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Exhibit 10.42
EXECUTION COPY
TERMINATION AGREEMENT AND RELEASE OF CLAIMS
THIS TERMINATION AGREEMENT AND RELEASE OF CLAIMS (the "Termination
Agreement") is entered into as of this 25th day of September, 1997 by and
between ChemTrak Incorporated, a Delaware corporation ("ChemTrak") and Astra
Merck, Inc., a Delaware corporation ("AMI").
BACKGROUND
The parties hereto entered into a Distribution and Supply Agreement
dated as of March 1, 1995 (the "Initial Agreement"), as amended by the First
Amendment to Distribution and Supply Agreement dated as of December 29, 1995
(the "First Amendment') and the Second Amendment to Distribution and Supply
Agreement dated as of December 30, 1996 (the "Second Amendment," together with
the Initial Agreement and the First Amendment, the "Agreement"). The parties now
desire to terminate the Agreement pursuant to Article 10 thereof and otherwise
on the terms and conditions set forth herein. Capitalized terms used but not
defined herein shall have the meaning ascribed to them in the Agreement.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound, the parties
hereby agree as follows:
1. Termination. The parties hereby terminate the Agreement. Within five
(5) business days after the execution of this Termination Agreement, AMI shall
pay to ChemTrak the amount of Two Million Four Hundred Thousand Dollars
($2,400,000) by wire transfer to a bank in the United States designated by
ChemTrak pursuant to the wire transfer instructions attached hereto as Exhibit
A.
2. Inventory and Marketing Materials. As soon as possible after the
date hereof, (i) ChemTrak shall relabel any and all Hp Product, product inserts
and other marketing materials in a way which prevents the identification of
AMI's name or logo or any reference to AMI in any manner whatsoever including,
without limitation, by removing AMI's name from the Hp Product in the manner set
forth in ChemTrak's letter dated September 22, 1997 delivered by Thomas M. Waugh
to AMI attached hereto as Exhibit B; and (ii) ChemTrak shall provide evidence
reasonably satisfactory to AMI that it has relabeled the foregoing including,
without limitation, by submitting samples of the Hp Product, the product inserts
and other marketing materials which have been relabeled to AMI for approval. AMI
shall bear no responsibility for, nor incur any liability with respect to, any
Hp Product which is relabeled hereunder. In no event shall ChemTrak use AMI's
name or any trademarks, tradenames or copyrights owned or used by AMI.
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3. Trademark. AMI hereby assigns all of its rights to the Trademark to
ChemTrak and shall execute all documents and perform all acts which ChemTrak
reasonably requires to transfer the ownership of the Trademark.
4. Surviving Obligations. Notwithstanding Section 10.6 of the
Agreement, only the obligations set forth in Sections 8.4, 13.1, 16.8 and
Article 14 of the Agreement shall survive termination of the Agreement
hereunder.
5. Mutual Releases. ChemTrak and AMI hereby irrevocably release each
other and each other's Affiliates, shareholders, officers, directors, employees,
successors, assigns and other agents, from any and all claims of whatsoever kind
or nature, whether known or unknown, accrued or unaccrued, that either of them
may have against the other arising from any matter or occurrence from the
beginning of time through the date hereof including, without limitation, the
termination of the Agreement and the payment of any amounts outstanding for Hp
Product under the Agreement or any invoice provided pursuant thereto, except as
provided pursuant to Section hereof.
6. Liability for Breach of Termination Agreement. If either party shall
fail to comply or otherwise violate any provision of this Termination Agreement,
then the party which has committed such failure or violation ("Breaching Party")
shall be liable to the other party ("Non-Breaching Party") for any and all
damages (including reasonable counsel or other professional fees) resulting from
such failure or violation, and all costs and expenses incurred by the Non-
Breaching Party in remedying the effects of such failure or violation. Each of
the parties hereto acknowledges that the mutual release set forth herein is not
intended to, and shall not, release any claim that the Non-Breaching Party may
have against the Breaching Party for any failure of compliance hereunder or
violation of the terms hereof.
7. Confidentiality. Subject to Section , the parties agree that they
shall keep strictly confidential, and shall not reveal, publish, communicate or
otherwise disseminate the terms and conditions of this Termination Agreement to
any other person or entity; provided, however, that the parties may disclose (i)
the amount paid hereunder to attorneys or accountants who need to know such
information for the purpose of giving tax or financial advice and who first
agree in writing not to disclose the information to others; and (ii) such
information as may be specifically (and only to the extent) required to be
disclosed by applicable law or court order; provided that notice is promptly
delivered to the other party in order to provide an opportunity to challenge or
limit the disclosure obligations.
8. Advice of Counsel. Each party represents and warrants that it has
entered into this Termination Agreement after consultation with its counsel and
that it has not relied on any representation other than those expressly set
forth herein.
9. Waiver. Any waiver of any term or condition of this Termination
Agreement, or any amendment or supplementation of this Termination Agreement,
shall be effective only if in writing. A waiver of any breach or failure to
enforce any of the terms or conditions of this Termination Agreement shall not
in any way affect, limit or waive a party's rights hereunder
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at any time to enforce strict compliance thereafter with every term or condition
of this Termination Agreement.
10. Counterparts. The Termination Agreement may be signed in any number
of counterparts, and by the different parties hereto on separate counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same instrument, and in pleading or providing any provisions thereof it
shall not be deemed necessary to produce more than one such counterpart. The
Termination Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected thereon as the signatories.
11. Successors and Assigns. This Termination Agreement shall inure to
the benefit of and be binding upon the parties and their respective successors
and assigns.
12. Governing Law. The Termination Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the conflicts of laws provisions thereof.
13. Press Release. ChemTrak may disclose and republish all or part of
the press release attached hereto as Exhibit C, and any information contained
therein shall be exempt from the confidentiality undertaking set forth in
Section hereof.
IN WITNESS WHEREOF, the parties have executed this Termination
Agreement as of the date and year first set forth above.
ASTRA MERCK INC. CHEMTRAK INCORPORATED
By: /s/ Matthew W. Emmens By: /s/ Edward F. Covell
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Matthew W. Emmens Edward F. Covell
President and Chief President and Chief
Executive Officer Executive Officer
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EXHIBIT A
WIRE INSTRUCTIONS
WELLS FARGO BANK, N.A. - SAN FRANCISCO
ABA 121000248
WFB Acct: #4068-000769
For Further Credit to Account #TR 126679
Name of: ChemTrak Inc.
Attn: Mora Andrews
(415) 396-7188
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EXHIBIT B
[ChemTrak Letterhead]
September 22, 1997
Mr. Jim Rutledge
Astra Merck, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19067-5677
Dear Jim:
After looking at our inventory further and hearing your concerns about
relabeling product, we have reached a decision to scrap all of the existing
boxes and not attempt to relabel them. As for the cassettes, we will remove
Astra Merck's name from the cassettes, I have sent along two cassettes to that
you can see one in which your name has been partially removed and one in which
it is totally removed. These were two sequential cassettes that I pulled from
the warehouse. As you can see, we can completely remove all traces of the Astra
Merck name from the product. I think that this should satisfy all of your
concerns about your name being removed from product that is going into the
field.
Please pass this information on to the appropriate parties within your
organization so that we can continue to expedite the finalizing of this
agreement.
Sincerely,
/s/ Thomas M. Waugh
Thomas M. Waugh
Vice President, Operations
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