Exhibit 10.12.1
ADDENDUM
TO
STRATEGIC MARKETING ALLIANCE
AGREEMENT
THIS ADDENDUM TO
STRATEGIC MARKETING ALLIANCE AGREEMENT (the “ Addendum
”) is entered into this 27 th day of December,
2004, by and among Roche Diagnostics Corporation, an Indiana
corporation, whose primary place of business is located at 9115
Hague Road, Indianapolis, Indiana, 46250 (“ RDC
”), Bio-Reference Laboratories, Inc., a New Jersey
corporation, whose primary place of business is located at 481B
Edward Ross Drive, Elmwood Park, New Jersey, 07407 (“
BRLI ”) and CareEvolve.com, Inc., a New Jersey
corporation, whose primary place of business is located at 481B
Edward Ross Drive, Elmwood Park, New Jersey, 07407 (“
CareEvolve ”). (RDC, BRLI and CareEvolve are
sometimes referred to herein collectively as the “
Parties ” and each individually as a “
Party .”)
PRELIMINARY
STATEMENTS
A.
CareEvolve, RDC and BRLI entered into that certain Strategic
Marketing Alliance Agreement dated as of December 31, 2001
(the “ Original Agreement ”), a copy of which is
attached hereto as Exhibit A and made a part hereof; and
B.
Pursuant to the Original Agreement, the Parties created and
participated in a strategic marketing alliance (the “
Alliance ”).
C.
The Parties now wish to modify the structure of the Alliance to,
among other things, reallocate responsibility for the provision of
management services to CareEvolve and alter the cost and expense
structure between RDC and BRLI.
D.
To those ends, the Parties wish to affirm portions of the Original
Agreement, amend other portions of the Original Agreement and
supplement the Original Agreement through this Addendum.
TERMS
NOW, THEREFORE, in
consideration of the mutual covenants herein contained and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby
agree as follows:
1.
Integration with Original Agreement . RDC and BRLI
hereby ratify, affirm and approve all terms and conditions of the
Original Agreement, unless the same are specifically amended,
deleted, or supplemented by this Addendum. In the event of
any conflict between the terms of the Original Agreement and the
terms of this Addendum, the terms of this Addendum shall take
precedence over the Original Agreement, and this Addendum shall
govern and control. All references herein to the
“Agreement” shall mean the Original Agreement and this
Addendum together. All capitalized terms not otherwise
defined herein shall have the meanings assigned to them in the
Original Agreement.
2.
Acknowledgement of Continued Operation . The Parties
hereby stipulate, acknowledge, understand and agree that CareEvolve
has operated in accordance with the direction and approval of the
Steering Committee and that the Alliance has developed into a
business operation that RDC and BRLI wish to continue developing
and building as a joint effort. The parties further agree
that:
(a)
All obligations of RDC with respect to periods after
August 31, 2003 imposed by Section 2 of the original
Agreement are hereby cancelled as of August 31,
2003.
(b)
All obligations of BRLI and CareEvolve with respect to periods
after August 31, 2003 imposed by Section 3 and 4 of the
Original Agreement are hereby cancelled as of August 31,
2003.
(c)
All obligations of RDC, BRLI and CareEvolve with respect to periods
after August 31, 2003 imposed by Section 5 of the
Original Agreement are hereby cancelled as of August 31,
2003.
(d)
All rights of RDC to a return of its invested capital, to a
“revenue stream” and to a license as set forth in
Section 8(b) of the Original Agreement are hereby cancelled
nunc pro tunc as of October 31, 2004.
(e)
All rights of RDC to purchase equity interests in BRLI or
CareEvolve as set forth in Section 15(a) of the Original
Agreement are hereby cancelled nunc pro tunc as of October 31,
2004.
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(f)
Each party hereto hereby releases each and every other party hereto
from any and all liability for failure to perform any duty, effect
any payment or fully meet any obligation set forth in any of the
above provisions of the Original Agreement described in this
Section 2 whether prior to or subsequent to August 31,
2003. The parties hereto agree that for all periods subsequent to
August 31, 2003, the provisions of Section 5, 6, 7, 8 and
9 of this Addendum shall be binding on each of them.
Representations and Warranties of
RDC . RDC hereby represents and warrants to BRLI
as follows:
Authority; Binding Agreement;
Non-contravention . RDC has full power and
authority to execute and deliver this Addendum and the other
documents relating to the Alliance (the “Alliance
Documents”) and to perform its obligations hereunder and
thereunder. This Addendum and the other Alliance Documents,
when executed, will constitute the valid and binding obligation of
RDC, enforceable in accordance with their respective terms.
