EXHIBIT 10.8
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
AMENDMENT TO DEVELOPMENT AND SUPPLY AGREEMENT
This Amendment to Development and Supply Agreement ("Amendment"), effective
as of January 13, 2000 (the "Amendment Effective Date"), by and between Luminex
Corporation, a Delaware corporation with principal offices at 00000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxx 00000 ("LUMINEX") and Bio-Rad Laboratories, Inc., a
Delaware corporation with principal offices at 0000 Xxxxxxx Xxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 ("BIO-RAD") (LUMINEX and BIO-RAD collectively, the
"Parties"), amends that certain Development and Supply Agreement by and between
the Parties effective as of March 19, 1999 (the "Agreement").
WHEREAS, the Parties desire to amend the Agreement as set forth herein
below.
NOW, THEREFORE, the Parties agree as follows:
AMENDMENT. This Amendment hereby amends the Agreement to incorporate the
terms and conditions set forth in this Amendment. The relationship of the
Parties shall continue to be governed by the terms and conditions of the
Agreement, as amended herein; and in the event that there is any conflict
between the terms and conditions of the Agreement and this Amendment, the term
and conditions of this Amendment shall control. As used in this Amendment, all
capitalized terms shall have the meanings defined for such terms in this
Amendment or, if not defined in the Amendment, the meanings defined in the
Agreement
MODIFICATIONS TO THE AGREEMENT.
I. Exhibit A to the Agreement is hereby amended to add the following:
[**]
2. "Field Two" in Exhibit A of the Agreement is deleted and replaced with
the following: [**]
3. Section 1.7 of the Agreement is hereby amended to add the following:
"Fields Five and Six, as set forth in Exhibit A, shall be limited to
Research Use.
4. The Agreement is hereby amended to add the following Section 1.23:
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[**] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
"1.23 "Research Use" means the performance of basic life science
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research, including high throughput screening, but in all events
excluding laboratory testing for human clinical diagnostic
purposes."
5. Section 2.1 (d) of the Agreement is hereby amended to delete the last
sentence of such section and replace it with the following:
"Notwithstanding any provision of this Agreement to the contrary,
including the provisions of Section 8.3, if the parties do not agree by
June 1, 2000 upon: (i) a tolling fee for Magnetic Beads of less than or
equal to [**] ($[**]) for every three thousand (3000) units of Magnetic
Beads purchased, where a "unit" of Magnetic Beads is equal to one
microsphere bead, and (ii) the development of a beadmap for Magnetic
Beads which shall be capable of discriminating between [**] analytes
with a minimum accuracy level of [**] percent ([**]%) and no more than
[**] percent ([**]%) misclassification, all rights of BIO-RAD to have
LUMINEX treat the Magnetic Beads hereunder and all obligations of
LUMINEX with respect to the treatment or processing of Magnetic Beads
for BIO-RAD hereunder shall automatically terminate unless otherwise
agreed in writing, provided, however, that in such event BIO-RAD shall
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have the right to have the Magnetic Beads processed by BIO-RAD or a
third party and, for the avoidance of doubt, BIO-RAD shall retain the
exclusivity rights with respect to Magnetic Beads set forth in Section
3.2 of this Agreement."
6. Section 3.1 of the Agreement is hereby amended to add the following
after the phrase "only as part of BIO-RAD Systems":
"'or, within Fields Five and Six, Luminex100 Systems separately"
7. Section 3.1 of the Agreement is hereby further amended to add the
following after the phrase "BIO-RAD U.S. Diagnostics Division
management":
"or BIO-RAD U.S. Life Sciences Division management"
8. Section 3.1 of the Agreement is hereby further amended to add the
following after the phrase "in conjunction with their operation of BIO-
RAD Systems":
"and Luminex100 Systems"
9. Section 3.3(b)(i) of the Agreement is hereby amended to add the
following after the phrase "human clinical diagnostics industry":
"or the life science research industry"
10. Section 3.5 of the Agreement is hereby amended to add the following
after the phrase "BIO-RAD U.S. Diagnostics Division management":
"or BIO-RAD U.S. Life Sciences Division management"
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[**] Indicates that material has been omitted and confidential
treatment requested therefor. All such material has been filed
separately with the Commission pursuant to Rule 406.
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11. Section 4.6(c) of the Agreement is hereby amended to add the following
after the phrase "in vitro diagnostic Kits":
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"or Kits for Research Use"
12. Section 4.8 of the Agreement is hereby amended to add the following
after the phrase "All invoices shall be sent to the following
address:"
"For Clinical Diagnostics Group, Bio-Rad Laboratories, Accounts
Payable, 0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or for
Life Sciences Group, Bio Rad Laboratories, Accounts Payable, 2000
Xxxxxx Xxxxx Drive, Hercules, California."
