Services Provider Agreement - Genodyssee SA and Transgenomic Inc.
SERVICES PROVIDER AGREEMENT
THIS SERVICES PROVIDER AGREEMENT ("this Agreement") is entered into as of
the 28th day of December 2001 (hereinafter referred to as the effective date of
the Agreement), by and between GENODYSSEE S.A., a French societe anonyme with a
share capital of 65,122 euros, having its registered office at Parc Affaires
Technopolis, 3, avenue du Canada, BP 810 Les Ulis, 91974 Courtaboeuf, France and
registered with the REGISTRE DU COMMERCE ET DES SOCIETES of Evry under number
424 796 548 (hereinafter referred to as "GEN") and TRANSGENOMIC, INC., a
corporation organized under the laws of the State of Delaware U.S.A. with its
principal place of business in Omaha, Nebraska U.S.A. (hereinafter referred to
as "TBIO") or individually, a "party" or collectively, the "parties."
PREAMBLE
WHEREAS, TBIO wishes to offer and provide to its customers and prospects
certain analytical services relating to nucleic acids.
WHEREAS, GEN has applicable resources to perform those analytical services
on behalf of TBIO and its customers.
WHEREAS, GEN and TBIO wish to enter into a strategic alliance to market and
perform those services.
NOW, THEREFORE, in consideration of the mutual covenants, promises,
representations and warranties set forth herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used in this Agreement shall have the following meanings
(such meanings to be equally applicable to both the singular and the plural
forms of the terms defined):
"AGREEMENT" shall mean this Services Provider Agreement, including all exhibits
hereto, as the same may be amended or otherwise modified from time to time.
"CUSTOMER" shall mean a party with whom either TBIO or GEN has entered into a
contract to provide Services in accordance with the terms of this Agreement.
"REVENUE SPLIT" shall mean that portion of the gross revenues (calculated
on a cash basis in accordance with accounting principles generally accepted in
the United States of America) received from a Customer to which each party of
this Agreement shall be entitled. The percentage amount of the Revenue Split to
each party is further outlined in Article III of this Agreement.
"SALES TERRITORY" shall mean the United States of America and its
territories, the nations of the European Union, the United Kingdom, Switzerland
and Japan.
"SERVICES" shall mean those certain analytic services related to nucleic
acids to be offered and/or provided to Customers, as more specifically
determined by the parties by mutual agreement from time to time.
All monetary amounts expressed herein are stated in terms of U.S. Dollars.
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ARTICLE II
RESPONSIBILITIES
SECTION 2.01. TBIO RESPONSIBILITIES.
(a) SALES AND MARKETING ACTIVITIES. With respect to the strategic alliance
between TBIO and GEN, TBIO shall be responsible for conducting all sales and
marketing activities in efforts to enter into contracts for Services with
Customers within the Sales Territory. During the term of this Agreement, TBIO
will dedicate a minimum of two employees to perform and support sales and
marketing activities for Services. TBIO will also make aware, educate, inform,
and train the remainder of its marketing and sales staff with regard to: 1) the
existence of this Agreement; 2) the strategic alliance between the parties; and
3) the Services.
(b) SALES PROPOSALS. TBIO will present each sales proposal received by it
(including any outstanding sales proposals made to potential Customers prior to
the date hereof) in writing to GEN prior to the acceptance thereof by TBIO, and
will review pricing, the scope and quantity of service work to be performed, and
other pertinent terms and conditions of such sales proposal with GEN. GEN will
have a right of first refusal to accept and perform the Services to be performed
under the terms of each sales proposal. Any sales proposal submitted to a
prospective Customer for which GEN has exercised it right to perform the
Services will identify GEN as the services provider for TBIO and will set forth
the Services which will be performed by GEN. Should GEN elect not to participate
in the sales proposal, then TBIO shall have the right to: 1) perform the work
itself; or 2) work with another individual or entity to perform such Services.
In the event that any of the material terms of a sales proposal are revised at
any time subsequent to the exercise by GEN of its right not to perform the
related Services, such sales proposal shall be considered to be a new sales
proposal and TBIO shall represent such sales proposal to GEN for its
consideration according to this clause (b).
