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.
EXHIBIT 10.14
DISTRIBUTORSHIP ARRANGEMENTS AGREEMENT
This Distributorship Arrangements Agreement (the "Agreement") is entered
into this 2nd day of May, 1997, by and between Gen-Probe Incorporated, a
Delaware corporation, with its principal place of business located at 0000
Xxxxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, XXX ("GEN-PROBE"), and
bioMerieux S.A., a French corporation, having its principal place of business
located at Xxxxxx xx x'Xxxx, 00000 Xxxxx X'Xxxxxx, Xxxxxx ("BIOMERIEUX").
RECITALS
A. BIOMERIEUX and GEN-PROBE have entered into a Distribution Agreement
of even date herewith, pursuant to which BIOMERIEUX has agreed to act as
exclusive distributor for the sale of certain GEN-PROBE products in certain
specified countries.
B. To permit BIOMERIEUX to assume responsibilities as exclusive
distributor for GEN-PROBE, GEN-PROBE will undertake negotiations to terminate
its existing distribution agreements relating to such countries in an orderly
fashion consistent with all legal obligations toward existing distributors; and
C. BIOMERIEUX will assist GEN-PROBE in connection with such negotiated
arrangements, by providing a Termination Allocation on a country by country
basis as provided hereafter.
AGREEMENT
Now, therefore, the parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the terms
set forth below shall have the following meanings. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Distribution Agreement.
1.1 "Phase I Countries" shall mean France, Italy, Malta,
Germany, Spain, Portugal, Austria, Switzerland, Liechtenstein, United Kingdom,
Australia, Ireland, Netherlands, Belgium and Luxembourg.
1.2 "Phase II Countries" shall mean South Korea, New Zealand,
Greece, Singapore and Iceland.
1.3 "Phase III Countries" shall mean any countries not listed
as Phase I Countries or Phase II Countries, but excluding the (i) United
States, Canada and Japan and (ii)
the Peoples Republic of China, Hong Kong, Taiwan, Philippines, Malaysia,
Indonesia, Singapore and Thailand. It is recognized that the parties may in the
future consider the possible inclusion of one or more of the countries listed in
sub-clause (ii) of the preceding sentence within the Phase III Countries,
provided that any such inclusion shall require a written amendment of this
Agreement and, provided further, that neither party shall be under any
obligation whatsoever to agree to any such inclusion or to execute any such
amendment. If GEN-PROBE elects to appoint an exclusive distributor other than
Chugai Pharmaceuticals or an Affiliate of Chugai Pharmaceuticals in any of the
countries listed in sub-clause (ii) of the next preceding sentence, GEN-PROBE
shall give BIOMERIEUX priority consideration for such appointment.
1.4 "Termination Allocation" shall mean (i) for each Phase I Country
and on a country-by-country basis, up to the maximum amount of [***] which
BIOMERIEUX will pay to GEN-PROBE in respect of payments made by GEN-PROBE (other
than the amounts described in Section 2.1(b) below) to terminate GEN-PROBE's
present distributors, as calculated in accordance with Exhibit A hereto, and
(ii) for Phase II Countries and Phase III Countries, the aggregate amount of
[***] to be paid in respect of the termination of existing distributors in such
other countries as the parties shall mutually agree. The total of the foregoing
sums is hereinafter referred to a the "Termination Amount".
1.5 "Territory" shall mean such of the Phase I Countries, Phase II
Countries and Phase III Countries in which all existing distribution agreements
with third parties relating to the distribution of GEN-PROBE's Products in such
countries as have been designated by GEN-PROBE on Exhibit A have been terminated
by mutual agreement of GEN-PROBE and such third parties in such manner as to
permit BIOMERIEUX to undertake its responsibilities hereunder, it being agreed
that (i) no such country shall be deemed to be included within the Territory
unless and until all the designated distribution agreements for said country
have been so terminated, (ii) no country identified as a Phase II Country shall
be deemed to be included in the Territory unless and until all of the Phase I
Countries have become part of the Territory (except that the foregoing
requirement may be waived by BIOMERIEUX in its sole discretion in respect of any
of the Phase I Countries (although any such waiver shall not affect GEN-PROBE's
obligation to effect such terminations)), and (iii) no country identified as a
Phase III Country shall be deemed to be included in the Territory unless so
designated by mutual written agreement of the parties hereto.
