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Exhibit 10.19
STRATEGIC RELATIONSHIP AGREEMENT
STRATEGIC RELATIONSHIP AGREEMENT ("Agreement") by and between
CELLOMICS, INC. a Delaware corporation, having a place of business at 635
William Pitt Way, Pittsburgh, Pennsylvania 15238 ("Cellomics", as that term is
further defined in Paragraph 1.3) and BECKMAN COULTER, INC., a Delaware
corporation, having a place of business at 4300 North Harbor Boulevard,
Fullerton, California 92834-3100 ("BCI", as that term is further defined in
Paragraph 1.2).
R E C I T A L S
I. Cellomics owns confidential technology, applications for patent and
patents in the fields of cell biology and cell-based assays.
II. Cellomics has designed and developed proprietary instruments for
cell-based assays (the "Cellomics Instruments, as that term is further
defined in Paragraph 1.4) and Reagents ("Reagents as defined in
Paragraph 1.10) and kits containing reagents and/or other consumables
for use therewith (jointly the "Cellomics Kits", as that term is
further defined in Paragraph 1.5). Cellomics has a research and
development program to refine, modify and improve the Cellomics
Instruments and Cellomics Kits. The Cellomics Instruments and Cellomics
Kits are used by end users of Cellomics for generating knowledge about
cells and cellular processes for analyzing the effects of chemical
compounds and mixtures on cells.
III. Cellomics, in conjunction with other parties, is presently developing a
next generation cell analysis system using microfluidics and micro
arrays of cells for generating knowledge about cells and cellular
processes and for analyzing the effects of chemical compounds and
mixtures on cells (the "Cell Chip Program", as that term is further
defined in Paragraph 9.1). It is the intent of Cellomics to (a) license
third party pharmaceutical, independent research and other companies to
use the resultant system in the third parties' efforts to discover new
therapeutic drugs (the "TAP Program", as that term is further defined
in Paragraph 10.1), (b) to use the resultant
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system to expand Cellomics' knowledge of cells, cell processes and cell
interactions with chemical compounds and mixtures and to license or
sell such knowledge to others (the "Knowledge Base", as that term is
further defined in Paragraph 13.1), and (c) to sell products that
result from, depend upon or relate to the Cell Chip Program.
IV. BCI is in the business of developing, manufacturing and distributing
instruments and reagents and kits therefor in the fields of life
sciences and in vitro diagnostics. Among the BCI businesses in the
forgoing fields are (a) automating the processes of others including
automating third party processes in the field of cellular analysis, and
(b) developing, manufacturing and selling instruments, kits and systems
for performing cellular analyses by means of flow cytometry. BCI also
has proprietary software equipment and procedures for automating the
processes of others.
V. BCI desires to be the exclusive, world-wide distributor of the
Cellomics Instruments and the Cellomics Kits and the improvements
thereof.
VI. BCI desires to contribute to the Cell Chip Program by designing and
developing software, equipment and procedures to automate the Cell Chip
Program. BCI further desires to be the exclusive, world-wide
distributor of the resultant automated system.
VII. BCI desires to participate, through its contribution to the development
of automation for the Cell Chip Program and its licensing of BCI
technology to Cellomics, in the commercialization of the TAP Program.
VIII. BCI desires to acquire rights and licenses to the Knowledge Base.
NOW THEREFORE in consideration of the mutual undertakings and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
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1.0 DEFINITIONS
The following terms, when used herein with an initial capital letter
and without regard to whether they appear in the singular, plural or possessive
form, shall have the following defined meanings:
1.1 "AFFILIATE" shall mean any corporation or other form of limited
liability legal person and any partnership, association, joint venture
or other form of business entity controlled by, controlling or under
common control with a party hereto. As used herein, the word and root
"control" in the context of a corporation shall mean the ownership,
directly or indirectly, of fifty percent (50%) or more of the voting
shares or other equity interests entitled to vote in the election of
directors of the corporation; and, in the context of any other form of
business entity, the right to receive fifty percent (50%) or more of
the net profits of such entity and the right to a majority interest in
the management and control of such entity.
1.2 "BCI" shall mean Beckman Coulter, Inc., its divisions and Affiliates
and its and their permitted successors and assigns.
1.3 "CELLOMICS" shall mean Cellomics, Inc., its divisions and Affiliates
and its and their permitted successors and assigns.
1.4 "CELLOMICS INSTRUMENTS" shall mean the ArrayScan II reader, the
ArrayScan Kinetics reader, each of which is specified and defined in
attached Exhibit 1.4 and their attendant software identified in Exhibit
1.4 and any refinement, improvement or modification to such readers or
software, and specifically excludes the ArrayScan Kinetics Workstation
now being manufactured by Zeiss even though an ArrayScan Kinetics
Reader is incorporated therein.
1.5 "CELLOMICS KITS" shall mean the reagents, controls, calibrators,
buffers and kits identified in attached Exhibit 1.5 for use on
Cellomics instruments for High Content Screening applications and any
refinement, improvement or modification thereof. It is the intent of
the parties to include within this definition and this Agreement any
reagents, controls, calibrations, buffers and kits hereafter developed
or acquired by
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Cellomics, excluding only those developed or acquired for the Cell Chip
System (as that term is defined in Paragraph 9.2).
1.6 "EFFECTIVE DATE" shall mean the last date in time adjacent the
signatures of the authorized representatives of the parties on the last
page of this Agreement.
1.7 "HIGH THROUGHPUT SCREENING"[*]
1.8 "HIGH CONTENT SCREENING"[*]
1.9 "PRODUCTS" shall mean the Cellomics Instruments and the "Cellomics
Store and Screen Software," which are defined on Exhibit 1.4.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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1.10 "CELLOMICS REAGENTS" shall mean reagents manufactured by Cellomics, for
Cellomics by others or sold by Cellomics under license or otherwise for
use in or with Cellomics Instruments for High Content Screening
applications as and when such reagents are sold separately from
Cellomics Instruments or Cellomics Kits.
1.11 "FLOW CYTOMETRY"[*]
1.12 "IN-VITRO DIAGNOSTICS" shall mean the quantitative or qualitative
analysis of samples of human origin intended to assist clinicians in
the identification, diagnosis, monitoring or treatment of disease in
humans.
2.0 COMMISSION REPRESENTATION OF CELLOMICS PRODUCTS
2.1 APPOINTMENT OF BCI - Cellomics hereby appoints BCI and BCI accepts
appointment as a commission sales representative for the Cellomics
ArrayScan II reader and its attendant software, the Cellomics Kits and
the Cellomics Store and Screen Software in the countries specified in
Paragraph 2.4. Except for Cellomics' employees, Cellomics shall not
appoint any other commission sales representative within the countries
specified in Paragraph 2.4 for the ArrayScan II reader or its attendant
software, the Cellomics Kits or the Cellomics Store and Screen
Software. The term of this appointment (the "Commission Representative
Term") shall begin on the Effective Date and end with the Instrument
Appointment Date (as that term is defined in Paragraph 3.2).
2.2 DUTIES OF BCI - The specific duties and obligations of BCI during the
Commission Representative Term are defined in attached Exhibit 2.2.
2.3 DUTIES OF CELLOMICS - The specific duties and obligations of Cellomics
during the Commission Representative Term are defined in attached
Exhibit 2.3.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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2.4 TERRITORY - Beginning with the Effective Date, BCI shall be a
commission sales representative in the United States, Canada and those
countries in Europe identified in attached Exhibit 2.4 where BCI
maintains a direct sales force. BCI shall, at a time mutually agreeable
to the parties, but in no event later than ninety (90) days after the
Effective Date, be a commission sales representative in Japan. If BCI
does not agree to be a commission sales representative in Japan within
such ninety (90) days then Cellomics may retain for itself or may
appoint one or more other parties as its representative in Japan and
BCI shall have no further rights under this Agreement relative to the
Products in Japan.
2.5 TRAINING - Promptly after the Effective Date, Cellomics will train BCI
field sales, service and marketing personnel on the ArrayScan II reader
and attendant software, Cellomics Kits and the Cellomics Store and
Screen Software; BCI will select the BCI personnel to attend such
training. Promptly after the Effective Date, BCI will train Cellomics
field technical support personnel on the BCI Biomek, Biomek FX and Core
Systems automation platforms; Cellomics will select the Cellomics
personnel to attend such training. The parties will mutually agree on
the times and locations for such training. Each party shall bear its
own expenses and those of its employees for such training.
2.6 COMPENSATION TO BCI - Cellomics shall compensate BCI for its activities
as a commission sales representative as follows:
(a) Except as provided in Paragraph 2.6(b) for those sales,
leases, rentals or other placements of an ArrayScan II reader
or Cellomics Store and Screen Software made by BCI or
Cellomics to those laboratories or facilities of third parties
which either own, lease, rent or otherwise possess a BCI
Biomek or Biomek FX or Core System ... [*] of the Net Selling
Price of the ArrayScan II reader and attendant software and
the Cellomics Store and Screen Software. For the avoidance of
doubt, the foregoing commission will only be earned if the
ArrayScan II reader or Cellomics Store and Screen Software is
placed in the same third party laboratory or facility that
possesses
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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one or more of the foregoing BCI products and will not be
earned if the ArrayScan II reader or Cellomics Store and
Screen Software is placed in a third party laboratory or
facility which does not possess one of the foregoing BCI
products even though such third party may possess one or more
of such BCI products in another of its laboratories or
facilities.
(b) For those sales, leases, rentals or other placements of an
ArrayScan II reader and attendant software or Cellomics Store
and Screen Software made by Cellomics or BCI to a third party
identified in attached Exhibit 2.6 which are completed by
Cellomics or BCI within ninety (90) days of the Effective Date
... [*] of the Net Selling Price of the ArrayScan II reader
and attendant software and the Cellomics Store and Screen
Software.
(c) For those sales, leases, rentals or other placements of an
ArrayScan II reader and attendant software or Cellomics Store
and Screen Software made by Cellomics or BCI to third parties
who are not within categories (a) or (b) hereof ... [*] of the
Net Selling Price of the ArrayScan II reader and attendant
software or the Cellomics Store and Screen Software.
(d) For those sales of Cellomics Kits and Cellomics Reagents by
Cellomics... [*] of the Net Selling Price of such Kits.
(e) For those sales of Cellomics Kits and Cellomics Reagents by
BCI subject to the volume discounts specified in Exhibit 3.3
attached, Cellomics shall pay BCI commissions in accordance
with Exhibit 3.3 attached.
For purposes of this Agreement, Net Selling Price shall mean the gross
amount of all monies received by Cellomics from the sale, lease, rental
or other placement of the ArrayScan II reader and attendant software
and/or from the Cellomics Store and Screen Software and/or Cellomics
Kits from non-Affiliated third parties less the sum of the following:
(a) trade, quantity, early payment and cash discounts actually allowed
and taken, (b) credits and allowances actually given for returned or
rejected goods, (c) freight, special handling or crating charges,
transportation insurance,
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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custom duties and custom broker's fees and expenses, and (d)
value-added, sales, excise, use or turnover taxes.
2.6.1 BCI agrees that it shall provide incentive compensation to its
field sales representatives who are directly responsible for
BCI receiving the compensation provided for in Paragraph 2.6
in substantially the same manner and on substantially the same
basis as BCI provides incentive compensation to its field
sales force on the sale, lease or rental of BCI products.
2.7 METHODS DEVELOPMENT - Cellomics shall throughout the term of this
Agreement, use reasonable commercial efforts to develop new
applications and uses for the ArrayScan II reader. Cellomics agrees to
produce at least [*] new Cellomics Kits each year for the first and
second years following the Instrument Appointment Date, defined in
Paragraph 3.1 below.
3.0 DISTRIBUTION OF THE PRODUCTS
3.1 APPOINTMENT OF BCI FOR THE PRODUCTS - Subject to the remainder of this
Paragraph, Cellomics hereby appoints BCI and BCI accepts appointment as
the sole and exclusive world-wide distributor of the Products. Except
for (a) placement of Cellomics Instruments with Centers of Excellence
in accordance with Paragraphs 12.2 and 12.3, (b) placement with those
third parties who are assisting Cellomics in the development of the
Cell Chip Program, and (c) placement with third parties who are
collaborating with Cellomics in any research, development or other
effort (x) beginning with the Effective Date for the ArrayScan Kinetics
reader, and (y) beginning with the Instrument Appointment Date
(specified in Paragraph 3.2) for the ArrayScan II reader and the
Cellomics Store and Screen Software, Cellomics shall not sell, lease,
rent or otherwise place with or distribute the Products to any third
party.
3.2 TERM OF APPOINTMENT FOR CELLOMICS INSTRUMENTS - The term of BCI's
appointment as sole and exclusive distributor of the Cellomics
Instruments shall begin on the date Cellomics certifies to BCI in
writing that (a) development of the ArrayScan Kinetics reader and its
attendant software has been completed, (b) such reader and software
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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each meets all of the specifications of Exhibit 1.4, and (c) Cellomics
is fully capable of delivering commercial quantities of such reader
within ninety (90) days of receipt of a BCI Purchase order (the
"Instrument Appointment Date"). Unless earlier terminated in accordance
with the provisions of this Agreement, BCI's appointment pursuant to
Paragraph 3.1 shall continue for the term of this Agreement.
3.3 APPOINTMENT OF BCI FOR CELLOMICS KITS AND CELLOMICS REAGENTS -
Beginning with the Instrument Appointment Date Cellomics appoints BCI
and BCI accepts appointment described in Paragraph 3.1 as commission
sales representative and the co-exclusive seller (with Cellomics) of
Cellomics Kits and Cellomics Reagents for the territory comprising the
United States, Canada, those countries specified in attached Exhibit
2.4 and Japan (but Japan only if BCI is at such time a commission sales
representative for Japan). Cellomics agrees that (a) , except for sales
to customers identified by BCI in BCI's capacity as a commission sales
representative under supply agreements between Cellomics and such
customers ("BCI Kit Customers"), Cellomics shall only sell, distribute
or otherwise place Cellomics Kits and Cellomics Reagents with third
parties [*] and shall sell such Kits and Reagents in accordance with
the schedule in Exhibit 3.3, (b) it shall sell Cellomics Kits and
Cellomics Reagents to BCI Kit Customers at the discounts from Cellomics
then prevailing list price specified in attached Exhibit 3.3, (c) it
shall directly ship Cellomics Kits and Cellomics Reagents to BCI Kit
Customers, (d) it may sell Cellomics Kits and Cellomics Reagents to
original equipment manufacturers (OEM's) for use with non-automated
microscopes and similar non-automated equipment manufactured by such
OEM's and (e) it shall pay commissions to BCI for all sales of
Cellomics Kits and Cellomics Reagents by Cellomics to Cellomics
customers and to BCI Kit Customers in accordance with the schedule in
attached Exhibit 3.3. BCI's foregoing appointment shall, unless earlier
terminated in accordance with the terms of this Agreement, BCI continue
for the term of this Agreement.
