Exhibit 10.1
Information from this exhibit has been
omitted and filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED
MASTER AGREEMENT
by and among
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ DEVELOPMENT CORPORATION,
LIFESCAN, INC.
and
SELFCARE, INC.
As of June 7, 1999
ARTICLE I DEFINITIONS 4
ARTICLE II [DELIBERATELY LEFT BLANK] 6
ARTICLE III NOVEL GLUCOSE SYSTEMS
AND 510(k) NOTIFICATION PROCEDURES 6
3.1 NOVEL GLUCOSE SYSTEMS 6
3.2 510(K) NOTIFICATION PROCEDURES..................................................................6
3.3 LICENSING OF SELFCARE TECHNOLOGY................................................................7
ARTICLE IV REPRESENTATIONS........................................................................................7
4.1 AUTHORIZATION...................................................................................8
ARTICLE V CONFIDENTIALITY.........................................................................................8
5.1 CONFIDENTIAL INFORMATION........................................................................8
5.2 CONFIDENTIALITY OBLIGATION......................................................................9
5.3 NO IMPLIED RIGHTS...............................................................................9
5.4 RESTRICTIONS ON JJDC AND LIFESCAN...............................................................9
5.5 RESTRICTIONS ON SELFCARE.......................................................................10
5.6 SPECIFIC PERFORMANCE; SPECIAL REMEDY...........................................................10
ARTICLE VI COOPERATION; ARBITRATION..............................................................................11
6.1 COOPERATION....................................................................................11
6.2 ARBITRATION....................................................................................11
ARTICLE VII MISCELLANEOUS........................................................................................12
7.1 HEADINGS.......................................................................................12
7.2 ENTIRE AGREEMENT...............................................................................12
7.3 MODIFICATION AND WAIVER........................................................................12
7.4 COUNTERPARTS...................................................................................12
7.5 RIGHTS OF PARTIES..............................................................................12
7.6 NOTICES........................................................................................12
7.7 PAYMENTS.......................................................................................13
7.8 ASSIGNMENT.....................................................................................13
7.9 SUCCESSORS AND ASSIGNS.........................................................................14
7.10 GOVERNING LAW; CONSENT TO JURISDICTION.........................................................14
7.11 SEVERABILITY...................................................................................14
2
7.12 PRESS RELEASES AND ANNOUNCEMENTS...............................................................14
7.13 EXPENSES OF THE PARTIES........................................................................14
7.14 NO IMPLIED WAIVERS: RIGHTS CUMULATIVE..........................................................14
7.15 RELATIONSHIP OF THE PARTIES....................................................................15
7.16 TERM. 15
3
AMENDED AND RESTATED
MASTER AGREEMENT
This AMENDED AND RESTATED MASTER AGREEMENT ("Master Agreement") is made
as of June 7, 1999 by and among Selfcare, Inc., a Delaware corporation
("Selfcare"), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Development Corporation ("JJDC"), a New Jersey
corporation, and LifeScan, Inc., a California corporation ("LifeScan"). Terms
used herein or in the other Transaction Agreements (as hereinafter defined) and
not defined therein have the meanings set forth in Article I hereof. This
Agreement supersedes that certain Master Agreement dated as of November 10, 1995
(the "Original Master Agreement") by and among Selfcare. LifeScan and JJDC.
WHEREAS, Selfcare is developing electrochemical testing systems for
measuring glucose in humans;
WHEREAS, LifeScan has supported and desires to continue to support the
financing or such development in consideration of Selfcare's agreement, subject
to the terms and conditions set forth in the Transaction Agreements:
WHEREAS, in furtherance of the foregoing (i) simultaneously with the
execution of the Original Master Agreement. JJDC and Selfcare entered into an
Investment Agreement (the "Investment Agreement") pursuant to which JJDC loaned
to Selfcare the amounts described therein and acquired shares of common stock of
Selfcare, and (ii) subject to the terms and conditions set forth in the Original
Master Agreement, LifeScan paid certain product milestone payments to Selfcare
and entered into a certain Sales Distribution Agreement dated as of October 9,
1996 (the "Original Glucose Distribution Agreement"); and
WHEREAS, contemporaneously with the execution of this Agreement,
Selfcare and LifeScan are entering into an Amended and Restated Sales
Distribution Agreement (the "Glucose Distribution Agreement") which amends and
supersedes the Original Glucose Distribution Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
The following terms have the following meanings indicated or referred
to below:
"Affiliate" means, with respect to a party, any Person that, directly
or indirectly, is Controlled by such party or that Controls such party or that
is under common Control with such party.