2. Termination of Existing Arrangements.
2.1 Third Party Distributors.
(a) Attached hereto as Exhibit B is a list of all third party
distributors currently distributing GEN-PROBE's Products within the Phase I
Countries, the Phase II Countries and the Phase III Countries as of the date
hereof ("Existing Distributors"). GEN-PROBE agrees to use all reasonable efforts
to terminate its distribution agreements in Phase I Countries with each of said
distributors as promptly as possible, it being agreed that such efforts shall be
an ongoing requirement during a reasonable period until success is achieved in
each
***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.
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such country but shall not be deemed to require aggregate payments by GEN-PROBE
to any such third parties in any country of total amounts in excess of the
Termination Allocation for such country, increased by the excess, if any, of the
amount, if any, by which the Termination Allocation for Phase I Countries as to
which all the designated distribution agreements have been previously terminated
by GEN-PROBE exceeded the amount actually paid to the terminated distributors
therein. With respect to each of the Phase I Countries, the Termination
Allocation (adjusted as aforesaid) shall be paid by BIOMERIEUX to GEN-PROBE
within five days of certification by GEN-PROBE that one or more agreements have
been reached for the termination of all the distribution agreements with respect
to such country or (in the case of the Benelux countries, the Benelux region to
be considered as a unit), subject only to the payment of termination amounts to
the Existing Distributor(s) not exceeding the amounts described above. The
Termination Allocation for the Phase II Countries and the Phase III Countries
shall be paid as the parties mutually agree.
(b) It is understood and agreed that GEN-PROBE may seek to
repurchase the inventory of systems and reagents and the installed base of
systems from each terminated distributor. GEN-PROBE undertakes to use
reasonable efforts to reacquire the inventory of systems and reagents and the
installed base of systems from each terminated distributor on the terms and
conditions set forth in Exhibit C. To the extent GEN-PROBE is able to effect
such repurchases in accordance with Exhibit C, BIOMERIEUX shall be obligated,
upon completion of an appropriate audit, to purchase such inventory and systems
at a price equal to the amount so paid by GEN-PROBE to the applicable
terminated distributor for the relevant items. In each case, GEN-PROBE and
BIOMERIEUX shall cooperate with each other in any reasonable arrangements
designed to minimize any sales, use, value added and other taxes applicable to
such transactions, including, by way of example, through the assignment by
GEN-PROBE to BIOMERIEUX of its right to purchase such inventory. GEN-PROBE
shall use best efforts to procure the transfer to BIOMERIEUX of any and all
product registrations obtained by the prior distributors.
2.2 Transfer of French Assets and Operations. Notwithstanding
anything to the contrary in Section 2.1, GEN-PROBE's existing arrangements in
France shall be terminated and operations transferred to BIOMERIEUX as provided
in Exhibit D hereto, which shall constitute an integral part of this Agreement.
2.3 GEN-PROBE's Obligation of Good Faith Compliance. All termination
negotiations by GEN-PROBE with Existing Distributors throughout the Territory
shall be carried out by GEN-PROBE in good faith consistent with applicable
legal requirements. BIOMERIEUX will not be called on to participate in any such
negotiations or to pay any of the costs thereof except as otherwise provided
herein.
3. Termination of Exclusivity.
In the event that BIOMERIEUX fails to achieve the Minimum Purchase
Commitment for any Performance Period and GEN-PROBE, pursuant to Section 3.3 of
the
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Distribution Agreement, terminates the exclusivity of the distribution rights
granted pursuant to Section 2.1 thereof, GEN-PROBE shall no longer be required,
from and after the effective date of exercise of such right, to terminate any
remaining distribution agreements of Existing Distributors hereunder.
4. Termination of Distribution Agreement.
This Agreement shall remain in effect until the expiration of the
Distribution Agreement. If GEN-PROBE shall terminate the Distribution Agreement
in accordance with the provisions thereof, GEN-PROBE shall have the right to
terminate this Agreement at the time of such termination. In addition, either
party may terminate this Agreement on written notice given to the other party
prior to the scheduled expiration of the Term in the event of a material breach
of any of the terms hereof or of the Distribution Agreement (including any
payment terms) by the other party not cured within sixty (60) days (thirty (30)
days for an obligation to pay monies unless the same is contested in good faith,
in which case, to avert default, the paying party may deposit the disputed
amount with a third-party escrow agent pending resolution of such dispute and
interest shall be payable on all disputed amounts determined to be payable at an
annual rate of two percentage points above the prime rate from time to time
quoted by Bank of America at its principal office in San Francisco, California,
with changes in such prime rate to be effective as of the date of such change)
from and after written notice of such breach is given by the terminating party.
