CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.20
COLLABORATIVE SOLUTIONS PROVIDER AGREEMENT
This Collaborative Solutions Provider Agreement ("Agreement") is entered
into as of July 10, 2001 (the "Effective Date") by and between Bergen Xxxxxxxx
Drug Company, a California corporation ("Bergen") and Xxxxxxxx.xxx, a California
corporation ("Omnicell").
RECITALS
WHEREAS, Omnicell is a provider of clinical infrastructure and workflow
automation solutions for the healthcare industry;
WHEREAS, Bergen is a wholesale distributor of pharmaceutical products and
provider of other goods and services;
WHEREAS, the parties hereto desire to enter into this Agreement for the
purpose of setting forth the terms and conditions whereby Omnicell and Bergen
shall collaborate to jointly market one another's products and services and to
leverage their respective strengths in supply automation and hospital pharmacy
to compete more effectively in the automation and drug distribution
marketplaces.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants of the parties set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties agree
as follows:
1. COLLABORATION ACTIVITIES.
1.1 Omnicell is in the business of providing clinical infrastructure and
workflow automation solutions. Omnicell's offerings include: Omnicell pharmacy
system, Sure-Med pharmacy system, supply systems and combination systems.
The Omnicell and Sure-Med pharmacy systems, together with all other
future and existing products, modifications, enhancements, revisions and
upgrades thereof shall be referred to as the "Omnicell Products".
1.2 Omnicell and Bergen will use commercially reasonable efforts to
collaborate in identifying, targeting and providing business opportunities to
prospective and existing customer accounts, including exchanging customer lists
(each on a strictly confidential basis), mutually analyzing and prioritizing
sales opportunities and conducting no less than quarterly meetings to effect the
purposes of this Agreement.
1.3 The parties contemplate that the marketplace for their respective
products will from time-to-time require bundled offerings of automation, drug
distribution, and in some cases, e-commerce platforms (collectively, "Bundled
Offering" or "Bundled Offerings").
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
1.4 Bergen and Omnicell each have certain software platforms currently
known as InterLinx(TM) XXX and OmniBuyer(TM), respectively, as the same exist or
may be changed or replaced from time to time (collectively, the "Software
Platforms"), which the parties intend to utilize on a customer-by-customer basis
as part of a Bundled Offering pursuant to terms and conditions of a separately
negotiated written agreement.
1.5 In the event either party receives from a customer or prospective
customer a request for proposal, whether formal or informal, verbal or written
(each, an "RFP") which contemplates a Bundled Offering, the party receiving the
RFP shall promptly notify in writing the other party and communicate the details
of the RFP to the other party. Such other party will have the absolute right of
first refusal to participate in responding to the RFP. If the other party does
not indicate within thirty (30) days of receipt of notice of the RFP its desire
to participate in responding to the RFP, such party will be deemed to have
waived its right to participate.
1.6 In the event a customer or prospective customer of either party has
requested a Bundled Offering or the parties have identified a customer for which
a Bundled Offering will be initiated, each party commits to use its commercially
reasonable efforts and provide adequate resources to collaborate with the other
party in good faith to create a Bundled Offering that has greater value to the
customer or prospective customer than the sum of the respective individual
offerings of Omnicell and Bergen. In such circumstances, neither Omnicell nor
Bergen shall negotiate outside the Bundled Offering with the customer unless the
other consents prior to such separate negotiations.
1.7 Subject to the goals set forth in Subsection 1.6 above, each party will
have sole discretion and control over the final price structure for its
respective products and services whether or not included within a Bundled
Offering. In all circumstances, any prospective customer shall be given the
option of selecting either party's individual offering for automation and drug
distribution, respectively.
1.8 Any development will be limited to ensuring that both companies'
e-commerce products and Software Platforms interface effectively. Any
development or integration of the party's e-commerce and Software Platforms,
each subject to the mutual approval(s) of the parties, shall be by separate
written agreements and under such terms and conditions as agreed upon by the
Chief Information Officer or Chief Technology Officer, as applicable, of each
respective company. Development of any new products will be discussed and
mutually agreed upon individually and as requested by customers.