3.3.1 Notwithstanding the foregoing BCI and Cellomics agree, not
later than the first anniversary of the Instrument Appointment
Date, to reevaluate in good faith the commissions paid to BCI
under Exhibit 3.3.
3.4 MANUFACTURE AND SALE - Cellomics agrees to and shall manufacture, sell
and deliver to BCI and BCI agrees to and shall purchase and take from
Cellomics such quantities of the Products and spare parts therefor as
BCI may order in accordance with this Agreement.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 10
3.5 SHIPMENT TERMS - The Products and all spare parts are sold FOB
Cellomics facility in Pittsburgh, Pennsylvania. Subject to Paragraph
3.10.1 and the remainder of this Paragraph, BCI shall pay all freight
and insurance costs from such Cellomics facility to the destination of
the Product specified in the BCI Purchase Order. BCI shall have the
right to bill the customer for freight, insurance, duty, custom broker
fees and expenses, taxes, handling and similar charges and expenses.
Cellomics shall, upon written request from BCI, ship an ordered Product
directly to BCI's customer. Cellomics shall, upon written request from
BCI, prepay the cost of freight and insurance to ship an ordered
Product to the BCI designated destination and add such cost to the
invoice for such Product. Title to and risk of loss of the Products
shall pass to BCI at the Cellomics facility upon delivery by Cellomics
to the BCI designated carrier.
3.6 SPECIFICATIONS - Each of the Products ordered hereunder shall conform
to the specifications of Exhibit 1.4. Each of the Cellomics Kits
ordered hereunder shall conform to the specifications of Exhibit 1.5
3.7 WARRANTY SERVICE - Subject to the remainder of this Paragraph, BCI
shall provide each third party customer purchasing, leasing, renting or
otherwise accepting a Product from BCI a warranty in the form of the
Cellomics Warranty which is included on Exhibit 3.7A and against
defects in materials or workmanship. BCI shall be responsible for
performing warranty service in accordance with the preceding sentence
for the Cellomics Instruments ordered by BCI under this Agreement.
Cellomics shall be responsible for and shall promptly perform the
warranty service on the Cellomics Store and Screen Software ordered by
BCI under this Agreement. Cellomics shall provide, at no cost or
expense to BCI (including freight, insurance and custom duties and
expenses to the destination designated by BCI), all replacement parts
required by BCI in performing such warranty services or preventive
maintenance associated therewith on Cellomics Instruments. Cellomics
shall maintain a sufficient inventory of parts at sites designated by
BCI to provide a twenty-four (24) hour response time for routine and
expected repairs and a forty eight (48) hour response time on major or
unanticipated repairs. Cellomics shall also reimburse BCI at BCI's then
standard rates (which the parties understand and agree may be increased
from time to time by BCI) for the time spent and expenses incurred by
BCI service personnel in performing such warranty repairs and
preventive maintenance on
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Cellomics Instruments and in traveling to and from the service
personnel's home office to the customer requesting such warranty
service or preventive maintenance.
3.8 CELLOMICS' RESPONSIBILITIES - The specific duties and responsibilities
of Cellomics during the term that BCI is the sole and exclusive
distributor of the Cellomics Instruments are specified in attached
Exhibit 2.3.
3.9 PURCHASE PRICE - Subject to the remainder of this Paragraph, the
purchase price to BCI of the Products are those shown in attached
Exhibit 3.9A. As further described on Exhibit 3.9B for each individual
transaction between BCI and a third party customer of a Product where
the Net Selling Price (as that term is hereafter defined) of such
Product differs from Cellomics then established list price for such
Product by more [*] an adjustment will be paid. The adjustment will be
paid (a) to BCI, where such Net Selling Price is more than [*] lower
than List Price, or (b) to Cellomics where such Net Selling Price is
more than [*] higher than such List Price. The amount of each such
adjustment shall be [*] of the difference between the Net Selling Price
and the List Price for each such transaction made by BCI in such
calendar quarter. Solely for purposes of this calculation in no event
shall the net selling price be treated as being less than [*] of the
then current List Price. The aggregate of such adjustments will be
calculated and the net amount paid to the party owed within thirty (30)
days of the end of each calendar quarter. For purposes of this
Paragraph 3.9,
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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Net Selling Price shall mean the gross amount of all monies received by
BCI from the sale of the Product less the sum of the following: (a)
trade, quantity, early payment and cash discounts actually allowed and
taken, (b) credits and allowances actually given for returned or
rejected goods, (c) freight, special handling or crating charges,
transportation insurance, custom duties and custom broker's fees and
expenses, and (d) value-added, sales, excise, use or turnover taxes.
3.9.1 The purchase price to BCI for replacement parts to be used by
BCI for non-warranty repairs and preventive maintenance shall
be Cellomics [*].
3.10 PURCHASE ORDERS AND MINIMUM ORDER TIME - FORECASTS - BCI shall,
promptly after the Instrument Appointment Date, provide Cellomics with
a written forecast of the quantity of each Product which BCI
anticipates it will purchase from Cellomics during each of the next
twelve (12) months. A BCI Purchase Order for the total quantity, if
any, of each Product BCI desires to purchase in the initial three (3)
months of such forecast shall accompany the forecast. The remaining
months of the forecast shall be BCI's commercially reasonable estimate
of its requirements for such Products during such period. The forecast
shall not be binding on either party and shall be used for planning
purposes only.
3.10.1 BCI shall, within ten (10) days of the end of each month
thereafter, send Cellomics a revised twelve (12) month
forecast. BCI shall include with each revised forecast a
Purchase Order for the quantities, if any, of each Product
specified in month three (3) thereof. The remaining nine (9)
months of the revised forecast shall be BCI's commercially
reasonable estimate of its requirements for such Products
during such period. The revised forecasts shall not be binding
on either party and shall be used for planning purposes only.
3.10.2 Notwithstanding Paragraphs 3.10 and 3.10.1, Cellomics shall
not ship Products, including those Products manufactured
pursuant to the Purchase Orders of such Paragraphs to BCI. For
the avoidance of doubt, all Products ordered under this
Agreement shall be shipped directly to BCI customers
designated by BCI, either pursuant to each Purchase Orders or
subsequent thereto if the designation on such Purchase Order
is to manufacture and hold pending instructions from BCI.
Cellomics shall not invoice BCI for Products manufactured
under this Agreement until such
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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Products have been shipped to a BCI designated customer.
BCI may from time to time present BCI Purchase Orders to
Cellomics for Products and spare parts therefore. Cellomics
shall accept each such Purchase Order and deliver the quantity
of each Product and spare part specified therein; provided
that, Cellomics shall only be required to deliver, within the
ninety (90) days specified in the next sentence of this
Paragraph, that quantity of each such Product which is within
[*] of the quantity specified for such Product in the forecast
submitted by BCI to Cellomics at least three (3) months in
advance of such Purchase Order and the remaining quantity of
such Product may be delivered in one hundred and eighty (180)
days from receipt of such Purchase Order by Cellomics. Each
BCI Purchase Order shall not require delivery of (a) the
specified Product in less than ninety (90) days from receipt
of such Purchase order, and (b) the specified spare parts in
not more than one (1) day from receipt of such Purchase Order.
Cellomics accepts that time is of the essence in its
performance under any BCI Purchase Order and, as such, subject
only to the limitation of the preceding sentence, it shall
deliver the Products and spare parts on the date specified in
such BCI Purchase Order.
3.10.3. Cellomics shall promptly communicate to BCI any anticipated
delays in delivery under any BCI Purchase Order so that
special shipping arrangements may be made. Cellomics will be
responsible for the charges associated with or resulting from
special shipping arrangements for late deliveries.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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3.11 PAYMENT TERMS - BCI shall pay each Cellomics invoice for Products
within [*] of the later of: (a) receipt of the invoice, or (b) receipt
of the Products referenced on such invoice by (i) BCI or (ii) the BCI
customer in the case of drop-shipping by Cellomics directly to BCI's
customer.
3.12 WARRANTY - Cellomics warrants the Products in accordance with the terms
of Exhibit 3.7A. Cellomics shall promptly repair or replace any
Products or the parts thereof which fail to conform to the foregoing
warranty without cost or expense therefor to BCI including shipping
charges to return defective Products or parts to Cellomics and to ship
replacement Products from Cellomics to BCI or its customer.
3.13 QUALITY TESTING - Cellomics shall, prior to any shipment of a Product
sold hereunder, perform on such Product each of the quality tests
specified in attached Exhibit 3.13. The Cellomics invoice for each
shipment of a Product shall have attached thereto a certificate signed
by an authorized representative of Cellomics attesting to the
performance of such testing and giving the results thereof.
3.14 PRODUCT PROBLEMS - Cellomics shall promptly communicate to BCI all
information which comes to its attention pertaining to the performance
of the Products and Cellomics Kits or product anomalies or stability
problems relative thereto. BCI shall promptly inform Cellomics of
similar problems which come to its attention. Cellomics shall promptly
investigate and regularly report back to BCI on its actions
contemplated and taken to resolve all such problems.
3.15 PRODUCT CORRECTIVE ACTION - BCI shall be responsible for, coordinate
and conduct any corrective action required for Products sold hereunder
to its customers. Cellomics shall be responsible to the extent of its
warranty contained in Exhibit 3.7A. Notwithstanding the foregoing for
latent design or manufacturing defects, Cellomics, at its expense, will
for a period of two (2) years following the earlier of delivery of the
Product to BCI or its customer at Cellomics' option either repair or
replace such Product. Notwithstanding the preceding two sentences
Cellomics will, for the life
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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of the Product, at its sole cost and expense and at its option, repair
or replace Products shown to have a material safety hazard.
3.16 PURCHASE AND SALE FORMS - Except as otherwise mutually agreed in
writing signed by both parties, any terms and conditions on either a
BCI Purchase Order or a Cellomics Order Acknowledgement or any other
document relating to the purchase, sale or transfer of Products between
the parties which are in conflict with any of the terms of this
Agreement shall be null and void and without legal effect.
3.17 IMPROVEMENTS - Cellomics shall promptly disclose to BCI any
improvements to, or applicable to, the Products and shall offer such
improvements to BCI. The parties will mutually agree on the phase in
dates for such improvements.
3.18 TECHNICAL LITERATURE AND MARKETING ASSISTANCE - Cellomics shall supply
BCI with copies of all current and hereafter developed published
technical literature relative to the Products and BCI acknowledges and
agrees that such published technical literature is the sole property of
Cellomics. Subject to the proviso hereafter and only during the term of
this Agreement, BCI at its sole expense may freely copy such
literature, in whole or in part, without royalty or payment to
Cellomics therefor and may use such copies solely in conjunction with
its sale and customer support of Products; provided that BCI shall not
make any claims for the performance of the Products unless such claims
appear in the Cellomics' literature or have been otherwise authorized
in writing by Cellomics' nor shall BCI change the published technical
literature describing specifications for the Products without the prior
written approval of Cellomics. The parties agree to work together to
develop a mutually agreeable marketing plan and a mutually agreeable
arrangement to share the costs of such marketing plan.
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3.19 CUSTOMER ASSISTANCE - BCI shall be the first interface in responding to
inquiries from its direct customers regarding the specifications and
performance of the Products. BCI may, from time to time, call upon
Cellomics and seek its expertise and knowledge of the Products in
formulating answers for such BCI customer questions. Cellomics shall
provide such assistance to BCI. Cellomics shall, at the request of BCI,
communicate directly with BCI's customers having questions about or
problems with the Products.
3.20 PROGRAM MANAGER - Each party shall appoint a program manager (each a
"Program Manager") who, except for notices under Article 10.0, shall be
the source of all communications from, and the addressee of all
communications to, such party relative to the actions, rights,
obligations, duties and objectives of such party under this Agreement.
The Program Managers shall meet from time to time, not less than each
calendar quarter, to discuss each party's performance under this
Agreement, consult and agree on the joint decisions required under this
Agreement and to the extent possible resolve any differences between
the parties.
3.21 HOLD HARMLESS - Subject to the next sentence, Cellomics agrees to and
shall defend, indemnify and hold BCI, its employees, agents and
officers harmless, including professional fees necessary to consider,
advise and defend, from and against any suit or proceeding alleging
injury to persons, including death, or property and any liability,
damages or penalties awarded or agreed to therein and resulting from or
arising out of the possession or use of the Products. Notwithstanding
the foregoing, in the event a court, mediator, arbitrator or mutual
agreement between BCI and Cellomics in a final decision from which no
appeal has or can be taken determines that a portion of such liability,
damages or penalties as relate to injuries to property or persons,
including death, are caused by the negligence, or willful misconduct of
BCI, its employees, agents or officers BCI shall reimburse Cellomics
for that portion of the cost of attorneys engaged by Cellomics to
defend BCI and Cellomics and for that portion of the damages awarded
which are attributed by the determination to BCI's negligence or
willful misconduct. Until such determination Cellomics shall defend BCI
with counsel chosen by Cellomics, but reasonably acceptable to BCI and
Cellomics shall control the
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course and conduct of such litigation; provided that Cellomics shall
not settle or otherwise compromise any litigation wherein BCI is a
named defendant without the prior written consent of BCI which consent
shall not be unreasonably withheld.
3.21.1 Cellomics represents and warrants that there are no pending
lawsuits, and that it is not aware of any threats of lawsuits
against Cellomics, alleging, inter alia, product liability,
breach of warranty, patent infringement or theft of trade
secret relative to its manufacture, sale or use of the
Products being sold or under development as of the Effective
Date.
3.22 INSURANCE - Cellomics shall, at all times during the term of this
Agreement, purchase and maintain, comprehensive general liability
insurance including products liability, contractual liability and broad
form property damage and excluding patent infringement coverage. The
combined single limits of insurance shall be not less than Five Million
Dollars ($5,000,000).
Such insurance shall also require thirty (30) days prior written notice
of cancellation or material change in coverage. Such insurance shall
provide that it is primary without right of contribution from any other
insurance which might otherwise be available to the insured party and
provide that in the event of loss payment under a policy the insurer
shall waive any set-off or counterclaim or any other deduction whether
by attachment or otherwise as respects the activities under this
Agreement unless attributed to BCI's negligence or willful misconduct
under Paragraph 3.21.
