all, of the business or assets of the assigning
party.
10.0 APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the California, exclusive of its Conflicts of
Laws provisions.
11.0 ENFORCEMENT OF PROVISIONS. The failure on any occasion by the BAXS or
XXXXXXXXX IMAGING to enforce any provision of or exercise any rights
reserved in this Agreement or comparable provisions or rights in any prior
agreement between the parties will not prevent their assertion on any new
occasion.
12.0 FORCE MAJEURE. The obligations of the parties hereunder shall be suspended
by the occurrence of any unforeseeable event beyond the control of the
parties which renders performance impossible or onerous, such as acts of
God, or, riot, sabotage, fire, explosion, flood, casualty, inability to
obtain suitable and sufficient labor or materials due to labor strikes or
difficulties, or law or regulation restricting performance.
13.0 TITLES AND HEADINGS. The headings to the sections of this Agreement are
inserted for convenient reference only and will not be considered a part
of this Agreement.
14.0 DISPUTES. The Parties shall endeavor to resolve disagreements amicably. In
the event that the Parties disagree as to their respective obligations
and/or one or more of the terms of this Agreement and this disagreement
has not been resolved by mutual communication between the Parties, the
Parties shall declare a "dispute" and refer the matter to their respective
Chief Executive Officers who shall thereafter confer in an effort to
resolve the dispute amicably. Such discussions shall occur prior to the
institution of any legal proceedings unless an emergent condition exists
and/or such discussions cannot be scheduled within a reasonable time
period.
15.0 ENTIRE AGREEMENT. This Agreement, including its Attachments and referenced
documents, constitutes the sole and entire agreement between the parties
concerning the subject matter and supersedes all communications or
agreements written or oral. This Agreement shall not be amended nor shall
any waiver of any right hereunder be effective, unless set forth in a
document executed by duly authorized representatives of both parties,
referencing this Agreement, and denoted as an "Amendment".
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The signatory for each of the parties certifies that he or she has authority to
bind the respective party to this Agreement.
IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
SELLER: BUYER:
XXXXXXXXX IMAGING, INC. BRUKER AXS INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxx
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Printed Name: Xxxxxxx X. Xxxxxxx Printed Name: Xxxxxx Xxxxx, Ph.D.
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Title: President & CEO Title: President & CEO
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Date: 10/16/01 Date:
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