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EXHIBIT 10.3
FIRST AMENDMENT TO SALES, MARKETING AND DISTRIBUTION AGREEMENT
This First Amendment to Sales, Marketing and Distribution Agreement
("Amendment") is made as of this 18th day of April, 2001, by and between Genomic
Solutions Inc., a Delaware corporation and PerkinElmer, Inc., a Massachusetts
corporation.
The following facts underlie this Amendment:
Pursuant to a certain Sales, Marketing and Distribution Agreement dated
December 14, 1999 (the "Agreement"), Genomic Solutions Inc. appointed
PerkinElmer, Inc. as it representative to promote, market and
distribute its products. The parties desire to amend the Agreement
pursuant to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein and in the Agreement, the parties agree as
follows:
1. DEFINITIONS. All capitalized terms not defined in this Amendment
shall have the meaning set forth in the Agreement. In addition, the Agreement is
amended to add the following new or substitute defined terms, as applicable:
(a) "Amendment Effective Date" means April 18, 2001
(b) "Core Markets" means the United States of America and Japan (the
definition of Core Markets in Section 1(c) of the Agreement is
superceded and replaced in its entirety by the foregoing
definition).
(c) "GeneMAP Arrays" means the preprinted DNA microarrays developed
and manufactured by GSI for distribution to third parties under
the GeneMAP trademark, including both cDNA and
oligonucleotide-based microarrays but excluding custom microarrays
developed for third parties.
(d) "High Demand MicroArrays" means GSI's preprinted microarrays that
have a quarterly sales volume of at least **** (*)microarrays of a
particular type as evidenced by a single part number
(e) "MICROMAX Array" means the preprinted DNA microarrays developed
and manufactured by PKI or its affiliates for distribution to
third parties under the MICROMAX trademark.
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(f) "ProXPRESS Imager" shall mean the ProXPRESS proteomic imaging
system manufactured by PKI and associated reagents and competitive
fluorescent dyes as branded and private label pursuant to this
Agreement. In the event that during the Term, PKI offers any
modified, upgraded or replacement ProXPRESS Imager, such product
shall automatically be deemed a "ProXPRESS Imager".
2. TERM. Section 1(g), "Term", is amended to provide that the initial
Term of the Agreement shall expire on December 31, 2002. Thereafter,
the Agreement shall automatically renew for successive two (2) year
periods unless either party notifies the other in writing at least
ninety (90) days prior to the expiration of the initial term or the
then current renewal period, as the case may be,of its intention not
to renew.
3. TRANSFER PRICING. Exhibit A and Exhibit C of the Agreement are
hereby superceded in their entirety and replaced by Exhibit A and
Exhibit B-1 attached. In addition, Section 3(b) and 3(c) of the
Agreement are superceded and replaced in their entirety as follows:
(b) Purchase Order Quotas and Goals. GSI shall make GSI Products
available to PKI in accordance with the terms in Section 7 and the
transfer pricing in Exhibit A . Exhibit B-1 is a schedule of PKI
purchase order targets for the last three quarters of 2001. These
minimum purchase order targets are U.S. dollar volumes based on
GSI Product orders received by GSI from PKI on or before the last
day of the calendar quarter and are based on GSI's transfer price
to PKI for such GSI Products. Purchase orders for GSI Products in
excess of the minimum purchase order targets set forth on Exhibit
B-1 for any calendar quarter shall be credited toward the minimum
purchase order target set forth therein for subsequent calendar
quarters. Exhibit B-1 shall be reviewed and updated annually by
the parties on or before November 15 of each year to set new
quarterly minimum sales targets. In the event that the parties are
unable to agree on purchase order targets, the matter will be
submitted for arbitration before a single arbitrator approved by
the parties. All arbitration shall take place in accordance with
the rules of the American Arbitration Association at such
organizations Wilmington, Delaware offices. Such arbitrator shall
make such adjustments based on then current market conditions.
(c) Failure to Meet Minimum Purchase Order Requirements. In the event
that PKI fails to meet the quarterly minimum purchase order
requirements for GSI Products for **** (*)GSI, in its sole
discretion and upon notice to PKI, may
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convert PKI's right to sell, market, distribute and provide field
services for GSI Products outside of Core Markets from exclusive
to non-exclusive.
4. PROXPRESS IMAGER. The Agreement is amended to add a new Section 4A
regarding GSI's right to distribute PKI's ProXPRESS Imager in Core
Markets as provided in Exhibit C attached.
