Strategic Alliance Agreement

Exhibit 10.10


STRATEGIC ALLIANCE AGREEMENT


This Strategic Alliance Agreement (hereinafter "Agreement"), by and between Geneva Proteomics, Inc., a corporation organized under the laws of Delaware ("GeneProt"), Bruker Daltonics Inc., a corporation organized under the laws of Delaware ("BDAL") and Bruker Daltonik GmbH, a company organized under the laws of Germany ("BDAL Germany") is made as of September 12, 2000 ("Effective Date").


I. RECITALS AND OVERVIEW


A. GeneProt is in the business of large-scale industrial proteomics and BDAL is a developer and provider of innovative life science tools based on mass spectrometry;


B. BDAL Germany desires to sell to GeneProt, and GeneProt desires to purchase from BDAL Germany, certain Products (defined below) in the quantities and on the terms as set forth in this Agreement;


C. GeneProt wishes to receive engineering support relating to the Products from BDAL and BDAL Germany;


D. GeneProt and BDAL desire to enter into a related transaction relating to ownership of equity in each other; and


E. GeneProt and BDAL desire to formalize the ownership of certain technologies that the parties, either individually or jointly, may develop and other aspects of a long-term relationship.


II. AGREEMENT


NOW, THEREFORE, the parties agree as follows:


1. DEFINITIONS. Defined terms used in this Agreement shall have the following meanings:


1.1 "Consumables" means the items listed under the heading "Consumables" on Exhibit A hereto.


1.2 "DOCUMENTATION" means user manuals for the Products and all other written materials provided by BDAL with respect to the use and maintenance of the Products.


1.3 "PRICE LIST" means BDAL Germany's standard commercial fee schedule or other price notification releases furnished by BDAL Germany generally to its customers, a current copy of which is attached hereto as EXHIBIT D.


1.4 "PRODUCTS" means, collectively, the Systems acquired by GeneProt under this Agreement, the Consumables and the other items listed on Exhibit A as more particularly described on Exhibit D, which GeneProt has the option to purchase under this Agreement. The term "Product" also includes any enhancement or improvement of a Product that is made generally available by BDAL, that is substantially similar to such Product, and is marketed under the same product number and nomenclature as such Product.


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS EXHIBIT, WHICH PORTIONS HAVE BEEN OMITTED AND REPLACED WITH [**] AND FILED SEPARATELY WITH THE COMMISSION.


1.5 "SERVICES" means the software/applications research and development support described in EXHIBIT C.


1.6 "SYSTEMS" means BDAL Germany's Reflex III MALDI-TOF and esquire3000 ion trap mass spectrometry systems acquired under this Agreement as more particularly described on the Price List attached as EXHIBIT D HERETO.


2. TERMS AND CONDITIONS OF PRODUCT SALE.


2.1 SALE AND PURCHASE OF PRODUCTS. Pursuant to the terms and conditions of this Agreement, BDAL Germany shall sell to GeneProt, and GeneProt shall purchase from BDAL Germany, the Systems in the quantities and at the prices set forth on Exhibit A hereto and in the manner described in the General Terms and Conditions set forth on Exhibit B hereto (the "General Terms and Conditions"). In addition, pursuant to the terms and conditions of this Agreement, BDAL Germany shall make the Consumables available for purchase in the manner and with the discounts from the then current Price List as described in the General Terms and Conditions. The parties acknowledge and agree that BDAL Germany shall appoint an operational point of contact for purposes of this Agreement.


2.2 PROVISION OF SERVICES. In connection with the sale of the Products pursuant to Section 2.1, BDAL Germany will provide the Services in the manner described in the General Terms and Conditions.


2.3 PRICING AND PAYMENT. Unless otherwise agreed upon by the parties, BDAL Germany will invoice GeneProt for payment upon the date of BDAL Germany's delivery of the applicable Products to the shipping carrier. All payments shall be made in European denominations in accordance with the General Terms and Conditions. All amounts shown in the Exhibits hereto are in the Euro.


2.4 TAXES AND OTHER CHARGES. Purchase prices, and any other payments made hereunder with respect to the Products, do not include and are net of any foreign or domestic governmental taxes or charges of any kind that may be applicable to the use or sale of the Products.


