Exhibit 10.6
REDACTED VERSION
AGREEMENT
*** Confidential treatment has been requested as to certain portions of
this agreement. Such omitted confidential information has been
designated by an asterisk and has been filed separately with the
Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended, and the Commission's rules
and regulations promulgated under the Freedom of Information Act,
pursuant to a request for confidential treatment.***
THIS AGREEMENT ("Agreement") is made and entered into as of the 21st
day of October, 1999, by and between AMPC, Inc., an Iowa corporation (the
"Company"), and SeraCare, Inc., a California corporation, with its principal
place of business at 0000 Xxxxxxx xxx Xxx, Xxxxx X, Xxxxxxxxx, Xxxxxxxxxx
("SeraCare").
RECITALS:
A. SeraCare desires to be appointed as the Company's exclusive independent
representative to market and promote the sale of certain Products (as
that term is defined below) of the Company in the Territory (as that
term is defined below), and hereby represents to the Company that the
nature of its existing and ongoing business and the experience of its
personnel are such that SeraCare is qualified to perform and fulfill
such activities as provided herein.
B. Although the Company desires to appoint SeraCare as its exclusive
independent representative in the Territory, the Company is willing to
do so only upon the condition that it define SeraCare's relationship
with the Company and secure certain covenants which SeraCare hereby
acknowledges are necessary and appropriate to protect the business of
the Company.
C. The Company and SeraCare desire to establish their relationship and
such covenants upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the Recitals and the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Products. For purposes of this Agreement, the term "Products"
shall mean only those products which are specifically described in Schedule 1 as
attached hereto from time to time and signed by the parties. Notwithstanding any
term or condition herein or otherwise which may appear to be to the contrary,
the Company shall have the right, upon providing SeraCare with ninety (90) days
prior written notice, to discontinue the marketing and sale of any or all of the
Products or combinations of the Products in the Territory, and shall otherwise
have the unqualified right to manage its business in all respects, including,
without limitation, making all decisions with respect to altering the
composition of any Product, the warranties made with respect to any Product (if
any), and the labeling or packaging of any Product.
2. Appointment; Excluded Customers. The Company hereby appoints
SeraCare, as an independent representative acting in its own name, and SeraCare
hereby accepts such appointment, as the Company's exclusive representative to
market, promote the sale of and sell the Products to persons and entities which
use the Products to manufacture diagnostic test kits, assays and chemical
solutions for clinical chemistry for humans throughout the World (the
"Territory"); provided, however, all upon the terms and conditions set forth
herein. SeraCare shall have no right to market or sell any Products to any
person or entity (i) identified in Schedule 2 attached hereto, or (ii) engaged,
directly or indirectly, in the veterinary vaccine market (collectively, the
"Excluded Customers"). SeraCare acknowledges and agrees that the Company or any
agent or representative of the Company may market and sell Products to the
Excluded Customers without the payment of any commissions or fees under this
Agreement. In addition to the foregoing, SeraCare shall not market or sell any
Products to any person or entity engaged, directly or indirectly, in the
activity or business of injecting or otherwise administering the Products
directly into humans or animals.
SeraCare may, on a non-exclusive basis, market, promote the sale of
and sell the Products to persons and entities engaged, directly or indirectly,
in (i) the laboratory growth of cell and/or microbe cultures for the production
of proteins and/or vaccines for human use, and/or (ii) life science research,
unless otherwise agreed to in writing by both parties hereto.
3. Inquiries from Potential Customers. In the event the Company
receives, during the term of this Agreement, inquiries from potential purchasers
to whom SeraCare has the exclusive right to sell the Products as provided in
paragraph 2 above, the Company will provide the names of such potential
purchasers to SeraCare.
4. Manner of Sales. Unless otherwise expressly agreed by the
parties, each order requesting any Product shall be filled by a sale of the
requested Product by the Company to SeraCare. In all events, however, all orders
for Products shall be subject to approval and acceptance by the Company and to
and upon all of the Company's rules, regulations, procedures and policies,
including, without limitation, its requirements as to order forms and the
content thereof, its credit policies and all other terms and conditions of sale,
all of which Company may change at any time and from time to time, in its sole
discretion.
Title and risk of loss of the Products shall pass from Company to
SeraCare when the Products are shipped from the Company's facilities. SeraCare
shall be responsible for determining that each lot of the Products conforms to
the certificate of analysis provided for that lot. SeraCare must notify Company
in writing of the following defects in any delivery of the Products within the
following time limits:
(i) Damage or non-delivery of any part of any order -- within five
(5) business days of SeraCare's receipt of the Product, or
(ii) Product non-compliance with certificate of analysis -- within
fifteen (15) business days of SeraCare's receipt of the Product,
with a copy of the Product test results made by SeraCare on which
notice of failure to comply is based.
The notice date of SeraCare's non-acceptance shall be the date of notice to the
Company specifying the defect in delivery.
