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EXHIBIT 10.7
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
OPTION AGREEMENT
This Option Agreement (the "Option Agreement") dated the 31st day of
July 2001 (the "Effective Date") is by and between Becton, Xxxxxxxxx and
Company, a corporation organized and existing under the laws of New Jersey and
having a place of business at 0 Xxxxxx Xxxxx, Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000
("BD") and TriPath Imaging, Inc., a corporation organized and existing under the
laws of Delaware and having its principal office at 000 Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("TriPath").
INTRODUCTION
1. BD has a license (with a right to exercise an option on
TriPath's behalf) to use certain software developed and/or otherwise possessed
by [*****] (the "Software") by means of a certain License Agreement dated July
31, 2001, a copy of which is attached hereto as Exhibit A (the "Software License
Agreement"); and
2. TriPath desires to retain a right to instruct BD to exercise
its option for TriPath to obtain a license from [*****] to use the Software on
substantially the same terms and conditions as the Software License Agreement.
NOW, THEREFORE, BD and TriPath agree as follows:
Article I
Grant
1.1 BD hereby grants to TriPath an exclusive right for a period
extending from the Effective Date until the date one year following the
Effective Date (the "Option Period"), to notify BD of TriPath's desire to have
BD exercise its option in accordance with the Software License Agreement.
1.2 During the Option Period, BD shall not exercise its option
under the Software License Agreement without TriPath's written direction to do
so.
Article II
Consideration
2.1 In consideration for the exclusive right set forth in Section
1.1, TriPath shall pay to BD a [*****] , by wire transfer on the Effective Date
to an account to be identified by BD.
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
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2.2 If TriPath does direct BD (in writing) to exercise the option
under the Software License Agreement, then TriPath shall pay to BD [*****]
within five (5) business days of providing such direction.
Article III
Exercise of Option
3.1 At any time during the term of the Option Period, TriPath may
direct BD to exercise its option under the Software License Agreement by
providing to BD written notice of such direction.
3.2 Promptly following such written notice, BD shall exercise its
option in accordance with the terms of the Software License Agreement.
3.3 If TriPath at any time during the Option Period provides
written notice to BD that TriPath will not direct BD to exercise its option
under the Software License Agreement, then this Option Agreement shall terminate
as of the date of mailing of such written notice.
Article IV
BD Obligations Under the Software License Agreement
BD shall pay the entire amount of the Licensed Software License Fees
defined in Section 3.2 of the Software License Agreement in accordance with the
terms thereof.
Article V
Term and Termination
5.1 This Option Agreement shall continue in full force and effect
from the Effective Date, and unless terminated earlier by mutual written
agreement of the parties, shall expire on the later of:
(a) the expiration of the Option Period; or
(b) if TriPath has directed BD to exercise its option in
accordance with Section 3.1, the exercise of the
option by BD.
5.2 Prior to expiration of this Option Agreement, TriPath may
terminate this Option Agreement by providing written notice to BD that TriPath
will not direct BD to exercise its option under the Software License Agreement.
5.3 The terms and conditions of Articles IV, VI, VII, VIII and IX
shall survive any termination of this Option Agreement.
Article VI
Representations and Warranties
6.1 BD represents and warrants that it:
(a) is a licensee under the Software License Agreement;
(b) has the right to grant to TriPath the rights granted
herein;
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AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
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(c) is under no obligation to any third party which would
interfere with the representations, warranties and/or
obligations of BD under this Option Agreement;
(d) has the necessary authority to enter into this Option
Agreement and be bound by the terms and conditions
hereof; and
(e) will use its best efforts not to breach any of its
obligations under the Software License Agreement.
6.2 TriPath represents and warrants that it has the necessary
authority to enter into this Option Agreement and be bound by the terms and
conditions hereof.
6.3 Except as expressly set forth in this Option Agreement, the
parties MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTE OR OTHERWISE,
AND THE PARTIES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT.
Article VII
Public Announcements
Any announcements or similar publicity with respect to the execution of
this Option Agreement shall be agreed upon between the parties hereto in advance
of such announcement as set forth herein. Either party may make such public
announcements with respect hereto. Each party agrees to provide to the other
party a copy of any public announcement as soon as reasonably practicable under
the circumstances prior to its scheduled release. Except under extraordinary
circumstances, each party shall provide the other with an advance copy of any
public announcement at least five (5) business days prior to the scheduled
disclosure. Each party shall have the right to expeditiously review and
recommend changes to any announcement regarding this Option Agreement or the
subject matter of this Option Agreement, provided that such right of review and
recommendation shall only apply for the first time that specific information is
to be disclosed, and shall not apply to the subsequent disclosure of
substantially similar information that has previously been disclosed. Except as
otherwise required by law, the party whose public announcement has been reviewed
shall remove or revise any information the reviewing party reasonably deems to
be inappropriate for disclosure.
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Article VIII
Notices
Notices to BD shall be addressed to:
Becton Xxxxxxxxx and Company
0 Xxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Senior Vice President, Technology, Strategy and Development
Telecopy No.: 0-000-000-0000
with a copy to:
Becton, Xxxxxxxxx and Company
0 Xxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Vice President and Chief Intellectual Property Counsel
Telecopy No.: 0-000-000-0000
Notices to TriPath shall be addressed to:
TriPath Imaging, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx Xxxxxx, M.D.
