Note: Confidential treatment requested. Exhibit omits information that has
been filed separately with the Securities and Exchange Commission.
CO-PROMOTION AND SALES REPRESENTATION AGREEMENT
This Co-Promotion and Sales Representation Agreement (this "Agreement") is
entered into as of the 14th day of January, 1997 ("Effective Date"), by and
between
HOLOGIC, INC., a Delaware corporation having its principal place of business at
590 Lincoln Street, Waltham, MA 02154 ("Hologic" or "Company"), and
OSTEX INTERNATIONAL, INC., a Washington corporation having its principal place
of business at 2203 Airport Way South, Suite 400, Seattle, Washington 98134
("Ostex" or Representative).
1. FACTS
A. Hologic engages in the research, development, manufacture, sale, and
lease of diagnostic equipment and other products in the field of bone
metabolism, including its line of QDR bone densitometers. Hologic sells this
line of bone densitometers to physician offices, clinics, hospitals and other
medical settings to measure the density and strength of the subject's bones as
an aid in the diagnosis of osteoporosis and other bone diseases.
B. Ostex has developed its proprietary immunoassay Osteomark(R) to
determine the levels of the NTx epitope collagen metabolite resulting from bone
resorption ("NTx Assay"), which it has implemented and sells in a microtiter
format. ("Osteomark(R) Laboratory Test"). Ostex sells its Osteomark(R)
Laboratory Test to clinical laboratories, physician offices, clinics, hospitals
and other medical settings for the purpose of measuring the rate of bone
resorption or breakdown of the subject's bones as an aid in the management of
osteoporosis and other bone diseases.
C. The parties believe that their products are complementary to each
other, and wish to enter into this Co-Promotion and Sales Agency Agreement under
which (1) Ostex will act, in the Territory, as the sales agent for a package of
products consisting of a Strategic Alliance ("Fee Per Scan") Leasing Contract
for Hologic's QDR 4500 product and a certificate redeemable for performance of a
defined number of Osteomark(R) Laboratory Tests; and (2) the parties will
jointly promote their QDR and Osteomark(R) products in the Territory as an
integrated approach to the diagnosis and management of osteoporosis, will
establish a committee to coordinate their joint activities, and will take
certain other steps; all as described herein.
D. The parties have entered into simultaneously with this Agreement
that certain Joint Development, License and Supply Agreement providing for the
development and sale of an NTx Meter System for point of care use in accord with
the terms set out therein (the "Development Agreement").
2. DEFINITIONS
(a) "Promotional Package," as used in this Agreement, means a package
consisting of a Strategic Alliance ("Fee Per Scan") Leasing Contract for the
Hologic QDR product and an Osteomark(R) Laboratory Certificate, as described in
Attachment A which is attached hereto and incorporated herein.
(b) "QDR Component" as used in this Agreement, means a Strategic
Alliance ("Fee Per Scan") Leasing Contract for the Hologic QDR product specified
in Attachment A hereto.
(c) "Osteomark(R) Laboratory Test" as used in this Agreement, means an
immunoassay to determine levels of the NTx epitope collagen metabolite resulting
from bone resorption ("NTx Assay"), as marketed and sold by Ostex in a
microtiter format to centralized laboratories ("Osteomark(R) Laboratory Test").
(d) "Osteomark(R) Laboratory Certificate" as used in this Agreement,
means a certificate redeemable for performance of a number of Osteomark(R)
Laboratory Tests, as described in Attachment A hereto.
(e) "Territory," as used in this Agreement means the United States
of America.
(f) "First Commercial Sale" means the first Sale of a NTx Meter System
pursuant to the Development Agreement for value in an arms length transaction
with an independent third party following approval for sale by the United States
Food and Drug Administration of the NTx Meter System.
(g) "Confidential Information" means (a) any and all normally
non-public information communicated or disclosed by one party ("Discloser") to
the other party ("Recipient") describing or relating to the Disclosing Party's
business and marketing plans and strategies, financial information, or customer
information, and (b) any and all information communicated or disclosed by the
Discloser to Recipient describing or relating to the Disclosing Party's research
and development, Know-How, inventions, trade secrets, technical data, formulae,
drawings, designs, software, models, samples, kits, processes, product
development data and information and other data and information related to the
business of Discloser, labeled or specified in writing as "Confidential" or the
equivalent, or if orally disclosed, labeled "Confidential" or the equivalent,
and reduced to writing within thirty (30) days of such oral disclosure;
provided, however, that "Confidential Information" shall not be deemed to
include information which the Recipient can demonstrate by written proof: (i) is
now, or hereafter becomes, through no fault on the part of the Recipient,
generally known or available; (ii) is known by the Recipient at the time of
receiving such information; (iii) is furnished to others by Discloser without
restriction on disclosure; (iv) is hereafter furnished to the Recipient by a
third party unrelated to Discloser, as a matter of right and without any breach
of any duty of non-disclosure; (v) is independently developed by the Recipient
without use of or reference to any Confidential Information; or (vi) is the
subject of express written permission to disclose provided by Discloser. Without
limiting the generality of the foregoing, Confidential Information may include
information developed during the course of this Agreement.
3. MARKETING COMMITTEE AND OTHER JOINT ACTIVITIES
(a) Immediately upon execution of this Agreement, the parties shall
form a marketing committee ("Marketing Committee") with two (2) named
representatives each from Hologic and Ostex, to oversee and coordinate the joint
marketing, promotional, sales, and other activities required or authorized by
this agreement. The Marketing Committee shall meet at least quarterly, and shall
attempt to operate by consensus, but failing consensus shall operate by majority
vote. All tie votes shall be finally resolved by a committee chairman. The
chairmanship shall alternate annually between representatives of the parties.
One of Hologic's representatives shall serve as chairman during the first year
of this Agreement, one of Ostex's the second year and so on. The Marketing
Committee may delegate certain of its functions to subcommittees or individual
members. Each party shall each cause its representatives on the Marketing
Committee to attempt to work to promote the goals of this Agreement, and most
particularly to advance the parties' mutual products and technologies as
complementary approaches for the diagnosis, management and treatment of
osteoporosis (the "Goals").
(b) Within thirty (30) days after the Effective Date, the Marketing
Committee shall prepare a written plan for the first year period of this
Agreement under which the parties shall undertake specified activities to
jointly promote the Goals and to support sales of the Promotional Package,
together with a proposed annual budget therefor, and an allocation of tasks
between the parties ("Marketing Plan"). At least sixty (60) days prior to the
end of the first year period of this Agreement, and each subsequent year period,
the Marketing Committee shall prepare a follow-on Marketing Plan to cover such
upcoming year. It is anticipated that said Marketing Plan shall include but not
be limited to (i) development and distribution of one or more joint brochures,
and possibly other materials, (ii) a program of joint advertising and public
relations, and (iii) a plan to promote the Goals with opinion leaders, and
generally, in the medical and managed care communities. For the first year
period, it is anticipated that the joint budget for such Marketing Plan shall
approximate XXXXXXXXXXXXXXXXXXXXXXX.
(c) Within sixty (60) days after the Effective Date, the Marketing
Committee shall also establish a plan and a budget under which the parties shall
collaborate to establish a database supporting the Goals, with the pre-approved
costs thereof to be shared equally by the parties and which database the parties
anticipate shall be owned jointly by the parties.