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If Company disagrees with SeraCare's reasons for non-compliance,
Company may request re-testing of the Product in question by an independent
laboratory for verification of SeraCare's reasons for non-acceptance. Company
shall bear the costs for any such re-testing. In the event the Product in
question is found by the independent laboratory to be in conformance with the
Specifications (as hereinafter defined), then SeraCare shall accept the shipment
and fully reimburse Company for all costs incurred in connection with the
re-testing.
5. Minimum Purchases by SeraCare; Requirements Contract. ***.
During the term of this Agreement, SeraCare shall purchase all of its
requirements of Products only from the Company and shall not purchase or
otherwise acquire Products from any person or entity other than the Company;
provided, however, in the event the Company notifies SeraCare at any time, or
from time to time, during the term of this Agreement, that it is unable to
supply all of SeraCare's requirements of the Products, SeraCare may purchase
from other sources such amount of Products the Company is unable to supply;
further provided, however, that when the Company notifies SeraCare it is again
able to supply some or all of SeraCare's requirements, SeraCare shall again
purchase all of its requirements of Products, or so much of the Products as the
Company is then able to supply to SeraCare, only from the Company.
6. Additional Duties of SeraCare. SeraCare agrees to devote its best
efforts and such time as is necessary or appropriate to diligently market,
promote the sale of and sell the Products in the Territory. Without limiting the
generality of the foregoing, and in addition thereto, SeraCare agrees that it
will use its best efforts to:
(a) Bring the Products of the Company to the attention of
all individuals or entities of any nature in the
Territory who qualify as customers of Product within
the definition in paragraph 2, and who may reasonably
be determined to be prospective purchasers of any or
all of the Products.
(b) Contact, on a periodic basis, all existing individuals
or entities who qualify as customers of Product within
the definition in paragraph 2 and who are purchasing
any Products in the Territory, to promote continued and
further purchases of the Products and to assure that
all such existing customers are satisfied with the
Products and the service being provided to them.
(c) Maintain complete, accurate and up-to-date records of
its efforts under this Agreement, including, without
limitation: (i) records setting forth the names and
addresses of all individuals and entities contacted by
SeraCare regarding any Products; (ii) a general record
of all discussions with such individuals and entities;
and (iii) copies of all correspondence to and from such
persons and entities.
(d) Handle to the satisfaction of any potential or existing
customer, and on a same-day basis, any orders or any
questions or problems relating to the Products or other
services being or to be provided to the customer, and
advise all potential or existing customers to contact
the Company regarding such questions or problems and in
------------
*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
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all events to promptly notify an appropriate
representative of the Company of any such questions or
problems when necessary or appropriate.
(e) Comply at all times with all applicable laws, rules,
regulations, ordinances and orders.
(f) obtain and continuously maintain in effect any and all
governmental or other approvals, authorizations,
registrations, licenses or permits, if any, which are
necessary or appropriate for SeraCare to fully and
timely perform all of its obligations hereunder,
including, without limitation, obtaining and
maintaining in effect all registrations of the Products
and approvals of this Agreement in the Territory as
provided for in paragraph 10 below. SeraCare shall
provide evidence of all of the same to the Company from
time to time upon the request of thee Company.
(g) Immediately advise the Company in writing or any
matters with respect to any Product which come to the
attention of SeraCare and which may raise an issue of
compliance of the Product with applicable local,
provincial, state, federal or other governmental law,
rule or regulation of the Territory, and how such
matters can be resolved, including, without limitation,
with respect to the packaging or labeling thereof;
provided, however, that the Company shall be
responsible for all costs and expenses necessary to
resolve such matters in the event Company determines,
in its sole discretion, to resolve such matters.
SeraCare shall have the right to discontinue marketing
the Product should the Company choose to not resolve
any bona fide legal matter raised by SeraCare with
respect thereto, but such discontinuance shall not
otherwise affect any term or condition hereof or
obligation of SeraCare hereunder with respect to any
other Products, and the Company may in such event, in
its sole discretion, terminate this Agreement upon
sixty (60) days written notice to SeraCare.
(h) Not engage in any unethical, illegal, deceptive,
fraudulent or misleading activities in connection with
the performance of any services hereunder, including,
without limitation, providing any deceptive,
fraudulent, misleading, false or incorrect information
to the Company or any Affiliate (as that term is
hereinafter defined), any potential or existing
customer, or any third party dealing with the Company
or any Affiliate of any customer, and whether about the
Products or otherwise.
(i) Engage, at the sole expense of SeraCare, a sufficient
number of personnel to properly canvas the Territory
and to assist in the performance of all other services
required of SeraCare hereunder.
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All such personnel shall be employees, agents or independent
contractors of SeraCare and not of the Company, and shall be
bound by all of the terms and conditions of this Agreement.
SeraCare shall be responsible and liable for assuring full
compliance by such personnel with all of the terms and
conditions of this Agreement.