1.9 The designated Marketing Executives of each company shall meet annually
to plan the scope of joint marketing activities and approve a joint marketing
budget for purposes of this Agreement and the amount of marketing dollars
Omnicell will make available to Bergen for additional marketing activities. In
addition, each party shall make available to the other at no charge a sufficient
number of brochures and other printed materials.
2. SCOPE OF AGREEMENT.
The relationship of the parties shall be as set forth in Schedule A.
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BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
2
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
3. OBLIGATIONS OF BERGEN.
3.1 Bergen shall from time to time and upon request of Omnicell provide to
Omnicell such information as Bergen deems appropriate describing Bergen's
products and services.
3.2 Bergen will be solely responsible for providing to joint customers of
Omnicell and Bergen all drug distribution and related services and support.
3.3 Bergen shall be solely responsible for all compensation to Bergen's
sales and other Bergen personnel.
3.4 Subject to the other provisions of this Agreement, Bergen in its sole
but reasonable discretion will utilize the resources of its National Health
Systems sales force, Pharmacy Business Solutions consulting group and/or such
other resources as it deems appropriate to carry out its obligations under this
Agreement.
3.5 Bergen shall designate certain personnel (as the same may be changed
from time-to-time in Bergen's sole but reasonable discretion) for each of the
designated functions in order to carry out the purposes of this Agreement:
STRATEGIC EXECUTIVE - responsible for the definitive agreements,
corporate relationship and joint development efforts and project
expansion.
SALES EXECUTIVE - responsible for handling joint RFP's, prioritizing
customer opportunities, sales training on Bergen sales force and
consultants and ongoing solutions development.
MARKETING EXECUTIVE - responsible for project support and providing
sales support, marketing studies and related materials.
3.6 During the Term of this Agreement, Bergen will commit to service level
commitments in those hospitals and health systems where Omnicell and Bergen have
a joint customer relationship that arose as a result of a Bundled Offering of
Omnicell and Bergen.
4. OBLIGATIONS OF OMNICELL.
4.1 Omnicell shall from time to time and upon request of Bergen provide to
Bergen such information as Omnicell deems appropriate describing Omnicell's
products and services.
4.2 Omnicell will be solely responsible for providing all installations of
Omnicell Products and ongoing service support.
4.3 Omnicell shall be solely responsible for all compensation to Omnicell's
sales and other Omnicell personnel.
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
3
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
4.4 Subject to the other provisions of this Agreement, Omnicell in its sole
but reasonable discretion will utilize the resources of its national sales force
and/or such other resources as it deems appropriate to carry out its obligations
under this Agreement.
4.5 Omnicell shall designate personnel (as the same may be changed from
time-to-time in Omnicell's sole but reasonable discretion) for each of the
designated functions in order to carry out the purposes of this Agreement:
STRATEGIC EXECUTIVE - responsible for the definitive agreements,
corporate relationship and joint development efforts and project
expansion.
SALES EXECUTIVE - responsible for handling joint RFP's, prioritizing
customer opportunities, sales training on Omnicell's sales force and
consultants and ongoing solutions development.
MARKETING EXECUTIVE - responsible for project support and providing
sales support, marketing studies and related materials.
4.6 During the Term (as defined herein) of this Agreement, Omnicell will
use its best efforts to have trained service and other certified personnel in
all geographic areas where its automation is utilized and will use its
commercially reasonable efforts to have its personnel in those geographic areas
where Omnicell and Bergen have a joint customer relationship that arose as a
result of a Bundled Offering of Omnicell and Bergen.
5. CERTAIN REMUNERATION.
The parties shall have those obligations as set forth in Schedule B.
6. TERM.
6.1 The Term of this Agreement shall commence on the Effective Date of this
Agreement and shall continue for a period of five years, unless otherwise
terminated as provided herein ("Initial Term"). This Agreement may be extended
for additional five (5) year terms as mutually agreed upon in writing between
the parties (collectively with the Initial Term, as the "Term"). Either party
may terminate this immediately upon the occurrence of either of the following
events (a termination for cause):
6.1.1 the failure by a party to cure a material breach of this
Agreement within thirty (30) days of written notice thereof,
or
6.1.2 upon the (i) filing of an application by a party to this
Agreement for, or its consent to, the appointment of a
trustee, receiver, or custodian of its assets; (ii) the
entry of an order for relief with respect to a party in
proceedings under the United States Bankruptcy Code, as
amended or superseded from time to time; (iii) the making by
a party of any general assignment for the benefit of
creditors; (iv) the entry of an
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BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
4
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
order, judgment, or decree by any court of competent
jurisdiction appointing a trustee, receiver, or custodian of
the assets of a party unless the proceedings and the person
appointed are dismissed within ninety (90) days; or (v) the
failure by a party generally to pay its debts as the debts
become due within the meaning of Section 303(h)(1) as
amended or superseded from time to time, of the United
States Bankruptcy Code, as determined by a bankruptcy court,
or in the event of a party's admission in writing of its
inability to pay its debts as they become due.