(d) Except as specified in Section 3(c) above, the parties shall share
the costs of all joint activities undertaken pursuant to the Marketing Plan (to
the extent approved in writing in advance by the Marketing Committee)
on the basis of XXX to Ostex, and XXX to Hologic. The Marketing Committee
shall establish an appropriate mechanism to implement such cost sharing,
under which each party shall be responsible for payment of specific costs for
specific joint activities and shall report such costs to the other party on a
periodic basis, and the parties shall reconcile and remit amounts payable to
each other on a quarterly basis, or on such other basis as the Marketing
Committee may determine. The parties specifically acknowledge that this cost
sharing arrangement is not intended to apply to either party's individual
marketing efforts relating to its own products, or to limit (or expand) either
party's rights to promote its technology or its approach to the diagnosis,
management and treatment of
osteoporosis. For the purposes of this paragraph, costs to be shared exclude
employee compensation, fringe benefits and division or corporate overhead.
Sharable costs include but are not limited to agency fees relating to designing
and printing literature, payment to public relations firms, and spokesman
honoraria.
4. APPOINTMENT.
Hologic hereby appoints Ostex and Ostex hereby agrees to act as
Hologic's non-exclusive sales representative in the Territory for the purpose of
promoting, and soliciting orders for, the Promotional Package for the account of
Hologic at such prices and upon such terms and conditions as may be from time to
time specified by Hologic. Except as provided herein, Ostex shall have no other
right to promote or solicit orders for the Promotional Package for installation
outside of the Territory, or for any other Hologic product.
5. OBLIGATIONS OF OSTEX.
Ostex shall:
(a) Use reasonable efforts to promote sales of and to secure and
present to Hologic orders for the Promotional Package in the Territory, in
accord with the directions of the Marketing Committee described below. It is
anticipated that Ostex will inform and assign all of its sales people in the
Territory to represent the Promotional Package, will provide appropriate
training in conjunction with Hologic, will use its usual marketing efforts to
promote the Promotional Package, and will inform and involve Hologic's sales
force as reasonably necessary and appropriate to obtain such orders.
(b) Meet the performance goals set out in Exhibit B hereto.
(c) Provide to the Marketing Committee on or before the fifteenth
calendar day of each calendar quarter, a written Business Report containing (i)
a summary of marketing and promotional activities related to the Promotional
Package undertaken during the prior quarter (ii) an order forecast listing
prospective customers, products, quantity, and dollar volume of orders under
consideration, and indicating timing and probability of each prospect; and (iii)
an identification of any actions required to obtain such orders. The Marketing
Committee will agree on a format and reporting form for said information and
forward such to Ostex at least 30 days prior to the first reporting date.
(d) Not incur any liability on behalf of Hologic, nor in any way pledge
or purport to pledge Hologic's credit; nor describe or hold itself out as an
employee of Hologic, nor describe itself other than as a representative for
Hologic for the performance of functions specified in, and pursuant to, this
Agreement; nor make any claims, warranties or representations with respect to
the QDR Component except as previously approved in writing by Hologic; and
(e) Not advertise the Promotional Packages or distribute any printed
matter referring to the Promotional Package or to the QDR Component without the
Marketing Committee's specific prior approval in writing. All advertising by
Ostex shall be without recourse to Hologic for any expense incurred unless such
expense shall have been specifically authorized in writing by the Marketing
Committee.
6. OBLIGATIONS OF HOLOGIC.
Hologic shall:
(a) Be solely responsible for the actual sales of the Promotional
Package, as well as all installation, in-service application customer training,
support, warranty, and after-warranty service of all units of the QDR Component
ordered by reason of this Agreement. Hologic reserves the right, in its absolute
and sole discretion, at any time and from time to time, to decline the
acceptance of any order transmitted to it by Ostex or through Ostex's efforts.
All credit appraisal of potential customers, risk of credit extended to such
customers and collections pursuant to such credit extensions shall be the sole
responsibility of Hologic. In no event shall Ostex accept any order or otherwise
attempt to bind Hologic for the sale of any Promotional Package(s) unless
specifically asked by Hologic, in writing, to do so. All remittances by the
customer shall be made directly to the order of Hologic and transmitted by the
customer directly to Hologic.
(b) Provide to the Marketing Committee on or before the fifteenth
calendar day of each calendar quarter, a written Business Report containing (i)
a summary of marketing and promotional activities related to the Promotional
Package undertaken during the prior quarter (ii) an order forecast listing
prospective customers, products, quantity, and dollar volume of orders under
consideration, and indicating timing and probability of each prospect; and (iii)
an identification of any actions required to obtain such orders.
(c) Upon request, provide reasonable training to Ostex's sales force
respecting the QDR Component and the Promotional Package, and participate with
Ostex in training for Ostex's sales force respecting the Goals. Hologic shall
also invite and permit Ostex to provide reasonable similar training to Hologic's
sales force respecting the Osteomark(R) Laboratory Test and the Goals.
(d) Upon request, provide reasonable sales and account support to
Ostex's sales force as appropriate to promote the Promotional Package and the
Goals, and to obtain orders therefor. Said sales and account support shall
include but not be limited to maintenance of one or more telephone help lines to
answer Ostex sales questions about the QDR Component, development with Ostex of
appropriate instructional handouts, proforma financial statements and other
promotional materials, and direct assistance with any slow-moving sales; all as
agreed by the parties through the Marketing Committee.
(e) Reserve the right, in its absolute and sole discretion, at any time
and from time to time to recommend to the Marketing Committee, to discontinue,
modify, alter or improve the Promotional Package, always providing Ostex with
reasonable notice thereof.
(f) Notify Ostex of current prices relating to Promotional Packages,
and any changes in the prices therefor. At no time shall the title to any
Promotional Packages be transferred to or vested in Ostex, but shall remain in
Hologic at all times until transferred to a customer.
7. COMMISSIONS.
(a) Hologic shall pay to Ostex, in full compensation for its services
performed pursuant hereto, the commissions provided for in Attachment B hereto.
Commissions shall be payable upon Hologic receipt of the associated lease
installment or price due. Payment shall be made on or before the forty fifth
(45th) day following the end of the first three month period of the term of the
Fee Per Scan Lease Contract described in Exhibit A hereto.
8. INDEPENDENT CONTRACTOR - EXPENSES.
(a) Each party is engaged in business as an independent sales
representative, and the parties acknowledge and agree that each party, in the
performance of its duties and obligations pursuant to this Agreement, shall be
acting as an independent contractor and not as an employee of the other.
(b) Except as otherwise specifically provided in this Agreement, each
party shall bear all expenses incurred by it in acting hereunder, including
(without limiting the generality of the foregoing) all office expenses,
traveling and entertainment expenses, postage and salaries of salesmen and other
personnel, as well as all advertising and promotional expenses.
9. TERM AND TERMINATION.
(a) This Agreement shall be effective as of the date hereof and shall
extend for a period extending until First Commercial Sale of an NTx Meter System
pursuant to the Joint Development, License and Supply Agreement simultaneously
entered into between the parties. The parties may extend this Agreement by
mutual consent in writing at any time prior to its expiration, and will
negotiate in good faith to extend this co-promotion effort to cover the NTx
Meter Test which is the subject of the associated Development Agreement.
(b) Either party may terminate this Agreement, entirely in its
discretion and without liability therefor, by giving to the other party ninety
(90) days advance written notice, or upon written notice if the Joint
Development, License, and Supply Agreement is terminated for any reason.
(c) Either party may terminate this Agreement for material defaults of
the other party, effective thirty (30) days following written notice to the
defaulting party, unless within said thirty (30) days, the party receiving the
notice remedies the default.
(d) Hologic may terminate this Agreement, effective on sixty (60) days
notice (and opportunity to cure), in the event that Ostex has not presented
orders for an average of three (3) Promotional Packages (or QDR Systems) per
month during each month of the Agreement, beginning after the first three months
thereof.