(j) Recognize, both during and after the term of this Agreement,
and without limiting paragraphs 13 and 14 below, the
exclusive right and ownership of the Company in and to all
names, trade names, trade or service marks, patents,
copyrights and all other intellectual properties used by the
Company in connection with the Products and Company's
business, and to market and sell the Products only under the
trade or service marks and trade names regularly applied to
them by the Company and otherwise in accordance with
paragraph 13 below.
(k) Not do or say any act or thing, or omit to do or say any act
or thing, during the term of this Agreement or at any time
thereafter, which may impair, damage, or destroy the
goodwill or reputation of the Products, the Company or any
of its Affiliates, or that is detrimental to the Company or
any of its Affiliates or their respective businesses.
(l) Make no promises, representations or commitments which are
not within the authority granted to SeraCare hereunder,
including, without limitation, making any warranties or
promises to customers with respect to the condition,
quality, composition, capabilities or otherwise of any
Products which are not specifically made or given in writing
by the Company (if any) to its other customers.
(m) Provide all customers with only those written promotional
and sales materials, including, without limitation, price
sheets and order forms, which have been either provided by
the Company or otherwise previously approved by the Company
pursuant to subparagraph (n) immediately below.
(n) Submit all proposed advertising materials relating to the
Products to the Company for the Company's approval, prior to
dissemination of any of the same, and to utilize only such
advertising materials as are expressly approved by the
Company, in its sole discretion, in writing.
(o) SeraCare will provide copies of quarterly and annual
financial statements on Form 10Q and/or Form 10K within a
reasonable period after having filed such reports with the
Securities and
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Exchange Commission. All financial information submitted by
SeraCare shall be true and accurate in all material
respects.
(p) Submit to Company after completion of the first three (3)
months of this Agreement a written forecast for the
quantities of the Products expected to be required in excess
of the Minimum Required Purchase Amount, if any, for the
ensuing three (3) months, and thereafter update this
forecast on a monthly basis. It is understood that the
quantities of the Products specified in the first two (2)
months of each forecast are binding on SeraCare, whereas the
remainder are non-binding estimates of SeraCare's projected
purchases of the Products in excess of the Minimum Required
Purchase Amount. Company will respond within ten (10) days
of each request as to the status of production and ability
to supply the amounts in excess of the Minimum Required
Purchase Amount.
(q) SeraCare will submit to Company at least one (1) month prior
to each desired shipment date a written purchase order for
delivery of SeraCare's intended purchases in excess of the
Minimum Required Purchase Amount, if any.
7. Duties of the Company. The Company agrees to:
(a) Provide sales and technical assistance to SeraCare similar
to that provided by the Company to its other independent
sales agents in the United States, if any.
(b) Furnish SeraCare with a reasonable amount of such
promotional and sales materials (in the English language) as
the Company, in its sole discretion, generally prepares in
regard to the Products.
(c) Upon receiving written approval by SeraCare, the Company may
identify SeraCare in the Company's promotional materials.
(d) Sell Products to SeraCare as provided herein, use its best
efforts to ship the Products on the shipment dates specified
on SeraCare's purchase orders, and advise SeraCare of any
inability to make full and timely shipment of the Products
which SeraCare has ordered; provided, however, that the
Company shall not be liable for any loss or damage caused by
its nonacceptance or delay in acceptance of orders submitted
by SeraCare which are not in compliance with all applicable
procedures, policies, rules and regulations of the Company,
nor for failure or delay in meeting any order of SeraCare or
in performing any other duty or obligation hereunder arising
from or in any way related to (i) any governmental
restriction or any other act of God or Force Majeure (as
hereinafter
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defined) or other occurrence or nonoccurrence beyond the
reasonable control of the Company, or (ii) from or to any
capacity or production limitations affecting the Company or
any of its Affiliates or any failures or delays (for
whatever reason) by any vendors or suppliers of the Company
or any of its Affiliates, with the Company reserving the
right to allocate its Products and services in such amounts
and manner as it deems appropriate, in its discretion.
Notwithstanding anything contained in this Agreement which
may appear to be to the contrary, the Company will have no
liability or obligation to SeraCare as a result of the
Company's failure or inability to supply Products to
SeraCare under this Agreement.
(e) Perform quality control on each lot of the Products supplied
to SeraCare in accordance with Company's then current
internal procedures and provide SeraCare with certificates
of analysis and certificates of origin confirming the
compliance of each lot of the Products with the
specifications identified in Schedule 1 (the
"Specifications").
(f) Store properly a sample of each lot of the Products, until
the expiration date of such lot, or as required under cGMP
Guidelines, to enable subsequent verification of the lot's
conformance with the Specifications.
(g) Provide SeraCare with training on the characteristics and
uses of the Products and thereafter provide all reasonable
assistance required by SeraCare to answer questions from
SeraCare's customers or personnel regarding the use,
handling or technical aspects or the Products. SeraCare
agrees to reimburse Company for reasonable travel and hotel
expenses incurred by Company in connection with its
responsibilities under this subparagraph (g).