6.2 The parties rights set forth in this Section 6 are in addition to any
other rights or remedies available herein, at law, in equity or otherwise.
6.3 Upon termination of this Agreement for any reason and upon request of
the other party each party shall immediately return to the other party any
Confidential Information of the other party that it has in its possession.
7. USE OF TRADEMARKS.
7.1 During the Term of this Agreement, Bergen may use, only in connection
with Bergen's marketing and promotion of the Omnicell Products, trademarks,
insignias, logos, proprietary marks and the like related to the Omnicell
Products owned or controlled by Omnicell or its affiliated companies, in each
case subject to the prior written consent of Omnicell as to the form and content
of such use.
7.2 During the Term of this Agreement, Omnicell may use, only in connection
with Omnicell's marketing and promotion of the Bergen products and services,
trademarks, insignias, logos, proprietary marks and the like related to the
Bergen products and services owned or controlled by Bergen or its affiliated
companies, in each case, subject to the prior written consent of Bergen as to
the form and content of such use.
8. CONFIDENTIAL INFORMATION AND OTHER MATTERS.
8.1 Bergen acknowledges that it may acquire and develop certain non-public
knowledge, information and material concerning Omnicell, its business,
customers, products and services which are and shall be the trade secrets and
confidential and proprietary information of Omnicell (the "Omnicell Confidential
Information"). Bergen shall hold such Omnicell Confidential Information in
strict confidence and, except for disclosure to Bergen employees so long as such
disclosure is necessary for Bergen in the exercise of its rights hereunder, not
disclose it to others, not use it in any way or permit others to use it in any
way, commercially or otherwise, and not allow any unauthorized person, firm or
corporation access to such Omnicell Confidential Information either before or
after termination of this Agreement, without the prior written consent of
Omnicell or unless the third party is an end-user or customer who agrees to
abide by a confidentiality agreement which has the effect of protecting
Omnicell's rights and interests in the Omnicell Products to the extent set forth
herein.
8.2 Omnicell acknowledges that it may acquire and develop certain
non-public knowledge, information and material concerning Bergen, its affiliated
companies and their respective businesses, customers, products and services
which are and shall be the trade
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
5
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
secrets and confidential and proprietary information of Bergen or its affiliated
companies (hereinafter, the "Bergen Confidential Information"). Omnicell shall
hold such Bergen Confidential Information in strict confidence and, except for
disclosure to Omnicell employees so long as such disclosure is necessary for
Omnicell in the exercise of its obligations hereunder, not disclose it to
others, not use it in any way or permit others to use it in any way,
commercially or otherwise, and not allow any unauthorized person, firm or
corporation access to such Bergen Confidential Information either before or
after termination of this Agreement, without the prior written consent of Bergen
or unless the third party is an end-user or customer who agrees to abide by a
confidentiality agreement which has the effect of protecting Bergen's rights and
interests to the extent set forth herein.
8.3 The Bergen Confidential Information and the Omnicell Confidential
Information shall hereinafter be collectively referred to as the "Confidential
Information." The Confidential Information shall not include information if (i)
as evidenced by written records, it was in the lawful possession of the
receiving party at the time of disclosure; (ii) at the time of disclosure, it is
in the public domain; (iii) after disclosure, it becomes, through no act or
omission on the part of the receiving party, in the public domain; or (iv) it
was lawfully and independently obtained from a third party who was not under
obligation of confidentiality to the disclosing party of any of its affiliates
either by law or under an express or implied agreement.