(c) CUSTOMER CONTRACTS. In the event GEN elects to provide services to a
Customer, TBIO will enter into all relevant contracts directly with Customers
and will directly invoice Customers for the work performed under the respective
contract. To assist TBIO in its monthly invoicing to Customers, GEN will provide
TBIO with any requested information related to the work performed by GEN under
each contract. TBIO will use its commercially reasonable efforts to collect all
amounts due from the Customers. The foregoing notwithstanding, from time to time
the parties may determine that it is more practical to have GEN contract
directly with a Customer and/or to have GEN collect amounts due from a Customer.
In such instances, the parties will mutually agree to the manner in which such
contracting and/or collection will be handled, including any modification to the
Revenue Split as provided for herein.
(d) PAYMENTS OF REVENUE SPLITS. TBIO shall remit to GEN its respective
Revenue Split by the 15th day of each month for payments received from any
Customer in the previous calendar month. Should GEN be the direct contracting
party with the Customer and receive any such payments, then GEN will remit to
TBIO its respective Revenue Split in the same manner. All payments shall be made
via wire transfer to such account as may be designated by the receiving party,
and such payments shall be accompanied by a statement identifying all payments
received for Services during the previous calendar month and the calculation of
the Revenue Split. In the event that each party is required to remit a Revenue
Split payment to the other party with respect to a given calendar month, the
parties may agree to net such payments, provided that each party shall provide
the payment information specified in the previous sentence. The payment of any
Revenue Split from TBIO to GEN hereunder shall be subject to TBIO's right of
set-off pursuant to that certain Revolving Line of Credit Agreement, dated as of
the date hereof, between TBIO and GEN, which provisions are incorporated herein
by reference and made a part hereof.
(e) REMARKETING ASSISTANCE. The parties acknowledge that in order for GEN
to be able to perform Services in the volume anticipated by the parties, that
GEN will need to increase its capacity to perform such services, including the
acquisition of additional WAVE instruments manufactured by TBIO. If, during the
term of this Agreement, the anticipated volume of Services to be performed under
this Agreement are not realized by the parties and GEN determines that it has
excess WAVE instruments, TBIO agrees that it will use its best efforts in
assisting GEN to re-sell such excess WAVE instruments. Nothing in this Section
2.01 shall obligate TBIO to repurchase any such WAVE instruments for its own
account.
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SECTION 2.02. GEN RESPONSIBILITIES AND RIGHTS.
(a) EXERCISE OF FIRST RIGHT OF REFUSAL. Within a reasonable period of time
subsequent to TBIO presenting GEN with a sales proposal for Services, GEN shall
advise TBIO as to whether it intends to exercise its right of first refusal to
perform such Services.
(b) WORK PERFORMANCE. In the event that GEN elects to provide services
pursuant to clause (a) above, GEN shall: 1) perform the Services with in a
professional and quality manner, in accordance with applicable standards
recognized in the industry; 2) comply fully with the specifications, standards
and requirements as set forth in any sales proposal; and 3) use its commercially
reasonable efforts to obtain all necessary consents, licenses, releases or other
authorizations that may be required in connection with performing the Services.
GEN will provide to TBIO a status report on a monthly basis of all work
completed under each contract and the remaining work to be performed over the
remaining term of such contracts.
(c) DEDICATION OF RESOURCES. GEN will hire and assign qualified personnel
to satisfactorily perform the Services as specified in any sales proposals which
have been accepted by GEN pursuant to clause 2.02(a), at GEN's sole cost and
expense (including all wages, benefits and taxes). GEN will also obtain and
maintain all necessary equipment, building facilities, and chemicals necessary
to satisfactorily perform the Services as specified in such accepted sales
proposals, at GEN's sole cost and expense (including any taxes or fees that may
be associated therewith).
(d) DIRECT CONTACT WITH CUSTOMERS. So as to allow GEN to adequately perform
the services under Customer contracts, GEN will have the right to contact and
work directly with Customers on an ongoing basis.
(e) COMPETITION. In the event that GEN declines to exercise its right of
first refusal with regard to any sales proposal, GEN shall not provide any
services comparable to or competitive with the Services to the Customer which
was the subject of the proposal (a "Restricted Customer") for a period of six
(6) months from the date that GEN notifies TBIO of its intention not to provide
the Services pursuant to the sales proposal (the "Restricted Period"). In the
event that GEN provides services comparable to or competitive with the Services
to a Restricted Customer within the Restricted Period, GEN shall pay to TBIO an
amount equal to (CONFIDENTIAL TREATMENT REQUESTED) of its gross revenues from
such Restricted Customer during the Restricted Period. The provisions of this
Section 2.02(e) shall survive the termination of this Agreement other than a
termination by GEN for "Cause" (as that term in defined in Section 4.02.)