3.22.1 Cellomics shall, at all times during the term of this
Agreement, purchase and maintain commercially reasonable
Property and Business Interruption insurance in an amount not
less than $5,000,000. The proceeds received on a claim filed
against such insurance shall be used by Cellomics to
reestablish Cellomics' business in the event of any covered
interruption. Cellomics represents and warrants that in the
event of any covered interruption, it shall use its reasonable
efforts to reestablish its business and resume shipment of
Products to BCI as quickly as possible.
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3.23 THIRD PARTY PATENTS - Cellomics agrees to and shall defend, indemnify
and hold BCI and its customers harmless, including attorneys' fees
necessary to consider, advise and defend, from and against any suit,
proceeding, claim or loss and any damages or penalties awarded or
agreed to therein so far as such suit or proceeding is based upon an
assertion that the use or sale of Products purchased under this
Agreement constitutes an infringement of any Letters Patent or the
unauthorized use of any third party trade secret. If any Products are,
in such suit or proceeding, held to infringe or use such trade secret
and their further use or sale is enjoined, Cellomics shall, at it sole
cost and expense use reasonable efforts to, at its sole option either:
(1) procure for BCI and its direct and indirect customers, the right to
continue using and selling such Products, (2) replace the same with a
non-infringing equivalent, (3) modify such Products so that they become
non-infringing or do not use the unauthorized trade secret, or (4)
accept return of the Product and grant customer a refund thereon based
on the price actually paid less a reasonable allowance for use, damage
or obsolescence. Cellomics shall defend any such litigation wherein BCI
is a named defendant with counsel of its choosing, provided that such
counsel is acceptable to BCI in its reasonable discretion. Cellomics
shall direct the course and conduct of any such litigation, including
the settlement thereof, provided that Cellomics shall not settle or
otherwise compromise any such litigation wherein BCI is a named
defendant without the prior written approval of BCI which approval
shall not be unreasonably withheld.
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3.24 HIRING OF EMPLOYEES - BCI may, with Cellomics prior written approval at
any time after the Instrument Appointment Date, offer employment to and
employ any Cellomics field technical support or sales or service
person. No consideration or compensation shall be provided to Cellomics
by reason of such offer of employment or employment. Cellomics may,
with BCI's prior written approval, at any time after the Instrument
Appointment Date, offer employment to and employ any BCI field
technical support or sales or service person. No consideration or
compensation shall be provided to BCI by reason of such offer of
employment or employment.
3.25 SERVICE AGREEMENTS - BCI shall, promptly after the Instrument
Appointment Date, offer service agreements to each third party who has
acquired an ArrayScan II reader from Cellomics prior to such date or
who acquires a Cellomics Instrument from BCI after such date. Such
agreements shall be offered under the same terms and conditions and at
the same rates as BCI then offers to its customers of BCI products. BCI
may, from time to time, change the terms, conditions and rates for
servicing Cellomics Instruments so long as the new terms, conditions
and rates are the same as those then being offered to acquirors of BCI
products. Cellomics shall, as contemporaneously with the Instrument
Appointment Date as is reasonable under the circumstances, provide BCI
with the names and addresses of each third party who has, to that date,
acquired an ArrayScan II reader including the name of the principal
contact at such third party who should be the addressee of BCI's offer
of a service agreement.
4.0 TERM AND TERMINATION OF AGREEMENT
4.1 TERM - Subject to the remainder of this Paragraph, the term of this
Agreement shall begin on the Effective Date and, subject to the next
sentence hereof, unless terminated in accordance with Paragraph 4.2 or
4.3, shall terminate on the tenth (10th) anniversary thereof (the
"Initial Term"). Notwithstanding the preceding sentence, this Agreement
shall automatically, without action or notice of the parties be
automatically renewed from year to year after the Initial Term unless
at least six (6) months prior to such tenth (10th) anniversary or any
anniversary thereafter either party gives the other
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party written notice of its intent to terminate effective as of such
tenth (10th) or subsequent anniversary.
4.1.1 Notwithstanding anything in Paragraph 4.1 or this Agreement to
the contrary, Cellomics shall (a) continue to sell and deliver
to BCI customers Cellomics Kits and Cellomics Reagents, and
(b) shall sell and deliver to BCI (i) spare parts for the
Cellomics Instruments ordered or otherwise placed by BCI under
this Agreement and (ii)such components of the Cell Chip System
sold to BCI under the agreement negotiated and signed in
accordance with Paragraph 9.4.1, in each case, as BCI may
order for five (5) years after the last in time to occur of
(x) the purchase by BCI under this Agreement of a Cellomics
Instrument or (y) the purchase by BCI of such components of a
Cell Chip System. The prices for the spare parts for the
Cellomics Instruments shall be those set forth in Paragraph
3.9.1 of this Agreement and the prices for the components of
the Cell Chip System shall be those set forth in the agreement
negotiated in accordance with Paragraph 9.4.1. The obligations
of this Paragraph 4.1.1 shall survive the term and any
termination of this Agreement as if they were contained in
independent agreements having the term of the first sentence
hereof.
4.2 TERM OF EXCLUSIVITY - Attached hereto as Exhibit 4.2 is a table
specifying the target number of Cellomics Instruments the parties agree
BCI must acquire in each of the first two (2) years (each an "Agreement
Year") commencing with the Instrument Appointment Date to maintain the
designation as the sole and exclusive distributor of the Products in
the countries specified in Paragraph 2.4. The parties shall meet not
later than thirty (30) days after the end of each calendar quarter to
assess sales of Cellomics Instruments. The parties agree that Cellomics
shall participate in BCI sales and planning meetings as they relate to
sales of Cellomics Instruments. Subject to the proviso hereafter, the
target number of Cellomics Instruments to be acquired in years three
(3), four (4) and five (5) to maintain the right in BCI to be the sole
and exclusive distributor of the Products in the countries designated
in Paragraph 2.4 will be determined by mutual agreement of the parties
not later than the second anniversary of the Instrument Appointment
Date and reviewed annually prior to each subsequent
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anniversary of the Instrument Appointment Date. If BCI acquires at
least the target number of Cellomics Instruments specified for an
Agreement Year, then BCI shall continue as the sole and exclusive
distributor of the Products for the next Agreement Year. If BCI does
not acquire at least the target number of Cellomics Instruments
specified for an Agreement Year, then Cellomics may, at its option,
terminate BCI's right to acquire Cellomics Products from Cellomics on
twelve (12) months prior written notice. Cellomics shall exercise such
option not later than thirty (30) days after the end of an Agreement
year wherein BCI did not acquire the target number of Cellomics
Instruments. During such twelve (12) month period BCI shall be a
co-exclusive distributor of the Cellomics Products and Cellomics may
distribute the Cellomics Products on its own or through its nominee. If
Cellomics fails to exercise such option within such thirty (30) days,
then such option for such Agreement Year shall terminate and BCI shall
continue as the sole and exclusive distributor of the Products.
Termination of BCI's right to acquire Cellomics Instruments shall be
Cellomics sole and exclusive remedy under this Agreement for such
shortfall. For the avoidance of doubt, in the event Cellomics elects to
terminate BCI's right to acquire Cellomics Instruments in accordance
with this Paragraph, Cellomics shall continue to supply BCI, under the
terms of this Agreement with spare parts for the Cellomics Instruments
for not less than the term of Paragraph 4.1.1 and this Agreement shall
otherwise remain in full force and effect.
4.2.1 Not later than the fourth anniversary of the Instrument
Appointment Date and on each subsequent annual anniversary
thereof, the parties shall agree on the number of Cellomics
Instruments which BCI must acquire in each of the five (5)
years commencing with the fifth anniversary of such Instrument
Appointment Date in order for BCI to maintain the designation
as the sole and exclusive distributor of the Products. If BCI
has either acquired the target quantity of Cellomics
Instruments in each of the ten (10) years beginning with the
Instrument Appointment Date or Cellomics has elected not to
exercise its rights in any year or years where there is a
shortfall, then BCI may, at its option, remain as the sole and
exclusive distributor of the Products for the remainder of the
term of this Agreement.
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4.3 TERMINATION BY BCI -Subject to the remainder of this Paragraph 4.3, BCI
may terminate its distribution of the Cellomics Instruments at any time
during the Initial Term by twelve (12) months prior written notice to
Cellomics ( the "BCI Notice"). . For the twelve (12) months after the
sending of the BCI Notice, BCI shall be a co-exclusive distributor with
Cellomics of the Cellomics Products and Cellomics may also sell such
Products on its own or through its nominee. Termination of BCI's right
to acquire and distribute Cellomics Instruments shall not terminate
BCI's right to acquire from Cellomics and resell spare parts for
Cellomics Instruments at the prices of Paragraph 3.9.1 for the term of
Paragraph 4.1.1 and this Agreement shall otherwise remain in full force
and effect.
4.4 Subject to Paragraph 8.3, either party to this Agreement may
immediately terminate this Agreement in the event the other party
commits a material breach of the terms hereof or fails to make payments
to the other party or fails to make contributions of property to
Centers of Excellence when required and such material breach, failure
to pay or failure to contribute has not been cured within ninety (90)
days of receiving written notice from the other party of such material
breach or failure to pay or contribute.
5.0 LOAN OF INSTRUMENTS
5.1 LOAN OF INSTRUMENT - BCI shall, promptly after the Effective Date loan
Cellomics a Biomek 2K pipettor-diluter instrument. BCI shall, promptly
after the Instrument Appointment Date, loan Cellomics, at BCI's option,
either a Biomek FX pipettor-diluter instrument or a Core System
automation platform. Cellomics shall, promptly after the Instrument
Appointment Date loan to BCI an ArrayScan Kinetics reader and
prototypes of each of the other components of the Cell Chip Program as
such prototype components become available. The Biomek 2K, Biomek FX,
Core System, ArrayScan Kinetics reader and other components are the
"Loaned Instruments". At the option of the party owning each Loaned
Instrument, such Loaned Instruments may be new or used.
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5.2 TRAINING - The party owning the Loaned Instruments will provide
training on the Loaned Instrument at no cost to the other party for up
to two (2) operators of such other party. Such other party shall pay
for the transportation, room, board and other travel related expenses
of its designated operators.
5.3 INSURANCE FOR LOANED INSTRUMENTS - The party borrowing each Loaned
Instrument shall, at its cost, insure such Loaned Instruments for their
full replacement value against all risks of loss or damage. The policy
shall (a) name the party owning the Loaned Instrument as the payee in
the event of loss or damage to the Loaned Instrument, (b) require
thirty (30) days prior written notice to such owning party of
cancellation or material change in coverage, (c) provide that such
insurance is primary without right of contribution from any other
insurance which might otherwise be available to the owning party, and
(d) provide that in the event of any loss payment the insurer waives
any right of subrogation and any set-off, counter-claim or any other
deduction whether by attachment or otherwise as respects the activities
under this or any other agreement between the parties.
5.4 SERVICE - The party borrowing the Loaned Instrument shall, at it sole
cost, be responsible for the maintenance, repair and service of the
Loaned Instruments. Concurrently with the signing of this Agreement and
on each anniversary thereof, Cellomics shall enter into an exclusive
service contract with BCI, at BCI's then prevailing prices and terms,
for the maintenance, service and repair of the Loaned Instruments
loaned to Cellomics.
5.5 USE OF LOANED INSTRUMENTS - Cellomics represents and warrants that it
shall use the Loaned Instruments in its possession solely for methods
and application development of Cellomics Instruments and Cellomics Kits
under this Agreement and for the development of products intended by
mutual agreement of the parties to be included within this Agreement.
BCI represents and warrants that it shall use the Loaned Instruments in
its possession solely for development of automation of the Cell Chip
Program. Each party borrowing a Loaned Instrument further represents
and warrants that the Loaned Instruments shall not be moved from such
party's
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above identified facility without the express written approval of the
party owning the Loaned Instrument. Each party borrowing a Loan
Instrument shall maintain the Loaned Instruments in good operating
condition and shall use them only in accordance with the owning party's
published procedures and recommendations. Except as may be necessary to
accomplish automation of the Cell Chip Program in accordance with
Paragraph 9.2.1, the party borrowing a Loaned Instrument shall not make
any alterations or modifications to such Loaned Instruments.
5.6 PROPERTY IN LOANED INSTRUMENTS - Each party borrowing a Loaned
Instrument agrees that the Loaned Instruments shall at all times be and
remain the sole and exclusive property of the lending party; provided
that the borrowing party hereunder shall have the sole right during the
term of this Agreement to the use and possession of the Loaned
Instrument for the limited purpose of Paragraph 5.5. Each party shall,
at the request of the owner thereof, fix and maintain labels indicating
such ownership of the Loaned Instrument. The party borrowing a Loaned
Instrument shall also assist the owner thereof in the preparation,
signing and filing of UCC-1 forms and other documents such owner may
reasonably request to establish and give notice of such ownership of
the Loaned Instrument. The party borrowing the Loaned Instrument shall
not mortgage or pledge the Loaned Instrument nor permit any third party
to attach or maintain a lien thereon.
5.7 RETURN OF LOANED INSTRUMENTS - On termination of this Agreement, or
such other date as the parties may agree, the party borrowing the
Loaned Instrument shall deliver such Loaned Instrument to its owner, at
such borrowing party's facility. The Loaned Instrument at delivery to
its owner will be in the same condition it was when received by the
borrowing party, reasonable wear and tear excepted. The borrowing party
shall also permit access to such facility to the owner's employees or
agents to crate the Loaned Instrument and effect its removal.
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5.8 REPRESENTATIONS AND WARRANTIES - Other than warranty of title and good
working order, the owner of a Loaned Instrument makes no
representations or warranties, express or implied, with respect to such
Loaned Instrument and none shall be created whether under the Uniform
Commercial Code, custom, practice or the course of dealings between the
parties.
5.9 HOLD HARMLESS - Subject to the next sentence hereof, each party
borrowing a Loaned Instrument agrees to and shall defend and hold the
owner harmless (including attorneys' fees to consider, advise and
defend the owner, court costs and any award of damages) from and
against any claim, liability or suit alleging injury to persons,
including death, or property and arising out of the borrowing party's
possession or use of the Loaned Instruments. Notwithstanding the
preceding sentence, in the event a claim, liability or suit alleging
injury to property or persons, including death, which a court,
mediator, arbitrator or mutual agreement between BCI and Cellomics in a
final decision from which no appeal has or can be taken determines that
a portion of such liability, damages or penalties as relate to injuries
to property or persons, including death, are caused by the negligence,
or willful misconduct of the owning party, its employees, agents or
officers, the owning party shall reimburse the borrowing party for that
portion of the cost of attorneys engaged by the borrowing party to
defend the owning party and borrowing party and for that portion of the
damages awarded which are attributed by the determination to the owning
party's negligence or willful misconduct. Until such determination the
borrowing party shall defend the owning party with counsel chosen by
the borrowing party, but reasonably acceptable to the owning party, and
the borrowing party shall control the course and conduct of such
litigation; provided that the borrowing party shall not settle or
otherwise compromise any litigation wherein the owning party is a named
defendant without the prior written consent of the owning party which
consent shall not be unreasonably withheld.