9. CERTAIN REMEDIES; INDEMNIFICATION.
9.1 Bergen and Omnicell acknowledge and agree that the covenants and
agreements in Sections 8, 9 and 14 of this Agreement are made for the benefit of
the other and shall survive the termination of this Agreement for a period of
five (5) years. The parties acknowledge and agree that any breach by the other
of their respective covenants and agreements contained herein will result in
irreparable harm to the non-breaching party and that such party shall be
entitled to injunctive relief for such breach in addition to other relief to
which that party shall be entitled.
9.2 Bergen shall indemnify, defend and hold harmless Omnicell, its
subsidiaries, affiliated or related companies, directors, officers, employees
and agents, against all losses, damages, expenses, judgments, costs and
reasonable attorneys' fees arising out of a breach of this Agreement by Bergen
or its employees or agents and any claims based on infringement by the Bergen
Software Platforms or any portion thereof of any patents, copyrights, trade
secrets, or other proprietary rights of another or arising in connection with
Bergen's obligations to a joint customer of Bergen and Omnicell pursuant to a
separate agreement between Bergen and such customer; provided Omnicell promptly
notifies Bergen of such a claim; allows Bergen to control the defense,
settlement and compromise of such a claim; and provides reasonable cooperation
to Bergen in the defense of such a claim.
9.3 Omnicell shall indemnify, defend and hold harmless Bergen, its
subsidiaries, affiliated or related companies, directors, officers, employees
and agents, against all losses, damages, expenses, judgments, costs and
reasonable attorneys' fees arising out of a breach of this Agreement by Omnicell
or its employees or agents and any claims based on infringement by the Omnicell
Products or the Omnicell Software Platforms, or any portion thereof, of any
patents, copyrights, trade secrets, or other proprietary rights of another or
arising in connection with Omnicell's obligations to a joint customer of Bergen
and Omnicell pursuant to a separate agreement between Omnicell and such customer
or based upon the
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
6
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
performance of Omnicell Products; provided Bergen promptly notifies Omnicell of
such a claim; allows Omnicell to control the defense, settlement and compromise
of such a claim; and provides reasonable cooperation to Omnicell in the defense
of such a claim.
9.4 In addition to the foregoing, Omnicell shall indemnify Bergen for those
additional matters set forth in Schedule C.
9.5 In connection with any claim or action brought by either party as a
result of or pursuant to the terms of this Agreement, both of these parties
agree that in no event shall either party be liable to the other party for any
consequential, special, punitive, exemplary, indirect or incidental damages
(including but not limited to loss of anticipated profits, loss of use, or loss
of product), whether or not foreseeable and irrespective of the theory or cause
of action upon which such damages might be based, including but not limited to
negligence or other tort, contract, strict liability, breach of warranty, or
otherwise.
10. RELATIONSHIP OF PARTIES.
This Agreement does not in any way create the relationship of joint
venture, partnership or principal and agent between Omnicell and Bergen. Each
party is an independent contractor, and as such, shall not act or represent
itself, directly or indirectly or by implication, as agent for the other or
assume or create any obligation on behalf of or in the name of the other, or
otherwise bind the other in any manner. Without limiting the generality of the
foregoing, Bergen, nor its agents or employees, shall not have the authority to
accept orders for the Omnicell Products binding upon Omnicell or otherwise enter
into binding agreements of any nature whatsoever on behalf of Omnicell, without
the prior consent of Omnicell.
11. NON-COMPETE.
During the Term of this Agreement, Bergen shall not compete with Omnicell
by entering into the automation dispensing markets and Omnicell will not compete
with Bergen by entering into the drug distribution market. If either party or an
affiliated company of that party is acquired by a competitor of the non-acquired
party, then in such event, the non-acquired party shall be entitled to terminate
this Agreement immediately and without penalty. For purposes of this Agreement,
an "affiliate" or an "affiliated company" means, with respect to a party, any
entity that, directly or indirectly, or through one or more intermediaries, owns
or controls, is owned or controlled by, or is under common ownership or common
control with, that party. Likewise, "control" means either owning, directly or
indirectly, at least 51% of the voting stock or interests of a party (on a
fully-diluted basis) or having the ability, directly or indirectly, to elect a
majority of the board of directors or other governing members of a party.
12. COMPLIANCE WITH LAWS.
Each party shall perform its obligations in compliance with all laws,
regulations, ordinances and orders ("Laws") of any applicable governmental
entity having jurisdiction over such party. Neither party shall be obligated to
perform any of the obligations contemplated by this Agreement to the extent
that, in the opinion of legal counsel to such party, doing so would violate any
Laws.