Termination of this Agreement shall not release either party from any liability
or obligation arising prior to the date of such expiration or termination.
5. Application of Provisions.
The provisions set forth in Section 10 (Confidential Information), Section
12 (Relationship of the Parties), Section 14 (Termination) (other than Section
14.4), Section 15 (Indemnification), Section 17 (Notices) and Section 19
(Miscellaneous) (other than Section 19.5) of the Distribution Agreement shall
apply, mutatis mutandis to this Agreement as if set forth here in full and the
"Agreement" as referred to in such Sections shall be deemed for these purposes
to be this Agreement.
AGREED TO AND ACCEPTED BY
GEN-PROBE INCORPORATED BIOMERIEUX, S.A.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Philippe A. Archinard
---------------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxx Name: Philippe A. Archinard
Title: Senior Vice President and Title: Authorized Signatory
Chief Scientific Officer
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EXHIBIT A
Termination Allocation
----------------------
1. Based upon sales information provided by GEN-PROBE, the parties have
estimated that the Termination Allocation for each Phase I Country shall be as
set forth below. The parties shall reasonably consult with each other as to the
adequacy of such estimated allocations based upon actual negotiations with the
terminated distributors.
Australia [***]
Germany [***]
Ireland [***]
Italy/Malta [***]
Austria [***]
United Kingdom [***]
Spain/Portugal [***]
Switzerland/Liechtenstein [***]
Benelux [***]
--------
[***]
========
2. In addition, BIOMERIEUX shall reimburse GEN-PROBE for up to [***]
of termination payments made to expedite the termination of Existing
Distributors in Phase II Countries and Phase III Countries, subject to mutual
agreement of the parties with respect to such payments. GEN-PROBE shall
reasonably consult with BIOMERIEUX concerning such terminations in the Phase II
Countries so as to afford BIOMERIEUX a reasonable opportunity to commence
distribution operations in such countries.
***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.
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EXHIBIT B
List of Existing Distributors
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International Distributors
[4 Pages of International Distributors Deleted Pursuant to Confidential
Treatment Request]
EXHIBIT C
Certain Terms and Conditions
GEN-PROBE shall endeavor to acquire inventory and installed systems from
the Existing Distributors in the applicable countries on the following basis:
A. Inventories of Reagents - on the basis of final cost paid by the
Existing Distributor for the reagents ("Landed Cost Basis"). GEN-PROBE shall
seek to acquire such inventories subject to their conformity (after audit) with
BIOMERIEUX quality standards and provided that they have a remaining shelf life
of at least six months.
B. Inventories of Systems and System Parts - on a Landed Cost Basis.
GEN-PROBE shall seek to acquire such inventories that are in working order and
at the time of purchase appear in GEN-PROBE's latest catalogue with respect to
the territory involved (i.e., are marketable in the applicable territory).
C. Installed Systems - on the basis set forth below for such systems
installed during the specified period,
Period from Installation to Reacquisition Reacquisition Price/Basis
----------------------------------------- -------------------------
less than 1 year [***] Landed Cost Basis*
from 1 to 2 years [***] Landed Cost Basis*
from 2 to 3 years [***] Landed Cost Basis*
more than 3 years [***] Landed Cost Basis*
--------------
* But only if systems are still being used by the clients for whom they are
installed, and are still generating sales by way of reagent supply.
***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.
EXHIBIT D
Transfer Of French Assets and Operations
----------------------------------------
I. Transfer Of Certain Assets and Operations of Gen-Probe France, S.A.
In connection with conclusion of the accompanying Distributorship
Arrangements Agreement between Gen-Probe Incorporated ("GEN-PROBE") and
bioMerieux S.A. ("BIOMERIEUX"), GEN-PROBE will cause its wholly owned French
subsidiary, GEN-PROBE France, S.A. ("GP France"), to make the following
assignments and transfers to BIOMERIEUX and BIOMERIEUX will accept the same.