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5.10 LICENSE TO COMPUTER SOFTWARE - All computer software and/or programs,
(meter boards) and accessories (regardless of storage media) provided
with or in the Loaned Instruments and/or provided by the owner of the
Loaned Instrument from time to time during the term of this Agreement
(jointly and severally the "Software") and all copies of the Software
shall at all times be and remain the sole and exclusive property of
such owner. The owner grants the borrowing party a limited
non-exclusive license to use the Software only in the operation of the
Loaned Instruments. The party borrowing the Loaned Instrument, by the
signature of its duly authorized representative below, acknowledges
that: (i) it shall use the Software only in accordance with the limited
license granted by the owner of the Loaned Instrument, (ii) it shall
not copy nor knowingly permit others to copy the Software, except as
may be necessary under Paragraph 9.2; (iii) it shall not decompose,
reverse engineer, create derivatives or otherwise modify the Software;
and (iv) it shall return the Software to such owner on receipt from
such owner of any improved, enhanced or replacement Software and upon
termination of this Agreement.
6.0 CELLOMICS DISPLAY INSTRUMENTS
6.1 DEMONSTRATION UNITS - BCI shall identify the BCI facilities and vision
centers ("BCI Locations") at which BCI regularly displays and
demonstrates BCI products for its customers. BCI shall permit Cellomics
to display one or more Cellomics Instruments at such BCI Locations
(each such Cellomics Instrument is a "Display Instrument"). Cellomics
shall provide and maintain the Display Instruments at such BCI
Locations without cost or expense to BCI and at Cellomics' sole risk.
BCI shall, upon reasonable advance notice, permit Cellomics
representatives and customers access to such BCI Locations to
demonstrate such Display Instruments.
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6.2 HOLD HARMLESS - Subject to the next sentence, Cellomics agrees to and
shall defend, indemnify and hold BCI harmless including professional
fees to consider, advise and defend from and against any suit or
proceedings alleging injury to persons, including death, or property
and any liability, damages or penalties awarded or agreed to therein
and resulting from or arising out of the presence on a BCI Location of
a Display Instrument or a Cellomics employee or customer.
Notwithstanding the preceding sentence, in the event a court, mediator,
arbitrator or mutual agreement between BCI and Cellomics in a final
decision from which no appeal has or can be taken determines that a
portion of such liability, damages or penalties as relate to injuries
to property or persons, including death, are caused by the negligence,
or willful misconduct of BCI, its employees, agents or officers BCI
shall reimburse Cellomics for that portion of the cost of attorneys
engaged by Cellomics to defend BCI and Cellomics and for that portion
of the damages awarded which are attributed by the determination to
BCI's negligence or willful misconduct. Until such determination
Cellomics shall defend BCI with counsel chosen by Cellomics, but
reasonably acceptable to BCI, and Cellomics may control the course and
conduct of such litigation; provided that Cellomics shall not settle or
otherwise compromise any litigation wherein BCI is a named defendant
without the prior written consent of BCI which shall not be
unreasonably withheld.
7.0 CELLOMICS SOFTWARE
7.1 OPTION TO BCI - The parties understand, acknowledge and agree that
Cellomics may develop with and for Carl Zeiss Jena GmbH ("Zeiss") a
High Throughput Screening version of the Cellomics Store and Screen
Software (respectively the "HTSSS Software" and the "Zeiss Project").
Subject to the right of Cellomics to continue the Zeiss Project and for
Cellomics to continue to utilize HTSSS Software for its own internal
research, development and data generation, Cellomics hereby grants to
BCI and BCI accepts an exclusive non-cancelable right and option to
acquire an exclusive, world-wide, royalty-bearing right and license to
the HTSSS Software for the field of High Throughput Screening (the
"Field"). The term of such option shall be six (6) months from the
Effective Date.
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7.1.1 BCI shall, by written notice to Cellomics, transmitted in
accordance with Article 17.0 at any time during the foregoing
option period, automatically have an exclusive, world-wide,
perpetual right and license to the HTSSS Software for the
Field. For the avoidance of doubt, the foregoing license to
BCI shall survive the term or any termination of this
Agreement as if it were the subject of a separate and
independent agreement with a perpetual term. The license shall
permit BCI only in the Field to add to the HTSSS Software new
or additional software only by making thereto additions which
adapt the HTSSS Software in the Field and which do not require
BCI to have access to the HTSSS Software source code. Except
as expressly permitted by the preceding sentence, BCI agrees
not to create derivatives of or otherwise modify the HTSSS
Software. BCI further agrees not to decompile or reverse
engineer the HTSSS Software.
7.2 CONVERSION OF HTSSS SOFTWARE TO THE FIELD - BCI may request Cellomics
to develop the HTSSS Software for use in the Field at the sole cost and
expense of BCI. Cellomics shall, upon receipt of such request, promptly
prepare a detailed scope of work, including critical milestones, a
schedule for time to completion of each of the critical milestones and
the entire scope of work, and the cost to BCI for such completion. The
parties agree to and shall negotiate in good faith such scope of work,
milestones, schedule, the cost to BCI for completion of such scope of
work in accordance with such schedule and other terms and conditions
for the performance of such work. If BCI elects to nominate Cellomics
as the developer of the HTSSS Software for the Field and the parties
sign an agreement to that effect, Cellomics will use reasonable
commercial efforts to complete the agreed scope of work in the agreed
time for the agreed amount. Cellomics shall not supply to any other
party nor use for its own internal purposes nor use on behalf of any
third party the HTSSS Software developed for BCI.
7.3 ROYALTY TO CELLOMICS - If BCI exercises the option for the license to
the HTSSS Software in accordance with Paragraph 7.1.1 and develops the
HTSSS Software for use in the Field, BCI shall pay to Cellomics a
running royalty for each copy of the
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HTSSS Software sold, leased, rented or otherwise distributed by BCI in
the Field on terms and conditions to be mutually agreed by the parties.
7.4 MAINTENANCE AGREEMENT - If at BCI's request Cellomics develops the
HTSSS Software for the Field, Cellomics agrees to and shall, without
further consideration other than the royalty payments of Paragraph 7.3,
promptly and regularly provide to BCI copies of all modification,
improvements, refinements and new versions of the HTSSS Software
("Improvements"). The Improvements shall be automatically included in
the license granted to BCI under Paragraph 7.1.1.
8.0 COMPETITIVE PRODUCTS
8.1 CELLOMICS NONCOMPETITION- Attached hereto as Exhibit 8.1 is a list of
manufactured systems and components presently being distributed by
Cellomics and the list prices thereof. Cellomics represents the
products in Exhibit 8.1 are the only third party products, goods and
services being sold, distributed or otherwise represented or promoted
by Cellomics as of the Effective Date. Cellomics warrants that, except
for the Cell Chip System it shall not, as long as BCI is the sole and
exclusive distributor of the Products, sell, distribute or otherwise
represent or promote any products, goods or services of third parties
which compete with Cellomics Products other than those in Exhibit 8.1 .
In addition, if and only if BCI has accepted the appointment under
Paragraph 3.1, then until termination of BCI's appointment to sell
Cellomics Products by the earlier in time of (a) expiration of this
Agreement or (b) termination of BCI's right to distribute the Cellomics
Products under either Paragraph 4.2 or 4.3 , or (c) subject to the
limitations imposed in Paragraph 8.3, either party terminating this
Agreement for material breach in accordance with Paragraph 4.4,
Cellomics agrees that it shall not manufacture, sell, distribute or
service any product made by Cellomics or any other party which competes
with the BCI Biomek, Biomek FX or Core System existing on the date of
such termination. In the event the parties agree to joint research in
the field of Flow Cytometry pursuant to the terms of Paragraph 11.3,
then for purposes of this Paragraph 8.1, Cellomics further agrees that
it will not manufacture, sell, distribute or service any product made
by Cellomics or any other party which competes with BCI Flow Cytometry
systems for the same period described in the preceding sentence.
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8.2 BCI NONCOMPETITION- Subject to the remainder of this Article 8.0, and
if and only if BCI has accepted the appointment under Paragraph 3.1,
then until termination of BCI's appointment to sell Cellomics Products
by the earlier in time of (a) expiration of this Agreement or (b)
termination of BCI's right to distribute the Cellomics Products under
either Paragraph 4.2 or 4.3 , or (c) subject to the limitations imposed
by Paragraph 8.3, either party terminating this Agreement for material
breach in accordance with Paragraph 4.4, BCI agrees that it shall not
manufacture, sell, distribute or service any product made by BCI or any
other party which is substantially the same as the Cellomics Products
existing on the date of such termination.
8.3 ARBITRATION OF DISPUTED CLAIMS OF BREACH- In the event either party (a
"First Party") sends the other party a notice of material breach which
the other party disputes or in the event the other party believes that
it has cured any material breach alleged by the First Party and such
First Party disputes such cure then the parties agree to (a) submit the
disputed issues to arbitration in accordance with Paragraph 19.2 hereof
solely for the purposes of determining whether a material breach has
occurred and/or whether a material breach has been cured, and (b) to
continue in all other respects to honor and comply with all of their
obligations under this Agreement until the arbitrator makes his final
determination. In the event that BCI is the party alleged to have
materially breached this Agreement and the decision of the arbitrator
confirms that BCI was in material breach for the reasons originally
alleged by Cellomics in its notice to BCI then BCI agrees that it will
not, for a period of nine (9) months beginning with the final decision
of the arbitrator, manufacture, sell, distribute or service any product
which is substantially the same as a Cellomics Products. Not
withstanding the foregoing, all other issues arising under this
paragraph 8.3 will be either litigated or arbitrated in accordance with
the provisions of article 19 hereof.
8.4 EXCEPTION TO NONCOMPETITION- Notwithstanding anything in this Article
8.0 or in this Agreement to the contrary, Cellomics expressly agrees
that any product manufactured or used or sold or distributed by BCI
which utilizes, incorporates or embodies the [*] or any system or
instrument that utilizes or incorporates such a product or such
technology, in whole or in part, does not compete and will not compete
with and is not substantially the same as any of the Cellomics Products
or the Cellomics Kits or the Cellomics Reagents or the Cell Chip
Program or the Cell Chip System or the cell chips or the cell chip
plates, complete cassettes, cells reagents or the methods for the Cell
Chip System or any component used in any of the foregoing and BCI may
manufacture, have manufactured, use, sell, distribute and import any
such product, instrument, system or component at any time during the
term of this Agreement and thereafter. [*]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 31
[*]
[*]
9.0 CELL CHIP PROGRAM
9.1 CELL CHIP PROGRAM - Cellomics is presently developing, in conjunction
with Aclara Biosciences, Inc. ("Aclara"), the microfluidic, cell chip
based system defined in attached Exhibit 9.1 (the "Cell Chip Program").
Cellomics shall, promptly after the Full Definition Date (defined in
Paragraph 9.2 below) provide BCI with a written summary of the
aggregate external and internal spending by Cellomics, Aclara and any
other third parties contributing to the Cell Chip Program and who will
share in the revenues received by Cellomics under the TAP Program
("Aggregate Chip Program Expenditures"). Promptly after each calendar
quarter following the Full Definition Date Cellomics will provide BCI
with an update of the Aggregate Chip Program Expenditures.
9.2 AUTOMATION AND COMMERCIALIZATION OF THE CELL CHIP - Cellomics shall,
commencing with promptly after the Effective Date and not less than
once each calendar quarter thereafter provide the BCI Program Manager
with a written report of the current state
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 32
of the design and development of the Cell Chip Program. BCI commits to
begin on the Effective Date to participate in the specification and
scoping of the automation required by the Cell Chip Program. Cellomics
and BCI agree to use commercially reasonable efforts to define,
evaluate and if appropriate, incorporate any changes to the Cell Chip
Program suggested by the BCI Program Manager related to automation.
Cellomics shall promptly after completion of the design and development
stages of the Cell Chip Program demonstrate to BCI the technical
feasibility of the Cell Chip Program. Cellomics and BCI shall, promptly
after such demonstration discuss and mutually agree on answers to the
following questions: (a) whether or not the parties should actively
support and cooperate in the development of an automated version of the
Cell Chip Program (the "Cell Chip System"), (b) whether or not the
parties should actively support and cooperate in the commercialization
of the resultant Cell Chip System, (c) if the answer to each of the
foregoing questions is in the affirmative, in what markets such Cell
Chip System should be sold, (d) what shall be the definition of types
of cell chip consumables channels to market and the responsibilities of
each party, and (e) what the terms and conditions shall be of the Cell
Chip System distribution arrangement. The point in time at which the
preceding questions shall have been answered is expected by the parties
to occur not more than [*] and shall be known as the "Full Definition
Date." If the parties mutually agree to actively pursue development of
the Cell Chip System and the sale of such Cell Chip System in markets
which are of commercial interest to BCI then BCI shall be the developer
of the automation for such Cell Chip System and, subject to Paragraph
9.4, shall be the sole and exclusive world-wide distributor of the Cell
Chip System in all markets.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 33
9.2.1 BCI shall, beginning with the Full Definition Date, use
reasonable commercial efforts to automate and form a unitary
system comprising, the cell chips, the instrument components
and processes that comprise the Cell Chip Program. Cellomics
shall, promptly after the Full Definition Date and as soon as
it becomes available loan BCI a prototype cell chip reader and
each of the other components of the Cell Chip Program to be
used in or which will form part of the Cell Chip System.
Cellomics agrees that it will use reasonable commercial
efforts to support BCI's development of such automation and,
if milestones acceptable to both parties are being met by BCI,
Cellomics will not, independently develop automation
instruments, tools, equipment, processes or software for the
Cell Chip Program nor will it directly or indirectly, engage,
contract with, authorize, work with, cooperate with or
encourage any third party to provide automation instruments,
tools, equipment, processes or software for the Cell Chip
Program.
9.2.2 If Cellomics desires to automate the Cell Chip Program but BCI
elects not to participate and be the developer of the
automation for the Cell Chip System then Cellomics may pursue
such development with any third party and BCI shall have no
further rights under this Agreement to either the Cell Chip
Program or any automated version thereof.