2.5 TRADE-IN OPTION. Subject to the terms and conditions of this Agreement, BDAL and BDAL Germany hereby grant to GeneProt the Trade-In Option more particularly described on the General Terms and Conditions.


2.6 DESTRUCTION OF PRODUCTS. In the event that all or substantially all of the Products are destroyed due to fire to other calamity while the Products are in the possession of GeneProt, upon the placement of a new order for such Products by GeneProt with BDAL Germany, BDAL Germany shall make it a top priority of BDAL Germany's production line to manufacture replacement Products for GeneProt.


3. TERMS AND CONDITIONS OF STOCK PURCHASE


3.1 PURCHASE AND SALE OF GENEPROT STOCK. Subject to the terms and conditions of this Section 3, BDAL agrees to purchase and GeneProt agrees to sell Nine Hundred Nine Thousand and Ninety One (909,091) shares of GeneProt's Series B Preferred Stock (the "GeneProt Stock") at a per share purchase price not to exceed [**] per share. BDAL shall pay such purchase price by delivering Seven Million Dollars ($7,000,000) in cash to GeneProt and 79,218 shares of fully paid and nonassessable shares of BDAL's common stock.


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[**] Indicates that information has been omitted and filed separately with
the Commission pursuant to a request for confidential treatment.


3.2 TIMING AND TERMS OF PURCHASE. The parties agree that BDAL shall purchase the GeneProt Stock as part of the Series B Preferred Stock round currently being undertaken by GeneProt (the "Series B Round"). Such investment shall be pursuant to the stock purchase, investor rights and other agreements, documents and instruments used by GeneProt for the other investors in the Series B Round. Such agreements, documents and instruments shall be no less favorable to BDAL than the agreements, documents and instruments which are most favorable to any investor in the Series B Round. GeneProt agrees that it shall not sell, transfer or otherwise dispose of any BDAL stock received hereunder for a period of twenty four (24) months after receipt of such stock. The timing of BDAL's investment shall occur simultaneously with the closing of the first $50,000,000 (including BDAL's investment). However, if such investment has not closed on or before November 30, 2000 through no fault of BDAL, BDAL shall have the right not to close on such investment thereafter.


4. DELIVERY; TITLE; ACCEPTANCE.


4.1 SHIPPING DATES. BDAL Germany shall deliver the Products on their respective delivery dates as set forth in the General Terms and Conditions. In the event GeneProt determines that it requires a change in the actual scheduled delivery date, GeneProt will notify BDAL Germany as soon as is reasonably practicable following such determination and BDAL Germany shall use its commercially reasonable efforts to comply with the requested schedule change.


4.2 TITLE. Title to the Products shall pass to GeneProt upon Acceptance (defined below) of the Products by GeneProt. Risk of loss or damage to the Products, other than due to an act or omission of BDAL or BDAL Germany, shall pass to GeneProt upon delivery.


4.3 ACCEPTANCE.


(a) For purposes of this Agreement, "Acceptance" of a Product by GeneProt shall be deemed to have occurred upon completion of the installation of such Product by BDAL Germany and the execution of an Acceptance Certificate by GeneProt, a form of which is attached hereto as EXHIBIT E (THE "ACCEPTANCE CERTIFICATE").


(b) GeneProt may reject any Product which is not conforming with the warranties set forth in Section 5. In order to reject a Product, GeneProt must (i) give notice to BDAL Germany of GeneProt's intent to reject the shipment within thirty (30) days of receipt together with a written indication of the reasons for such rejections, and (ii) as promptly as reasonably practicable thereafter, provide BDAL Germany with notice of final rejection and the full basis therefor. After notice of intent to reject is given, GeneProt shall cooperate with BDAL Germany in determining whether rejection is necessary or justified. If no such notice of intent to reject is timely received, GeneProt shall be deemed to have accepted such delivery of Products; provided, however, that such acceptance shall in no way limit any remedies GeneProt may have with respect to the warranties set forth in Section 4.


5. WARRANTIES.


5.1 PRODUCTS. BDAL Germany and BDAL warrant to GeneProt that the Products delivered to GeneProt will be free from defects in material and workmanship for [**] months from the date of Acceptance of such Products, (the "Warranty Period") and shall perform substantially in accordance with BDAL Germany's published technical specifications, which are set forth in the Acceptance Certificate, and that such Products shall perform without defect when installed in GeneProt's proteomics factory.


