EXHIBIT 10.1
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Amendment No. 2 to Distribution and Licensing Agreement between
the Registrant and Kamar, Inc. dated September 28, 2000(1)
(1)Confidential Treatment as to certain portions has been requested effective
until December 31, 2004. The copy filed as an exhibit omits the information
subject to the confidentiality request.
AMENDMENT NO. 2 TO DISTRIBUTION AND LICENSING AGREEMENT
THIS AMENDMENT, made and entered into as of the 28th day of September,
2000, by and among KAMAR, INC., a Colorado corporation, together with any
subsidiaries or other affiliates (collectively, "Kamar"), IMMUCELL CORPORATION,
a Delaware corporation ("ImmuCell"), and KAMAR MARKETING GROUP, INC., a Colorado
corporation and a wholly-owned subsidiary of ImmuCell ("KMG"). ImmuCell and KMG
are sometimes hereinafter referred to collectively as "ImmuCell/KMG."
WITNESSETH:
WHEREAS, Kamar, ImmuCell and KMG are parties to a certain Distribution
and Licensing Agreement dated as of December 3, 1993, as amended by Amendment
No. 1 to Distribution and Licensing Agreement dated as of July 1, 1998 (the
"Agreement"); and
WHEREAS, Kamar, ImmuCell and KMG desire to amend the Agreement in
certain respects to provide for, among other things, the rendering by Kamar of
marketing services in connection with the sale of the Detectors and a further
extension of the term of the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agrees as follows:
1. Paragraph 1.02 of the Agreement is amended by adding the
following new sentence at the end thereof:
"ImmuCell/KMG hereby appoints Kamar as a marketing and sales
representative to solicit orders for Detectors for sale by
ImmuCell/KMG. The parties understand and agree that Kamar may
provide the marketing and sales services to be provided to
ImmuCell/KMG under this Agreement through its subsidiary,
Kamar Products, LLC."
2. Paragraph 1.03 of the Agreement is hereby amended by adding
the following new Paragraph 1.03(c) thereto:
"Kamar shall use its best efforts to have Kamar Products exert
its best efforts to market and assist ImmuCell/KMG to sell the
maximum number of Detectors. Such efforts shall include,
without limitation, the hiring of a full-time person by Kamar
Products to direct the marketing campaign, which person shall
initially be Mr. Stafford C. Walker."
3. Paragraph 1.04(a) of the Agreement is amended by deleting the
works "market and" from such paragraph.
4. Paragraph 1.04(b) of the Agreement is amended by adding the clause
"and continuing through 2000" following the clause "Beginning in 1994" in the
first line of such paragraph.
5. Paragraph 1.04(b) of the Agreement is further amended by
adding the following sentence at the end thereof:
"Beginning in 2001, ImmuCell/KMG shall expend a minimum amount
of $50,000 in gross media advertising and promotional
activities for the sale and marketing of Detectors in each
calendar year during the remainder of the term of
this Agreement, not less than $40,000 of which shall be
expended for gross media advertising."
6. Paragraph 1.04(d) of the Agreement is amended by deleting the
current paragraph in its entirety, and by inserting the following paragraph in
lieu thereof:
"ImmuCell/KMG agrees that it will not increase the price
charged by ImmuCell/KMG to its customers for the Detectors
during any calendar year by a percentage amount in excess of
the sum of (i) the percentage increase in the price paid by
Kamar to Rule Manufacturing for the Detectors for the year in
question plus (ii) two percent (2%)."
7. Paragraph 1.05 of the Agreement is amended by deleting the paragraph
heading and introductory clause thereto, and by inserting the following new
paragraph heading and introductory clause in lieu thereof:
"Payments for License and Marketing Services. In addition to
making payments to Kamar for the unit price of Detectors as
provided in Paragraph 1.04(c) above, ImmuCell/KMG shall pay to
Kamar as license and marketing fees, in consideration of the
grant by Kamar to ImmuCell/KMG of the rights and license and
the rendering of Kamar of the marketing and sales services
provided for herein, the following amounts:"
8. Paragraph 1.05 of the Agreement is further amended by adding
the following new Paragraph 1.05(c) thereto:
"(c) A fee for marketing and sales services as follows:
$ for each Detector sold by ImmuCell/KMG commencing October 1,
2000 through and including December 31, 2001; $ for each
Detector sold by ImmuCell/KMG commencing January 1, 2002
through and including December 31, 2002; $ for each Detector
sold by ImmuCell/KMG commencing January 1, 2003 through and
including December 31, 2003; and $ for each Detector sold by
ImmuCell/KMG commencing January 1, 2004 and thereafter during
the term of this Agreement. Payment of the foregoing amounts
in respect of the Detector units sold by ImmuCell/KMG shall be
made by ImmuCell/KMG to Kamar monthly within 15 days after the
end of each month. It is understood and agreed that the
provisions of this Paragraph 1.05(c) shall apply to Detectors
subject to orders received by ImmuCell/KMG, Kamar or Kamar
Products on and after October 1, 2000, but shall not apply to
Detectors subject to orders received prior to such date,
notwithstanding that such Detectors may be shipped on or after
October 1, 2000."
9. Paragraph 1.07 of the Agreement is amended by adding, after
the second sentence thereof, the following sentence:
"ImmuCell/KMG hereby grants to Kamar and Kamar Products the
right to use the trade name "Kamar Heatmount Detector" in
connection with the marketing of the Detector units for
ImmuCell/KMG pursuant to the terms of this Agreement."
10. Paragraph 1.07 of the Agreement is further amended by deleting the
date "December 31, 2003" where it appears in the penultimate line of such
paragraph, and by inserting the date "December 31, 2004" in lieu thereof.
11. Paragraph 1.08 of the Agreement is amended by deleting the date
"December 31, 2003" where it appears in the third line of such paragraph, and by
inserting the date "December 31, 2004" in lieu thereof.
12. Paragraph 2.06 of the Agreement is amended by deleting the
first sentence in its entirety and by inserting the following sentence in lieu
thereof:
"The parties agree that during the term of this Agreement,
Kamar shall reimburse ImmuCell for fifty percent (50%) of all
Past Due Accounts, as hereinafter defined, for customers
anywhere in the world."
13. Section 3.06 of the Agreement is amended by deleting the first
sentence in its entirety and by inserting the following in lieu thereof:
"ImmuCell/KMG shall have the right to terminate this Agreement
with twelve months prior written notice of its intent to
terminate."
14. Paragraph 3.06 of the Agreement is further amended by deleting the
word "Kamar" where it appears in the third sentence of such paragraph, and by
inserting the word "ImmuCell/KMG" in lieu thereof.
15. Paragraph 3.07 of the Agreement is amended by adding the
following two sentences at the end thereof:
"Kamar will process all orders for Detectors and Supplemental
Components received during the term of this Agreement for sale
on behalf of ImmuCell/KMG in accordance with the terms of this
Agreement, notwithstanding that shipment of the Detectors and
Supplemental Components subject to the order may take place
after the termination or expiration of this Agreement.
ImmuCell/KMG agrees to cease use of the name "Kamar Marketing
Group" upon the termination or expiration of this Agreement."
16. This Amendment is entered into as of the date first written above,
and is intended to become effective on October 1, 2000. Except as specifically
provided herein, all of the terms and conditions of the Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first written above.
KAMAR, INC.
By: /s/ Carl E.Vail
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Carl E. Vail, President
KAMAR MARKETING GROUP, INC.
By: /s/ Michael F. Brigham
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Michael F. Brigham, President
IMMUCELL CORPORATION
By: /s/ Michael F. Brigham
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Michael F. Brigham, President