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: 1-617-227-4420
Either party may change its address by giving notice to the other party
in the manner herein provided. Any notice required or provided for by the terms
of this Option Agreement shall be in writing and shall be (a) sent by registered
or certified mail, return receipt requested, postage prepaid, (b) sent via a
reputable overnight courier service, or (c) sent by facsimile transmission with
an original to be followed the same day via a reputable overnight courier
service, in each case properly addressed in accordance with the paragraph above.
The effective date of notice shall be the actual date of receipt by the party
receiving the same.
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Article IX
Miscellaneous
9.1 This Option Agreement shall be construed and the respective
rights of the parties hereto determined according to the substantive laws of the
State of Delaware notwithstanding the provisions governing conflict of laws
under such Delaware law to the contrary and without giving effect to the United
Nations Convention on Contracts for the International Sale of Goods, the 1974
Convention on the Limitation Period in the International Sale of Goods (the
"1974 Convention") and the Protocol amending the 1974 Convention, done at Vienna
April 11, 1980, except matters of intellectual property law which shall be
determined in accordance with the national intellectual property laws relevant
to the intellectual property in question.
9.2 Neither BD nor TriPath may assign this Option Agreement in
whole or in part without the consent of the other party, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, either party may assign
this Option Agreement in whole or in part without the consent of the other party
in the event of a Change of Control. For the purposes of this Section 9.2,
"Change of Control" shall mean (a) a merger, consolidation or other transaction
or series of related transactions as a result of which persons who were
shareholders of a party immediately prior thereto would not immediately
thereafter beneficially own (as defined in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) at least fifty percent (50%) of the combined
voting power of such party or the surviving entity immediately after such
transaction; or (b) any one person or group, as such terms are used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than any trustee or other fiduciary holding securities
under an employee benefit plan of such Party), together with any of such
person's "affiliates" or "associates", as such terms are used in the Exchange
Act, becoming the beneficial owner (as defined in Rule 13d-3 promulgated under
the Exchange Act) of fifty percent (50%) or more of the combined voting power of
the outstanding securities of such party, or (c) any sale of all or
substantially all of the assets of such party relating to the subject matter of
this Option Agreement, in one or a series of related transactions.
9.3 This Option Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, and supersedes all
previous arrangements with respect to the subject matter hereof, whether written
or oral. Any amendment or modification to this Option Agreement shall be made in
writing signed by both parties hereto.
9.4 No failure or omission by the parties hereto in the
performance of any obligation of this Option Agreement shall be deemed a breach
of this Option Agreement or create any liability if the same shall arise from
any cause or causes beyond the control of the parties, including, but not
limited to, the following: acts of God; acts or omissions of any government; any
rules, regulations or orders issued after the Effective Date by any governmental
authority or by any officer, department, agency or instrumentality thereof;
fire; storm; flood; earthquake; accident; war; rebellion; insurrection; riot;
and invasion and provided that such failure or omission resulting from one of
the above causes is cured as soon as is practicable after the occurrence of one
or more of the above-mentioned causes.
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9.5 It is understood and agreed that the relationship between the
parties hereunder is that of independent contractors and that nothing in this
Option Agreement shall be construed as authorization for either BD or TriPath to
act as agent for the other. 9.6 This Agreement has been prepared jointly and
shall not be strictly construed against either party.
9.6 This Agreement has been prepared jointly and shall not be
strictly construed against either party.
9.7 The captions or headings of the sections or other subdivisions
hereof are inserted only as a matter of convenience or for reference and shall
have no effect on the meaning of the provisions hereof.
9.8 No failure on the part of BD or TriPath to exercise, and no
delay in exercising, any right, power, remedy or privilege under this Option
Agreement, or provided by statute or at law or in equity or otherwise, shall
impair, prejudice or constitute a waiver of any such right, power, remedy or
privilege or be construed as a waiver of any breach of this Option Agreement or
as an acquiescence therein, nor shall any single or partial exercise of any such
right, power, remedy or privilege preclude any other or further exercise thereof
or the exercise of any other right, power, remedy or privilege.
9.9 If any provision hereof should be held invalid, illegal or
unenforceable in any respect in any jurisdiction, then, to the fullest extent
permitted by law, (a) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intentions of the parties hereto as nearly as may be possible and (b)
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of such provision in any other jurisdiction.
9.10 This Option Agreement may be executed in counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original, and all of which counterparts, taken together, shall constitute one
and the same instrument.
9.11 In no event shall TriPath or BD be liable to the other for any
special, consequential, indirect or incidental damages or losses arising out of
or in connection with this Option Agreement, the Software License Agreement or
any license agreement that TriPath may enter with [*****] as a result of BD's
exercise of its option under the Software License Agreement, including without
limitation, loss of profits or revenues, whether such claim is based upon breach
of contract, breach of warranty, negligence, strict liability in tort or any
other theory of relief or whether or not TriPath or BD is informed in advance of
the possibility of such damages or losses.
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CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
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IN WITNESS WHEREOF, the parties have executed this Option Agreement as
of the date first set forth above.
BECTON, XXXXXXXXX AND COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Sr. Vice President - Technology, Strategy
and Development
TRIPATH IMAGING, INC.
By: /s/ Xxxx X. Xxxxxx, M.D.
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Name: Xxxx X. Xxxxxx, M.D.
Title: President and Chief Executive Officer
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EXHIBIT A
SOFTWARE LICENCE AGREEMENT
[*****]
Confidential Materials filed separately with the Securities Exchange
Commission. Asterisks denote such omission.