(h) Permit SeraCare's customers to inspect Company's facilities
pursuant to a confidentiality agreement acceptable to
Company and with a minimum of one (1) month prior written
notice. Company reserves the right to refuse inspection of
its facilities by any company it perceives to be a
competitor or potential competitor in the Bovine Serum
Albumin or other Company markets.
(i) Comply at all times with all applicable laws, rules,
regulations, ordinances and orders of the FDA, USDA, or cGMP
as applicable.
8. Disclaimer of Warranties; Statute of Limitations; Remedies. COMPANY
REPRESENTS AND WARRANTS TO SERACARE THAT: (I) THE PRODUCTS SOLD TO SERACARE
HEREUNDER WILL BE SHIPPED IN CONFORMITY WITH THE SPECIFICATIONS AND WILL BE FREE
FROM DEFECTS IN MATERIALS AND
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WORKMANSHIP; AND (II) THE PRODUCTS SOLD TO SERACARE WILL BE MANUFACTURED,
PACKAGED, LABELED, STORED AND SHIPPED IN CONFORMITY WITH ALL APPLICABLE U.S.
FEDERAL, UNITED STATES AND LOCAL LAWS AND REGULATIONS APPLICABLE AT THE
COMPANY'S LOCATION FROM WHICH THE PRODUCTS ARE SHIPPED TO SERACARE. EXCEPT FOR
SUCH WARRANTIES, THE COMPANY MAKES NO EXPRESS WARRANTIES, AND HEREBY EXCLUDES
AND DISCLAIMS IN ENTIRETY ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO ANY PRODUCTS PROVIDED BY THE COMPANY. IN NO EVENT SHALL THE
COMPANY BE LIABLE FOR ANY LOST PROFITS, EXEMPLARY, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THIS AGREEMENT (EVEN IF THE
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT
LIMITATION, ANY LOST PROFITS, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE BY THE COMPANY UNDER
THIS AGREEMENT OR ANY PRODUCTS OR ARISING OUT OF THE USE OF OR INABILITY TO USE
THE PRODUCTS OR ANY OTHER GOODS OR PRODUCTS FOR ANY REASON AND FOR ANY PURPOSE
WHATSOEVER. ANY ACTION FOR BREACH OF ANY TERM OF THIS AGREEMENT MUST BE
COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE OF ACTION ACCRUES.
SeraCare will include the above provisions in the terms and conditions of
all sales of the Products by SeraCare.
In the event that a shipment of the Products from Company to SeraCare has
not been delivered in full, and if written notice thereof is duly given to
Company as provided in paragraph 4, Company's sole liability and responsibility
to SeraCare shall be to rectify such default as soon as shall be reasonably
practicable by delivery, at Company's expense, of a replacement of the missing
quantity of the Products.
In the event that a Product supplied to SeraCare by Company fails to comply
with the provided certificate of analysis, and if written notice thereof is duly
given to Company as provided in paragraph 4, SeraCare shall return to Company,
at Company's expense, the product lot in question or dispose of said lot
according to Company's instructions, whereupon Company's sole liability and
responsibility to SeraCare shall be to replace an equivalent supply of the
Products at its own expense, as soon as shall be reasonably practicable.
9. Prices for Products. ***.
10. Expenses. SeraCare agrees that it shall pay and be solely responsible
for all costs and expenses of any nature whatsoever which are incurred by
SeraCare in rendering services pursuant to this Agreement, and that the Company
shall not be responsible for any such costs and expenses. SeraCare further
agrees that it shall pay and be solely responsible for the cost of registration
of the Products within the Territory and for obtaining all necessary Territory
governmental approvals of this Agreement and the Products, if any, and for
maintaining all of the same during the term of this Agreement: provided,
however, that SeraCare will notify Company in writing at least thirty (30) days
prior to applying for any such registration and/or
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*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
8
approvals of the Products. SeraCare shall provide copies of any such
registrations and/or approvals to the Company upon request of the Company from
time to time. All such registrations shall be in the name of the Company, unless
otherwise affirmatively required by the applicable governmental authority in the
Territory, but any such registration in the name of SeraCare shall not operate
to grant any rights to SeraCare in the Products.
11. Term and Termination.
(a) ***
(b) This Agreement may be terminated by the Company, at its
option, effective sixty (60) days following the giving
of notice thereof to SeraCare, in the event SeraCare
shall have failed to meet the Minimum Required Purchase
Amount for any calendar quarter.
(c) This Agreement may be terminated by ether party in the
event of any breach or nonfulfillment of or default
under any term or condition of this Agreement by the
other party, which breach, nonfulfillment or default is
not fully cured by the applicable party (if capable of
cure) within sixty (60) days following the giving of
written notice thereof by the other party; provided,
however, that this Agreement shall terminate
immediately and without opportunity for cure by
SeraCare (i) upon receipt by SeraCare of notice of
termination from the Company in the event of a breach
or nonfulfillment of or default by SeraCare under
paragraphs 6(e), 6(f), 6(i), 13, 14 or 16 hereof; or
(ii) upon the dissolution or liquidation of,
termination of existence of, insolvency of, business
failure of, appointment of receiver of any part of the
property of, assignment for the benefit of creditors
by, or the commencement of any proceeding (whether
voluntary or involuntary) under any bankruptcy,
insolvency, debtor-creditor, receivership or similar or
related law by or against SeraCare.