9.2.3 If BCI desires to automate the Cell Chip Program but Cellomics
does not desire to pursue such automation or if the parties
cannot agree on the market in which to commercialize a Cell
Chip System, then [*] (b) BCI may pursue an automated cell
chip either on its own or with a third party.
9.3 REPORTS - Each calendar quarter the BCI Program Manager shall provide
the Cellomics Program Manager with a report of BCI's Cell Chip System
development
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 34
activities in the preceding quarter and its plans for the next two
calendar quarters. Such report shall also include a summary of the
external and internal spending by BCI on the Cell Chip System to the
date of such report.
9.4 DISTRIBUTION OF CELL CHIP SYSTEM - If BCI is the sole and exclusive
distributor of Cellomics Instruments and BCI is the developer of the
automation for the Cell Chip System, BCI shall be the manufacturer of
the automation system for the Cell Chip System and the sole and
exclusive world-wide distributor of the Cell Chip Reader, automation
and control software and Cell Chip version of the Cellomics Store and
Screen Software. For the avoidance of doubt, the Cell Chip System to be
distributed by BCI will include any licenses or rights required
thereunder from such parties for BCI to make, have made, use and sell
the Cell Chip System and for BCI's direct and indirect customers to use
such System, and the automation, instruments, equipment, tools,
software, and the Cell Chip version of the Cellomics Store and Screen
processes and methods developed by BCI for the foregoing for and during
the balance of the term of this Agreement.
9.4.1 CELL CHIP SYSTEM DISTRIBUTION IN CLINICAL RESEARCH AND IN
VITRO DIAGNOSTICS - If BCI is the sole and exclusive
distributor of Cellomics Instruments and if BCI is the
developer of the automation for the Cell Chip System and if
BCI is a distributor of the Cell Chip Reader, automation and
control software and Cell Chip version of the Cellomics Store
and Screen Software, then in the fields of clinical research
and In Vitro Diagnostics, BCI shall have a co-exclusive
worldwide right (with Cellomics) to distribute (a) cell chips,
cell chip plates, complete cassettes, cell reagents or any
other consumable used on or with the Cell Chip System and, (b)
any methods for the Cell Chip System, for and during the
balance of the term of this Agreement.
9.4.2 Cellomics and BCI shall, contemporaneously with the Full
Definition Date or as soon thereafter as the parties agree is
practicable, negotiate in good faith to establish the transfer
prices and other terms and conditions for the purchase by BCI
of those portions of the Cell Chip Systems which Cellomics
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<PAGE> 35
either manufactures or Cellomics has, through its agreements
with Aclara and any other third party, the right to sell. BCI
and Cellomics shall sign agreements embodying such prices,
terms and conditions at the conclusion of such negotiations.
Cellomics further agrees to use its reasonable efforts to
assist BCI in establishing relationships with Aclara and any
other third party for those portions of the Cell Chip System
which Cellomics does not manufacture or have the right to sell
and in negotiating agreements and licenses with such parties
for such portions.
9.4.3 Cellomics agrees to and shall grant BCI a [*] licenses under
any patents, trade secrets and copyrights owned or Controlled
By Cellomics needed to sell the Cell Chip Reader, automation,
control software, and Cell Chip System version of the
Cellomics Store and Screen Software, including the right and
license to grant purchasers of the Cell Chip System from BCI
[*] under any intellectual property owned or Controlled By
Cellomics and required by users thereof. Cellomics agrees to
and shall use its reasonable efforts to assist BCI in
obtaining similar rights from [*] and any other party having
intellectual property required by said users. The foregoing
rights and licenses shall have a term independent of the term
of this Agreement. The term "Controlled By" shall mean the
right in Cellomics to grant licenses, rights or immunities
from suit under the controlled material without regard to
whether Cellomics must as a result of such grant report the
use of the controlled material by BCI or its customers to a
third party or pay consideration to a third party for such use
of the controlled material by BCI or its customers.
9.4.4 Subject to Article 8.0 and Paragraph 9.4.1, Cellomics itself
or through agents or other parties shall be the sole developer
and distributor of cell chip plates, complete cassettes, cells
reagents and methods for the Cell Chip System.
10.0 TAP PROGRAM
10.1 TAP PROGRAM - Cellomics is presently developing a marketing plan which
will enable a limited group of [*] pharmaceutical, independent research
and other companies to have access to, use of and participation in the
Cell Chip Program as beta sites for such Program, i.e., prior to
commercial introduction; the pharmaceutical, independent research and
other companies will pay Cellomics a licensing fee for such access and
use and the right to suggest alternatives, improvements and
modification to the Cell Chip Program (the "TAP Program").
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 36
10.2 [*]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 37
11.0 CELL BIOLOGY TECHNOLOGY EXCHANGE
11.1 LICENSES TO CELLOMICS - BCI agrees to and shall grant to Cellomics
licenses under BCI patents and applications for patent nominated by BCI
in an Exhibit to be added to this Agreement within sixty (60) days of
the Effective Date, which patents and applications shall be limited to
that which are owned or controlled by BCI, (i.e., BCI has the right to
grant licenses and sublicenses thereunder) and are in existence as of
the Effective Date. The licenses will be at royalty rates, license fees
and under such other terms and conditions as may be hereafter
negotiated and agreed by the parties.
11.2 LICENSES TO BCI - Cellomics agrees to and shall grant to BCI licenses
under Cellomics patents and applications for patent nominated by
Cellomics in an Exhibit to be added to this Agreement within sixty (60)
days of the Effective Date , which patents and applications shall be
limited to that which are owned or controlled by Cellomics (i.e., under
which Cellomics has the right to grant licenses or sublicenses) and are
in existence as of the Effective Date.. The licenses will be at royalty
rates, license fees and under such other terms and conditions as may be
hereafter negotiated and agreed by the parties.
11.3 JOINT RESEARCH - The parties shall, within six (6) months after the
Effective Date, agree on a joint program to define and test the
applicability of each other's intellectual property in the fields of
high content drug screening and flow cytometry. Each party shall
appoint a Program Manager for this effort. The Program managers shall
be responsible for defining the scope of the joint program, the
parties' activities under such program and the specific resources of
each party that will be engaged.
12.0 CENTERS OF EXCELLENCE
12.1 ESTABLISHMENT - The parties have agreed to work together to establish
and contribute to "Cell Technology Centers of Excellence" at
universities and other not-for-profit research institutions who will
investigate the cell and cell-based analysis. The parties have further
agreed to jointly select up to [*] such Centers on which to concentrate
their joint attention [*] Promptly after the Effective Date the parties
shall agree on (a) the identity of up to [*] (b) [*] and (c) on the
charter and research focus for each such Center. Cellomics shall, with
the advice, guidance and concurrence of BCI, negotiate with each such
Center on the charter and activities of such Center. Cellomics shall
use its best efforts to obtain rights for the parties, to be shared
equally by the parties, to the inventions and discoveries of each such
Center. Each party may contribute separately to each such Center and in
its own name.
12.2 INITIAL CONTRIBUTION - Promptly after the selection of the Centers,
each party shall contribute a combined total of One Million Dollars
($1,000,000) to the up to [*].
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 38
The percentage of each party's total contribution of such One Million
Dollars ($1,000,000) to be given to a particular Center shall be
jointly agreed by the parties. [*]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 39
12.2.1 Cellomics may, at its option, make its contributions to one or
more of the Centers in the form of consulting services
performed by Cellomics employees or the loan of Cellomics
employees to one or more of the Centers to be valued at the
fully absorbed cost to Cellomics of the services or employees
involved.
12.2.2 BCI will also contribute a Biomek pipettor-diluter instrument
to each of the Centers. At BCI's option, the Biomek instrument
may be new or used.
12.3 SUBSEQUENT CONTRIBUTION - BCI shall, between the first and second
anniversary of the Effective Date, contribute, at BCI's option, a
Biomek FX pipettor-diluter instrument or a Core System to each of the
Centers of Excellence. At BCI's option, the contributed instrument or
Core System may be new or used. Cellomics shall, promptly after the
Instrument Appointment Date contribute an ArrayScan Kinetics reader to
each of the Centers of Excellence. At Cellomics' option, the ArrayScan
Kinetic reader may be new or used.
13.0 KNOWLEDGE BASE
13.1 KNOWLEDGE BASE - Cellomics is gathering a body of knowledge, data and
information relating to, among other things cells, cellular processes
and cell interactions with various chemical compounds and mixtures (the
"Knowledge Base"). [*] Cellomics further acknowledges it intends to
license access to the Knowledge Base or portions thereof to third
parties for consideration.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 40
13.2 ACCESS TO THE KNOWLEDGE BASE - Subject to the remainder of this
Paragraph and Paragraph 13.2.1, Cellomics agrees to and shall, upon
receipt of a written request from BCI, grant BCI a non-exclusive
license to use the Knowledge Base in the field of in vitro diagnostics
[*]. Such license shall have a term independent of the term of this
Agreement. [*]
13.2.1 [*]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 41
ARTICLE 14.0 EXERCISE OF RIGHTS
The failure by one of the parties under this Agreement to assert its rights for
any breach of this Agreement shall not be deemed a waiver of such rights. The
rights and remedies specified herein, except those specified as exclusive, are
in addition to and shall not restrict any right or remedy either party may have
at law or in equity for any breach of this Agreement. An actual waiver of rights
in a particular instance of a breach shall not be deemed to be a waiver of such
rights upon a subsequent occurrence of the same or a similar instance of breach.
ARTICLE 15.0 ASSIGNMENT
Neither party may, without the prior written permission of the other party,
assign this Agreement or any of its rights, duties or obligations under this
Agreement to any third party.
16.0 CONFIDENTIALITY
16.1 CONFIDENTIALITY - Each party shall maintain in confidence any
information received from the other party during the term of this
Agreement, and shall neither publish, disseminate nor disclose such
information to any third party nor use such information except for the
furtherance of the purposes of this Agreement without the prior express
written permission of such other party. Subject to the next sentence,
the foregoing obligations of confidentiality and non-use shall continue
for three (3) years after the expiration of this Agreement. The
obligation of the first sentence shall not apply to any information
which is:
(a) now or hereafter comes into the public domain, or (b) which is
already in the possession of the receiving party other than as
a result of having received it from the disclosing party and
as shown by written records, or (c) is brought to the
receiving party by a third party who does not require that it
be maintained in confidence, (d) is independently developed by
the receiving party without use of or access to the
information of the disclosing party, or (e) is required to be
disclosed pursuant to a subpoena,
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civil investigative demand or similar legal process, provided
that (I) the disclosing party is promptly notified by the
receiving party before any disclosure pursuant to such legal
process, (II) the receiving party gives the disclosing party
sufficient time and opportunity to object to or contest the
legal process or to limit its scope or to obtain a protective
order or confidential treatment for the material to be
disclosed, and (III) the receiving party discloses only so
much of the information as its counsel advises it in writing
is required in order to comply with such legal process. Upon
termination of this Agreement, each party shall, at the other
party's request, destroy or return to such other party all
copies of such information; provided that counsel for each
receiving party may retain one (1) copy of such information
solely for the purpose of monitoring such party's obligation
of confidentiality under this Agreement.
16.2 OBLIGATIONS OF RECEIVING PARTY - Each party agrees that it shall, at
its sole cost, take all reasonable measures (including but not limited
to court proceedings) to restrain its officers, employees, directors
and agents from unauthorized use or disclosure of the disclosing
party's information.
16.3 INJUNCTION - Each party, acknowledges and agrees that money damages
would not be a sufficient remedy for its breach of this Article 16.0
and that the disclosing party shall be entitled to equitable relief
including injunction and specific performance as a remedy for any such
breach. Such remedies shall not be deemed the exclusive remedy for the
receiving party's breach but shall be in addition to all other remedies
available to the disclosing party. Article 19.0 (Law Governing and
Construction) shall not be a limitation on the remedies available to
the disclosing party for a breach by the receiving party of this
Article 16.0.
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ARTICLE 17.0 NOTICES
All notice and payments required or permitted to be given hereunder shall be in
writing and shall be deemed delivered (a) on the date of delivery if delivered
in person (b) on the date of transmission if sent by facsimile with receipt in
good order requested and received, (c) on the second business day after delivery
to a recognized overnight delivery service (FedEx, UPS, DHL, Airborne), or on
the third business day following delivery to the United States Postal Service,
in each of the foregoing cases addressed to the respective parties as follows:
If to Cellomics: Cellomics, Inc.
635 William Pitt Way
Pittsburgh, Pennsylvania 15238
Attention: President
With a copy to: Metz Schermer & Lewis
The Westinghouse Building-18th floor
11 Stanwix Street
Pittsburgh, Pennsylvania 15222
Attention: LeRoy L. Metz II, Esq.
If to BCI: Beckman Coulter, Inc.
4300 North Harbor Boulevard
Fullerton, California 92834-3100
Attention: President
With a copy to: Beckman Coulter, Inc.
4300 North Harbor Boulevard
Fullerton, California 92834-3100
Attention: General Counsel
or such other addresses as may be designated by the respective parties in
writing.
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ARTICLE 18.0 SECTION HEADINGS
Section headings are for convenience only and shall not be construed to limit or
extend the meaning of any portion of this Agreement.
19.0 LAW GOVERNING AND CONSTRUCTIONS
19.1 DISPUTE RESOLUTIONS - The parties agree that with respect to any
dispute or claim which does not exceed [*] the parties shall follow the
procedures described in Paragraph 19.2. All claims or disputes in
excess of [*] may be arbitrated pursuant to Paragraph 19.2 upon the
mutual agreement of the parties.
19.2 MEDIATION AND ARBITRATION - Except for any actual or threatened breach
of Article 16.0 to which the parties may refer to the State or Federal
Courts of California or Pennsylvania for relief, any controversy or
conflict involving this Agreement, its interpretation or the respective
rights or obligations of the parties shall first be submitted to their
respective General Managers for amicable resolution. If the parties
cannot agree, the controversy shall be submitted to mediation to be
held in a mutually agreeable neutral place. The parties shall mediate
in good faith and use their best efforts to resolve the controversy or
conflict by mediation. If the parties still cannot settle the
controversy or reach an accommodation, the matter shall be submitted to
binding arbitration to be conducted in a city other than Pittsburgh or
Fullerton in accordance with the following rules:
(a) If a party intends to begin an arbitration to resolve a
dispute, such party shall provide written notice to the other
party informing the other party of such intention and the
issues to be resolved, the date of which notice shall be
referred to as the "Notice Date". Within ten (10) business
days after the receipt of such notice, the other party may, by
written notice to the party initiating arbitration, add
additional issues to be resolved. Within twenty (20) business
days following the Notice Date a list of not less than ten
(10) neutrals shall be provided to the parties by
then-President
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 45
of the Center for Public Resources ("CPR"), 680 Fifth Ave.,
New York, New York 10019, or its successor organization. The
list shall include the experience and qualifications of each
person identified thereon. The neutral shall be an individual
who shall preside in resolution of any disputes between the
parties. Each of the neutrals identified on the list shall not
be an employee, consultant, independent contractor, director
or shareholder of either a party or of an Affiliate of either
party, and shall be a lawyer licensed to practice in the state
which is the site of the arbitration. The parties shall have
ten (10) business days from the date the list is provided to
agree on a neutral. If the parties cannot agree, each party
shall have twenty (20) business days from the date the list is
provided to the parties by CPR to object in good faith to four
(4) of the persons on the list. The then-President of the CPR
shall, as soon as possible thereafter, select the neutral from
the persons remaining on the list. This selection shall be
final.