(e) Notwithstanding the foregoing, either party may terminate this
Agreement upon notice, effective immediately, in the event of the bankruptcy or
insolvency of the other party, or if the other party enters into a composition
with its creditors.
(f) In the event of the termination of this Agreement by Hologic, Ostex
shall be entitled to receive commissions for Promotional Packages sold within
thirty (30) days following the termination of this Agreement.
(g) Upon termination of this Agreement, each party shall promptly
return all technical information and literature relating to the other party's
component of the Promotional Packages, including price lists, samples, documents
and papers.
(h) At any time following ninety (90) days after the Effective Date,
either party may notify the other that this Agreement is not fulfilling the
notifying party's business goals, and ask that this Agreement be modified to
meet these goals. In this case, the parties shall meet and negotiate in good
faith to modify this agreement appropriately. At this time the parties may agree
to convert this Agreement to provide that Ostex will provide lead generation
services rather than act as a sales representative providing orders, with
appropriate adjustments to fees and the program as a whole.
10. WARRANTIES AND LIABILITIES; INDEMNITY
(a) Except as expressly set forth in each party's warranty and sales
literature accompanying its component of the Promotional Packages (and
accordingly subject to all conditions and limitations set forth therein), EACH
PARTY MAKES, AND THE OTHER PARTY AND ITS CUSTOMERS RECEIVE, NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION NO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT.
(b) Ostex hereby agrees to indemnify, defend and hold harmless Hologic
from and against all liability, damages or loss and from any claims,
proceedings, suits, demands, recoveries or expenses arising out of, based on, or
allegedly caused by, or in connection with any product manufactured by Ostex and
distributed pursuant to this Agreement (other than the QDR Product), including
but not limited to performance of an Ostex Laboratory Test upon redemption of a
Osteomark(R) Laboratory Certificate ("Ostex Product"), or any product claim made
or allegedly made in connection therewith. This indemnity shall not apply to any
product claim made by Hologic with respect to an Ostex Product , which claim is
not contemporaneously made by Ostex, or approved in writing by the Marketing
Committee or Ostex.
(c) Hologic hereby agrees to indemnify, defend and hold harmless Ostex
from and against all liability, damages or loss and from any claims,
proceedings, suits, demands, recoveries or expenses arising out of, based on, or
allegedly caused by, or in connection with any product manufactured by Hologic
and distributed pursuant to this Agreement (other than an Ostex Product),
including but not limited to the QDR Component and Hologic's line of QDR bone
densitometers ("Hologic Product"), or any product claim made or allegedly made
in connection therewith. This indemnity shall not apply to any product claim
made by Ostex with respect to an Hologic Product , which claim was not
contemporaneously made by Hologic, or approved in writing by the Marketing
Committee or Hologic. Hologic further indemnifies and holds Ostex harmless from
any third-party claims arising from or relating to any financial default by a
customer of a Hologic Product.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR THE
OTHER PARTY'S DIRECTORS, OFFICERS, CONSULTANTS, EMPLOYEES, AGENTS,
REPRESENTATIVES OR CUSTOMERS FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSSES
OR DAMAGES, IRRESPECTIVE OF THE CAUSE THEREOF.
12. DEFENSE OF THIRD-PARTY CLAIMS AND INDEMNITY.
(a) HOLOGIC DEFENSE OF THIRD-PARTY CLAIMS AND INDEMNITY. In the event
that any claim, suit, or other legal proceeding is threatened or commenced
against Ostex that is founded, in whole or in part, on an allegation that the
Hologic Product infringes any trade secret, patent, or copyright belonging to a
third party, Ostex will give Hologic prompt written notice of such legal
proceeding and Hologic may elect to assume sole control of the defense to or
settlement of such dispute. Ostex shall cooperate fully with Hologic in any
defense, settlement or compromise made by Hologic. Ostex shall not enter into
any settlement agreement or other voluntary resolution of any such claim, suit,
or other legal proceeding without obtaining Hologic's prior written consent
thereto. If Ostex has complied fully with the procedures set forth in this
Section 12, Hologic will indemnify and hold Ostex harmless from and against any
loss, cost, damage, or other expenses incurred by Ostex as a result of such
claim, suit or legal proceeding. This indemnification provision shall be null
and void and Hologic shall have no liability to the extent that any claim is
based on any use of the Ostex Product, or if Ostex or WRF, or their Affiliates
have any interest in the claim, suit or other legal proceeding, or any license
to any right so asserted.
(b) OSTEX DEFENSE OF THIRD-PARTY CLAIMS AND INDEMNITY. In the event
that any claim, suit, or other legal proceeding is threatened or commenced
against Hologic that is founded, in whole or in part, on an allegation that the
Ostex Product infringes any trade secret, patent, or copyright belonging to a
third party, Hologic will give Ostex prompt written notice of such legal
proceeding and Ostex may elect to assume sole control of the defense to or
settlement of such dispute. Hologic shall cooperate fully with Ostex in any
defense, settlement or compromise made by Ostex. Hologic shall not enter into
any settlement agreement or other voluntary resolution of any such claim, suit,
or other legal proceeding without obtaining Ostex's prior written consent
thereto. If Hologic has complied fully with the procedures set forth in this
Section 12, Ostex will indemnify and hold Hologic harmless from and against any
loss, cost, damage, or other expenses incurred by Hologic as a result of such
claim, suit or legal proceeding. If a final injunction is obtained against
Hologic's use of the Ostex Product, or if in the opinion of Ostex the Ostex
Product is likely to become the subject of a successful claim of infringement,
Ostex may, at its option and expense, (i) procure for Hologic the right to
continue distributing and/or using the Ostex Product, (ii) replace or modify the
Ostex Product so that it becomes non-infringing, or (iii) if neither (i) or (ii)
are reasonably available, accept return of the Ostex Product held in inventory
by Hologic and those laboratories which have entered into agreements to accept
Osteomark(R) Laboratory Certificates, and terminate this Agreement without
further obligation or liability. This indemnification provision shall be null
and void and Ostex shall have no liability to the extent that any claim is based
on any use of the Hologic Product, or if Hologic, or its Affiliates have any
interest in the claim, suit or other legal proceeding, or any license to any
right so asserted.
13. NON ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; provided that
any assignment or transfer of this Agreement or any of the rights or obligations
hereunder by either party without the written consent of the other shall be void
and of no effect. Such written consent shall not be unreasonably withheld.
14. CONFIDENTIALITY PROVISIONS.
(a) Recipient shall not at any time, during and for a period of three
(3) years following the termination of this Agreement, disclose or otherwise
make known or available to any person, firm, corporation, or other entity other
than Discloser any Confidential Information received from the other party
without the express prior written consent of that other party. With respect to
Confidential Information developed under this Agreement and which is not
Confidential Information of one party only, neither party shall disclose or
otherwise make such Confidential Information known or available to any person,
firm, corporation, or other entity without the express prior written consent of
the other party, not to be unreasonably withheld or delayed. Recipient shall
utilize reasonable procedures to safeguard Confidential Information, including
releasing Confidential Information only to its employees on a "need to know"
basis. Nothing in this Agreement shall prevent Recipient from disclosing
Confidential Information to government agencies for regulatory purposes.
(b) Recipient shall not make any use, directly or indirectly, of any
Confidential Information of the other party except in the ordinary course of
business pursuant to this Agreement or any other specific, written agreement
entered into between Ostex and Hologic.