5. PRODUCT COMPATIBILITY AND INFORMATION EXCHANGE
(a) Under no circumstances shall the manufacture and/or distribution
of MICROMAX Arrays by PKI be considered a violation of Section
6(b) of the Agreement. GSI and PKI will work together to ensure
that the MICROMAX Arrays are capable of being used in conjunction
with present and future hybridization stations and nucleic acid
array readers manufactured by GSI, provided, that all MICROMAX
Arrays are on 1" x 3" slides unless otherwise agreed to by GSI.
(b) GSI and PKI will work together to ensure that the GeneMAP Arrays
are capable of being used in conjunction with present and future
PKI labeling and detection technologies.
(c) GSI and PKI agree to meet not less frequently than once per
calendar quarter to:
(i) discuss new product ideas and developments and, in
the case of microarrays, to discuss possible
collaborations and which party will develop
particular array types and designs, provided, that
no exclusive relationship is created for either
party on such new ideas and developments unless the
parties subsequently agree otherwise;
(ii) address distribution and licensing of such GSI
Products by PKI or the ProXPRESS Imager by GSI, as
the case may be, and the terms and conditions with
respect to such distribution or licensing to avoid
or minimize duplication of effort and to accelerate
product development and sales;
(iii) to discuss future product release plans and time
tables (in this regard GSI will use good faith
efforts to give PKI sufficient lead time to prepare
and train for new product launches); and
(iv) to discuss PKI marketing and sales efforts and
strategies for GSI Products (in this regard, PKI
will use good faith efforts to give GSI detailed
marketing plans on a regional and, where reasonable,
a country by country basis and GSI and PKI will work
together cooperatively to develop strategies to
maximize sales in such regions or countries).
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(d) PKI will maintain an inventory of at least ****(*) High
Demand MicroArrays of a given part number commencing at such
time as it sells **** microarrays of such part number. GSI
will use commercially reasonable efforts to deliver
microarrays to PKI within 30 days after receipt of a purchase
order. Subject to Section 7 of the Agreement, GSI warrants
that microarrays will meet published specifications and be
free from defects in manufacture and workmanship for a period
of 90 days after shipment to PKI. GSI's obligation with
respect to this warranty is limited to the repair and
replacement of defective products after GSI's inspection and
verification of defects.
(e) GSI RESEARCH SERVICES. PKI will provide Leads to GSI for GSI's
research services, including custom arraying, labeling,
hybridization and analysis services and proteomic services.
For sales of research services directly attributable to Leads
provided by PKI, GSI shall pay to PKI a commission based on
the following (herein "Service Revenue"): GSI's gross revenue
received from the performance of such services, less tariffs,
taxes and similar charges and net of all discounts, returns
and allowances provided, that commissions shall only be
payable for ****. All payments shall be in the manner
provided in and subject to Section 4(b) of the Agreement. No
commissions shall be payable on purchases of services by
existing clients of GSI. The commission rate payable pursuant
to this Section shall be **** percent of the Service Revenue
attributable to PKI Leads.
6. GENEMAP ARRAYS DISTRIBUTION.
(a) Distribution Rights. PKI shall have the exclusive right and
responsibility, commencing upon the Amendment Effective Date, to engage in
sales, marketing, distribution and field service activities with respect to
GeneMAP Arrays in any geographical area other than the Core Markets. In
addition, PKI shall have the non-exclusive right and responsibility, commencing
upon the Amendment Effective Date, to engage in sales, marketing, distribution
and field service activities with respect to GeneMAP Arrays in the Core Markets.
(b) Pricing and Fees. Transfer pricing for GeneMap Arrays shall be as
provided on Exhibit A. PKI may sell the GeneMAP Arrays at such prices and on
such terms and conditions as it deems appropriate in its sole discretion.
(c) GSI shall be solely responsible for any **** in connection with
the sale of GeneMAP Arrays to third parties, including, but not limited to,
**** and will indemnify and hold PKI harmless against any infringement claims
raised by third parties as provided in Section 8 of the Agreement.
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7. COMPETITIVE PRODUCTS. Notwithstanding anything to the contrary in
the Agreement:
(a) PKI shall be permitted to engage in the sale and distribution of
mass spectrometry equipment, provided, that "mass spectrometry
equipment" shall not include any equipment which competes with
GSI's ProGest, ProPrep. ProMS and any successor products.
(b) GSI shall be permitted to allow **** (*)to distribute GSI's ****
and related software and equipment on a private label or OEM basis
notwithstanding that such activities may otherwise violate PKI's
exclusive distribution rights, provided, that the **** is sold by
**** as part of a system or package with other equipment and not
on a stand-alone basis.
(c) GSI may contract to develop or manufacture products for third
parties provided that such products are not offered for sale by GSI
directly.