(b) No later than one hundred twenty (120) business days after
selection the neutral shall hold a hearing to resolve each of
the issues identified by the parties.
(c) Within thirty (30) days of the Notice Date, representatives of
the parties shall meet in an attempt in good faith to agree on
procedures for the expeditious exchange of information that
may be needed to prepare for the arbitration. If the parties
cannot agree on the exchange of documents or other
information, the neutral may require exchange of documents,
upon showing by the requesting party that it will be
prejudiced and not otherwise able to prepare for or put on its
case without access to and use of the requested documents or
information. Any documents required to be produced shall be
produced no less than sixty (60) days prior to the hearing.
(d) At least forty-five (45) business days prior to the hearing,
each party shall submit to the other party and the neutral a
list of all documents on which such party intends to rely in
any oral or written presentation
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<PAGE> 46
to the neutral and a list of all witnesses, including expert
witnesses, if any, such party intends to call at such hearing.
Such lists will be accompanied by: (i) one true and correct
copy of each of the documents on the above-referenced list;
and (ii) a summary of the anticipated testimony of each of
such party's witnesses. Except as expressly set forth herein,
the neutral shall not require nor shall there be any discovery
by any means, including depositions, interrogatories or
production of documents.
(e) After the exchange of the documents and information required
by Paragraph (d) above, each party may, at its option, take
depositions. In any event neither party shall take more than
sixteen (16) total hours of depositions, as calculated by the
court reporter, of more than four (4) persons; plus, a
deposition of each expert witness listed by the other party
which expert deposition shall not exceed four (4) hours. Such
depositions shall be taken between the receipt of the lists
called for by Paragraph (d) above and fifteen (15) days before
the hearing. Each party shall cooperate in making its
witnesses available at a convenient place and time for such
deposition. No party shall instruct a witness at a deposition
not to answer a question except on grounds of attorney client
privilege or work product doctrine.
(f) A party may request an extension and the neutral shall grant
an extension of the time for a hearing if the neutral finds
that the other party failed to comply with or delayed in
complying with discovery permitted under this Agreement. The
extension shall be commensurate with the delay found by the
neutral but in no event greater than thirty (30) days.
(g) Each party may file with the neutral a prehearing memorandum,
not exceeding fifty (50) pages, setting forth applicable law,
facts, arguments, and other relevant information.
(h) At least ten (10) business days prior to the hearing, each
party must submit to the neutral and serve on the other party
a proposed ruling on each issue
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<PAGE> 47
to be resolved. Such writing shall be limited to a statement
of the proposed rulings, shall contain no argument on or
analysis of the facts or issues, and shall be limited to not
more than twenty (20) pages.
(i) Each party shall be entitled to no more than ten (10) hours of
hearing to present testimony or documentary evidence and
argument. The testimony presented by both parties shall be
presented during the same calendar day or on consecutive days.
Such time limitation shall include any direct, cross or
rebuttal testimony, but such time limitation shall only be
charged against the party conducting such direct, cross or
rebuttal testimony. It shall be the responsibility of the
neutral to determine whether the parties have had the ten (10)
hours to which they are entitled.
(j) Each party may file a post-hearing memorandum not exceeding
three (3) pages.
(k) Each party shall have the right to be represented by counsel.
The neutral shall have sole discretion with regard to the
admissibility of any evidence; however, no prior drafts of any
of the agreements between the parties shall be shown to the
neutral or be admissible in evidence.
(l) The neutral shall rule on each disputed issue within ten (10)
days following the completion of the testimony of both
parties. Such ruling shall adopt the proposed ruling of one of
the parties on each disputed issue. The neutral shall have
authority to award complete legal and equitable relief to the
maximum extent a court of law and equity could award in
accordance with applicable law.
(m) All applicable common law or statutory privileges such as
attorney-client or attorney work product shall be applicable
to the arbitration proceedings.
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(n) Either party may, at its option, use prepared testimony as
long as the witness whose testimony is so presented is
available to the other party for cross-examination.
(o) All cost incurred for the neutral, the hearing room and the
court reporter shall be shared equally between the parties.
The parties shall otherwise bear their own expenses.
(p) The neutral shall be given a copy of these provisions at the
time of selection.
(q) All arbitration proceedings and the outcome of such
proceedings shall be treated as confidential by the parties
and the neutral.
(r) The parties agree to be bound by the results of the
arbitration, and judgment upon the award so rendered may be
rendered and enforced in any court of competent jurisdiction.
19.3 MUTUALITY - This Agreement has been drafted after considerable
negotiation and compromise on the basis of mutual understanding and
neither party shall be prejudiced as being the drafter thereof.
ARTICLE 20.0 MISCELLANEOUS
20.1 Nothing in this Agreement shall be construed as conferring any right to
use in advertising, publicity, or other promotional activities any
name, trade name, trademark, or other designation of either party
hereto without the express written approval of the other party.
20.2 The parties will retain the terms of this Agreement in strict
confidence, except as may be required by regulatory agencies or courts,
and will then use all reasonable precautions to maintain the terms of
this Agreement confidential.
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<PAGE> 49
20.3 In the event that any provision of this Agreement is held invalid or
unenforceable for any reason, such unenforceability shall not affect
the enforceability of the remaining provisions of this Agreement, and
all provisions of this Agreement shall be construed so as to preserve
the enforceability hereof.
20.4 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.
20.5 Neither party shall issue, author or authorize a press release or make
any public announcement concerning this Agreement or the relationship
between the parties without the express written permission of the other
party.
ARTICLE 21.0 ENTIRE AGREEMENT, MODIFICATIONS, ETC.
This instrument contains the entire and only agreement between the parties
relative to the subject matter hereof and supersedes all previous negotiations,
representations, undertakings and agreements both written and oral heretofore
made between the parties as to the subject matter. Any representation, promise
or condition in connection herewith not specifically incorporated herein shall
not be binding upon either party.
No modification, renewal, extension, waiver, cancellation or termination of this
Agreement or of any of the provisions herein contained shall be valid until and
unless made in writing and signed on behalf of the respective parties by duly
authorized officers thereof.
IN WITNESS WHEREOF, the parties have respectively caused this
Agreement to be executed on the dates hereinafter indicated.
Beckman Coulter, Inc. Cellomics, Inc.
By: [ILLEGIBLE] By: /s/ D. LANSING TAYLOR
--------------------------------- ---------------------------------
Title: Title: President and CEO
------------------------------ ------------------------------
Date: Date: June 14, 2000
------------------------------- -------------------------------
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<PAGE> 50
EXHIBIT 1.4 CELLOMICS INSTRUMENTS, ATTENDANT INSTRUMENT SOFTWARE
AND INFORMATICS SOFTWARE FOR CELLOMICS INSTRUMENTS
ARRAYSCAN II-S - SCREENING SYSTEM
Consisting of:
o Advanced Microplate Scanning System
o High Resolution 1317 X 1035 Pixel Cooled CCD Camera
o 10X Long Distance Objective Lens Compatible with Plastic Bottom
Microplates
o Four Channel Fluorescence Filters (470 nm, 520 nm, 600 nm, 700 nm)
o Six Channel Measurement (Combination of Spectral and/or Spatial
Channels)
o Long-life Mercury Arc Illumination System
o Laser Scanning Barcode Reader
o Twister(R) Universal Microplate Handler (Robot)
Attendant Software for Scanning and Performing Quantitative Cell Analysis in
Microplates:
o Cellomics Data View Software - imaging and computation software
o General Screening Application (GSA).
o General Purpose Assay Development Tool (GPADT)
o Kinetic Measurement Tool
Attendant Software Applications
o Multiparameter Apoptosis Screening Application (including Mitochondrial
Mass, Mitochondrial Potential, Actin Cytoskeletal Organization and Nuclear
Morphology) and Single-Instrument Screening License
o Nuclear Translocation Screening Application (e.g. Transcription Factor and
Kinase Activations) and Single-Instrument Screening License
o Receptor Internalization and Trafficking Screening Application and
Single-Instrument Screening License
o Cell Viability Screening Application and Single-Instrument Screening
License
o Mitotic Index Screening Application and Single-Instrument Screening License
Computer System:
o Intel Based PC with: Pentium Series Processor, 192 MB RAM, 18 GB Hard
Drive, Modem, and Microsoft(R)Windows NT Operating System
o Microsoft(R) Office Professional
o Remote Access Software
o Color Ink Jet Printer
o 17" High Resolution Color Monitor
Installation and Support:
o On-Site System Installation and Training (1 Day)
o Six Months of Free Software Upgrades
o Six Months of Central Technical Support (Software Support Via Telephone,
Fax, Internet; Hardware Support Via Remote Modem Diagnostics)
ARRAYSCAN II-C - SCREENING SYSTEM
Consisting of:
o Advanced Microplate Scanning System
o High Resolution 1317 X 1035 Pixel Cooled CCD Camera
o 10X Long Distance Objective Lens Compatible with Plastic Bottom
Microplates
o Four Channel Fluorescence Filters (470 nm, 520 nm, 600 nm, 700 nm)
o Six Channel Measurement (Combination of Spectral and/or Spatial Channels)
o Long-life Mercury Arc Illumination System
o Laser Scanning Barcode Reader
o Twister(R) Universal Microplate Handler (Robot)
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<PAGE> 51
Attendant Software for Scanning and Performing Quantitative Cell Analysis in
Microplates:
o Cellomics Data View Software - imaging and computation software
o General Screening Application (GSA).
o General Purpose Assay Development Tool (GPADT)
o Kinetic Measurement Tool
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EXHIBIT 1.4 (CONTINUED)
Computer System:
o Intel Based PC with: Pentium Series Processor, 192 MB RAM, 18 GB Hard
Drive, Modem, and Microsoft(R)Windows NT Operating System
o Microsoft(R) Office Professional
o Remote Access Software
o Color Ink Jet Printer
o 17" High Resolution Color Monitor
Installation and Support:
o On-Site System Installation and Training (1 Day)
o Six Months of Free Software Upgrades
o Six Months of Central Technical Support (Software Support Via Telephone,
Fax, Internet; Hardware Support Via Remote Modem Diagnostics)
ARRAYSCAN(R) KINETICS READER
The ArrayScan(R) Kinetics Reader process requires an automated, high precision
imaging plate reader optimized for imaging fluorescence from cells
growing on the bottom of a microplate well.
Uses an 820nm laser diode for "through the lens" focusing. Senses the interface
between the plate bottom and the water in the well.; Requires an 800nm
short pass dichroic mirror between the objective and the dichroic
wheel.; Compatible with standard 96, 384, and higher density plates.;
Compatible with plastic bottom and glass bottom plates; Fast response
time [less than] 1s to adjust focus within range of sensor, Longer
times to move to within range: Control possibilities by direct feedback
control of focus drive, or ; Control/readout of position through
computer interface.; Autofocus by image analysis and focus position
control by the ArrayScan Kinetics Reader computer will be possible.;
One camera port ; Motorized turret with support for 6 objectives.; User
standard exchangeable microscope objectives.; Available magnifications
of 63x, 40x, 20x, 10x and 5x; Optional magnifications of 2.5x, 1.25x.;
Optics are available with sufficient working distance and correction
for plastic bottom plates.; Optional optics optimized for thin and/or
glass bottom plates are available.; Air immersion for ease of scanning
plates.; Maximum available NA for sensitivity
Illumination Source(s): Mercury arc lamp, optimized for 20x air immersion
objective; Optional Xenon Arc Lamp; Long life bulbs, about 1000 hours; Simple
lamp replacement. Pre-aligned bulb with no adjustment required. ; Diode to read
out relative lamp intensity.; Lamp switched on by computer control.
ArrayScan Kinetics Reader computer directly controls all the reader component
functions, including image readout.; Internal parallel, multitasking operation
for speed and efficiency. Filters and X-Y-Z positioning move concurrently.;
Compatible with standard 96, 384, and higher density plates.; Motorized X-Y
stage; Range: accommodates whole plate area (120x80 mm)); Resolution: [less
than] 2um; Speed: [more than] 10 mm/sec ([less than] or ~ 1 sec to move well to
well); Insert for microplates with positive positioning mechanism.; Motorized
focus drive; Resolution: [less than] 1um; Speed: [more than] or ~ 1mm/sec.;
Motorized dichroic reflector/emission filter wheel; User replaceable filter
cubes on wheel, hold excitation, emission filters plus dichroic; Speed: ~ 1 sec.
between adjacent positions; Positions: 4; Motorized illumination filter wheel;
Filter Positions 8; Speed: ~ 250ms. between adjacent positions.;
Electro-mechanical illumination shutter; Speed: required: ~ 10ms to open/close;
Motorized emission filter wheel; Filter Positions 8; Speed: ~250ms between
adjacent positions; Optional analyzers for emission filter wheel. Indexed for
ease of orthogonal alignment.
Detector (CCD camera): The system uses a standard mechanical interface, a
C-mount, and has adequate space to accommodate a reasonable number of camera
housing designs. This will allow some flexibility in camera choice, and
therefore sensor selection, from among off-the-shelf systems. Camera detector is
projected to be Quantix with KAF 1400 chip.
Environmental Chamber: For live cell assays, maintains a tissue culture
incubator environment around the plate.
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<PAGE> 53
This will be accomplished by using a
commercial incubator system to circulate air through the ArrayScan Kinetics
Reader plate chamber. Supplementary heating will be provided in the chamber to
compensate for heat loss during circulation. Completely self contained within
unit; Same controls for stacker and plate on reader; User selectable
temperature, 25 - 40(Degree)C (+/- 0.5(Degree)C regulation); Required: manual
settings, with computer control or readout; User selectable for 0-5% CO(2),
regulated via sensor.