(c) The parties acknowledge that: (a) the covenants set forth in this
Section 14 are essential to the activities contemplated by this Agreement; (b)
but for the agreement of each party to comply with such covenants, neither party
would have entered into such activities; (c) each party has consulted with or
has had the opportunity to consult with counsel and has been advised in all
respects concerning the reasonableness of such covenants as to time and scope;
(d) Discloser may have no adequate remedy at law if Recipient violates or fails
to perform under this Section 14; and (e) Discloser shall have the right, in
addition to any other rights it may have, to seek from a court of competent
jurisdiction preliminary and permanent injunctive relief to restrain any breach
or threatened breach or otherwise to specifically enforce Recipient's
obligations under this Section 14 if Recipient fails to perform in accordance
herewith.
15. NOTICES.
Any notice required or permitted to be given under this Agreement shall
be in writing and shall be sufficiently given when delivered in person or
deposited in the United States mail (registered or certified) postage prepaid,
addressed as follows:
If to Hologic, addressed to:
HOLOGIC, Inc.
590 Lincoln Street
Waltham, MA 02154 (USA)
Attention Mark Duerst, Vice-President - Sales & Marketing
Copy to Steven L. Nakashige, President and COO
If to Ostex, addressed to:
Ostex, International, Inc.
2203 Airport Way South, Suite 400,
Seattle, Washington 98134
Attention: Jeffrey J. Miller, Ph.D., Senior Vice President,
Corporate Development
Copy to: Robert Glaser, President and COO
or to such other addresses as may be specified from time to time in a written
notice given by such party. Both parties agree to acknowledge receipt of any
notice delivered in person.
16. TRADEMARKS AND TRADE NAMES.
(a) No provision of this Agreement shall be interpreted or construed as
conferring upon any party any right to use in labeling, advertising, marketing,
publicizing or otherwise promoting the Promotional Package, any name, trade
name, trademark, or other designation (or derivation thereof) of any other party
hereto or WRF or the University of Washington, respectively, except as expressly
provided under this Section 16.
(b) Hologic shall incorporate into the packaging of each and every
Osteomark(R) Laboratory Certificate marketed, promoted, sold, and/or distributed
under this Agreement, and in addition to its own trademarks and names, such
Ostex trademarks or statements as Ostex shall reasonably request. Ostex hereby
grants Hologic a non-transferable, non-exclusive license, concurrent with the
term of this Agreement, to use such statement and/or trademark accordingly and
in substantially the same manner as used by Ostex; provided, however, that each
such use of such statement and/or trademark be accompanied by a printed notice
identifying Ostex as the owner thereof. Hologic furthermore shall have the right
to display its own name, trade names, and/or trademarks. Hologic shall not use
any Ostex trademark with respect to products not covered by this Agreement.
(c) Ostex and Hologic shall each be responsible for the registration,
maintenance and enforcement of their respective names, trade names, and
trademarks; provided, however, that each party shall aid the other in the
enforcement of that party's rights by monitoring for, and notifying said party
of, any unauthorized use of any of said party's trademarks. Each party shall
from time to time, and in any event upon the issuance of additional
registrations, modify its use of trademarks to incorporate proper notice of
registration and other claims of right, in accordance with the laws and customs
of the various countries in which it operates pursuant to this Agreement.
(d) Ostex represents and warrants, as of the date of this Agreement,
that: (a) Ostex is the owner and registrant of the trademarks issued
registrations as indicated by Exhibit C; (b) Ostex is named as applicant in
those applications indicated by Exhibit C as pending; and (c) to the best of its
knowledge, none of the Ostex trademarks infringes upon the trademark, trade
name, or other proprietary rights of an third party.
(e) Ostex acknowledges that Hologic is the sole owner of the trademarks
and trade names which designate and identify the QDR Component of the
Promotional Package and business (the "Marks").
(f) Ostex agrees that it may only use those Marks which identify the
Promotional Packages it is authorized to sell and then only to further the
promotion and sale of the Promotional Packages such Marks identify. Ostex may
only use such Marks in their standard form and style as they appear upon the
Promotional Packages or as instructed in writing by Hologic. No other letter(s),
word(s), design(s), symbol(s), or other matter of any kind shall be superimposed
upon, associated with or shown in such proximity to the Marks so as to tend to
alter or dilute them.
(g) In all advertisement, sales and promotional literature or other
printed matter in which any of such Marks appear, Ostex must identify itself by
full name and address and state its relationship to Hologic. Every such Mark
used or displayed by Ostex must be identified as a Mark owned by Hologic, in a
form and manner approved by Hologic. Each party shall have the right to review
and approve any promotional literature or other printed matter in which such
party's trademarks appear.
(h) Upon expiration or in the event of any termination of this
Agreement, each party shall promptly discontinue every use of the trademarks or
any other confusingly similar word or symbol of the other.
(i) No public announcements or similar publicity with respect to this
Agreement shall be made by either party without the other party's prior written
approval and neither party may make any announcements regarding any of the other
party's products without the prior written consent of the other party. Such
prior written approval and prior written consent shall not be unreasonably
withheld. Nothing in this Section 16(i), however, shall prevent either party
from making such public announcements as such party's legal obligations require.
In such event, the party who is required to make the public announcement will
allow the other party to review the announcement sufficiently in advance in
order to provide suggestions on the form and substance of the announcement.
17. MISCELLANEOUS.
(a) Section headings as to the contents of particular paragraphs are
for convenience only and are in no way to be construed as part of this
Agreement, or as a limitation of the scope of the particular paragraph to which
they refer.
(b) Any waiver by either party of any provision of this Agreement shall
not be construed or deemed to be a waiver of any other provision of this
Agreement nor a waiver of a subsequent breach of the same provision.
(c) This Agreement, in conjunction with the Joint Development, License
and Supply Agreement, constitutes the entire understanding and agreement between
the parties and supersedes all prior negotiations, understandings and agreements
between Hologic and Ostex. There are no understandings, representations or
warranties of any kind, express or implied, oral or written, not expressly set
forth herein or in the Joint Development, License and Supply Agreement. No
amendment or modification of any provision of this Agreement shall be valid or
of any force or effect, unless made by written instrument signed by the
respective duly authorized representatives of Hologic and Ostex, specifying the
exact nature of such amendment or modification.
(d) All claims or controversies asserted by Ostex against Hologic or
Serex shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts. Any judicial action by Ostex relating to the
relationship between the parties pursuant to this Agreement, or goods purchased
or licensed hereunder (together with any counterclaims asserted by Hologic or
Serex), shall be brought and tried in the State or Federal Courts located in
Massachusetts. All claims or controversies asserted by Hologic against Ostex or
WRF shall be construed and enforced in accordance with the laws of the State of
Washington. Any judicial action by Hologic relating to the relationship between
the parties pursuant to this Agreement, or goods purchased or licensed hereunder
(together with any counterclaims asserted by Ostex or WRF), shall be brought and
tried in the State or Federal Courts located in the State of Washington.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written by their respective authorized
officials.
OSTEX INTERNATIONAL, INC.
By /S/ JEFFREY J. MILLER PH.D.
Jeffrey J. Miller, Ph.D.,
Senior Vice President,
Corporate Development
HOLOGIC, INC.
By /S/ S. DAVID ELENBOGEN
S. David Ellenbogen
Chairman and CEO
EXHIBIT A
PROMOTIONAL PACKAGE DESCRIPTION
QDR 4500C System Strategic Alliance ("Fee Per Scan") Leasing Contract as
described in the attached Attachment A-1. (No modifications to this lease
contract can be accepted.)
Osteomark(R) Laboratory Certificate, comprising a certificate for a specified
number of free tests at a specified laboratory or laboratories ( to be mutually
agreed by Hologic and Ostex) with a value of XXXXXXX.