SECTION 2.03. JOINT RESPONSIBILITIES.
(a) OPERATION PLAN. The parties agree to use their commercially reasonable
efforts to jointly develop an operation plan that details additional processes,
procedures, and responsibilities of each party no later than 60 days from the
date of this Agreement.
(b) MANAGEMENT. Each party shall designate an officer or other senior
person to be responsible for the overall administration of this Agreement and
shall notify the other thereof.
(c) COMPLIANCE WITH LAW. In performing their duties pursuant to this
Agreement, the parties agree that they shall comply in all material respects
with any and all applicable laws, regulations and ordinances.
ARTICLE III
REVENUE TARGETS AND REVENUE SHARING
SECTION 3.01. REVENUE TARGETS.
For the purposes of assisting each party to establish their respective
business plans and budgets, the parties have determined estimated contracted
sales targets, as outlined in Exhibit A, for each of the three years under the
initial term of this Agreement. The parties acknowledge and agree that these
targets are informational only and that no penalties or premiums will be due to
either party from the other for any shortfalls or excess achievements against
those targets.
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SECTION 3.02. REVENUE SHARING. During the first twelve months of this
Agreement the Revenue Split shall be as follows:
(a) TBIO will receive ** of the gross revenues received in cash from
Customers under contracts for Services contemplated by this Agreement.
(b) GEN will receive ** of the gross revenues received in cash from
Customers under contracts for Services contemplated by this Agreement.
So as to assist the parties in determining reasonable profitability for
their respective efforts, the parties agree to review the Revenue Splits on an
annual basis and adjust the Revenue Splits accordingly if mutually agreed upon.
This review will be conducted no later than thirty (30) days after each
anniversary date of this Agreement. If the parties agree to revise the Revenue
Splits, they will establish an effective date for the revised Revenue Splits.
The revised Revenue Splits will apply only to any new Customer contracts, and to
any extension of a then existing Customer contract, entered into, or extended,
after such effective date and not to existing Customer contracts. If, after
negotiation in good faith, the parties cannot reach a mutual agreement to a
change in the Revenue Splits, then the Revenue Splits will remain at the levels
previously agreed to by the parties; provided, however, in such case, either
party may terminate the Agreement upon ninety (90) days prior written notice to
the other party.
ARTICLE IV
TERM AND TERMINATION
SECTION 4.01. TERM.
This Agreement will be effective as of the date set forth above and the
initial term shall expire three (3) years from the date hereof unless otherwise
terminated earlier as set forth herein. This Agreement shall be automatically
renewed for successive one-year periods unless either party gives written notice
of termination to the other party at least ninety (90) days before the date of
expiration of the initial term or additional term.
SECTION 4.02. TERMINATION. This Agreement may be terminated prior to the
expiration of its term:
(a) By either party as provided in Section 3.02 hereof;
(b) By either party in the event the other party materially defaults
in the performance of its respective obligations hereunder, and fails to
substantially cure such default within thirty (30) days after receiving
written notice from the party not in default specifying the default; or
(c) Automatically if either party becomes insolvent or enters,
voluntarily or involuntarily, into bankruptcy, suspension of payment,
moratorium, reorganization or any other proceeding that relates to
insolvency or protection of creditors rights.
Any termination pursuant to paragraphs (b) or (c) of this Section 4.02 being
referred to as termination for "Cause."
SECTION 4.03 EFFECT OF TERMINATION. In the event this Agreement expires as
of the end of its term (or any extension thereof) or is terminated pursuant to
Section 4.02 hereof, then the rights and obligations of the parties hereunder
will terminate, except as specifically stated elsewhere in this Agreement.