Optional on-board fluidics for multi-well delivery to the plate on the reader
will allow groups of wells to be treated, and then read successively for the
required duration including: Fluid delivery will allow for simultaneous delivery
from 1 to 8 wells; Volume range of 1-200uL; Pipetting from source plate, such as
a compound library plate; Include space for 1 source plate per plate read; Uses
a Cavro pipettor system; Tip wash station; Bulk reagent station.
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EXHIBIT 1.4 (CONTINUED)
CELLOMICS(R) STORE - DATA MANAGEMENT SOFTWARE
Base Configuration: Includes connection to one ArrayScan(TM)System and
two Client Access Licenses using the Cellomics Data Viewer
FEATURES
o Automated data transfer from all of the managed instruments to the
Cellomics(TM) Store server
o A centralized database for all of a customer's screening results
o On-line access to over 100 gigabytes of detailed experimental results (e.g.
individual cellular measurements and image files)
o Data visualization, analysis and reporting from two remote Windows desktop
computers (including the ArrayScan(TM) Kinetics Workstation).
o Automated backup of all data
o Automated space management with user-definable settings for on-line versus
off-line data archive
BASE SOFTWARE CONFIGURATION - CELLOMICS(TM) STORE SERVER
Cellomics(TM) Store software
Windows/NT Server Version 4.0 running Service Pack 4 or higher
Microsoft SQL Server Version 7.0 (5 user licenses)
Veritas Backup Exec for Window NT Server Version 7.3
BASE SOFTWARE CONFIGURATION - CELLOMICS(TM) DATA VIEWER (CLIENT APPLICATION)
Cellomics(TM) Data Viewer softwaRE
WINDOWS/NT WORKSTATION VERSION 4.0 RUNNING SERVICE PACK 4 OR HIGHER
CELLOMICS(R) SCREEN
BIOINFORMATICS FOR MICROPLATE OR ARRAY FORMAT CELL-BASED AND HOMOGENEOUS ASSAY
SCREENING SYSTEMS
OVERVIEW Cellomics Screen(TM) is an environment for bioassay
scientists and chemists to create and manage
homogeneous and cell-based assay screening
activities. Built specifically for the data
management needs of High Content Screening (HCS) and
Ultra High Throughput (UHTS) studies, the
Cellomics(TM) Screen platform combines technologies
in knowledge discovery, data mining, pattern
recognition, and visualization with public and
private substance databases to delivers a robust and
scalable enterprise solution for drug discovery.
CORE FUNCTIONALITY Cellomics Screen(TM)application functions:
o Screen Management System for homogeneous and cellular assays and screens.
o Provide researchers an active assay notebook in which the user can enter
structured and unstructured objectives, descriptions, protocols, results,
comments, etc.
o Management of Assays, Screens, Targets, Compounds, Agents, Reagents, Cells,
and other object pertaining to cell-based screening.
o Perform multi-assay and multi-screen comparisons to generate models of
cellular mechanisms and signal pathways.
o Integrated visualization capabilities provide direct-manipulation,
drill-down enabled presentation of screen analytics.
o Collaborates with private and public Molecular Biology Databases (MBDs) to
retrieve gene, protein and chemical information.
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<PAGE> 55
o Collaboration with the Cellomics Database(TM) (our subscription knowledge
discovery database) allows researchers to perform virtual screens and
cross-system comparisons.
ARCHITECTURE
o Open platform allows third party and user-developed analytics to be
integrated.
o Implemented as distributed object services and resource managers on a CORBA
or DCOM backbone.
o Multi-platform, multi-language API.
Thin-client Web user interface allows for ease of access by geographically
distributed users.
o
55
<PAGE> 56
EXHIBIT 1.5 CELLOMICS KITS AND REAGENTS
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
HitKit* ARRAYSCAN(R) II APPLICATION US LIST PRICE CATALOG NO.
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
BASIC SIGNALING
----------------------------------------------------------------------------------------------------------------------------------
Nuclear Factor (kappa)B Activation** Cytoplasm to Nucleus Translocation $450 K01-0001-1
----------------------------------------------------------------------------------------------------------------------------------
STAT1 Activation** Cytoplasm to Nucleus Translocation $450 K01-0002-1
----------------------------------------------------------------------------------------------------------------------------------
STAT2 Activation** Cytoplasm to Nucleus Translocation $450 K01-0005-1
----------------------------------------------------------------------------------------------------------------------------------
STAT3 Activation** Cytoplasm to Nucleus Translocation $450 K01-0008-1
----------------------------------------------------------------------------------------------------------------------------------
STAT5 Activation** Cytoplasm to Nucleus Translocation $450 K01-0009-1
----------------------------------------------------------------------------------------------------------------------------------
c-jun Activation** Cytoplasm to Nucleus Translocation $450 K01-0003-1
----------------------------------------------------------------------------------------------------------------------------------
ERK (MAPK) Activation** Cytoplasm to Nucleus Translocation $650 K07-0007-1
----------------------------------------------------------------------------------------------------------------------------------
p38 MAPK (HOG1) Activation** Cytoplasm to Nucleus Translocation $650 K01-0004-1
----------------------------------------------------------------------------------------------------------------------------------
JNK/SAPK Activation** Cytoplasm to Nucleus Translocation $650 K01-0006-1
----------------------------------------------------------------------------------------------------------------------------------
TOXICITY
----------------------------------------------------------------------------------------------------------------------------------
Cell Viability Cell Viability $450 K02-0001-1
----------------------------------------------------------------------------------------------------------------------------------
Multiparameter Toxicity 1 (Nuclear morphology,
Lysosomal mass, Cell membrane permeability, Multiparameter Toxicity 1 TBD TBD
Mitochondral potential)
----------------------------------------------------------------------------------------------------------------------------------
Micronucleus Content Micronucleus TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
Cytochrome P450 Activation P450 Activation TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
APOPTOSIS
----------------------------------------------------------------------------------------------------------------------------------
Multiparameter Apoptosis 1 (Mitochondrial
mass/potential, Cytoskeleton, Nuclear morphology) Multiparameter Apoptosis 1 $650 K04-0001-1
----------------------------------------------------------------------------------------------------------------------------------
Multiparameter Apoptosis 2 (Caspase activation,
Nuclear morphology, Mitochondrial mass/potential) Multiparameter Apoptosis 2 TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
RECEPTOR ACTIVATION
----------------------------------------------------------------------------------------------------------------------------------
Transferrin Receptor Receptor Internalization and Trafficking $450 K03-0001-1
----------------------------------------------------------------------------------------------------------------------------------
Multiparameter GPCR 1 (Bradykinin,
(beta)2-Adrenergic) Receptor Internalization and Trafficking TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
CELL CYCLE
----------------------------------------------------------------------------------------------------------------------------------
Mitotic Index Cell Proliferation/Cycling $650 K05-0001-1
----------------------------------------------------------------------------------------------------------------------------------
CELL MOTILITY/MORPHOLOGY
----------------------------------------------------------------------------------------------------------------------------------
Cell Spreading** Cell Spreading TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
Cell Hypertrophy** Cell Spreading TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
Directed Cell Movement Cell Motility 1 TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
Neurite Outgrowth Neurite Outgrowth TBD TBD
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE.
CELLOMICS KIT PRODUCTS ARE AVAILABLE IN ACCORDANCE WITH
SPECIFICATIONS INCLUDED IN THE PRODUCT INSERTS.
56
<PAGE> 57
[Attachment to 10.19]
EXHIBIT 2.2 DUTIES OF CELLOMICS
BEGINNING WITH THE EFFECTIVE DATE:
- BCI agrees to meet quarterly with Cellomics to discuss the strategic
relationship.
- BCI will provide a 1-day training class [ * ].
- BCI will make their [ * ] Sales Organization available [ * ] for training
by Cellomics [ * ].
- BCI will make it's field sales representatives available for a minimum of
one individual face-to-face field planning meeting with his/her Cellomics
counterpart in their territory.
- BCI will share it's [ * ] with Cellomics.
- BCI will provide literature [ * ] to the Cellomics Sales and Marketing
Organization.
- BCI will provide pre- and post-sales support [ * ].
- BCI and Cellomics will cooperate in setting up joint BCI/Cellomics seminars
[ * ] in major markets and accounts.
- BCI and Cellomics field organizations will schedule joint sales calls when
an opportunity is identified by either organization [ * ].
- BCI will establish a task team to develop a sales plan.
- BCI will be responsible for promptly handling initial customer support
inquiries and promptly directing the customer inquiries to the appropriate
BCI or Cellomics party.
BEGINNING WITH THE INSTRUMENT APPOINTMENT DATE
- BCI will provide a 1-day update training class [ * ].
- BCI will provide pre- and post-sales support [ * ].
- BCI and Cellomics will cooperate in setting up joint BCI/Cellomics
seminars, trade shows and other marketing activities [ * ] in major markets
and accounts.
- BCI and Cellomics will collaborate on development of a brochure [ * ] with
the cost of the development to be shared equally by both organizations.
- BCI will involve Cellomics in the BCI marketing planning process.
- BCI will provide installation of Cellomics Instruments.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 58
EXHIBIT 2.3 DUTIES OF CELLOMICS (Continued)
- Cellomics agrees to meet quarter annually with BCI to discuss the
strategic relationship.
- Cellomics will provide a 1-1/2 day training course to the BCI field sales
organization within 90 days of signing the definitive agreement.
- Cellomics will provide pre-and post sales technical support [ * ].
- [ * ].
- Cellomics will provide literature to the BCI Field Sales and Marketing
Organization [ * ].
- BCI and Cellomics will cooperate in setting up joint BCI/Cellomics seminars
[ * ] in major markets and accounts.
- BCI and Cellomics field organizations will schedule joint sales calls when
an opportunity is identified by either organization [ * ].
- Cellomics will provide installation and training for Cellomics Instruments.
- Cellomics will participate in the BCI marketing planning process.
BEGINNING WITH THE INSTRUMENT APPOINTMENT DATE:
- Cellomics will provide a 1-1/2 day training course to the BCI field sales
organization within 90 days of release of the product [ * ].
- Cellomics Marketing organization will forward any leads to the appropriate
BCI Field Sales Representative for follow-up.
- Cellomics will provide pre-and post sales technical support [ * ].
- BCI and Cellomics will cooperate in setting up joint BCI/Cellomics seminars
[ * ] in major markets and accounts.
- BCI and Cellomics will collaborate on development of a brochure [ * ] with
the cost of the development to be shared equally by both organizations.
- Cellomics will provide adequate service training [ * ] and will provide
appropriate service manuals for Cellomics Instruments.
- Cellomics will provide BCI customer application support training.
- Cellomics will provide customer training during installation of the
instrument.
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 59
EXHIBIT 2.3 DUTIES OF CELLOMICS (Continued)
- [ * ]
- [ * ]
- Marketing -- Central activities based out of
Pittsburgh, PA. Marketing includes Cellomics specified advertising, direct
mail, website
- Tradeshows -- Cellomics will provide instrument(s) for
display in BCI booth
- Training -- Cellomics will provide training to
BCI sales personnel
- [ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
59
<PAGE> 60
EXHIBIT 2.4 [ * ]
(Pages 60-61)
[ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
60
<PAGE> 61
EXHIBIT 2.6 [ * ]
[ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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<PAGE> 62
EXHIBIT 3.3A CELLOMICS KIT AND CELLOMICS REAGENTS LIST PRICES
<TABLE>
<CAPTION>
HITKIT* ARRAYSCAN(R) II APPLICATION US LIST PRICE CATALOG NO
------ --------------------------- ------------- ----------
<S> <C> <C> <C>
BASIC SIGNALING
Nuclear Factor kB Activation** Cytoplasm to Nucleus Translocation $450 K01-0001-1
STAT1 Activation** Cytoplasm to Nucleus Translocation $450 K01-0002-1
STAT2 Activation** Cytoplasm to Nucleus Translocation $450 K01-0005-1
STAT3 Activation** Cytoplasm to Nucleus Translocation $450 K01-0008-1
STAT5 Activation** Cytoplasm to Nucleus Translocation $450 K01-0009-1
c-jun Activation** Cytoplasm to Nucleus Translocation $450 K01-0003-1
ERK (MAPK) Activation** Cytoplasm to Nucleus Translocation $650 K07-0007-1
p38 MAPK (HOG1) Activation** Cytoplasm to Nucleus Translocation $650 K01-0004-1
JNK/SAPK Activation** Cytoplasm to Nucleus Translocation $650 K01-0006-1
TOXICITY
--------
Cell Viability Cell Viability $450 K02-0001-1
Multiparameter Toxicity 1 (Nuclear morphology, Lysosomal
mass, Cell membrane permeability, Mitochondrial potential) Multiparameter Toxicity 1 TBD TBD
Micronucleus Content Micronucleus TBD TBD
Cytochrome P450 Activation P450 Activation TBD TBD
APOPTOSIS
Multiparameter Apoptosis 1 (Mitochondrial mass/potential,
Cytoskeleton, Nuclear morphology) Multiparameter Apoptosis 1 $650 K04-0001-1
Multiparameter Apoptosis 2 (Caspase activation, Nuclear
morphology, Mitochondrial mass/potential) Multiparameter Apoptosis 2 TBD TBD
RECEPTOR ACTIVATION
Transferrin Receptor Receptor Internalization and Trafficking $450 K03-0001-1
Multiparameter GPCR 1 (Bradykinin, B2-Adrenergic) Receptor Internalization and Trafficking TBD TBD
CELL CYCLE
Mitotic Index Cell Proliferation/Cycling $650 K05-0001-1
CELL MOTILITY/MORPHOLOGY
Cell Spreading** Cell Spreading TBD TBD
Cell Hypertrophy** Cell Spreading TBD TBD
Directed Cell Movement Cell Motility 1 TBD TBD
Neurite Outgrowth Neurite Outgrowth TBD TBD
</TABLE>
Note: Prices are subject to change without notice.
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<PAGE> 63
EXHIBIT 3.7
PRODUCT WARRANTY
Subject to the exceptions and upon the conditions stated below, Cellomics
warrants that the Products shall be free from defects in workmanship and
materials for one year after delivery of the Products to the BCI customer and if
any such Product should prove to have a defect in workmanship or material within
such one year period, Cellomics agrees, at its option, to correct such defective
Product either by repair or by replacement.
Items not intended or expected to be durable are not warranted beyond initial
condition. Examples of such items are light bulbs, plastic tubing, ink ribbons,
floppy disks, etc.
Cellomics makes no warranty with respect to components or accessories not
manufactured by it. Such components or accessories will be subject to the
warranties, if any, of their respective manufacturers.