Attachment A-1
- -16-
HOLOGIC STRATEGIC ALLIANCE PROGRAM
EXHIBIT A-1
LEASING CONTRACT
Owner: Hologic, Inc. Customer (Name): __________________
590 Lincoln Street Street Address: ________________
Waltham, MA 02154 City/State/Zip: ______________________
(617) 890-2300 Phone: ______________________
Contact: ______________________
________ QDRAE 4500C Hologic QDR "ACCLAIM' Series" Bone Densitometer
________ QDR-1000plus Hologic QDR Bone Densitometer
Tax Exempt# ______ Customer P.O. #__________________ Date: ____________
STRATEGIC ALLIANCE PROGRAM SUMMARY
Line Definitions QDR 4500C QDR-1000plus
1. Usage Fee: $50 per study $50 per study
2. Trial period (no minimums): Six months Six months
3. Deposit (credited against usage): $5,000 $3,000
4. Deferred Billing Credit for first 100 scans Credit for first 60 scans
5. Minimums after six months: 30 scans per month 25 scans per month
6. Minimums after 12 months: 35 scans per month 30 scans per month
7. Conversion to own: Anytime Anytime
8. Conversion to lease: Anytime Anytime
9. Upgrade options: Available to any ACCLAIM Available to any ACCLAIM
Customer Acceptance Hologic, Inc. Acceptance
Customer: _____________________ Signature: _____________________________
Signature: __________________ Name/Title: ____________________________
Name/Title: __________________ Date: _____________________________
Date: _____________________________
Equipment Location:
The equipment is to be delivered and installed at the following location:
Address: _____________________________
City: _____________________________
State _____________________________
Zip _____________________________
Installation Contact Person/phone: __________________________________________
- --------------------------------------------------------------------------------
HOLOGIC, INC.
590 Lincoln Street, Waltham, MA 02154
Tel: 617.890.2300
Fax: 617.890.0008
TERMS AND CONDITIONS
1. Lease of Equipment. Upon execution of this Equipment Lease Agreement (the
"Agreement"), Customer agrees to lease from Hologic, Inc. ("Hologic") the
equipment set forth above (the "Equipment"), subject to the terms and conditions
set forth in this Agreement, for a term commencing upon installation of the
Equipment and, unless such lease (the "Lease") is sooner terminated as provided
herein, terminating sixty (60) months from the date of installation.
2. Deposit. In consideration of Hologic entering into this Agreement, Customer
has paid to Hologic a non-refundable deposit plus applicable taxes, if any.
During the first six months of this Agreement ('Trial Period"), this deposit is
creditable against the Patient Studies performed by the Customer (the first 100
scans for a QDR 4500C and 60 scans for a QDR-1000plus).
3. Lease Payments. Subject to the credits granted in Section 2, Customer shall
pay Hologic as Lease payments hereunder, an amount equal
to $50.00 for each patient study performed by Customer (or any affiliate of
Customer) using a bone densitometer plus taxes and, to the extent
applicable, service fees and other charges as provided herein. A "Patient Study"
means a sequence of one or more scans performed on a patient on the Equipment or
any other bone densitometer owned, leased or operated by Customer or any of its
affiliates. Technically unacceptable scans may be credited if Customer provides
Hologic with copies of such studies on diskette accompanied by a brief
description of the nature of the deficiency.
Customer agrees to provide to Hologic, not later than the eighth (8th) day of
each month, a copy of the count report, produced by the software included within
each system, of the Patient Studies performed by the Equipment during the
preceding month and a count report of the number of any other Patient
Studies performed during the preceding month. The lease payment shall be
calculated by multiplying the number of patient Studies by $50.00 and adding all
applicable taxes. A late fee equal to five percent (5%) of the total lease
payment due will be applied to delinquent payments (payments received by Hologic
after the thirtieth (30th) day of the month).
In the first 12 months, the lease payments due are based on the assumption
that the Customer will perform at least the Minimum Monthly Scans (30 Patient
Studies per month for a QDR 4500C and 25 for a QDR-1000plus) for a minimum lease
payment of at least $1,500 ( for a QDR 4500C) or $1,250 (for a QDR-1000plus) per
month (plus applicable taxes)(the "Monthly Minimum"). The Monthly Minimum will
be waived for the first six months. After 12 months, the lease payments due are
based upon the assumption that Customer will perform at least (I) for a QDR
4500C-35 Patient Studies per month (the "Minimum Monthly Scans") for a minimum
lease payment of at least $1,750 per month (plus applicable taxes) (the "Monthly
Minimum") or (ii) for a QDR-1000plus - 30 Patient Studies per month (the"Minimum
Monthly Scans") for a minimum lease payment of at least $1,500 per month (plus
applicable taxes) (the "Monthly Minimum"). If Customer has not conducted the
Minimum Monthly scans in any month, beginning after the first six months of
usage (the "Trial Period"), Customer may nevertheless elect to pay the Monthly
Minimum. If Customer (a) has not paid the Monthly Minimum commencing with the
seventh full month after the date of installation, or (b) fails to perform any
of it obligations hereunder and such failure shall continue for ten days after
written notice, it is agreed that Hologic shall be entitled without notice to
Customer and with or without legal process, take immediate possession- session
of such Equipment without liability to Hologic by reason of such entry or taking
possession, and terminate the Lease.
4. Conversion of Agreement. At any time, Customer may convert this Lease into an
Operating Lease or a Full Payout Lease, provided that Customer is then in full
compliance with the terms and conditions hereof. This right of conversion only
applies to Hologic administered or authorized lease programs. If the Customer
converts to one of the following lease options within the first six months from
the date of installation, Hologic will defer the commencement of payments
required under the Lease for 90
PERSONAL GUARANTY
In order to induce Hologic to enter into this Lease with Customer, the
undersigned, jointly and severally, hereby irrevocably and unconditionally,
guaranty without deduction or diminution by reason of counterclaim, offset, or
defense, the prompt and complete payment under, whenever due, and performance of
this Lease to Hologic or its assigns, including any and all modifications,
additions, supplements and amendments thereof, as will as all of Customer other
leases with Hologic that have commencement dates not later than ten (10) days
after Hologic receives written notice from the undersigned of their desire not
to guaranty any additional leases. The undersigned warrant and guaranty that
this Lease has been properly executed by Customer, and agree. that this guaranty
shall be of full force and effect irrespective of any invalidity or
unenforceability of the Lease or any provisions thereof, or the existence,
validity or value of any security. The undersigned hereby waive presentment
notice of acceptance hereof, all notices of any kind to which we may be
entitled, and all defenses of guarantor or surety. The undersigned consent that
from time to time, without notice to or further consent from the undersigned and
without releasing or affecting the undersigned's liability thereunder, the time
for payment or performance under this lease may be extended or accelerated in
whole or part, any security therefore may be exchanged, released, enforced sold,
leased or otherwise dealt with, the provision of any documents may be canceled,
modified or waived, any other guarantors may be released, and any indulgence may
be granted to Customer, as Hologic may in its sole discretion determine. The
obligation and liability of each undersigned is direct, continuing and
unconditional, shall not be diminished or affected whether or not the Equipment
is repossessed, and Hologic shall not be required to proceed against Customer or
resort to any other right or remedy before proceeding against the undersigned
under this guaranty. No payment by the undersigned, except payment in full of
all liabilities hereunder shall entitle the undersigned to be subrogated to any
of the rights or remedies of Hologic under this Lease. The undersigned warrant
they have read this Lease and hereby waive any and all rights to a trial by
jury, and agree to the venue and jurisdiction contained therein, and agree that
only full payment and performance of the Lease can discharge the undersigned's
liability. This guaranty shall be binding upon the undersigned and the heirs,
representatives, successors and assigns of the undersigned, in favor of Hologic
and Lessor's successors and assigns. This guaranty cannot be terminated or
changed orally and no provision hereof may be modified or waived except in
;writing.
x________________________________
(GUARANTOR'S SIGNATURE) AN INDIVIDUAL
- -----------------------
DATE
X________________________________
(GUARANTOR'S SIGNATURE) AN INDIVIDUAL
- -----------------------
DATE
HOLOGIC, INC.