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[**] Indicates that information has been omitted and filed separately with
the Commission pursuant to a request for confidential treatment.


5.2 SERVICES. BDAL Germany and BDAL warrant to GeneProt that during the Warranty Period,


(a) In performing the Services, BDAL Germany shall comply with all applicable laws of local, state and federal governments and agencies.


(b) All Services shall be performed by qualified personnel at a level of professional performance standard within the industry in which the Services are provided.


5.3 INFRINGEMENT. BDAL and BDAL Germany warrant to GeneProt that they are not aware of any patent, copyright, trade secret or trademark of a third party which has been used without permission to manufacture or complete any Product or which has been incorporated therein without permission.


5.4 COMPLIANCE WITH LAW. BDAL Germany and BDAL warrant to GeneProt that, at the time of shipment, all Products sold to GeneProt hereunder shall, when required, be in compliance with applicable laws and regulations.


5.5 LIMITATIONS. EXCEPT AS SET FORTH IN THIS AGREEEMNT, BDAL AND BDAL GERMANY MAKE NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR ANY SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


5.6 WARRANTY SERVICES. With respect to each Product, during the applicable Warranty Period, BDAL Germany will provide to GeneProt the maintenance, repair and return services described in Exhibit F. If considered by BDAL Germany staff to be advisable to improve the reliability of the Products, components will be replaced or modified without additional cost, and replaced components will become the property of BDAL Germany, all during the Warranty Period. In addition, software bug fixes will be provided during the Warranty Period free of charge.


5.7 SITE GUIDE. The Site Guides for the Products are included in Exhibit E.


6. GENEPROT COVENANTS. GeneProt agrees:


6.1 REVERSE ENGINEERING. Not to (and not to allow any third parties to) (a) disassemble, decompile or otherwise reverse engineer the Products.


6.2 NO REMOVAL OF MARKS. To include, and not alter, obscure or remove, any logo, trademark, copyright notice or other mark used or claimed by BDAL or BDAL Germany, or any markings, colors or other insignia which are contained in or affixed to the Product at the time of shipment.


6.3 ACCESS. To provide BDAL Germany, or its designee, with all physical and electronic access to the Products reasonably necessary in GeneProt's opinion to permit BDAL Germany to perform the Services and the warranty services.


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7. PROVISION OF PERSONNEL.


7.1 SERVICES PERSONNEL. During the Warranty Period, BDAL Germany shall provide four (4) man years of its full-time employees to perform the Services (the "BDAL Employees"). Each man year shall be approximately 1800 hours of direct labor. The BDAL Employees shall provide the Services at such times and locations as shall be reasonably requested by GeneProt. The BDAL Employees shall be available at all times during the normal business hours of GeneProt to provide the Services and Improvements by telephone or in person. The Services shall be performed in collaboration with GeneProt.


7.2 SITE MANAGER. During the Warranty Period, BDAL Germany shall provide a site manager as described in the General Terms and Conditions.


7.3 STATUS OF PERSONNEL. The parties acknowledge and agree that the BDAL Employees and any site manager shall not be deemed to be employees of GeneProt and shall remain employees of BDAL Germany. GeneProt shall have no obligation to provide any employee related benefits, including, without limitation, health, pension plan, social security, life or disability insurance, sick leave, vacation leave, work permits, personal liability or separate payment to such personnel. BDAL Germany agrees to inform such personnel of the foregoing.


8. OWNERSHIP AND LICENSE.


8.1 As between the parties, GeneProt exclusively shall have all right, title and interest (including all patent rights, copyrights, trade secret rights and all other intellectual property rights throughout the world) (the "Intellectual Property Rights") in any inventions, methods, instruments, consumables, software, works-of-authorship, ideas or information made or conceived or reduced to practice ("Inventions") by GeneProt through its use of the Products or Systems under this Agreement.


8.2 Except for the licenses granted by BDAL and BDAL Germany to GeneProt hereunder, as between the parties, BDAL and BDAL Germany exclusively shall have all Intellectual Property Rights in any Inventions by BDAL or BDAL Germany through its use of the Products or Systems under this Agreement.


8.3 With respect to Inventions for which employees or consultants of both parties are joint inventors or authors, each party will equally and jointly own the Intellectual Property Rights with respect to the joint Inventions with the right to unilaterally fully exploit or nonexclusively license such rights without accounting or further consent.


