EXHIBIT 10.36
CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
FIRST AMENDMENT TO
SUPPLY AGREEMENT
This agreement is entered into by and between Gen-Probe Incorporated
("Gen-Probe") and Roche Diagnostics GmbH ("Roche").
RECITALS
WHEREAS, Gen-Probe and Boehringer Mannheim GmbH signed a Supply
Agreement effective March 5, 1998 with respect to certain products;
WHEREAS, subsequent to the execution of the Supply Agreement, Roche
Diagnostics GmbH succeeded to the rights and obligations of Boehringer Mannheim
GmbH under that Agreement; and
WHEREAS, the Parties now desire to amend the Supply Agreement as set
forth in this First Amendment.
AGREEMENT
In consideration of the facts recited above and the mutual commitments
set forth below, the parties agree as follows:
1. Definitions.
(A) Capitalized terms not defined in this Amendment shall have
the meanings set forth in the March 5, 1998 Supply Agreement and
shall be interpreted as of the original date of that Agreement.
(B) "Roche Diagnostics GmbH" is substituted for "Boehringer
Mannheim GmbH" in all instances where that term has prospective
application in the Agreement. "Roche" is substituted for "BM" in
all instances where that term has prospective application in the
Agreement.
2. Amendment of Section 10.1. Section 10.1 of the Supply Agreement
shall be and is hereby amended to read as follows:
10.1 The ownership of any and all intellectual property rights of
Roche in the Transformed Clone and Roche's T7 RNA Polymerase
shall remain with Roche. Roche recognizes that the Transformed
Clone is a derivative of an original clone previously supplied
to BM by Gen-Probe and Roche therefore agrees not to transfer
the Transformed Clone to any other person or entity (with the
exception of affiliates of Roche or subcontractors appointed by
Roche and authorized by Gen-Probe, which affiliates and
subcontractors shall have the same secrecy obligations as the
Parties with regard to the original Gen-Probe clone and the
Transformed Clone).
However, the Parties agree that Roche shall have the right to
sell [***]. Further, the Parties agree that Roche shall have the
right to use and sell [***]. Gen-Probe shall be entitled to
terminate Roche's rights under the two preceding sentences to
use and sell [***] by giving 24 months written notice; provided,
however, that Gen-Probe shall not be entitled to terminate
Roche's rights if Roche can reasonably substantiate that it is
required to maintain the supply to any customer under applicable
existing laws.
3. No Other Modification. Except as expressly modified by this First
Amendment, all prior agreements between the Parties shall remain in full force
and effect. Neither party waives any of its rights under such agreements except
to the extent of the express amendments set forth above.
IN WITNESS WHEREOF, the Parties have signed this First Amendment, which
shall be effective on the date that it is signed by the last Party to sign.
Mannheim, Germany San Diego, California U.S.A.
February 21, 2001 February 12, 2001
Roche Diagnostics GmbH Gen-Probe Incorporated
By /s/ XXXX XXXXXXXX By /s/ XXXXX X. XXXXXXXX
--------------------------------- -------------------------------------
Xx. Xxxx Xxxxxxxx Xxxxx X. Xxxxxxxx
Director Global Marketing
Molecular Diagnostics/Immunology President and Chief Executive Officer
By /s/ XXXXXX XXXXXXXXX
--------------------------------- [SEAL]
Xxxxxx Xxxxxxxxx
Legal Counsel Molecular Biochemicals
***Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