590 Lincoln Street, Waltham, MA 02154
Tel: 617.890.2300
Fax: 617.890.0008
days.
An "Operating Lease means a fixed rent lease with 60 monthly payments in
the fixed amount of the initial Monthly Minimum ($1,500 for a QDR 4500C and
$1,250 for a QDR-1000plus), beginning on the date of conversion, with an option
for Customer to acquire the Equipment at the end of such term for its fair
market value, as determined by Hologic.
A "Full Payout Lease" means a new lease whereby Customer would finance a
deemed unamortized contract price for the Equipment plus the residual value of
the Equipment, as determined by Hologic based upon Hologic's amortization
schedule for this Agreement, over a five (5) year term at then current interest
rates, with an option for Customer to acquire the Equipment at the end of such
term for XXXXXXX. During the first 12 months of this agreement (from date of
installation) the fixed monthly lease payment shall be XXXXXXX for a QDR 4500C
and XXXXXXX for a QDR-1000plus.
In connection with any such conversion, Hologic may require Customer to enter
into a new lease with standard terms and conditions. Conversion of the Lease is
conditioned upon a then current approval of Customer by Hologic.
5. Purchase Option. At any time, during the first 12 months from the date
of installation, Customer shall have the right, upon written notice to Hologic,
to purchase the Equipment at a purchase price of XXXXXXX for a QDR 4500c and
XXXXXXX for a QDR-1000plus. On or after the first anniversary date from the date
of installation, Customer shall have the right, upon written notice to Hologic,
to purchase the Equipment at a purchase price equal to the sum of (a) the
present value of the total lease payments to be due to
Hologic over the term of this Agreement, assuming that Customer had converted
the Agreement into an Operating Lease, plus (b) the present value of the
estimated residual value of the Equipment at the end of the five year lease
term. The present value of the lease payments, the estimated residual value and
the present value of such residual value shall be determined by Hologic based
upon its amortization schedule for this Agreement. Customer shall have the
further right, at the end of the term of the Agreement, upon written notice to
Hologic, to purchase the Equipment at its fair market value, as determined by
Hologic.
6. Training. Hologic shall be responsible for the initial installation of the
Equipment at Customer's premises and for training Customer's designated
equipment operator in use of the Equipment.
7. Equipment Service and Maintenance. Subject to Section 8, costs and expenses
relating to service and maintenance of the Equipment will be the responsibility
of Hologic, provided that Customer has not defaulted on any of its obligations
under this Agreement. Following the conversion of this Agreement to an Operating
Lease, a Full Payout Lease or purchase, all costs and expenses associated with
equipment service and maintenance shall be the responsibility of Customer. A
full year of equipment service and maintenance will be provided free of charge
from the date of conversion to a lease or purchase, for all conversions within
six months of the date of installation.
8. Use and Alteration. Customer shall use the Equipment solely in the conduct of
its business, in the manner and for the use contemplated by the manufacturer
thereof, and in compliance with all laws, rules and regulations of every
governmental authority having jurisdiction over the Equipment and with the
provisions of all policies of insurance carried by Customer. Customer will not
make any alterations or additions to the Equipment or move the Equipment from
the installation site. During the term of the Lease, Customer shall be entirely
responsible for daily maintenance and cleaning of the Equipment and for any loss
or damage to the Equipment except for ordinary wear and tear. Customer agrees to
cause the Equipment to be operated in accordance with all manufacturer's manuals
or instructions. While the Equipment is in Customer's possession, Customer
shall bear the entire risk of loss, theft, destruction or damage to the
Equipment. Upon Hologic's request, Customer will permit Hologic to have access
to the Equipment at all reasonable times for the purpose of inspection and
examination.
9. Customer Representations. Customer hereby represents, warrants and covenants
that with respect to this Agreement hereunder: (a) The execution, delivery and
performance thereof by the Customer have been duly authorized by all necessary
corporate action; (b) The individual executing such was duly authorized to do
so; and (c) This Agreement constitutes the legal, valid and binding obligations
of the Customer enforceable in accordance with their respective terms.
10. Events of Default. Customer shall be in default under @ Agreement upon the
happening of any of the following events or conditions (herein called "Events of
Default"): (a) Customer shall find to make any payment due hereunder within
thirty (30) days after the same is due and payable; (b) Customer shall fail to
perform any other covenant or agreement to be performed by it under this
Agreement, and such failure shall continue for ten (10) days after written
notice thereof by Hologic to Customer; (c) any representation, warranty,
certification or statement made or furnished to Hologic herein, or in connection
herewith, by or on behalf of Customer proves to have been false in any material
respect when made or furnished; or (d) Customer shall make an assignment for the
benefit of creditors, or bankruptcy, arrangement, reorganization, liquidation,
insolvency, receivership or dissolution proceeding shall be instituted by or
against Customer and shall be consented to or be pending and not dismissed for a
period of thirty (30) days.
11. Remedies of Hologic. Upon the occurrence of any Event of Default, and at any
time thereafter so long as the same shall be continuing and shall not have been
remedied, Hologic may, at its option, declare this Agreement to be in default
and, at any time thereafter, may exercise one or more of the following remedies,
as Hologic in its sole discretion shall elect: (a) accelerate and cause to
become immediately due and payable all amounts payable hereunder and, including
if the Agreement has been converted to an Operating Lease or a Full Payout
Lease, all payments due thereunder; (b) terminate this Agreement as to any and
all Equipment upon written notice to Customer, without prejudice to any other
remedies hereunder; (c) enter upon the premises where any Equipment is located,
and, without notice to Customer and with or without legal process, take
immediate possession of such Equipment without liability to Hologic by reason of
such entry or taking possession, and without such action constituting a
termination of this Agreement unless Hologic notifies Customer in writing to
such effect; and (d) proceed by appropriate action either at law or in equity to
enforce performance by Customer of the applicable covenants of this Agreement or
to recover damages for the breach thereof. Hologic shall also be entitled to
recover as damages for the loss of the bargain and not as a penalty, an amount
equal to the sum of the following amounts: (i) all unpaid monthly payments owing
for the Equipment through the last day of the month in which such Equipment is
either sold, released or otherwise disposed of, and (ii) expenses paid or
incurred by Hologic in connection with the repossession, attempted repossession,
holding, repair and subsequent sale, release or other disposition of any
Equipment, including commissions and attorneys' fees. None of Hologic's remedies
under this Agreement are intended to be exclusive, but each shall be cumulative
and in addition to
HOLOGIC, INC.
590 Lincoln Street, Waltham, MA 02154
Tel: 617.890.2300 Fax: 617.890.0008
any other remedy referred to herein or otherwise available to Customer in law or
in equity. Customer waives any and all rights to notice and to a judicial
hearing with respect to the repossession of the equipment by Hologic in the
event of a default hereunder by Customer.
12. Title. Tide to the Equipment leased to Customer pursuant to the
terms hereof is and will remain at all times vested in Hologic or its
designee, unless and until Customer exercises its option to purchase the
Equipment pursuant to Section 5.