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*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
9
12. Transactions After Termination. In addition to any other provisions
hereof addressing the rights or obligations of the parties upon the termination
of this Agreement, the parties agree that upon the termination of this
Agreement, for whatever reason:
(a) SeraCare shall return all written promotional,
advertising and sales materials provided to SeraCare by
the Company hereunder.
(b) Notwithstanding anything herein or otherwise which may
appear to be to the contrary, the termination of this
Agreement shall not affect any liability or obligation
of the parties hereunder which shall accrue prior to
such termination, including, but not limited to, any
liability for loss or damage or on account of breach,
nor shall the termination of this Agreement (by either
party and for whatever reason) affect the terms or
provisions hereof which contemplate performance by or
continuing obligations of a party beyond the
termination hereof, including, without limitation, the
obligations of SeraCare under paragraphs 6(i), 6(j),
14, 15, 16 and 20 hereof, all which shall continue in
effect notwithstanding any termination hereof.
13. Trademarks of the Company. SeraCare is hereby granted a limited,
nonassignable and nontransferable right to use the Company's trade or service
marks and trade names related to the Products in distributing, advertising and
promoting the sale of the Products, but only in strict accordance with the
Company's policies regarding the use of its trade or service marks and trade
names. The rights conferred herein shall cease and terminate immediately,
without notice, upon the termination of this Agreement, and SeraCare agrees to
take, at its sole cost and expense, all such steps as are necessary or
appropriate to cease all use of the Company's trade or service marks and trade
names in such event. Notwithstanding anything herein or otherwise which may
appear to be to the contrary, the Company's trade or service marks and trade
names shall at all times be and remain the sole and exclusive property of the
Company, and the Company reserves all rights in and to the same. SeraCare agrees
to use its best efforts to notify the Company of any and all infringements of
the Company's trade or service marks or trade names pertaining to the Products
which may come to SeraCare's attention during the term hereof and to assist the
Company in taking such action against said infringement as the Company, in its
sole discretion, may decide.
14. Proprietary and Confidential Information.
(a) SeraCare acknowledges and agrees that it is necessary
for the Company to prevent the unauthorized use and
disclosure of Proprietary and Confidential Information
(defined below) regarding the Company and its Products
and business. Accordingly, and in further consideration
for this Agreement, SeraCare covenants and agrees that
SeraCare will not, during the term of this Agreement or
at any time thereafter (whether this Agreement is
terminated by Company, by SeraCare or by mutual
consent, and for whatever reason), directly or
indirectly, engage in
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or take or refrain from taking any action or inaction which
may in any way lead to the use or disclosure of any
Proprietary and Confidential Information regarding the
Company, its Products or its business by or to any third
party, nor use or disclose any such Proprietary and
Confidential Information for SeraCare's own benefit
excepting only such limited disclosures or use by SeraCare
during the term of this Agreement as are both expressly
authorized in connection with SeraCare's services hereunder
and are also otherwise necessary, proper and lawful.
SeraCare further acknowledges and agrees that the Company
reserves the right to determine, in the Company's sole
discretion, what information (whether Proprietary and
Confidential Information or otherwise) regarding the
Company, its Products or its business shall be disclosed to
SeraCare from time to time.
(b) For purposes of this Agreement, "Proprietary and
Confidential information" shall mean all information in any
form which is proprietary and confidential to the Company,
its Products or its business, whether received, obtained or
compiled by SeraCare after the date hereof and whether or
not designated as such when received or obtained by
SeraCare, and shall include, but not be limited to, the
following types of information: (i) corporate information,
including contractual arrangements (including the terms of
this Agreement), plans, strategies, tactics, policies and
resolutions; (ii) any litigation or negotiations; (iii)
marketing information of the Company, including price lists,
sales or product plans, strategies or methods: (iv) market
research data of the Company, including any prepared by
SeraCare in performing hereunder; (v) financial information
of the Company, including cost and performance data, debt
arrangement, equity structure, investors, and holdings; (vi)
operational information of the Company, including trade
secrets, control and inspection practices, suppliers and
vendors, all information related to products and products
lines, formulas, formulations, processes, and know-how or
any copyrights, patents or other intellectual properties
utilized by the Company; (vii) personnel information of the
Company, including personnel lists, resumes, personal data,
organizational structure and performance evaluations; (viii)
information provided to or obtained in any way by the
Company under restrictions as to use, reproduction or
further disclosure; and (ix) information provided to or
obtained in any way by the Company regarding another person,
corporation or other form of entity which owns or controls
the Company, or which is owned or controlled by the Company
or under common control with the Company (collectively, the
"Affiliates"), and which information is proprietary and
confidential to the Affiliates (which information is
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hereby deemed to include, without limitation, all of the
types of information described in this subparagraph (b)).