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BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
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13. DISPUTE RESOLUTION.
In the event a dispute arises between the parties hereunder in respect of
how a service issue related to a joint customer should be resolved, either party
may submit to a local office of the American Arbitration Association a request
for mediation, whereupon each party will be obligated to proceed promptly in
good faith towards submitting the issue to a mediator for final and binding
resolution.
14. MISCELLANEOUS.
14.1 GOVERNING LAW. This Agreement shall be governed by, interpreted and
construed in accordance with the laws of the State of California without regard
to its choice of law provisions. The parties to this Agreement each hereby
irrevocably submit to the jurisdiction of the Superior Court of the County of
Orange, California, or the United States District Court for the Central District
of California for the purpose of any suit, action, or other proceeding arising
out of this Agreement.
14.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties with respect to the matters covered herein and may not be amended,
altered or modified except in writing, signed and agreed to by an authorized
representative of each party.
14.3 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and such counterparts shall together
constitute but one and the same Agreement, binding upon the parties hereto.
14.4 NO WAIVER. The failure of a party at any time to enforce any
provisions of this Agreement shall not be construed as a waiver of any provision
of this Agreement, or of the right of such party thereafter to enforce each and
every provision of this Agreement.
14.5 ATTORNEYS FEES. In the event that any dispute between the parties
under this Agreement should result in any suit, action, or other proceeding,
then the prevailing party shall be entitled to recover from the other party all
reasonable fees, costs and expenses (including reasonable attorneys fees)
incurred in connection with such suit, action or proceeding.
14.6 NOTICES. Any notice, request, demand or other communication required
or permitted under the terms of this Agreement must be in writing and must be
delivered personally or sent by a nationwide overnight air courier service
(prepaid, receipt acknowledgement requested), or by registered or certified mail
(postage prepaid, return receipt requested), addressed as shown below:
Notices to Bergen should be sent to:
Bergen Xxxxxxxx Drug Company
Attn: President
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
With a copy to:
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BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
Bergen Xxxxxxxx Corporation
Attn: Chief Legal Officer
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Notices to Omnicell should be sent to:
Omnicell
Attn: Chief Financial Officer
0000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
With a copy to:
Omnicell
Attn: Corporate Counsel
0000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
14.7 SEVERABILITY. If any provision or the scope of any provision of this
Agreement is found to be unenforceable or too broad in any respect pursuant to
any judicial decree or decision to permit enforcement to its full extent, such
provisions shall then be enforced to the maximum extent permitted by law, and
the parties consent and agree that such provisions shall be curtailed only to
the extent necessary to conform to law.
14.8 ASSIGNMENT. Neither party may assign this Agreement without the prior
written consent of the other party (such consent not to be unreasonably
withheld), except to an affiliated entity. For purposes of this Section, any
transfer, sale, merger or consolidation of a party, or the sale of a substantial
portion of such party's assets, whether by contract, agreement, operation of
law, or any other transaction or series of related transactions transferring all
or substantially all of the party's business, assets (including this Agreement),
stock, or control shall be deemed an assignment and require the prior written
consent of the other party, but shall not modify, supplement, or terminate the
rights or obligations of the parties hereunder. Omnicell acknowledges that
Bergen Xxxxxxxx Corporation and AmeriSource Health Corporation have entered into
that certain Agreement and Plan of Merger dated March 16, 2001 (the "AmeriSource
Bergen Merger Agreement"), and for purposes of this provision Omnicell hereby
gives its consent for the assignment that may be deemed to occur upon
consummation of the transactions contemplated by such merger agreement. Bergen
acknowledges that Omnicell intends to make an initial public offering of its
common stock pursuant to its registration statement on file with the SEC and to
reincorporate in Delaware, and for purposes of this provision Bergen hereby
gives its consent for the assignment that may be deemed to occur upon
consummation of the transactions contemplated by such offering and
reincorporation. This Agreement shall be binding upon the parties hereto and
their successors, heirs and assigns, as permitted.