4
"Confidential Information" - See Section 5.1 hereof.
"Control" or words of like import means the power directly or
indirectly through one or more intermediaries which one controls, to direct or
cause the direction of the management and policies of Person, whether through
the ownership of voting securities or partnership interests or by contract or
otherwise: provided, however, that "Control" shall not be deemed to exist in the
case of a joint venture partnership or other jointly owned enterprise in which
two Persons which are not otherwise Affiliates of each other share such power
equally, unless either of such Persons has the power to direct the day-to-day
operations of such enterprise notwithstanding the opposition of other Person.
"Disclosing Party - See Section 5.1 hereof.
"Distribution Agreements" or "Distribution Agreement" means the Glucose
Distribution Agreement and any other distribution agreement which Selfcare and
LifeScan may enter into and which is expressly identified as a Distribution
Agreement that is subject to the terms of this Agreement.
"Established Person" means any Person which had, prior to its first
purchase of Complete System Products from Selfcare, more than $100,000,000 in
annual worldwide sales in the market for home use testing of blood glucose.
"FDA" means the Federal Food and Drug Administration, U.S. Department
of Health and Human Services, or the successor thereto.
"510(k) Notification" means a pre-market notification filing made with
the FDA under Section 510(k) of the Federal Food, Drug, and Cosmetic Act, and
any amendments to such act, or any other regulatory filing required by the FDA
as a precondition to the commercial marketing of the product at issue.
"Glucose Distribution Agreement" - See Recitals.
"Instrument" means an electronic meter to which is attached a Test
Strip.
"Investment Agreement" - See the Recitals hereof.
"Person" means any individual, corporation, partnership or other
entity.
"Proper Form" - See Section 3.2 hereof
"Receiving Party" - See Section 5.1 hereof
"Related Component" means, with respect to any Glucose System, any
supply or component used with such system which chemically or physically
interacts with the Test Strips
5
or Instruments comprising parts of such system and which are manufactured by or
specifically for Selfcare.
"System" means a Glucose System, or any other product or products
expressly identified as "System" in a Distribution Agreement.
"Transaction Agreements" means this Agreement, the Investment
Agreement, the Distribution Agreements, the Credit Agreement and the SC Note.
Each capitalized term used herein and not otherwise defined shall have
the meaning accorded it in the Glucose Distribution Agreement.
ARTICLE II
[DELIBERATELY LEFT BLANK]
ARTICLE III
NOVEL GLUCOSE SYSTEMS
AND 510(k) NOTIFICATION PROCEDURES
3.1 NOVEL GLUCOSE SYSTEMS. A "Novel Glucose System" shall mean a
Glucose System that lacks either (i) the need to use a Test Strip, or (ii)
measurement of an in vitro fluid sample. If Selfcare files a 510(k) Notification
in Proper Form with respect to a Novel Glucose System, Selfcare shall provide
LifeScan with a copy of such filing within three (3) business days after such
filing and shall thereafter notify LifeScan within three (3) business days after
receipt from the FDA of notice of the FDA's acceptance thereof for filing. At
any time after receipt of such notice from Selfcare and until two years after
Selfcare shall have delivered to LifeScan notice that it has received FDA
Clearance for such System, LifeScan may, in its sole discretion, elect to
require Selfcare to submit to LifeScan a proposed form of distribution agreement
with respect to such System reflecting the terms outlined in Exhibit B and other
appropriate terms, and negotiate in good faith with LifeScan the terms of such
an agreement. If LifeScan fails to make such election within 90 days after
Selfcare shall have delivered to LifeScan notice that it has received such
notice of acceptance for filing, Selfcare shall be free to commercialize such
Novel Glucose System in such manner as it may deem appropriate. Notwithstanding
the foregoing, any contract or agreement entered into by Selfcare with respect
to distribution of such Novel Glucose System shall be expressly subject to the
rights of LifeScan under this Section 3.1. Further, Selfcare shall not sell such
System to any Established Person, unless such restriction is prohibited by
applicable law and shall terminate sales of such System within 90 days after
receipt of notice given by LifeScan within such two-year period exercising
LifeScan's continuing right to require Selfcare to enter into a Distribution
Agreement with respect to such Systems.