Notwithstanding the termination of this Agreement, each party will be required
to remit to the other party any Revenue Splits relating to Services provided to
Customers prior to the date of termination. In addition, unless this Agreement
is terminated by GEN pursuant to paragraph (b) or (c) of Section 4.02 on the
ground of Cause, TBIO may, at its option and in its sole discretion, immediately
upon notice of termination or at any time thereafter:
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(a) direct that GEN cease providing Services to Customers pursuant to
this Agreement and TBIO may either provide such Services itself or appoint
an alternate service provider to provide such Services; or
(b) direct and require that GEN continue to provide Services to
existing Customers pursuant to this Agreement for a period not to exceed
three (3) months following the effective date of the termination, in which
case the parties will continue to be remit to each other (as the case may
be) Revenue Splits from such Services in accordance with this Agreement
through the date GEN ceases to provide such Services.
ARTICLE V
RELATIONSHIP OF THE PARTIES
Nothing herein contained shall be construed to imply a joint venture,
partnership or principal-agent relationship between the parties, and neither
party shall have the right, power, or authority to obligate or bind the other in
any manner whatsoever, except as otherwise agreed to in writing. The parties do
not contemplate sharing of profits relating to the services as to create a
separate taxable entity, nor co-ownership of a business or property as to create
a separate partnership under the laws of any jurisdiction. Accordingly for tax,
property, and liability purposes each party will perform its services, each on a
professional basis and as an independent contractor of the other. Revenue and
expenses relating to the services shall be reported separately by the parties
for tax purposes. During the performance of any of the services TBIO's employees
will not be considered employees of GEN, and vice versa, within the meaning or
the application of any federal, state, or local laws or regulations including,
but not limited to, laws or regulations covering unemployment insurance, old age
benefits, workers' compensation, industrial accident, labor, or taxes of any
kind. TBIO personnel who are to perform the TBIO services or additional services
to be provided by TBIO shall be under the employment, and ultimate control,
management, and supervision of TBIO, and TBIO shall have sole responsibility for
the acts and omissions of such personnel. TBIO and GEN personnel who are to
perform the Services or any other services to be provided hereunder shall be
under the employment and ultimate control, management, and supervision of TBIO
and GEN, respectively, and such respective employer shall have sole
responsibility for the acts and omissions of such personnel. It is understood
and agreed that GEN's employees shall not be considered TBIO's employees within
the meaning or application of TBIO's employee benefit programs, and vice versa.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
Each party at its own expense shall indemnify, defend, and hold the other,
its partners, shareholders, directors, officers, employees, and agents harmless
from and against any and all third party suits, actions, investigations, and
proceedings, and related costs and expenses (including reasonable attorneys'
fees) resulting solely and directly from the indemnifying party's negligence or
willful misconduct. Neither party shall be required hereunder to defend,
indemnify, or hold harmless the other and/or its partners, shareholders,
directors, officers, employees and agents, or any of them from liability
resulting from the negligence or wrongful acts of the party seeking
indemnification or of any third party. Each party agrees to give the other party
prompt written notice of any claim or other matter as to which it believes this
indemnification provision is applicable. The indemnifying party shall have the
right to defend against any such claim with counsel of its own choosing and to
settle and/or compromise such claim as it deems appropriate. Each party further
agrees to cooperate with the other in the defense of any such claim or other
matter. Additionally, throughout the term of this Agreement each party shall
maintain general liability insurance coverage in such amounts and on such terms
as are commercially reasonable.
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ARTICLE VII
CONFIDENTIALITY
Each party acknowledges that the parties and their clients may disclose
confidential and proprietary information developed, acquired by or licensed to
the disclosing party regarding such party's respective business, products and
services. Each party will take all reasonable precautions necessary to safeguard
the confidentiality of such information, including, but not limited to, (i)
those taken by the receiving party to protect its own confidential information,
and (ii) those which the disclosing party or its authorized representative may
reasonably request from time to time. Neither party will disclose, in whole or
in part, any items of information that have been designated as confidential by
the disclosing party to any individual, entity or other person, except to those
of its employees or agents who have a need to know such information in order for
the receiving party to perform its rights and obligations under this Agreement.
Each party acknowledges that any unauthorized use or disclosure of the other
party's confidential information may cause irreparable damage to the disclosing
party and its licensors and Customers. Neither party will have any
confidentiality obligation with respect to any portion of such information that
(i) the receiving party knew or independently developed before receiving such
information from the disclosing party under this Agreement, (ii) the receiving
party lawfully obtained from a third party under no confidentiality obligation
to the disclosing party, (iii) became available to the public other than as a
result of any act or omission by the receiving party or any of its employees or
agents, or (iv) the receiving party is obligated under law to disclose.