14.9 FORCE MAJEURE. No Party shall be responsible or considered in breach
of this Agreement for any delay or failure in the performance of any obligation
of this Agreement to the extent that such failure or delay is caused by acts of
God, fires, explosions, labor disputes, accidents, civil disturbances, material
shortages or other similar causes beyond its
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406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
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reasonable control, even if such delay or failure is foreseeable; provided,
however, that the non-performing Party provides notice of such cause preventing
or delaying performance and resumes its performance as soon as practicable and
provided further that the other parties may terminate this Agreement upon notice
if such non-performance continues for a period of ninety (90) days.
14.10 USE OF NAME. Neither Party hereto shall use the name of the other
Party in any third party or public disclosure, including without limitation any
advertising, offering materials, prospectus or filings with any governmental
entity without prior written approval of such Party, such approval not to be
unreasonably withheld.
14.11 CONFIDENTIAL TREATMENT. In the event a Party is required in the
opinion of counsel to file this Agreement as part of or in connection with a
filing made with the Securities and Exchange Commission, such Party shall seek
confidential treatment of the information set forth in Schedule A, Schedule B
and Schedule C.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first above written.
XXXXXXXX.XXX, a California corporation BERGEN XXXXXXXX DRUG COMPANY, a California corporation
By: By:
-------------------------------------------------- --------------------------------------------------
Name: Name:
------------------------------------------------ ------------------------------------------------
Its: Its:
------------------------------------------------- -------------------------------------------------
Date: Date:
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BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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SCHEDULE A
1. Omnicell shall not enter into either [*] or [*] as it will have
with Bergen with [*] during the Term of the Agreement and represents to
Bergen that it has not entered into a [*] with [*] prior to the Term of this
Agreement.
2. Omnicell may work with [*] for the sales of [*] in certain [*];
provided, however, Omnicell shall be [*] in connection with [*] to or from [*]
or enter into a relationship where the [*] could claim a preferred status
with Omnicell. Notwithstanding the foregoing, [*] may be permitted to include
Omnicell Products in any RFP responses where [*] have not been requested.
3. Bergen shall not enter into either [*] or [*] as it will have
with Omnicell with [*] during the Term of the Agreement and represents to
Omnicell that it has not entered into a [*] with any other of the [*] prior
to the Term of this Agreement.
4. Bergen may work with the [*] for the sales of [*] in certain [*];
provided, however, Bergen shall be [*] in connection with [*] to a [*] or
enter into a relationship where the [*] could claim a preferred status with
Bergen. Notwithstanding the foregoing, the [*] may be permitted to include
Bergen products in any RFP responses where [*] have not been requested.
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
11
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
SCHEDULE B
1. In the event Bergen acquires Omnicell shares of stock in the
initial public offering or otherwise makes an "Investment" pursuant to
paragraph 6 below, Omnicell, at such time, shall begin to pay to Bergen a
commission of [*] derived from pharmacy automation products ("Commission") at
accounts as defined in paragraph 1. Commissions are due to Bergen from
Omnicell under the following circumstances:
(a) where the account is not then currently a customer of Bergen (as
primary drug distributor) nor Omnicell, and selects Omnicell
Product and Bergen (as primary drug distributor) as a result of a
joint RFP response or joint marketing presentation by Omnicell and
Bergen where the collaborative relationship has been presented to
the account;
(b) where Bergen is the then current primary drug distributor and
Omnicell is not an existing supplier of the Omnicell Product and
the account selects Omnicell Product as a result of a joint RFP
response or joint marketing presentation by Omnicell and Bergen
where the collaborative relationship has been presented to the
account;
(c) where the account is not then currently a Bergen customer (as
primary drug distributor) but is then currently an Omnicell
customer and expands its Omnicell Product implementation and
selects Bergen as the primary drug distributor as a result of a
joint RFP response of joint marketing presentation by Omnicell and
Bergen where the collaborative relationship has been presented to
the account;
(d) where the account is then currently a customer of each Bergen (as
primary drug distributor) and Omnicell and expands its Omnicell
Product implementation, but only in the event its primary drug
distribution agreement with Bergen is modified, extended or
otherwise revised to enhance or substantially benefit the
collaborative relationship, as a result of a joint RFP response or
joint marketing presentation where the collaborative relationship
has been presented to the account; and
(e) where the account at any time during the Term has previously
satisfied any of the conditions in any of (a) - (d) above,
continues or initiates business with Bergen as its primary drug
distributor and expands its Omnicell Product implementation.