BDAL and BDAL Germany hereby grant to GeneProt a worldwide, nonexclusive, nontransferable, perpetual, irrevocable license to use, modify and otherwise exploit any BDAL Inventions related to the large-scale analysis of expressed proteins according to the business model of GeneProt as described in the business plan of GeneProt dated May 2000.


9. TERMINATION OF AGREEMENT.


9.1 TERMINATION BY EITHER PARTY. This Agreement may be terminated by a party for cause immediately upon the occurrence of any of the following events:


(a) If the other party ceases to do business, or otherwise terminates its business operations without a successor; or


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(b) If the other party shall seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 60 days); or


(c) If the other party breaches any material provision of this Agreement and, for any breach other than a payment breach, fails to cure such breach within thirty (30) days of written notice describing the breach.


9.2 NOT SOLE REMEDY. Termination is not the sole remedy under the Agreement and, whether or not termination is effected, all other remedies remain available and shall be cumulative. Upon a default hereunder, each party reserves to itself all remedies available to it in equity, under the Uniform Commercial Code, or under any other applicable law, notice of the non-defaulting party's exercise thereof being expressly waived by the defaulting party.


9.3 EFFECT OF TERMINATION. Any accrued rights to payment, remedies for breach and those rights and obligations set forth in Sections 2,3,8, 10, 11, 12 and 15 shall survive any termination or expiration of this Agreement.


10. CONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential Information" will mean the terms of this Agreement and any confidential or proprietary information that is marked or otherwise designated as "Confidential" or is clearly by its nature confidential and disclosed in any medium by one party to the other. Except as required by law or regulation or expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information of the disclosing party and shall similarly bind its employees in writing. Without limiting the foregoing, each party agrees to employ with regard to the Confidential Information of the other party procedures no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information. These nondisclosure obligations will not apply to information which the receiving party can document has entered the public domain without any action or inaction by it. Each party will promptly report to the other party any actual or suspected violation of the terms of this Section 9, and will take all reasonable further steps requested by the other party to prevent, control or remedy any such violation. Each party will, upon the termination or expiration of the Agreement or the request of the other party at any time, return to the disclosing party all tangible manifestations of Confidential Information received by it pursuant to the Agreement (and all copies and reproductions thereof). Notwithstanding this Section 9, any confidentiality or non-disclosure agreement(s) previously entered into between GeneProt and BDAL shall continue in full force and effect in accordance with their terms.


11. INFRINGEMENT. BDAL and BDAL Germany agree to indemnify, defend and hold harmless GeneProt and its officers, directors, shareholders, affiliates, employees and agents against any and damages, including reasonable expenses, arising from a third party claim that GeneProt's use of a Product in accordance with the terms of this Agreement infringes or misappropriates any patent, copyright, trade secret or other proprietary or intellectual property right of any such third party; provided that GeneProt provides prompt notice to BDAL and BDAL Germany of such claim and the opportunity to assume sole control of the defense or settlement of such claim. In the event that any Product is held to constitute such an infringement and the use of such Product is enjoined, BDAL and BDAL Germany by their own election and at its own expense, shall either: (1) procure for GeneProt the right to continue using such Product; (2) shall modify the Product so that it becomes non-infringing; or (3) remove the Product and refund to GeneProt the entire amount paid for such Product and any related Services. BDAL and BDAL Germany shall have no obligation or liability under this Section 10 if any infringement claim is based upon portions or components of the Products (a) that are not supplied by BDAL and BDAL


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Germany, (b) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (c) to the extent GeneProt continues allegedly infringing activity after being notified thereof or of modifications that would have avoided the alleged infringement or (d) where GeneProt's use of the Product is incident to an infringement not resulting primarily from the Product or is not strictly in accordance with the licenses or restrictions provided in this Agreement.


THE FOREGOING AND SECTION 5.3 HEREOF ARE IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT, WHICH ARE HEREBY DISCLAIMED, AND STATE THE EXCLUSIVE OBLIGATION AND SOLE LIABILITY OF BDAL AND BDAL GERMANY FOR INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.


12. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, GENEPROT WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO BDAL GERMANY HEREUNDER .