8. AMENDMENT TO FULFILLMENT TERMS
(a) In connection with GSI's distribution of ProXPRESS Imagers
pursuant to Section 4A as provided on Exhibit C, Sections 7 (as
modified below) and 8 of the Agreement shall apply except that for
purposes of ProXPRESS Imager distribution all references to "PKI"
shall be deemed references to "GSI", all references to "GSI" shall
be deemed references to "PKI" and all references to "GSI Products"
shall be deemed references to "ProXPRESS Imagers" in such
sections.
(b) Section 7(a) of the Agreement is replaced with the following:
Order Placement. Orders for equipment or products other than
reagents, gels, and consumables shall be submitted at least 45 but
no more than 75 days prior to the expected shipment date. Orders
for reagents, consumables and gels shall be submitted at least 30
but no more than 60 days prior to the expected shipment date. All
orders for consumables, reagents and gels shall be for complete
lots, the size of which shall be determined by GNSL according to
its normal manufacturing practices. All orders shall be bona fide,
non-cancelable and properly addressed. The manufacturer may ship
product upon the receipt of any order to the designated address
(eg. no delayed shipment date).
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(c) Section 7(c) of the Agreement is replaced with the following:
Servicing and Certain Revenue. PKI shall be solely responsible for
all installation, field servicing, maintenance and warranty repair
with respect to GSI Products distributed by PKI. GSI shall be
solely responsible for all installation, field servicing,
maintenance and warranty repair with respect to ProXPRESS Imagers
distributed by GSI. Each party shall provide reasonable
application and production assistance and technical support to the
other at a rate of ****(*). Expenses shall not exceed $1000.00
without the prior consent of the other party. Each party shall be
entitled to receive all revenue generated from field servicing and
maintenance. Revenue from software upgrades and software
maintenance or subscription services shall be split equally
between GSI and PKI.
(d) The Agreement is amended to add a new Section 7(l) as follows:
International Compliance. In the event that a party distributes
the product of the other party in a country outside of the United
States, the distributing party will comply with all foreign laws,
regulations and registration requirements of such country, unless
the manufacturer or the product is already selling product
directly into the country, in which case the manufacturer shall be
responsible for foreign regulatory compliance of such product in
such country.
(e) The Agreement is amended to add a new Section 7(m) as follows:
Training. PKI will commit to achieve a minimum level of training
for all relevant Life Sciences sales personnel. Such training
level shall be agreed to between the parties within ninety (90)
days after the Amendment Effective Date. GSI will provide the
training to PKI sales personnel at such times and locations and
upon such terms as may be agreed to between the parties from time
to time.
9. SALE OF CYANINE NUCLEOTIDES. PKI will sell to GSI cyanine
nucleotides and TSA reagents at **** of the PKI then-current US list price,
provided that such products shall be used for GSI research purposes and research
services and shall not be used or otherwise resold to third parties. Such
products shall be shipped based on quantities set forth in GSI purchase orders
for such products. PKI shall invoice GSI for shipped product which invoices
shall be due and payable in full, in U.S. dollars, within thirty (30) days of
the invoice date.
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10. UNITED KINGDOM DISTRIBUTION AND SALES OPERATION.
(a) Distribution Rights and Transition.
(i) UK Distribution Rights. The parties acknowledge that as a
result of the change in the definition of Core Markets, commencing on the
Amendment Effective Date, PKI shall have the exclusive right to market, sell,
distribute, support and service GSI Products in the United Kingdom. GSI Sales
Employees (as defined in Section 10(d)(i) below) shall undertake such sales on
behalf of PKI during the 120 day period following the Amendment Effective Date.
(ii) Existing Orders. GSI shall be entitled to all revenue
from orders for GSI Products in the United Kingdom that are received before the
Amendment Effective Date. All such ordered GSI Products shall be shipped to the
customer or end user within 120 days of the Amendment Effective Date.
(iii) Orders in Process. Exhibit D contains a list of all
potential clients who have received a demonstration of GSI Products, who have
been previously been identified as a key prospect or potential purchaser of GSI
Products or who have been contacted by GSI ("Existing Prospects"). GSI shall be
entitled to all revenue from orders for GSI Products from Existing Prospects
that are received within 120 days after the Amendment Effective Date. GSI shall
be responsible for all sales commission and travel, demonstration or other
expenses associated with procuring orders from Existing Prospects. All orders
for GSI Products from Existing Prospects shall be shipped within **** (*)days of
the receipt of the order by GSI.
(iv) Other UK Sales. Except as provided in Sections 10(a)(ii)
and (iii) above, PKI shall be entitled to all revenue from sales of GSI Products
in the United Kingdom after the Amendment Effective Date (subject to payment to
GSI of the product pricing for such GSI Products).
(b) Distribution Fee. In exchange for the grant of United Kingdom
distribution rights, PKI will pay , a distribution access fee of ****(*), which
payment shall be made by way of a credit against amounts payable by GSI to PKI
under the Settlement, Release and Stock Purchase Agreement between the parties
of even date herewith.