Notwithstanding this subparagraph 14.(b), any information (i) which is
or becomes available in the public domain through no unlawful or other
wrongful act of SeraCare, or (ii) which is publicly announced by the
Company or generally made available by the Company to other parties,
shall be excluded from the definition of Proprietary and Confidential
Information referenced herein.
(c) SeraCare agrees that it will disclose Proprietary and
Confidential Information only to its responsible personnel
with a bona fide need to know and, in such event, to each
such person limited to that portion of the Proprietary and
Confidential Information that each such person needs to
know. Each such person shall be bound by the terms of this
paragraph 14, as well as the terms of any separate
nondisclosure agreement between the person in question and
SeraCare. SeraCare shall in all events, however, be and
remain responsible and liable for assuring compliance by
SeraCare's personnel with the terms and conditions of this
paragraph and the other terms and conditions of this
Agreement.
(d) SeraCare further agrees that any information it develops or
compiles in performing its services hereunder which is
Proprietary and Confidential Information as defined above,
and all other Proprietary and Confidential Information shall
be or is, as the case may be, and shall at all times be and
remain the sole and exclusive property of Company and that
all physical reproductions of any nature pertaining to any
Proprietary and Confidential Information, including, but not
limited to, electronic medium, memoranda, notebooks, notes,
data sheets and records, and any and all copies of the same,
shall be surrendered to the Company immediately upon the
termination of this Agreement (whether this Agreement
expires by its terms or is terminated by Company, by
SeraCare or by mutual consent, and for whatever reason).
(e) The obligations of SeraCare contained in this paragraph 14
are separate and distinct from and are in addition and
cumulative to its obligations contained in paragraph 16.
15. Notification of Unauthorized Disclosure. SeraCare agrees to
immediately notify the Company of any information which comes to SeraCare's
attention which indicates that there has been any improper use or disclosure or
any other loss of confidentiality of any Proprietary and Confidential
Information, and upon discovery of such information or of any unauthorized use
or communication of any Proprietary and Confidential Information, SeraCare shall
take such steps as are necessary or appropriate to prevent any further use or
communication of the information and shall otherwise fully cooperate with the
Company in this regard.
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16. Noncompetition.
(a) As further consideration for this Agreement, SeraCare
covenants and agrees that during the term of this Agreement
and for a period of ***thereafter (whether this Agreement is
terminated by the Company, by SeraCare or by mutual consent,
and for whatever reason), SeraCare will not, directly or
indirectly,
(i) engage in, or
(ii) become an investor in, or joint venturer with, any individual, person,
proprietorship, partnership, limited partnership, limited liability
company, joint venture, corporation, association or other entity of
any nature which is engaged in
the manufacture of Bovine Serum Albumin.
(b) SeraCare and Company expressly acknowledge and agree that it
is not possible to limit the noncompetition covenants set
forth in this paragraph 16 to specific persons or entities,
or to any specific location or geographic area, and that
such a limitation would prevent the Company from adequately
protecting its justifiable business interests and frustrate
the intent of the Company and SeraCare as to this paragraph
16 because, without limitation: (i) Company or its
Affiliates currently compete for and perform work and
services related to their respective business throughout
substantially all of the United States, Canada, Europe, the
Pacific Rim countries and South America; (ii) the Company or
its Affiliates have undertaken and will undertake to expand
their respective business throughout the Territory; and
(iii) the nature of the Company's and its Affiliates'
business is such that competitive activity harmful to the
Company or its Affiliates could be engaged in by SeraCare
regardless of SeraCare's domicile or location. SeraCare and
the Company further expressly acknowledge and agree that the
applicability of the noncompetition covenant contained in
this paragraph 16 to the Affiliates of the Company, and all
of the other provisions hereof referencing Affiliates, are
necessary and appropriate because the parties contemplate
that the services to be provided by SeraCare to the Company
under this Agreement may from time to time involve or relate
to the business conducted by the Affiliates of Company.
(c) SeraCare expressly acknowledges, agrees and warrants to the
Company and its Affiliates and all third parties that the
covenants contained in this paragraph 16 are reasonable and
consistent with the rights of the Company and its Affiliates
to protect their business, and are not to be held invalid or
unenforceable because
--------------------
*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
13
of the scope of the area, actions subject hereto or
restricted hereby, or the period of time within which such
restrictions are operative. SeraCare further acknowledges,
agrees and warrants to the Company, its Affiliates and all
third parties that enforcement of a remedy by way of
injunction shall not prevent SeraCare from earning a
livelihood or work an undue hardship on SeraCare, and that
such injunctive relief, as provided for in paragraph 17
below, is necessary and appropriate to protect the
reasonable business expectations and livelihood of the
Company and its Affiliates. In the event the restrictive
covenant contained in this paragraph 16 is deemed by a
court, notwithstanding the foregoing, to be too broad in
terms of the scope of the area, actions subject hereto or
restricted hereby, or the time period within which such
restrictions are operative, or otherwise, SeraCare expressly
authorizes the court to enforce the restrictive covenant
contained in this paragraph 16 to the full extent the court
deems reasonable.