6
3.2 510(K) NOTIFICATION PROCEDURES. After preparation of a draft 510(k)
Notification with respect to a System and before its filing with the FDA.
Selfcare shall submit such draft to LifeScan and [OMITTED] or if he is
unavailable [OMITTED] of [OMITTED] or if such consultants are unavailable and
LifeScan timely submits a list of proposed alternates as required below in this
Section 3.2, to a consultant selected as provided below. If Such Consultants are
unavailable to review the 510(k) Notification, LifeScan shall, within 20 days
after receipt of notice from Selfcare that they are unavailable, deliver written
notice to Selfcare proposing three consultants meeting the qualifications set
forth below. Selfcare shall select the consultant from such list. If LifeScan
fails timely to deliver such list, Selfcare may select a consultant meeting such
qualifications, except that such consultant may have rendered services to
Affiliates of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇. Except as provided in the preceding sentence,
any consultant other than the individuals named above which is selected to
review a draft 510(k) Notification shall have at least 10 years' experience in
handling or advising with respect to submissions to the FDA pursuant to Section
510(k) and FDA policies regarding the 510(k) approval practice, and shall
deliver a certification to the parties that such consultant has not within the
past three years, rendered services to Selfcare or any of its Affiliates or any
Affiliate of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, and has agreed to review such draft 510(k)
Notification as required by this Section 3.2. The consultant that reviews any
draft 510(k) Notification shall be instructed to complete its review and render
its decision within ten business days and that such draft 510(k) Notification
should be found acceptable if (i) the device described therein is in all
material respects in accordance with the specifications for such System agreed
upon by Selfcare and LifeScan and (ii) the data set forth or referred to in such
draft 510(k) Notification reasonably supports the claims made therein. Where
such consultant finds that either such condition is not satisfied, he or she
shall provide a report setting forth in reasonable detail such deficiency or
deficiencies and the steps that need be taken in order to remedy such deficiency
or deficiencies. In the case of Project A, Project B and Project C, Selfcare
shall thereupon take such steps (provided such steps are commercially
reasonable), amend the 510(k) Notification accordingly and resubmit such 510(k)
Notification to such expert for review and approval (with a copy to LifeScan)
prior to its submission to the FDA. The fees of any such consultant shall be
shared equally by LifeScan and Selfcare. Notwithstanding anything to the
contrary set forth herein, a 510(k) Notification shall be deemed to be in
"Proper Form" if, and only if, (i) it is approved by any consultant retained
pursuant to this Section 3.2, or (ii) the parties agree in writing that it is in
"Proper Form."
3.3 LICENSING OF SELFCARE TECHNOLOGY. Selfcare agrees that any license
it may grant or any technology relating to Test Strips (as defined in the
Glucose Distribution Agreement) which are subject to the Glucose Distribution
Agreement shall contain provisions designed to preserve for LifeScan exclusive
distribution rights granted to LifeScan under such Distribution Agreement and
Selfcare will not grant to any Person any such rights which are exclusive to
LifeScan under any of the Transaction Agreements.
7
ARTICLE IV
REPRESENTATIONS
4.1 AUTHORIZATION. Each party hereto represents that it has full power
to execute, deliver and perform this Agreement and the other Transaction
Agreements. Each of this Agreement and the Glucose Distribution Agreement
delivered as of the date of this Agreement has been (and each Distribution
Agreement which may be entered into in the future will be) duly executed and
delivered by such party and is (or will be) the legal, valid and, assuming due
execution by the other parties hereto and thereto, binding obligation of such
party, enforceable against such party in accordance with its terms, subject as
to enforcement of remedies to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights generally. The
execution, delivery and performance of this Agreement and the other Transaction
Agreements has been duly authorized by all necessary corporate action of such
party.