13. Section 4.11 (a) of the Agreement is hereby amended to add the
following after the phrase "At the Effective Date:"
"and at the Amendment Effective Date"
14. Section 4.11(b) of the Agreement is hereby amended to add the
following after the phrase "the date of this Agreement:"
"and at the Amendment Effective Date"
15. Section 5.2 of the Agreement is hereby amended to read in its entirety
as follows:
"Exclusivity of Efforts. To avoid conflicts of interest, BIO-RAD and
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its Affiliates will not manufacture, market, sell or otherwise
distribute any materials, technologies or products, other than
Luminex100 Systems, Bio-Rad Systems and Kits, specifically designed
for performing Multiplexed Bead Assays using flow cytometry based
detection of particles for use in the human clinical diagnostics
industry or for Research Use within the Fields. In addition, BIO-RAD
agrees that except for performing its development obligations as
agreed pursuant to Section 2.1 and the development and manufacture of
Bio-Rad Systems, neither BIO-RAD's clinical diagnostics division or
group nor BIO-RAD's life sciences division or group will directly or
indirectly develop any materials, technologies or products
specifically designed for performing Multiplexed Bead Assays within
the Fields using flow cytometry based detection of particles. BIO-RAD
further agrees that it will not provide research and development
funding to or license any third party to develop, manufacture, market,
sell or otherwise distribute any materials, technologies or products
specifically designed for performing Multiplexed Bead Assays within
the Fields using flow cytometry based detection of particles. It is
understood that the foregoing sentence shall not apply to passive
investments by BIO-RAD in equity of third parties for use in the human
clinical diagnostics industry or for Research Use."
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16. Section 8.1 of the Agreement is hereby amended to add the following
after the words "each such renewal term":
"but which in no case shall vary by more than [**] percent ([**]%)
from the average of the three prior years' sales. Notwithstanding the
foregoing provisions of this Section 8.1, Fields Five and Six shall be
included in the Agreement during each of the renewal terms only if the
parties agree upon and BIO-RAD meets annual sales goals with respect
to Kits in Fields Five and Six, which annual sales goals shall be
negotiated in good faith by the parties prior to the commencement of
each such renewal term but which in no case shall vary by more than
[**] percent ([**]%) from the average of the three prior years'
sales."
17. Section 8.3 of the Agreement is hereby amended to add the following
after the phrase "Luminex100 System" in the second line of that
Section:
"(or, with respect to Fields other than Fields One, Two, Three or
Four, beginning five (5) years after the addition to the Agreement of
such Field or Fields)"
18. Section 8.3 of the Agreement is hereby further amended to delete the
last sentence thereof and replace if with the following:
"If BIO-RAD has not made commercially available Kits incorporating
Magnetic Beads in each of Fields One, Two, Three and Four within three
(3) years of the Effective Date plus any extension of time necessary
to produce Magnetic Beads reasonably acceptable to BIO-RAD, LUMINEX
may terminate BIO-RAD's exclusive rights with respect to Magnetic
Beads in Fields One, Two, Three and Four by written notice to BIO-RAD.
If BIO-RAD has not made commercially available Kits incorporating
Magnetic Beads in each of Fields Five and Six within three (3) years
of the Amendment Effective Date plus any extension of time necessary
to produce Magnetic Beads reasonably acceptable to BIO-RAD, LUMINEX
may terminate BIO-RAD's exclusive rights with respect to Magnetic
Beads in Five and Six by written notice to BIO- RAD.
19. Section 12.2 of the Agreement is hereby amended to add the following
after the word "Group" in the third line of that Section:
"or BIO-RAD Vice-President Life Sciences Division, as appropriate,"
20. Section 12.8 of the Agreement is hereby amended to add the following
at the end of that Section:
"with a further copy to:
Bio-Rad Laboratories, Inc. Life Science Group
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Vice-President, Life Science Group"
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[**] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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Fax: (000) 000-0000"
21. ADDITIONAL TERM: ADVANCE AGAINST ROYALTIES. Upon the effective date of
this Amendment, BIO-RAD shall pay to LUMINEX an aggregate of [**] Dollars
($[**]) for both of Fields Five and Six as an Advance.
22. The additional fee for expansion of Field Two set forth in Exhibit A of
the Agreement is waived.
ENTIRE AGREEMENT. Notwithstanding the first sentence of Section 12.17 of the
Agreement, together the Agreement (including the Exhibits thereto) and this
Amendment constitute the entire agreement between the Parties in connection
with the subject matter thereof and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties.
IN WITNESS WHEREOF, the Parties have executed this Amendment.
LUMINEX CORPORATION BIO-RAD LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxx
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Title: Vice President - Business Development Title: Vice President
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[**] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
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