13. FORCE MAJEURE. If the performance of any obligation under this Agreement is interfered with by reason of any circumstances beyond the reasonable control of the party affected, including, without limitation, fire, explosion, power failure, acts of God, war, revolution, civil commotion, delays of the other party in the performance of any of its obligations hereunder, industry-wide parts shortages, acts of the public enemy, or any law, order, regulation, ordinance or requirement of any government or legal body, and labor difficulties, including without limitation, strikes, slowdowns, picketing or boycotts; then the party affected shall be excused from such performance for a period equal to the delay resulting from any such causes and such additional period as may be reasonably necessary to allow the party to resume its obligations (and the other party shall likewise be excused from performance of its obligations to the extent such party's obligations relate to the performance which was interfered with). The party so affected shall make reasonable efforts to remove such causes of nonperformance.


14. PRINCETON OPTION. Since GeneProt intends to give preferential treatment to BDAL and BDAL Germany as suppliers for GeneProt's proposed Princeton, New Jersey facility, for a period of [**] after the date hereof GeneProt shall have the option to purchase the same number of Systems and Products for such facility as described in the General Terms and Conditions at the discounts contained therein from BDAL and BDAL Germany then current list prices and without the four man years of Services.


15. GENERAL.


15.1 COMPLETE AGREEMENT. This Agreement, together with the Exhibits attached hereto, and the documents contemplated hereby, contains the entire agreement of the parties and supersedes all existing agreements and all previous oral, written, or other communications between them concerning its subject matter.


15.2 MODIFICATION. No addition or modification of any portion of this Agreement shall be binding upon GeneProt or BDAL unless such is made in writing and signed by a duly authorized representative of each party.


15.3 INDEPENDENT CONTRACTOR. The relationship established by this Agreement between GeneProt and BDAL is that of independent contractors. BDAL and BDAL Germany have no express or


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[**] Indicates that information has been omitted and filed separately with
the Commission pursuant to a request for confidential treatment.


implied authorization to incur any obligation or commitment on behalf of GeneProt, unless specifically approved in writing by an authorized GeneProt official. BDAL and BDAL Germany shall employ and contract their own personnel and agents and shall be responsible for them and their acts.


15.4 PARAGRAPH AND SECTION HEADINGS. The paragraph and Section headings contained herein are intended for convenience of reference only and shall not affect the interpretation of any such provisions.


15.5 VALIDITY. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall in no way be affected or impaired. In such event, the parties shall negotiate, in good faith, a substitute provision which most clearly reflects their original intent for entering into this Agreement.


15.6 GOVERNING LAW. This Agreement shall be governed by and construed under the laws of Delaware without reference to conflicts of law principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for any action related to the subject matter hereof shall be the local and federal courts having within their jurisdiction at the location of the defendant's principal place of business. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving notices or otherwise as allowed by such local or federal law. In any action to enforce this Agreement, the prevailing party shall be entitled to costs and attorneys' fees.


15.7 ENGLISH LANGUAGE. This Agreement is written in the English language, which shall be controlling for all purposes. No translation of this Agreement into any other language shall be of any force or effect in the interpretation of this Agreement or in a determination of the intent of the parties hereto.


15.8 WAIVER. The waiver by either party hereto of a breach of any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same, or any different, provision.


15.9 NOTICES. All notices remitted under this Agreement shall be in writing and in the English language. Any and all notices shall be sent by registered or certified mail, postage prepaid, receipt requested or by confirmed fax or hand delivery to the other party to the attention and address listed below, or to such other person(s) or addresses as the parties shall specify by written notice. Notices will be deemed effective three (3) days after delivery to a recognized overnight courier service, if so delivered; one (1) business day after sending if given by facsimile transmission and upon delivery if given by hand. All notices hereunder shall be remitted to the attention of the:


If to GeneProt, to:


Rue du Rhone 14
1204 Geneva
Switzerland
Attn: Chief Executive Officer


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If to BDAL, to:


Bruker Daltonics Inc.
44 Manning Road
Billerica, MA 01821
Attn: Frank H. Laukien, Ph.D.
President and Chief Executive Officer


If to BDAL Germany, to:


Bruker Daltonik GmbH
Fahrenheitstrasse 4, D-28359
Bremen, Germany
Attn: Hans J. Baum


15.10 LIMITATION. No action, regardless of form, arising out of or related to this Agreement, may be brought by either party more than one (1) year after the cause of action has accrued, ...