ARTICLE V
CONFIDENTIALITY
5.1 CONFIDENTIAL INFORMATION. As used herein, "Confidential
Information" means: (i) all information communicated by one party (the
"Disclosing Party") to the other or an Affiliate of the other or any of their
respective officers, employees, agents or representatives (collectively, the
"Receiving Party"), considered by the Disclosing Party to be confidential and
proprietary and, if disclosed in writing, marked "Confidential," or, if
disclosed orally or visually by the Disclosing Party, identified by it as being
confidential at the time of disclosure and confirmed in writing within thirty
(30) days thereof; or (ii) any information which as of this date constitutes
Confidential Information under that certain Confidentiality Agreement between
Selfcare and LifeScan dated June 7, 1995, it being understood that although such
agreement was superseded by the Original Master Agreement, such Confidential
Information thereunder as of the date of the Original Master Agreement remained
subject to the Original Master Agreement and remains subject to the provisions
of this Agreement, or (iii) the description of the Original Glucose System (as
the same was modified by the 510(k) Notification filed with the FDA with respect
thereto), the other electrochemical test systems set forth in the schedules to
the Original Master Agreement or the schedules to the Glucose Distribution
Agreement; or (iv) the terms of this Agreement. Notwithstanding the foregoing,
Confidential Information does not include:
(a) information which at the time of disclosure was
published, known publicly, or otherwise in the public
domain;
(b) information which after disclosure, is published,
becomes known publicly, or otherwise becomes part of
the public domain through no fault of the Receiving
Party;
8
(c) information which prior to the time of disclosure is
known to the Receiving Party as evidenced by its
written records;
(d) information which after disclosure is made available
to the Receiving Party, in good faith and without
restrictions on further disclosure by a third party
not known by the Receiving Party to be under any
obligation of confidentiality to the Disclosing
Party; and
(e) information which is subsequently developed by the
Receiving Party independently, without recourse to
information described hereunder or to information
that was disclosed by a third party under an
obligation of confidentiality to the Disclosing
Party.
5.2 CONFIDENTIALITY OBLIGATION. Each party agrees on behalf of itself,
its successors and assigns, and its Affiliates, and their respective officers,
employees, agents and representatives that all Confidential Information of the
Disclosing Party shall be maintained by the Receiving Party in confidence,
subject to disclosure only to the extent and in a manner necessary in order to
accomplish in a reasonable way one or more of the purposes of any of the
Transaction Documents. Each party further agrees that Confidential Information
of the Disclosing Party shall be used by the Receiving Party only during the
term of this Agreement and only for planning marketing and sales of, and testing
the efficiency and quality of, the products and technology that are subject to
the Distribution Agreements and for such other purposes as are consistent with
other written agreements between the Disclosing Party and the Receiving Party.
Each Receiving Party shall use same the standard of care to protect the
confidentiality of Confidential Information of a Disclosing Party as it uses to
protect its own confidential information and shall limit disclosure of such
information by it to those of its and its Affiliates, officers, employees,
agents and representatives who have an actual need to know and have a written
obligation to protect the confidentiality of such information on substantially
the same terms as set Forth herein. Upon termination of this Agreement for any
reason, each Receiving Party will cease making use of Confidential Information
of a Disclosing Party and at the Disclosing Party's request return to it all of
its written Confidential Information (including documentation prepared by such
party and containing Confidential Information or the other party) and all copies
thereof, except that a Receiving Party may keep one copy of all Confidential
Information it has received in its legal files for archival purposes only.
5.3 NO IMPLIED RIGHTS. The disclosure of Confidential Information under
any Transaction Agreement shall not result in any right or license being granted
to the Receiving Party unless expressly stated therein.
5.4 RESTRICTIONS ON LIFESCAN. In consideration of the sensitive and
confidential information regarding Selfcare's technology and research and
development which Selfcare has provided and may provide to LifeScan pursuant to
the Transaction Agreement and otherwise in the course of their relationship.