13. Assignment. Without Hologic's prior written consent, Customer will not
assign any of Customer's rights hereunder or sublet or transfer the Equipment.
Hologic may, at any time, mortgage, grant a security interest in, transfer, sell
or assign this Agreement or any Equipment or any payments due or to become due
hereunder, without notice to Lessee. Customer agrees that in the event of any
such assignment and written notice thereof to Customer, Customer will accept and
comply with the directions and demands of Hologic's assignee. THE RIGHTS OF ANY
SUCH ASSIGNEE SHALL NOT BE SUBJECT TO ANY DEFENSE, COUNTERCLAIM OR SET-OFF WHICH
CUSTOMER MAY HAVE AGAINST HOLOGIC.
14. Insurance; Taxes. Customer agrees that it shall obtain and maintain property
damage and liability insurance and keep the Equipment insured for its full
replacement value, name Hologic as an additional insured with respect thereto
and, upon the request of Hologic, will provide a certificate of insurance
acceptable to Hologic evidencing such insurance coverage. Customer agrees to pay
for, or reimburse Hologic for payment of, all sales, use, privilege, excise,
personal property or other taxes imposed or levied with respect to the Equipment
or by reason of the furnishing of the Equipment hereunder.
15. Termination. The lease may be terminated by Customer, prior to purchase of
the Equipment or conversion into an Operating Lease or a Full Payout Lease upon
ninety (90) days prior written notice to Hologic. In the event of such
termination, Customer agrees to pay for all Patient Studies performed up to the
date of termination, including any applicable taxes thereon. In consideration of
the financial accommodations made by Hologic to Customer under the leasing
program set forth in this Agreement, in the event of such a termination by
Customer or a termination of the Lease by Hologic, as a result of Customer
default or failure of Customer to pay the Monthly Minimum, Customer agrees that
for a period of twelve (12) months after such termination, or the fifth
anniversary of the date of this Agreement, whichever occurs first,
Customer shall pay Hologic a minimum termination fee equal to
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (or any of its affiliates)
performed Patient Studies during such period; provided however no termination
fee shall be due if neither Customer nor any of its affiliates perform Patient
Studies during the termination period.
16. Indemnification. Customer agrees to defend, indemnify and hold Hologic
harmless from and against any and all claims, damages, costs, expenses
(including attorney's fees), losses and liabilities of every kind and nature in
any way arising out of or in connection with (i) the failure of any of
Customer's representations or warranties contained herein to be true, complete
and correct as of the date hereof and at all times during the term of the
Agreement, or (ii) the breach by Customer of any provision of Agreement, or
(iii) the figure of Customer to pay any amounts owed under this Agreement as and
when the same shall become due or (iv) failure to maintain the Equipment as
provided in Section 8 or (v) the use of the Equipment other than, in accordance
with Hologic's instructions for use.
17. Further Assurances. Customer will promptly execute and deliver to Hologic
such further documents and assurances and take such further action as Hologic
may from time to time reasonably request in order to more effectively carry out
the purpose of this Agreement and to protect the rights and remedies of Hologic
hereunder, including, without limitation, the execution and delivery of
financing, statements under the Uniform Commercial Code.
18. Proprietary Software. It is recognized that during the term of this
Agreement, computer software will be delivered to Customer on a licensed basis
in printed form, or in any of several possible machine-readable forms. Such
computer software is and shall remain the sole property of Hologic. The grant to
Customer of rights to the software extends solely a non-exclusive, single-use
royalty-free license to use software for the sole purpose of performing and
analyzing scans acquired in the normal course of its business, using the
Equipment and for no other purpose. Such software is valuable to Hologic and
shall be treated as confidential and proprietary information subject to the
confidentiality provisions hereof. Customer will have no right to sell, assign,
transfer, copy or sublicense the software, without the prior written consent of
Hologic.
19. Confidential Information. All drawings, diagrams, specifications, devices
and other materials furnished by Hologic and identified as confidential relating
to use and service of the Equipment and the information therein, including, but
not limited to, Customer Manual provided to it by Hologic in connection with the
Equipment, is proprietary and confidential to Hologic. Such materials have been
developed at great expense and they contain trade secrets of Hologic. Customer
may not reproduce or distribute such materials except to Customer's employees
who may use the articles as part of their duties. Customer agrees that it will
keep confidential and not disclose or divulge any of such materials or the
information therein to any unauthorized person for any purpose whatsoever
without the prior written consent of Hologic.
20. Disclaimers; Warranties. CUSTOMER ACKNOWLEDGES AND AGREES THAT HOLOGIC MAKES
NO EXPRESS OR IMPLIED WAR- RANTIES ARISING OUT OF OR RELATED TO CUSTOMER'S USE
OR OPERATION OF THE EQUIPMENT. IN NO EVENT SHALL HOLOGIC BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
ASSOCIATED WITH THE EQUIPMENT OR THE LEASE THEREOF EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
21. Entire Agreement; Governing Law. This Agreement constitutes the entire
agreement between the parties. This Agreement shall be deemed a contract made
under the laws of the Commonwealth of Massachusetts shall be construed under and
governed by the laws thereof. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision hereof. Customer waives any right to a trial by jury in any
action to enforce or defend any matter arising from or related to this
Agreement.
22. Amendment; Waiver. No term or provision of this Agreement may
be changed, waived, amended, discharged or terminated except by a written
instrument executed by the parties hereto.
HOLOGIC
590 Lincoln Street, Waltham, MA 02154
Tel: 617.890.2300 Fax: 617.890.0008
EXHIBIT B
COMMISSION
An amount equal to the Patient Study or other lease payment amounts (i.e.
$50 per Patient Study) payable to Hologic or credited to deposits held by
Hologic pursuant to the Strategic Alliance Leasing Contract during the first
three month period commencing with the beginning of the term of said Contract,
not including deposits paid or due, or taxes and to the extent applicable,
service fees and other charges provided for in said contract, and provided that
if the Lease Contract is converted to a sales contract during said period
Hologic will pay an additional finders fee of XXXXXXX.
Note: During the term of this Agreement, Hologic will also provide finders fees
and sales assistance fees pursuant to its then-current Policy for Non-Exclusive
Distribution and Finder's Fees (current version attached) for sales of all QDR
4500 model Systems in the Territory as a result of qualified leads provided by
Ostex.
PERFORMANCE GOALS
Three (3) Promotional Packages per month.
HOLOGIC, INC.
POLICY FOR FINDER'S FEE ELIGIBILITY
January 13, 1997
SALES REPRESENTATIVES
Under this form of relationship, the Sales Representative presents to
Hologic contracts with Hologic approved sales prospects, which are not being
solicited by Hologic's direct sales force or another Sales Representative.
Hologic coordinates the activities of its Sales Representatives and sales force
by requiring that sales prospects be registered. Hologic may approve a proposed
sales prospect, disapprove it, or disapprove the prospect but offer to pay a
sales assistance fee. Normally, Hologic will not approve a sales prospect if
either Hologic's sales force, or another ISO is pursuing the prospect. If
Hologic is pursuing the prospect directly, Hologic may pay a sales assistance
fee. Once Hologic has approved a proposed prospect, the Sales Representative is
eligible for a commission whether the prospect places an approved order through
the Sales Representative, or directly with Hologic, but not if a sale is made
through an Hologic Distributor. Hologic's registration process, and its
commission and sales assistance policies are described in more detail in the
next section.