Neither the execution and delivery of this Addendum and the other
Alliance Documents, nor the consummation of the actions and
transactions contemplated herein and therein will, with or without
the passage of time or the delivery of notice, (i) conflict with,
result in a breach or constitute a default under any note, bond,
mortgage, indenture, license, franchise, permit, agreement, lease
or other instrument or obligation to which RDC is a party or bound,
(ii) violate any statute, ordinance or law or any rule, regulation,
order, writ, injunction or decree of any court, administrative
agency, commission or other governmental entity or instrumentality,
or (iii) violate any provision of the Articles of Incorporation,
bylaws or other constituent documents of RDC.
Organization . RDC is a
corporation duly organized and validly existing under the laws of
the State of Indiana.
Consents . No notice to,
filing with or authorization, consent or approval of any
governmental entity or third party is necessary for the
consummation by RDC of the actions and transactions contemplated by
this Addendum and the other Alliance Documents.
Authorization . All corporate
action on the part of RDC and its directors and its shareholders
necessary for the authorization, execution, delivery and
performance by RDC of each Alliance Document and the consummation
of the actions and transactions contemplated therein has been
taken.
Litigation . There is no
action, suit, proceeding or investigation pending, or to
RDC’s knowledge, currently threatened against RDC that
questions the validity of this Addendum or any other Alliance
Document, or the right of RDC to enter into such agreements, or to
consummate the actions and transactions contemplated hereby or
thereby.
Representations and Warranties of
BRLI . BRLI hereby represents and warrants to RDC
as follows:
Authority; Binding Agreement;
Non-contravention . BRLI has full power and
authority to execute and deliver this Agreement and the other
Alliance Documents and to perform its obligations hereunder and
thereunder. This agreement and the other Alliance Documents,
when executed, will constitute the valid and binding obligation of
BRLI, enforceable in accordance with their respective terms.
Neither the execution and delivery of this Addendum and the other
Alliance Documents, nor the consummation of the actions and
transactions contemplated herein and therein will, with or without
the passage of time or the delivery of notice, (i) conflict with,
result in a breach or constitute a default under any note, bond,
mortgage, indenture, license, franchise, permit, agreement, lease
or other instrument or obligation to which BRLI is a party or
bound, (ii) violate any statute, ordinance or law or any rule,
regulation, order, writ, injunction or decree of any court,
administrative agency, commission or other governmental entity or
instrumentality, or (iii) violate any provision of the Articles of
Incorporation, bylaws or other constituent documents of BRLI.
Organization . BRLI is a
corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey.
Consents . No notice to,
filing with or authorization, consent or approval of any
governmental entity or third party is necessary for the
consummation by BRLI of the actions and transactions contemplated
by this Addendum and the other Alliance Documents.
Confirmation of CareEvolve Representations and
Warranties . All representations and warranties
made by CareEvolve in this Addendum or any other Alliance Document
are true, correct and complete, and no such
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representation or
warranty contains any untrue statement of a material fact, or omits
a material fact necessary to make the statements therein not
misleading.
Authorization . All corporate
action on the part of BRLI and its directors and its shareholders
necessary for the authorization, execution, delivery and
performance by BRLI of each Alliance Document and the consummation
of the actions and transactions contemplated therein has been
taken.
Litigation . There is no
action, suit, proceeding or investigation pending, or to
BRLI’s knowledge, currently threatened against BRLI that
questions the validity of this Addendum or any other Alliance
Document, or the right of BRLI to enter into such agreements, or to
consummate the actions and transactions contemplated hereby or
thereby.
Representations and Warranties of
CareEvolve . CareEvolve hereby represents and
warrants to RDC as follows:
Authority; Binding Agreement;
Non-contravention . CareEvolve has full power and
authority to execute and deliver this Addendum and the other
Alliance Documents and to perform its obligations hereunder and
thereunder. This Addendum and the other Alliance Documents,
when executed, will constitute the valid and binding obligation of
CareEvolve, enforceable in accordance with their respective
terms. Neither the execution and delivery of this Addendum
and the other Alliance Documents, nor the consummation of the
actions and transactions contemplated herein and therein will, with
or without the passage of time or the delivery of notice, (i)
conflict with, result in a breach or constitute a default under
an
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