A. Assignment of Agreements.
1. All rights and obligations of GP France under the lease agreement
dated May 12, 1993, as amended to date, between GP France and
Vecteur Sud S.A. GP France will use reasonable efforts to obtain
any necessary consent of lessor or any other third party to such
assignment and, upon such assignment, GP France will surrender
occupancy of the demised premises to BIOMERIEUX. Rentals and
occupancy costs shall be allocated between GP France and
BIOMERIEUX pro rata to the respective portions of such year when
each is in occupancy of the premises. GEN-PROBE represents that
rental payments under such lease are FF. 143,000 per year, with
maintenance expense of FF. 19,100, and may be subject to normal
commercial escalation.
2. All rights and obligations of GP France under the distribution
agreement dated June 6, 1994 between Euralam, S.A. and GP France
(the "Euralam Agreement"). In connection with such assignment,
GEN-PROBE undertakes to supply products to BIOMERIEUX or to
Euralam for the account of BIOMERIEUX as provided in Article IV
below.
3. Such other contracts of GP France deemed necessary for its
distribution of products of GEN-PROBE in France as the parties
may agree.
B. Transfer of Employees.
GEN-PROBE will cause GP France to use reasonable efforts to cause four
employees selected by BIOMERIEUX to accept employment with BIOMERIEUX
and BIOMERIEUX shall extend an offer of employment to them on terms
and conditions substantially equivalent to those of their present
employment. GEN-PROBE has caused the terms and conditions of their
present employment to be disclosed to BIOMERIEUX by GP France and
GEN-PROBE warrants the
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accuracy of such disclosure. GEN-PROBE shall use reasonable efforts to
cause GP France to obtain any approvals and authorizations required in
connection with such transfer.
C. Transfer of Inventory.
GEN-PROBE shall cause GP France to permit BIOMERIEUX to inspect and
audit its inventory and to transfer its inventory to BIOMERIEUX in
accordance with the terms and conditions set forth in Exhibit C to the
Distributorship Arrangements Agreement and on the basis therein
provided, and BIOMERIEUX shall make payment accordingly. On
termination of the Distributorship Arrangements Agreement, GEN-PROBE
shall have the option to repurchase any inventory acquired by
BIOMERIEUX from GP France in accordance with Section 4 of said
agreement.
D. Payment for Goodwill.
BIOMERIEUX shall pay to GP France, simultaneously with the transfers
referred to above, the sum of [***] in respect of value of custom and
good will in connection with the foregoing arrangements and transfers.
II. GEN-PROBE Retention of Ownership of GP France.
GEN-PROBE shall retain ownership of the shares of GP France. GP France
shall remain responsible for all contracts, agreements, liabilities,
obligations, debts and other encumbrances of GP France, of whatever nature, not
specifically transferred or assigned to BIOMERIEUX as provided above (the
"Retained Obligations") and GEN-PROBE shall indemnify and hold BIOMERIEUX
harmless in respect of such Retained Obligations. If GEN-PROBE proceeds to
cause the winding-up and dissolution of GP France, GEN-PROBE shall be
responsible for all income tax obligations and other costs in connection
therewith. Each Party shall be responsible for, and shall pay when due, all
applicable sales, value added or similar taxes payable by it in connection with
the transfers contemplated by this Exhibit D.
III. Non-Competition.
Inasmuch as GEN-PROBE is appointing BIOMERIEUX as its exclusive
distributor pursuant to the Distribution Agreement concluded between GEN-PROBE
and BIOMERIEUX of even date herewith, GEN-PROBE shall not cause or permit any
distribution of products, goods or services through GP France in such manner as
to violate such agreement.
IV. Supply of Products as Needed for Sale to Euralam.
***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.
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GEN-PROBE shall supply to BIOMERIEUX its requirements of products for
fulfillment of obligations to Euralam pursuant to the Euralam Agreement. Such
supply shall be pursuant to the terms of Distribution Agreement except that (1)
prices shall be $48 per kit (Acuprobe Listeria) and (2) BIOMERIEUX and
GEN-PROBE shall accelerate orders and corresponding supply in such manner as
may be necessary to permit BIOMERIEUX to make timely supply to Euralam.
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