LifeScan agree that until the later of (i) five years from the date hereof or
(ii) three years from the termination of this Agreement, LifeScan will not, and
9
will cause its Affiliates and each of the officers, employees, agents and
representatives of any of them not to, directly or indirectly: (i) attempt to
hire any then-current employee of Selfcare, assist in such hiring by any other
Person, or encourage any, such then-current employee to terminate his or her
relationship with Selfcare; or (ii) whether as owner, partner, shareholder,
consultant, agent, employee, co-venturer or otherwise, develop, manufacture,
purchase, sell or distribute, anywhere in the world (except for manufacturing,
purchases, sales and distributions in accordance with the Distribution
Agreements) any electrochemical blood glucose testing system or component
(including, without limitation, any test strip) or any other product of any
nature, in each case, which incorporates, or is based on, directly or
indirectly, Confidential Information of Selfcare or technology or know-how that
would not have been developed but for the use or knowledge of Confidential
Information of Selfcare.
5.5 RESTRICTIONS ON SELFCARE. Selfcare agrees that until the later of
(i) five years from the date hereof or (ii) three years from the termination of
this Agreement, Selfcare will not, and will cause its Affiliates and each of the
officers, employees, agents and representatives of any of them not to, directly
or indirectly, attempt to hire any then-current employee of LifeScan, assist in
such hiring by any other Person, or encourage any such then-current employee to
terminate his or her relationship with LifeScan. It is not the current intention
of Selfcare to receive from LifeScan, or of LifeScan to provide to Selfcare,
Confidential Information of LifeScan related to research and development
conducted by or for LifeScan. Nonetheless, in view of the prospect that
disclosure of such Confidential Information of LifeScan may be made in
connection with the Transaction Agreements and otherwise in the Course of their
relationship with Selfcare, Selfcare agrees that, except as provided below in
this Section 5.5. until the later of (i) five years from the date hereof, or
(ii) three years From the termination of this Agreement, Selfcare will not, and
will cause its Affiliates and each of the officers, employees, agents and
representatives of any of them not to directly or indirectly. whether as owner,
partner, shareholder, Consultant, agent, employee, co-venturer or otherwise,
develop, manufacture, purchase, sell or distribute anywhere in the world (except
for manufacturing, purchases sales and distributions in accordance with the
Distribution Agreements) any electrochemical blood glucose testing system or
component (including, without limitation, any test strip) or any other product
of any nature, in each case, which incorporates, or is based on, directly or
indirectly. Confidential Information of LifeScan or technology or know-how that
would not have been developed but for the use or knowledge of Confidential
Information of LifeScan. Nothing herein shall in any way restrict Selfcare's
right, to the extent permitted under the terms of any Distribution Agreement, to
manufacture and sell any electrochemical blood glucose testing system or
component and any such System or component may incorporate or be based on,
directly or indirectly, Confidential Information or technology or know-how of
LifeScan provided by LifeScan to Selfcare.
5.6 SPECIFIC PERFORMANCE; SPECIAL REMEDY. It is specifically understood
and agreed that any breach of the provisions of this Article V by LifeScan, on
the one hand, or Selfcare, on the other, is likely to result in irreparable
injury to the other, that the remedy at law alone will not be an adequate remedy
for such breach and that, in addition to any other remedy it may have, the
non-violating party shall be entitled to enforce the specific performance of
this
10
Article V by the other and to seek both temporary and permanent injunctive
relief (to the extent permitted by law), without the necessity of proving actual
damages; provided, however, that such equitable relief may be obtained prior to
arbitration in accordance with Section 6.2 hereof only to the extent necessary
to preserve the STATUS QUO ANTE while the parties pursue arbitration. Any other
form of equitable relief shall only be obtained as part of an award in
arbitration pursuant to Section 6.2 hereof.
ARTICLE VI
COOPERATION; ARBITRATION
6.1 COOPERATION. In connection with the administration of the
Transaction Agreements, and their successful operation for the benefit of both
parties hereto, the parties agree to cooperate in good faith. In furtherance
thereof each of LifeScan and Selfcare shall designate representatives to meet at
least once each calendar quarter with the representatives of the other party,
with such meetings alternating between the respective facilities of the two
parties. Each party may elect to designate either two or three representatives.
If either party elects to designate three representatives, it shall give notice
thereof to the other party, and the other party shall then also be entitled to
designate three representatives. The representatives of each party shall be its
chief executive officer (or if none, its president) and a person or persons (as
the case may be) with direct reporting responsibility to him or her.