(c) GSI United Kingdom Sales Personnel.
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(i) Transfer of Sales Personnel. In connection with the
transfer of the UK Assets to PKI and effective as of the date 120 days
after the Amendment Effective Date (the "Hire Date"), GSI shall
terminate, and PKI shall offer employment toall current employees of
GSI in the United Kingdom engaged primarily in the sale, service or
support of GSI Products as listed on Exhibit E attached (the "Sales
Employees"). The Sales Employees shall exclude those employees involved
in order processing, product development and product management. The
Sales Employees shall be given offers of employment by PKI at a salary
or wage no less than that paid by GSI. GSI shall be responsible for all
compensation, commission and benefits payable to the Sales Employees
from the Amendment Effective Date through the Hire Date. From the
Amendment Effective Date through the Hire Date, the Sales Employees
shall be engaged exclusively in sales, service and support of GSI
Products in the United Kingdom.
(ii) Sales Efforts. During the period from the Amendment
Effective Date through the Hire Date, the Sales Employees shall use
their best efforts to consummate sales to Existing Prospects as well as
new potential purchasers of the GSI Products as quickly as possible.
PKI will not instruct or induce Sales Employees to delay sales efforts
to Existing Prospects in order to increase PKI revenue from the United
Kingdom.
11. EFFECTS OF AMENDMENT. Except as provided in this Amendment, all
terms and conditions of the Agreement shall remain in full force and
effect without modification.
IN WITNESS WHEREOF, GSI and PKI have executed this Amendment as of the
date first above written.
WITNESS: GENOMIC SOLUTIONS INC.
Gary A. Kendra By: Jeffrey S. Williams
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Its: President and CEO
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"GSI"
PERKINELMER, INC.
John Healy By: Terrance Carlson
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Its: Senior Vice President
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"PKI"
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EXHIBIT A
PRODUCTS AND TRANSFER PRICING
PRODUCT TRANSFER PRICE
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Genomic Products
G3 w/32-pin (G3S2000) ****(*)
G3 w/48-pin (G3S2001) ****
G3 w/32-pin (G3A2000) ****
G3 w/48-pin (G3A2001) ****
RAI Benchtop Arrayer ****
Hybridization Station ****
UC-4 Scanner ****
GeneTAC 2000 (2c) ****
GeneTAC LS-IV (4c)* ****
GeneTAC LS-IV (2c)** ****
4-day Biochip Training Course ****
2-day Biochip Training Course ****
Proteomic Products
Investigator 2-D ****
ProImage ****
ProPic ****
ProGest ****
ProMS ****
ProPrep - 4 plate ****
ProPrep - 8 plate ****
Pre-cast gel rigs (ESPCG) ****
3-day Proteomics Training Course ****
1-day Proteomics Training Course ****
GeneMap Microarrays for distribution in Core Markets: ****discount from
U.S. List Price
GeneMap Microarrays for distribution outside of Core Markets: ****discount
from U.S. list price
All other reagents and consumables: ****discount from U.S. list price
* Increased to ****at such time that the UC-4 Scanner is commercially
available
** Increased to ****at such time that the UC-4 Scanner is commercially
available
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EXHIBIT B-1
PKI MINIMUM QUARTERLY PURCHASE ORDERS
Calendar Quarter Minimum Purchase Orders
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Q2, 2001 ****(*)
Q3, 2001 ****
Q4, 2001 ****
2002 To be mutually agreed to
between the parties no
later than November 15,
2001
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EXHIBIT C
NEW SECTION 4A OF AGREEMENT
4A ProXPRESS Imagers
(a) Appointment as Distributor. PKI hereby appoints GSI as a non-exclusive
distributor of the ProXPRESS Imager in the Core Markets during the
Term. PKI may sell the ProXPRESS Imager in core markets. Pursuant to
such appointment, GSI shall be permitted to distribute, sell, market
and provide field service with respect to the ProExprss Imagerdirectly
to end users and through its Affiliates, distributors, value added
resellers and dealers. . PKI shall provide at least thirty (30) days
advance written notice of any material modification or improvement of
the ProXPRESS Imager.
(b) Transfer Pricing. PKI shall sell the ProXPRESS Imager to GSI at a
transfer price of ****(*) per unit for imaging systems and a ****
discount from list price for reagents and dyes for the balance of the
2001 calendar year. The parties will meet and agree on transfer pricing
for the next subsequent year of the Term on or before November 15 of
each year of the Term, commencing on November 15, 2001.
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EXHIBIT D
EXISTING PROSPECTS(*)
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EXHIBIT E
SALES EMPLOYEES(*)
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