ARTICLE VIII
INTELLECTUAL PROPERTY
(a) TBIO acknowledges that all right, title, and interest to the Services
and all related processes, formulas or other intellectual property is owned by
GEN (other than to the extent rights to the results of the Services may be
granted to the Customer pursuant to contract) and that TBIO gains no rights in
or to such by virtue of this Agreement.
(b) Information received from the Customer or work performed on engagements
pursuant to this Agreement by either party shall be the exclusive property of
the Customer. All underlying methodology utilized by either party to perform the
engagements pursuant to this Agreement which was created or developed by either
party before the Agreement shall not become the property of the other.
ARTICLE IX
ASSIGNMENT
Neither party shall assign, delegate or otherwise transfer this Agreement
or any of its rights or obligations hereunder without the other party's prior
written consent, which consent shall not be unreasonably withheld or delayed.
This Agreement shall be binding upon and inure to the benefit of each party's
rightful successors and assigns.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. LINE OF CREDIT AGREEMENT.
Under a separate Revolving Line of Credit Agreement, dated as of the date
hereof, TBIO has agreed to provide GEN a line of credit of up to $1,000,000
during the initial three year term of this Agreement. The line of credit will be
utilized by GEN to assist GEN in managing its cash flow and working capital
needs to perform Services under contracts
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relating to this Agreement. Any default under the terms of such Revolving Line
of Credit Agreement, or the associated promissory note, shall be deemed a
default under this Agreement.
SECTION 10.02. NOTICES.
All notices or other communications to be given hereunder shall be given in
writing and delivered by (a) certified mail, return receipt requested, (b)
personal delivery, (c) facsimile or (d) express carrier addressed as follows:
If to the TBIO: Transgenomic, Inc.
12325 Emmet Street
Omaha, Nebraska 68164
U.S.A.
Attention: Gregory J. Duman
Email: gduman@transgenomic.com
Telephone: (402) 452-5400
Telecopy: (402) 452-5447
If to GEN: Genodyssee S.A.
3 avenue du Canada
Batiment Alpha - BP810
Les Ulis - 91974 Courtaboeuf Cedex
France
Attention: Jean-Louis Escary
Email: escary@genodyssee.com
Telephone: (33)(0) 1 69 29 80 55
Telecopy: (33)(0) 1 69 29 80 79
or to such other address furnished by any party to the other in writing at any
time and from time to time for such notice purposes. Any notice served by either
party on the other shall be deemed effective upon receipt of return receipt
following deposit in the mail if sent by certified mail, return receipt
requested, when received, if delivered personally, upon machine confirmation if
sent by facsimile, or upon confirmation of delivery by express carrier.
SECTION 10.03. AMENDMENTS AND WAIVERS; NONEXCLUSIVE RIGHTS.
No amendment, modification or waiver of any provision of this shall be
effective unless the same shall be in writing and signed by an authorized
officer of both parties.
SECTION 10.04. SURVIVAL OF CERTAIN AGREEMENTS.
The provisions of Sections 2.02(e) and 4.02 and the agreements and
covenants in Articles VI, VII and VIII shall survive the termination of this
Agreement.
SECTION 10.05. SEVERABILITY.
If any provision of this Agreement is held invalid or unenforceable, or
which is prohibited under Law for any reason, the invalidity shall not affect
the validity of the remaining provisions of this Agreement, and the parties
shall substitute for the invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid provision.
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SECTION 10.06. GOVERNING LAW; ARBITRATION; NO THIRD-PARTY RIGHTS.
(a) This Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed and interpreted in accordance with the laws
of the United States and State of New York applicable to contracts made and to
be performed wholly within such State, without regard to any choice or conflict
of laws rules.
(b) The parties to this Agreement shall act in good faith to resolve any
dispute or other controversy arising under this Agreement. Absent agreement
resolving a dispute within 20 days after written notice of the dispute has been
delivered from one party to the other, any party shall have the right to seek to
settle the matter by arbitration to the exclusion of any other form of dispute
resolution. Any arbitration shall be conducted according to the applicable rules
of the American Arbitration Association and shall take place in New York, New
York. Such arbitration shall be heard by a single arbitrator, who shall be
jointly designated by TBIO and GEN if the parties are unable to agree within ten
(10) days after the dispute is submitted to arbitration, by the American
Arbitration Association. The decision of the arbitrator shall be final and
binding upon the parties hereto. The each party in any arbitration proceeding
shall pay its own costs in connection therewith, including attorneys' fees.