The Commission called for by this paragraph 1 will be paid so long as the sale
occurs at any time while (i) this Agreement remains in full force and effect
between the parties and within six (6) months after termination of this
Agreement for any reason; and (ii) the agreement between Bergen and the account
remains in full force and effect or within six (6) months after termination of
such agreement. In the event the parties wish to enter into a similar
arrangement with respect to commissions for OmniBuyer(TM) (or successor system),
those commissions shall be subject to a separate written agreement as may be
negotiated between the parties. In the event Bergen does not acquire Omnicell
shares of stock in the
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
12
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
IPO or otherwise make an Investment, Omnicell will not be required to pay to
Bergen any Commissions hereunder.
2. Omnicell's cash payment of Commissions to Bergen shall occur by the
end of the month following the month in which Omnicell receives payment from the
applicable customer.
3. Omnicell shall provide a monthly accounting to Bergen for all sales
of Omnicell pharmacy automation products that meet any of the thresholds
detailed in paragraph 1 above. All sums payable hereunder shall be paid without
notice, demand set off or deduction.
4. The parties hereto shall have the right on thirty (30) days written
notice to the other party, to audit each other's books and records relating to
the accounting of Revenues or for any other purpose reasonably related to the
other party's obligations under this Agreement, provided that such audits shall
occur no more than twice in any calendar year and shall take place at the
offices of the auditee at the expense of the auditor, during normal business
hours.
5. In connection with any initial public offering ("IPO") of shares of
capital stock of Omnicell, Omnicell agrees to reserve for offer to Bergen shares
of such stock at the initial offering price for such shares with an aggregate
value equivalent to Five Million Dollars ($5,000,000), provided that such shares
have been registered with the U.S. Securities and Exchange Commission (the
"SEC") pursuant to an appropriate registration statement under the Securities
Act of 1933, as amended, which registration statement will have been declared
effective by the SEC, and provided further that such IPO occurs on or before
December 31, 2001. Except in connection with any required pledge of collateral
pursuant to any financing agreements previously entered into between Bergen's
parent corporation and any third party, and except in connection with any
successor entity restructuring subsequent to the merger contemplated by the
AmeriSource Bergen Merger Agreement, Bergen shall not assign, transfer, sell,
pledge, hypothecate or otherwise dispose of such shares for a period of one (1)
year from the date of the IPO; provided, however, in the event of a Change in
Control (as defined hereinafter) of Omnicell during such one (1) year period of
restriction, such restriction shall automatically terminate and Bergen shall
have the right to make any disposition of the shares as it deems appropriate in
its sole discretion. For purposes of the foregoing, "Change in Control" shall
mean (i) any change in the ownership or effective control of Omnicell, or (ii)
any change in the ownership of a substantial portion of the assets of Omnicell;
all within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended to date, or any successors provision thereto, regulations (including
temporary and proposed regulations) promulgated thereunder, and judicial
interpretations of Section 280G and the regulations.
6. In the event that the IPO is not consummated, prior to December 31,
2001 Bergen will have the option, but not the obligation, to make an investment
ranging between Three Million Dollars ($3,000,000) and Five Million Dollars
($5,000,000) in Omnicell, on such terms as may be mutually agreeable to the
parties and memorialized by written instruments (the "Investment").
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
13
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
SCHEDULE C
Omnicell shall indemnify, defend and hold harmless Bergen, its
subsidiaries, affiliated or related companies, directors, officers, employees
and agents, against all losses, damages, expenses, judgments, costs and
reasonable attorneys' fees arising out of any third party claims alleging a
material misstatement or omission in the information contained in any
registration statements filed with the SEC or any other public dissemination of
information by Omnicell, describing the relationship between Bergen and
Omnicell, including without limitation, information regarding Omnicell's
business prospects, financial results, source of funds, results of operations or
business relationships; provided Bergen promptly notifies Omnicell of such a
claim; allows Omnicell to control the defense, settlement and compromise of such
a claim; and provides reasonable cooperation to Omnicell in the defense of such
a claim. The parties agree that the survival provisions and limitations on
liability set forth in Article 9 of the Agreement shall apply to claims for
indemnification pursuant to this Schedule C.
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
14