The above warranties do not apply to conditions resulting from (a) improper use,
(b) use in a manner not in accordance with the instructions contained in the
user's manual, (c) negligence, (d) operation with incompatible solvents or
samples in the system, (e) unsupported configurations, (f) external causes, (g)
modifications, service, moving or installation not performed by Cellomics or its
authorized service providers, (h) performance of improper or inadequate
maintenance by the user, (i) operation outside the environmental parameters
specified for the Product, (j) use of non-Cellomics software, accessories,
media, supplies, consumables, or such items not designed for use with the
Product, or (k) in whole or in part, fire or explosion of any origin, riot,
civil commotion, aircraft, war, electrical surges, or any act of God, including,
but not limited to, lightning, windstorm, hail, flood or earthquake.
Cellomics does not warrant that the operation of any Product will be
uninterrupted or error free.
If the Product is a reagent or the like, Cellomics expressly warrants that the
Product conforms to the specifications set forth in the Product labeling and
accompanying instructions including use, performance, storage, and expiration
dating. Cellomics' Products are warranted to meet Product specifications in
effect at the time of shipment. Notice of nonconforming Products must be made to
Cellomics within 30 days of receipt of the Product. This Product warranty limits
Cellomics' liability to the replacement of the Product only. If Cellomics
determines that the Product does not conform to said specifications, Cellomics
will replace the Product at no additional cost to customer. This limited
warranty shall not extend to anyone other than the original purchaser of the
Product.
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<PAGE> 64
THE REMEDIES PROVIDED ABOVE ARE THE SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT
WILL CELLOMICS BE LIABLE FOR ANY DAMAGES RESULTING FROM THE LOSS OF USE, LOSS OF
RESEARCH OR DEVELOPMENT, LOSS OF DATA, LOST PROFITS OR OTHER ECONOMIC LOSS,
OR ANY PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES
WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN
THOUGH CELLOMICS MAY HAVE BEEN ADVISED OR MAY OTHERWISE KNOW OF THE POSSIBILITY
OF SUCH DAMAGES.
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<PAGE> 65
EXHIBIT 3.7
PRODUCT WARRANTY (CONTINUED)
Representations and warranties made by any person, including dealers and
representatives of Cellomics, which are inconsistent or in conflict with the
terms of this warranty, shall not be binding upon Cellomics unless reduced to
writing and signed by an expressly authorized officer of Cellomics.
THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY AS TO THE PRODUCTS AND IS IN
LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
OF ANY OTHER OBLIGATION ON THE PART OF CELLOMICS.
65
<PAGE> 66
EXHIBIT 3.9A [ * ]
<TABLE>
<CAPTION>
Catalog Product Transfer Cellomics BCI Margin BCI% Margin
Number Price US List (at Cellomics
Price list)
------- ------- -------- --------- ---------- -------------
<S> <C> <C> <C> <C> <C>
N01-0003 ArrayScan IIC (115V): On Site Training Not
Included [ * ] $195,000 [ * ] [ * ]
N01-0004 ArrayScan II-S (115V): On Site Training
Included in Price [ * ] $380,000 [ * ] [ * ]
N01-0051 20X-LD-Achroplan objective lens [ * ] $ 5,000 [ * ] [ * ]
C03-0001 On-site training for ArrayScan IIC-2 days [ * ] $ 7,500 [ * ] [ * ]
TBD ArrayScan Kinetics Reader [ * ] *$445,000 [ * ] [ * ]
S50-0001-1 Cytoplasm-Nucleus Translocation Screening
Application [ * ] $ 30,000 [ * ] [ * ]
S50-0002-1 Receptor Internalization and Trafficking
Screening Application [ * ] $ 30,000 [ * ] [ * ]
S50-0003-1 Cell Viability Screening Application [ * ] $ 30,000 [ * ] [ * ]
S50-0004-1 Multiparameter Apoptosis I Screening
Application [ * ] $ 50,000 [ * ] [ * ]
S50-0005-1 Mitotic Index Screening Application [ * ] $ 30,000 [ * ] [ * ]
S50-0006-1 Cell Spreading Screening Application [ * ] $ 30,000 [ * ] [ * ]
S50-0007-1 Neurite Outgrowth Screening Application [ * ] $ 35,000 [ * ] [ * ]
TBD Cytotoxicity Assay (Q3-00) [ * ] $ 50,000 [ * ] [ * ]
TBD Cell Motility (Q3-00) [ * ] $ 30,000 [ * ] [ * ]
TBD Genotoxicity [ * ] $ 35,000 [ * ] [ * ]
S01-0001-1 Cellomics Store Base Software Configuration [ * ] $ 35,000 [ * ] [ * ]
S01-0002-1 Cellomics Store Base Hardware Configuration
(including installation) [ * ] $ 30,000 [ * ] [ * ]
S01-0003-1 Additional AS/FLIPR instrument connection +
Client access license for CDV [ * ] $ 10,000 [ * ] [ * ]
S01-0004-1 Additional Single Client Seat License
(Price Per License) [ * ] $ 3,000 [ * ] [ * ]
S01-0004-2 Additional Client Seat License 5 Unit Bundle [ * ] $ 10,000 [ * ] [ * ]
TBD On Site Installation and Training for
Cellomics Store [ * ] $ 7,000 [ * ] [ * ]
</TABLE>
Transfer prices and Cellomics List Prices are subject to change by Cellomics in
its sole discretion. Cellomics and BCI will meet quarterly to discuss any
planned price adjustments, any such price adjustments will not be put in effect
prior to 90 days of notice to BCI.
*These prices are only estimated at this time.
"CONFIDENTIAL [ * ] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
68
<PAGE> 67
EXHIBIT 3.9B [ * ]
[ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
<PAGE> 68
EXHIBIT 3.13
[ * ]
CELLOMICS QUALITY SPECIFICATIONS [CELLOMICS LOGO]
CERTIFICATE OF ANALYSIS
Arrayscan(TM) II-S
-------------------------------------------------------------------------------
A) Catalog Number: NO1-000X Serial Number
B) Software Version: AS _____________
C) Instrument Calibration and Testing Performed
Input Stack Position Yes/No
Output Stack Position Yes/No
Stage Position Yes/No
Focus Position Yes/No
Bar Code Reader Yes/No
D) Functional Tests Performed
Protocol: Cellomics_Nuc_Trans_20X
Cellomics_MitoticIndex_10X
Cellomics_ReceptInt_10X
Cellomics_Apoptosis_MP_1_20X
STANDARD INSTRUMENT DATA: TEST INSTRUMENT DATA:
Cellomics_NucTrans_20X Cellomics_NucTrans_20x
Max COV less than 20%
Cellomics_MitoticIndex_10X Cellomics_MitoticIndex_10X
MitoticIndex Avg at least 20-25%
Cellomics_ReceptInt_10X Cellomics_ReceptInt_10X
Max Cov less than 20%
Cellomics_Apoptosis_MP_1_20X Cellomics_Apoptosis_MP_1_20X
F-Actin COV less than 10.9%
Mitochondrial Mass/Potential
Max COV less than 15.4%
Nuclear Size/Frag
Z' window greater than 0.62
-------------------------------------------------------------------------------
Cellomics(TM), Inc. certifies that the above is an accurate report of the
analysis of this instrument. The data conforms to the specifications in effect
for this product on the date of analysis.
-70-
<PAGE> 69
___________________________________________ Date: _______________________
Manufacturing Manager
-71-
<PAGE> 70
EXHIBIT 4.2
MINIMUM TARGET SALES
All numbers below are [ * ] of the following products.
YEAR 1* YEAR 2*
PRODUCT FACTOR FACTOR
------- ------ ------
ArrayScan(R) II [ * ] [ * ]
ArrayScan(R) [ * ] [ * ]
Kinetics Reader
Cellomics(R) Store [ * ] [ * ]
Cellomics(R) Screen [ * ] [ * ]
[ * ]
[ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
<PAGE> 71
EXHIBIT 8 ZEISS PRODUCTS
UHTS READER
-----------
UHTS Reader, Absorbance [ * ]
UHTS Reader, Fluorescence [ * ]
UHTS Reader, TRF/Fluorescence [ * ]
UHTS Reader, Multimode [ * ]
UHTS Reader (future versions) [ * ]
UHTS SYSTEM COMPONENTS
----------------------
Reader Workstation RW-1 [ * ]
Liquid Handling Workstation LW-1 [ * ]
Hotel Workstation HW-1 [ * ]
Transfer System TS-1 [ * ]
System Server SS-1 [ * ]
Above Units as a System [ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
-73-
<PAGE> 72
EXHIBIT 9.1 [ * ]
(Pages 74-75)
[ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
<PAGE> 73
[Letterhead of Beckman Coulter]
[BECKMAN COULTER LOGO]
October 18, 2000
Cellomics, Inc.
635 William Pitt Way
Pittsburgh, PA 15238
Gentlemen:
This letter with the signature below of an authorized representative of
Cellomics, Inc. ("Cellomics") will constitute the second amendment to our
Strategic Relationship Agreement effective June 14, 2000 (the "Agreement"). We
have agreed as follows:
1. Paragraph 3.7, second sentence - Change "Exhibit 3.7A" to "Exhibit 3.7".
2. Paragraph 3.7 - Delete last sentence in its entirety and substitute
therefore the following:
"Cellomics shall also reimburse BCI at BCI's then standard rates
(which the parties understand and agree may be increased from
time to time by BCI) for the time spent and expenses incurred by
BCI service personnel in performing such warranty repairs and
preventive maintenance on Cellomics Instruments and in traveling
to and from the service personnel's home office to the customer
requesting or requiring such warranty service on preventive
maintenance; a schedule showing BCI's standard rates in effect as
of the Effective Date is attached hereto as Exhibit 3.7A."
3. Paragraph 11.1 - Delete the first sentence in its entirety and substitute
therefore the following:
"BCI agrees to and shall grant to Cellomics licenses under BCI
patents and applications for patent nominated by BCI in an Exhibit
to be added to this Agreement by November 30, 2000, which patents
and applications shall be limited to those which are owned or
controlled by BCI (i.e., BCI has the right to grant licenses and
sublicenses thereunder) and are in existence as of the Effective
Date."
-1-
--------------------------------------------------------------------------------
[footer of letterhead of Beckman Coulter]
<PAGE> 74
(Page 2)
4. Paragraph 11.2 -- Delete the first sentence in its entirety and substitute
therefor the following:
"Cellomics agrees to and shall grant to BCI licenses under Cellomics
patents and applications for patent nominated by Cellomics in an
Exhibit to be added to this Agreement by November 30, 2000, which
patents and applications shall be limited to those which are owned or
controlled by Cellomics (i.e., under which Cellomics has the right to
grant licenses or sublicenses) and are in existence as of the
Effective Date."
5. Exhibit 2.3, under the heading "Beginning with the Effective Date."--
Delete the second bullet in its entirety and substitute therefor the
following:
"Cellomics will provide an initial one-half day training to the BCI sales
force [ * ] and an initial one-half day training to the BCI sales force
[ * ] at mutually agreed times and locations. Cellomics will, in addition,
provide a further one and one-half days training to the BCI sales
organization [ * ] at a mutually agreed time and location."
6. Exhibit 3.3A -- Delete in its entirety and substitute therefor the
following:
[ * ]
[ * ]
(Page 3) [ * ]
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
-2-
<PAGE> 75
CELLOMICS KIT AND CELLOMICS REAGENTS LIST PRICES
<TABLE>
<CAPTION>
HITKIT* ARRAYSCAN(R) II APPLICATION US LIST PRICE CATALOG NO
------ --------------------------- ------------- ----------
<S> <C> <C> <C>
BASIC SIGNALING
Nuclear Factor kB Activation** Cytoplasm to Nucleus Translocation $450 K01-0001-1
STAT1 Activation** Cytoplasm to Nucleus Translocation $450 K01-0002-1
STAT2 Activation** Cytoplasm to Nucleus Translocation $450 K01-0005-1
STAT3 Activation** Cytoplasm to Nucleus Translocation $450 K01-0008-1
STAT5 Activation** Cytoplasm to Nucleus Translocation $450 K01-0009-1
c-jun Activation** Cytoplasm to Nucleus Translocation $450 K01-0003-1
ERK (MAPK) Activation** Cytoplasm to Nucleus Translocation $650 K07-0007-1
p38 MAPK (HOG1) Activation** Cytoplasm to Nucleus Translocation $650 K01-0004-1
JNK/SAPK Activation** Cytoplasm to Nucleus Translocation $650 K01-0006-1
TOXICITY
--------
Cell Viability Cell Viability $450 K02-0001-1
Multiparameter Toxicity 1 (Nuclear morphology, Lysosomal
mass, Cell membrane permeability, Mitochondrial potential) Multiparameter Toxicity 1 TBD TBD
Micronucleus Content Micronucleus TBD TBD
Cytochrome P450 Activation P450 Activation TBD TBD
APOPTOSIS
Multiparameter Apoptosis 1 (Mitochondrial mass/potential,
Cytoskeleton, Nuclear morphology) Multiparameter Apoptosis 1 $650 K04-0001-1
Multiparameter Apoptosis 2 (Caspase activation, Nuclear
morphology, Mitochondrial mass/potential) Multiparameter Apoptosis 2 TBD TBD
RECEPTOR ACTIVATION
Transferrin Receptor Receptor Internalization and Trafficking $450 K03-0001-1
Multiparameter GPCR 1 (Bradykinin, B2-Adrenergic) Receptor Internalization and Trafficking TBD TBD
CELL CYCLE
Mitotic Index Cell Proliferation/Cycling $650 K05-0001-1
CELL MOTILITY/MORPHOLOGY
Cell Spreading** Cell Spreading TBD TBD
Cell Hypertrophy** Cell Spreading TBD TBD
Directed Cell Movement Cell Motility 1 TBD TBD
Neurite Outgrowth Neurite Outgrowth TBD TBD
</TABLE>
Note: Prices are subject to change without notice.
-4-
<PAGE> 76
7. Add the following as Exhibit 3.7A:
BCI's hourly service rate in effect as of the Effective Date is [ * ] per
hour.
8. In all other respects the Agreement remains unchanged and in full
force and effect.
If the foregoing properly sets forth our understanding, please sign both copies
of this second amendment in the space indicated below and return one copy to
Arnold Grant at the above address; the second copy is for your files.
Sincerely,
Beckman Coulter, Inc.
By: SIGNATURE (?)
---------------------
Title: VP Bioresearch
---------------------
Date: 10/25/00
---------------------
Accepted and Agreed:
Cellomics, Inc.
By: SIGNATURE (?)
-----------------------
Title: Chief Business Officer
-----------------------
Date: 10/27/2000
-----------------------
"CONFIDENTIAL [*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS
DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
-5-