SALES COMMISSIONS (FINDER'S FEES)AND SALES ASSISTANCE FEES
REGISTRATION OF PROSPECTS
Hologic requires formal registration of prospects to become eligible for a
commission or sales assistance fee. A registration form has been attached for
use in this process. Prospect registrations are to be filed with the Hologic
Regional Sales Manager for your area. Status of prospect shall be confirmed with
you, in writing, within 72 hours of receipt of registration form. Registrations
remain "active" for six months from date of receipt and approval by Hologic.
Prospects must be re-registered for consideration beyond this period. Hologic
reserves the right to reject prospects from any of the programs listed above at
its sole discretion.
COMMISSIONS/FINDERS FEES
Once a prospect has been registered, Finder's fees are paid once a sale has
been successfully completed including full collection of all amounts due. Fees
are paid according to the schedule listed below:
QDR 1000 XXXXXXX
QDR 4500C XXXXXXX
QDR 4500W XXXXXXX
QDR 4500SL XXXXXXX
QDR 4500A XXXXXXX
Hologic shall reduce Finder's fees by XXX in instance that purchase is made
as a part of an established national buying contract with Hologic. Fees may also
be reduced or renegotiate in the instance of multiple system purchases by a
customer, and may be increased in situations where the Sales Representative
commits to a marketing plan and substantial minimum sales quota.
SALES ASSISTANCE FEE
In the instance where a sales lead is provided to Hologic and Hologic
determines that this lead is already an "active prospect" in contact with
Hologic's direct sales organization, the independent sales organization can
still earn a fee through active support of Hologic I its sales efforts. To be
eligible for these fees, the sales organization must provide Hologic's prospect
with a written recommendation and endorsement of Hologic's products. If Hologic
is successful in completing the sale (including collection) with this registered
prospect, the sales organization shall receive a sales assistance fee of XXXXXXX
for its help with the account.
CUSTOMER LETTERS
The Finder's Fee and Sales Assistance Fee programs require that the
independent sales organization take active measures in support of the sale
between the registered prospect and Hologic. These active measures must include
the sending of at least one "consultative sales letter" supporting the purchase
of Hologic's equipment to the prospect. A copy of this letter, issued on the
ISO's letterhead is to be provided to Hologic as a part of the prospect
registration process (see below). Hologic has provided you with example letters
for this purpose as a portion of this package. Independent sales organization
will not be eligible for fees if this requirement has not been fulfilled.
CHECKLIST OF ACTIVITIES REQUIRED OF SALES ORGANIZATION TO EARN FEES
Hologic has attempted to keep the process for earning sales fees simple yet
fully documented for the protection of the independent sales organization. For
this procedure to work properly, Hologic's insists that all procedures be
followed.
FINDER'S FEE PROGRAM STEPS
1. Complete Prospect Registration Form;
2. Supply registration form to Hologic's Regional Sales Manager for your
area (see map);
3. Obtain prospect status from Hologic (generally within 72 hours)confirming
it is not an active Hologic prospect;
4. ISO issues "customer letter" to prospect, with copy to Hologic (completing
prospect registration form)
5. Hologic and ISO coordinate account follow-up
6. Hologic issues quotation to prospect
7. ISO and Hologic cooperate in management and communicating account status
8. Order issued to Hologic by prospect
9. Prospect completes payments on purchase as required
10. Fees issued to ISO
SALES ASSISTANCE FEE PROGRAM STEPS
1. Complete Prospect Registration Form;
2. Supply registration form to Hologic's Regional Sales Manager for your area
(see map);
3. Obtain prospect status from Hologic (generally within 72 hours)confirming
it is not an active Hologic prospect;
4. Independent Sales Organization issues "customer letter" to prospect with
copy to Hologic (completes prospect registration process)
5. Hologic issues any quotations required (note that these may have already
been issued)
6. Independent sales organization and Hologic cooperate in management and
communicating account status
7. Order issued to Hologic by prospect
8. Prospect completes payments on purchase as required
9. Fees issued to independent sales organization
PROSPECT REGISTRATION FORM
Prospect Name ____________________
Address ____________________
--------------------
City ____________________
State ____________________
Zip ____________________
Phone ____________________
FAX ____________________
OTHER CONTACTS AT ACCOUNT: (examples: partners, secretaries, business managers,
administrators, purchasing agents)
Name / Phone:
ACCOUNT BACKGROUND AND INTEREST
(Supply a short summary of account activity to date)
COMPETITION
BUDGET INFORMATION
SAMPLE CUSTOMER LETTER
Dear Customer:
Thank you for inquiring about bone densitometry equipment with our firm. I have
taken the liberty of investigating these products for you and would like to
share some information with you that may assist in your selection. As you know,
our firm has a sales agency relationship with Hologic, and can introduce you to
this company.
The bone densitometry business is dominated by only a couple of companies.
Hologic, Inc. of Waltham, MA (800-343-9729) is the leader in this field (60%
market share). Their equipment is considered to be the most technically advanced
and easiest to use. Their equipment has been selected by nearly all of the
pharmaceutical companies for development of the new osteoporosis drugs including
Merck's Fosamax trials. Hologic equipment has also been used in the NIH
sponsored Study of Osteoporotic Fractures (SOF), the largest osteoporosis trial
in the world, and in the NHANES study which has established the reference data
that the industry is using in its standardization efforts.
Hologic offers a full product line of both pencil and fan beam scanners
available at most price points. We would highly recommend that you consider the
fan beam products which are of the latest design. The pencil beam units are
inexpensive but are based on 8 year old technology that is incapable of
providing many of the new advances. Although Hologic equipment is typically
slightly higher in price than their competitors, we believe it is money well
spent and easily justified through savings in tech time, marketing advantages
offered and long term costs of ownership. The latest developments in the field
are available on the Hologic equipment including:
Fan Beam Technology - Offers faster scan times (30 sec. on all patients), high
resolution images, enhanced precision, significant operational conveniences and
modular product design.
Internal Reference System - The system constantly calibrates itself on a pixel
by pixel basis. No operator calibration (or mistakes) are possible. This assures
consistency in data upon upgrade or repair.
Supine Lateral Scanning - Many luminaries now suggest lateral spine scans in
patients over age 65 where artifacts lead to false negative findings with
traditional AP scans in as many as 30-40% of patients. Lateral scans may also
provide earlier diagnostic capability and earlier information concerning
response to treatment since they focus on trabecular regions of the spine. If
you decide that you want laterals, do not settle for the decubitis options which
suffer from substantial precision problems. Note too that with the modular
design of the 4500 family, laterals can always be added at a later date.
Single Energy Imaging - This is brand new to low end densitometers. High end fan
beam system have offered imaging / morphometry options in the past but Hologic
has recently made this available on all fan beam systems. The 7 second full
spine scan gives a nice image at very low dose and may be useful in spotting
artifacts (wedge fractures) that could artificially elevate spine density.
Although these images will not replace films, they do provide quantitative
morphometry capability and could be used to "screen" candidates for further
evaluation through use of films. Imaging will probably be expanded to other
applications soon and fan beam systems are required for this capability.
Modular Product Design - This is one of the best features of the Hologic
products. The field is changing very rapidly and Hologic has made a point of not
forcing decisions upon buyers nor making their equipment obsolete. Their
philosophy is to allow you to buy only what you need now and to add to that as
needs dictate. They have eliminated the financial penalty associated with
upgrades using other manufacturer's equipment and the significant data concerns
if equipment is to be exchanged.
We have also found Hologic's service to be reputable. The DXA equipment seems
quite reliable but 800 "HELP " lines and next day on site service is available.
Hologic is the only company that does all of their own service using factory
- -direct Hologic personnel.
We hope that this information is useful. [ADD APPROPRIATE FOLLOW-UP LANGUAGE]
Sincerely,