In addition to the foregoing, Selfcare will make its personnel
available to consult and coordinate with product managers of LifeScan on an
ongoing, day-to-day basis in connection with the development of any products
subject to the Distribution Agreements and the purchases and resale thereof by
LifeScan. LifeScan shall have the right, subject to reasonable prior notice and
coordination with Selfcare to conduct quality assurance audits prior to the
initial introduction of any product under a Distribution Agreement, on an annual
basis thereafter and more frequently if reasonably required in light of specific
circumstances including without limitation in the event of a product recall.
6.2 ARBITRATION. Except for claims arising under Article V of this
Agreement, any claim, dispute or disagreement arising from or relating to this
Agreement or any other Transaction Agreement or any transaction contemplated
herein or therein or the validity, construction, meaning, enforceability of
performance of any such agreement or any of its provisions, or the intent of the
parties in entering into this Agreement or any other Transaction Agreement or
any of their respective provisions, or any matter as to which the parties shall,
in a Transaction Agreement, have agreed to agree and shall fail to reach
agreement thereon prior to the time such agreement is required, shall be
resolved solely by binding arbitration in accordance with the rules of the CPR
Center for Dispute Resolution, or successor organization. The arbitration shall
be held in the Borough of Manhattan, New York City, New York, before a single
arbitrator who shall have had no dealings with any party or any of its
Affiliates for the three years prior to the arbitration, and who shall have
substantial business experience in the medical products and/or pharmaceuticals
industry. Within two weeks after
11
the appointment of the arbitrator, each party shall submit to the arbitrator,
with a copy to the other party, a detailed explanation of the dispute or matter
and a proposal of terms for the resolution of such dispute or matter, and a
hearing shall be held before the arbitrator within one week thereafter. Each
party shall be limited to such amount of time for the presentation of its case
at the hearing, and the hearing shall be sequenced in such a manner, as the
arbitrator shall determine to be commercially reasonable. The arbitrator shall
select one of such proposals within two business days thereafter. The selected
proposal shall become the arbitrator's final and binding decision and award,
without any modification. In no event shall such arbitrator be empowered to
grant special punitive or exemplary damages. Any information relating to a
party's technology disclosed in connection with any arbitration proceeding shall
constitute Confidential Information and shall be subject to the prohibitions on
use and disclosure set forth in Section 5.2.
ARTICLE VII
MISCELLANEOUS
7.1 HEADINGS. The Subject headings of the sections paragraphs and
subparagraphs or this Agreement and any Transaction Agreement are included for
purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
7.2 ENTIRE AGREEMENT. Except as provided below, this Agreement and the
other Transaction Agreements and any other agreement referred to herein or
therein constitute, on and as of the date hereof the entire agreement between
the parties pertaining to the subject matter set forth herein and supersede all
prior and contemporaneous agreements, representations, warranties and
understandings of the parties.
7.3 MODIFICATION AND WAIVER. No supplement, modification or amendment
of this Agreement or any other Transaction Agreement shall be binding unless
executed in writing by the parties hereto or thereto, as the case may be. No
waiver of any of the provisions of this Agreement or any other Transaction
Agreement shall be binding unless executed in writing by the party making the
waiver and such waiver shall be effective only in the instance given and shall
not be effective with respect to the same or any similar event thereafter.
7.4 COUNTERPARTS. This Agreement and each other Transaction Agreement
may be executed in counterparts, each of which shall be deemed an original, and
all of which together shall constitute one and the same agreement.
7.5 RIGHTS OF PARTIES. Nothing in this Agreement or any other
Transaction Agreement, whether express or implied, is intended to confer any
rights or remedies on any Person other than the parties to this Agreement and
their respective permitted successors and assigns.
12
7.6 NOTICES. All notices, deliveries, requests, claims, demands and
other communications hereunder and under any other Transaction Agreement shall
be in writing and shall be given in person, or by registered or certified mail
(postage prepaid, return receipt requested), to the relevant party as follows:
If to Selfcare: Selfcare, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which copy shall not constitute
notice) to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ III, P.C.