(c) This Agreement is solely for the benefit of the parties hereto and
their respective successors and assigns, and no other Person shall have any
right, benefit, priority or interest under, or because of the existence of, this
Agreement.
SECTION 10.07. HEADINGS; INTERPRETATION.
The section headings are for convenience only and shall not affect the
interpretation or construction of this Agreement. The Exhibits referred to
throughout this Agreement are attached to this Agreement and are incorporated
into this Agreement. Unless the context clearly indicates, words used in the
singular include the plural, words in the plural include the singular and the
word "including" means "including but not limited to."
SECTION 10.08. WAIVER.
The failure of either party at any time to require performance by the
other party of any provision of this Agreement shall not affect in any way the
full right to require the performance at any subsequent time. The waiver by
either party of a breach of any provision of this Agreement shall not be taken
or held to be a waiver of the provision itself. Any course of performance shall
not be deemed to amend or limit any provision of this Agreement.
SECTION 10.09. SECTION REFERENCES.
References to "Sections," "Subsections" and "Exhibits" shall be to
Sections, Subsections, Exhibits and Schedules, respectively, of this Agreement
unless otherwise specifically provided.
SECTION 10.10. ENTIRE AGREEMENT.
This Agreement, including the Exhibits attached hereto, sets forth all of
the promises, agreements, conditions and understandings between the parties
respecting the subject matter hereof and supersedes all negotiations,
conversations, discussions, correspondence, memorandums and agreements between
the parties concerning the subject matter.
SECTION 10.11. DISCLAIMER OF WARRANTY.
EACH PARTY ACKNOWLEDGES THAT (I) THE OTHER PARTY'S PRODUCTS AND SERVICES
MAY NOT SATISFY ALL CUSTOMER REQUIREMENTS AND (II) THE USE OF SUCH PRODUCTS AND
SERVICES MAY NOT BE UNINTERRUPTED OR ERROR-FREE. EXCEPT FOR ANY EXPRESS
WARRANTIES SET FORTH HEREIN, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS,
INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS OR SERVICES OF EITHER
PARTY, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN
STATEMENTS BY THE PARTIES, THEIR AGENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED
TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED.
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SECTION 10.12. NO CONSEQUENTIAL DAMAGES; LIMITATION ON TOTAL DAMAGES.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND
WHATSOEVER, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON EACH
OTHER'S CLAIMS OR THOSE OF ITS CUSTOMERS OR VENDORS (INCLUDING BUT NOT LIMITED
TO, CLAIMS FOR LOST REVENUE, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, LOSS
OF USE OF MONEY OR USE OF SERVICES, INTERRUPTION IN THE USE OR AVAILABILITY OF
DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF
BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. THIS
SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW
SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR DAMAGES (OTHER THAN
DAMAGES DESCRIBED ABOVE FOR WHICH THE PARTIES HAVE NO LIABILITY) IN CONNECTION
THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL COMPENSATION RECEIVED
BY OR DUE TO THE LIABLE PARTY HEREUNDER.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and
year first above written.
TRANSGENOMIC, INC., a Delaware corporation
By /s/ Collin J. D'Silva
-------------------------------------
Collin J. D'Silva, President and Chief Executive Officer
GENODYSSEE S.A., a French societe anonyme
By /s/ Jean-Louis Escary
-------------------------------------
Jean-Louis Escary, President du Conseil d' Administration
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SERVICES PROVIDER AGREEMENT
EXHIBIT A
REVENUE TARGETS
INITIAL 3 YEAR TERM. GROSS REVENUE TARGET
2002 **
2003 **
2004 **
These targets are calculated based on the total gross revenues projected over
the term of contracts signed during each year of this Agreement, without
discount for present value and before revenue splits between the two parties.
These amounts are for budgetary purpose only and no premiums will be provided
for exceeding the minimum, nor penalties being applied if the minimums are not
obtained. The parties understand that actual amounts may differ from the above
amounts.
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