17. Injunction. SeraCare agrees that a breach of paragraphs 13, 14 or 16
above shall constitute a material breach of this Agreement for which Company or
its Affiliates (as the case may be) will have no adequate remedy at law.
SeraCare agrees, therefore, that Company's and its Affiliates' remedies upon a
breach or imminent breach of paragraphs 13, 14 or 16 above include, but are not
limited to, the right to preliminary and permanent injunctive relief restraining
SeraCare from any further violation of said paragraphs, as well as an equitable
accounting of all profits or benefits arising out of such breach, in addition to
any other remedies available at law or in equity or otherwise to Company and its
Affiliates. If an injunction is granted upon a breach of paragraph 16 above, it
is the intent of the parties that the five (5) years period provided for in
paragraph 16 shall run from the date such injunction is granted.
18. Nature of Relationship; Authority of Parties. Nothing contained in
this Agreement and no action taken or omitted to be taken by the Company or
SeraCare pursuant hereto shall be deemed to constitute the Company and SeraCare
a partnership, an association, a joint venture or other entity whatsoever, nor
shall this Agreement be construed to constitute SeraCare (or any personnel of
SeraCare) an employee or agent of the Company or cause the Company to be
responsible in any way for the acts, omissions, debts, liabilities or
obligations of SeraCare (including, without limitation, any liability arising
from any negligent or other acts or omissions of SeraCare in providing any
services hereunder), nor shall either the Company or SeraCare have the authority
to bind the other in any respect whatsoever; it being understood and agreed by
the parties hereto that SeraCare shall be acting as an independent contractor
and not as an agent, partner or employee of the Company for any purpose
whatsoever. SeraCare shall be solely responsible for discharging all obligations
arising in connection with the operation of SeraCare's business, including,
without limitation, compliance with all laws, rules and regulations relating to
income tax, sales tax, social security, unemployment compensation and worker's
compensation. SeraCare acknowledges that it has not relied upon any statements
or other information made or supplied by the Company as to the potential
profitability or success of SeraCare's efforts or the relationship of the
parties under this Agreement, and that SeraCare is executing this Agreement
based solely upon its own investigation, due diligence, knowledge and judgment.
14
19. Control and Ownership of SeraCare; SeraCare Liaison. The Company
acknowledges that SeraCare is a public company which is traded on the American
Stock exchange under the symbol SRK and as such the concentration of ownership
is distributed and fluid.
SeraCare agrees to designate to the Company in writing a representative of
SeraCare through whom all contacts from the Company pursuant to this Agreement
may be made, and such representative shall be deemed to have full authority to
resolve all matters, disputes and issues under this Agreement on SeraCare's
behalf. SeraCare may change such designated representative from time to time
upon sixty (60) days prior written notice to the Company.
20. Indemnification. In addition to the other indemnities provided for
herein or otherwise available to the Company, SeraCare shall defend, indemnify,
and hold the Company harmless from and against any loss, claim, liability,
damage, cost or expense (including, without limitation, attorney fees and court
costs) arising in connection with or resulting from any negligence or
performance or nonperformance by SeraCare (or any employee, agent or other
personnel of SeraCare) hereunder or with or from any breach of warranty,
misrepresentation or nonfulfillment of any agreement on the part of SeraCare (or
any employee, agent or other personnel of SeraCare) under this Agreement.
In addition to the other indemnities provided for herein or otherwise
available to SeraCare, the Company shall defend, indemnify, and hold SeraCare
harmless from and against any loss, claim, liability, damage, cost or expense
(including, without limitation, attorney fees and court costs) arising in
connection with or resulting from any negligence or performance or
nonperformance by the Company (or any employee, agent or other personnel of the
Company) hereunder or with or from any breach of warranty, misrepresentation or
nonfulfillment of any agreement on the part of the Company (or any employee,
agent or other personnel of the Company) under this Agreement.
21. No Waiver; Modifications in Writing. No failure or delay on the part
of any party in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. Except as may be otherwise expressly
provided herein, the remedies provided herein are cumulative and are not
exclusive of any remedies that may be available to any party at law or in equity
or otherwise. No amendment, modification, supplement, termination or waiver of
or to any provision of this Agreement, nor consent to any departure therefrom,
shall be effective unless the same shall be in writing and signed by each of the
parties hereto. Any amendment, modification or supplement of or to any provision
of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure from the terms of any provision of this Agreement,
shall be effective only in the specific instance and for the specific purpose
for which made or given.
22. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the laws of the
United States of America and the State of Iowa, but without regard to provisions
thereof relating to conflicts of law. Each of the parties hereby irrevocably
submits to the nonexclusive jurisdiction of any United States Federal Court
sitting in the Southern District of Iowa, Central District, or Iowa District
Court sitting in Nevada, Iowa, in any action or proceeding arising out of or
relating to this Agreement, and each party hereby irrevocably agrees that all
claims with respect to any such
15
action or proceeding may be heard and determined in any such United States
Federal or Iowa District Court. Each of the parties irrevocably waives any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of forum non conveniens, which it may now or hereafter
have to the bringing of such action or proceedings in such respective
jurisdictions. Each of the parties irrevocably consents to the service of any
and all process in any such action or proceeding brought in any court in and of
the State of Iowa by the delivery of copies of such process to each party, at
its address specified for notices to be given hereunder, or by certified mail
direct to such address. EACH OF THE PARTIES WAIVES ANY RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ANY OTHER DEMAND OR MATTER WHATSOEVER
ARISING OUT OF THIS AGREEMENT.
23. Force Majeure. No party shall be liable to the other for failure or
delay in the performance of any of it obligations under this Agreement for the
time and to the extent such failure or delay is caused by earthquake, riot,
civil commotion, war, hostilities between nations, governmental law, order, rule
or regulation, embargo, action by the government or any agency thereof, act of
God, storm, fire, accident, labor dispute or strike, sabotage, explosion or
other similar or different contingencies, in each case, beyond the reasonable
control of the respective party ("Force Majeure"). The party affected by Force
Majeure shall provide the other party with full particulars thereof as soon as
it becomes aware of the same (including its best estimate of the likely extent
and duration of the interference with its activities).
24. Miscellaneous. This Agreement may not be assigned, in whole or in
part, by either party hereto without the prior written consent of the other
party. Both parties hereby agree that such written consent shall not be
unreasonably withheld. In the event of assignment of this Agreement by either
party hereto, all of the terms, covenants and conditions of this Agreement shall
remain in full force and effect, and both parties shall remain liable and
responsible for the due performance of all of the terms, covenants and
conditions of this Agreement which it is obligated to observe and perform.
During the term of this Agreement, the Company and SeraCare will have
telephonic and/or in-person conferences no less frequently than quarterly, at
which conferences SeraCare's customers for the Products (and the quantities of
Products purchased by such customers) will be identified and reviewed by the
parties hereto.
The titles or captions of sections and paragraphs in this Agreement are
provided for convenience of reference only and shall not be considered a part
hereof for purposes of interpreting or applying this Agreement, and such titles
or captions do not define, limit, extend, explain or describe the scope or
extent of this Agreement or any of its terms or conditions.
This Agreement shall not be construed more strongly against any party,
regardless of who was more responsible for its preparation.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument, and in making proof hereof, it shall not be necessary to
produce or account for more than one such counterpart.
16
Words and phrases herein shall be construed as in the singular or plural
number and as masculine, feminine or neuter gender, according to the context.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, successors, legal representatives
and permitted assigns. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto and the
Company's Affiliates (and their respective heirs, successors, legal
representatives and permitted assigns) any rights, remedies, liabilities or
obligations under or by reason of this Agreement.
Any notice or demand desired or required to be given hereunder shall be in
writing and deemed given when personally delivered or when deposited in the
United States mail, postage prepaid, sent certified or registered, and addressed
as follows:
(a) If to the Company, to:
AMPC, Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxx, XX 00000
Attention: President
Facsimile telephone number: (000) 000-0000
(b) If to SeraCare, to:
SeraCare, Inc.
0000 Xxxxxxx xxx Xxx
Xxxxx X
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile telephone number: (000) 000-0000
or to such other address or person as hereafter shall be designated in writing
by the applicable party.
25. Authority. Each person signing below represents that such person has
been and is authorized and empowered to execute and deliver this Agreement on
behalf of the party on whose behalf the person is executing this Agreement.
26. Entire Agreement. This Agreement and all exhibits and schedules hereto
constitute the entire agreement between the parties hereto pertaining to the
subject matters hereof, and supersede all negotiations, preliminary agreements
and all prior or contemporaneous discussions and understandings of the parties
hereto in connection with the subject natters hereof. All exhibits and schedules
are incorporated into this Agreement as if set forth in their entirety and
constitute a part hereof.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SERACARE, INC. AMPC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxx
------------------------------ ------------------------------
Title: Vice President Operations Title: Business Development Mgr.
--------------------------- ---------------------------
18
Schedule of Exhibits
Schedule 1 - Description of Products and Specifications
Schedule 2 - List of Excluded Customers
Schedule 3 - ***
Schedule 4 - List of SeraCare's Owners
------------------
*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
19
Schedule 1: Description of Products and Specifications
***
Schedule 2
***
Schedule 3: ***
*** ***
BSA Standard Grade Powder *** ***
BSA Standard Grade Powder, pH 5.2 *** ***
BSA Xxxx Analog Powder *** ***
BSA Reagent Grade Powder *** ***
Schedule 4: List of SeraCare's Owners
SeraCare is a public company with approximately 8.0 million shares issued and
outstanding. SeraCare is traded on the American Stock Exchange under the symbol
SRK.
---------------
*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
20