If to LifeScan: LifeScan, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which copy shall not constitute notice) to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Office of General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as one party may have furnished to the other parties in
writing in accordance herewith, except that notices of changes of address shall
only be effective upon receipt. All such notices, deliveries, requests, claims,
demands and other communications shall be deemed to have been given upon receipt
thereof if such day is a business day or, if not a business day, on the next
succeeding business day.
7.7 [intentionally omitted]
7.8 ASSIGNMENT. No assignment of any rights or delegation of any
obligations of any party under this Agreement or any other Transaction Agreement
may be made without the
13
prior written consent of the other party, which consent, in the case of an
assignment by one party hereto to an Affiliate of such party, shall not be
unreasonably withheld provided that the assigning party guarantees, pursuant to
a written agreement satisfactory to the other party in the exercise of
reasonable business judgment, the payment and performance obligations hereunder
or such Affiliate or such party agrees to remain liable for such obligations.
7.9 SUCCESSORS AND ASSIGNS. This Agreement and each Transaction
Agreement shall be binding upon, and inure solely to the benefit of the parties
hereto and their respective permitted successors and assigns.
7.10 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement and each
Transaction Agreement shall be governed by and construed in accordance with the
laws of the State of New York. The parties hereto irrevocably submit to the
jurisdiction of the courts of the State of New York and the Federal District
Court sitting in the Borough of Manhattan, New York City, New York for any
matter not subject solely to arbitration pursuant to Section 6.2 hereof,
including with limitation, the enforcement of any award rendered in such
arbitration.
7.11 SEVERABILITY. If any provision of this Agreement or any other
Transaction Agreement should be held invalid, illegal or unenforceable in any
respect in any jurisdiction, then, to the fullest extent permitted by law, (i)
all other provisions hereof or thereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto or thereto as nearly as may be possible and
(ii) such invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law that would render any provision hereof or of any
other Transaction Agreement prohibited or unenforceable in any respect.
7.12 PRESS RELEASES AND ANNOUNCEMENTS. No press release relating to
this Agreement or any other Transaction Agreement or the transactions
contemplated hereby or thereby, or other general announcement to the employees,
customers or suppliers of the parties, will be issued without the joint approval
of Selfcare and LifeScan, which approval shall not be unreasonably withheld.
7.13 EXPENSES OF THE PARTIES. All expenses incurred by or on behalf of
a party in connection with the authorization, preparation and proposed
consummation of this Agreement or any other Transaction Agreement including,
without limitation, all fees and expenses of agents, representatives, counsel
and accountants employed by a party, shall be borne solely by the party who
shall have incurred such fees and expenses.
7.14 NO IMPLIED WAIVERS; RIGHTS CUMULATIVE. No failure on the part of a
party to exercise and no delay in exercising any right, power, remedy or
privilege under this Agreement or any other Transaction Agreement or provided by
statute or at law or in equity or otherwise, including, without limitation, the
right or power to terminate this Agreement or any other Transaction Agreement,
shall impair, prejudice or constitute a waiver of any such right,
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power remedy or privilege or be construed as a waiver of any breach of any
Transaction Agreement or as an acquiescence therein, nor shall any single or
partial exercise of any such right, power, remedy or privilege preclude any
other or further exercise thereof or the exercise of any other right, power,
remedy or privilege.
7.15 RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement
or any other Transaction Agreement is intended or is to be construed to
constitute the parties as partners or joint venturers. No party hereto shall
have any express or implied right or authority to assume or create any
obligations on behalf of or in the name of the other party or to bind any other
party to any contract agreement or undertaking with any third party.
7.16 TERM. The term of this Agreement shall expire upon the termination
of all Distribution Agreements and the Credit Agreement. Upon such expiration
all rights and obligations of the parties hereunder and under any other
Transaction Agreement then in effect shall terminate except for rights and
obligations arising under any of Article V, Section 6.2 and Article VII hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of this 7 day of June, 1999.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Development Corporation
By: /s/ Ting Pau Oei
----------------------------------------
Name: Ting Pau Oei
Title: Vice President
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Dev. Corp.
LifeScan, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: WW President
Selfcare, Inc.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CEO
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