EXHIBIT 10.26
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT
HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.]
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT dated as of December 8, 1997 (this "Agreement"),
is entered into between BIOSITE DIAGNOSTICS INCORPORATED, a Delaware corporation
("BIOSITE"), and E. MERCK, a German general partnership ("MERCK"). The parties
hereby agree as follows:
1. The Distributorship Agreement dated as of July 27, 1992 (the
"Distributorship Agreement"), between BIOSITE and MERCK, is terminated in its
entirety effective as of June 30, 1998; PROVIDED, HOWEVER, ***.
2. Pursuant to Section 4.4(d) of the Distributorship Agreement, BIOSITE
hereby exercises its option to assume the registrations (as defined in Section
4.4(a) thereof) for the PRODUCTS.
3. MERCK hereby assigns to BIOSITE all of its right, title and interest
in and to the registrations for the PRODUCTS. In accordance with Sections 4.4
and 7.3(e) of the Distribution Agreement, MERCK shall assist BIOSITE to transfer
to BIOSITE any registrations for PRODUCTS, or to obtain any registration for the
PRODUCTS in the name of BIOSITE.
4. On or before February 28, 1998, MERCK shall provide BIOSITE with the
following:
(a) copies of all advertising, promotional literature, packaging, and
package inserts used in connection with the PRODUCTS;
(b) copies of all accounts, CUSTOMER records, billing records,
marketing reports, technical service records, and other files maintained in
connection with the PRODUCTS on a country-by-country basis; and
(c) a list and copies of all long-term contracts with CUSTOMERS for
negotiation of the delivery of PRODUCTS pursuant to Section 7.3(d) of the
Distribution Agreement.
5. Except as otherwise expressly set forth in Section 6 below, BIOSITE
and MERCK each hereby releases and discharges the other party from all
obligations pursuant to the Distribution
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Agreement accruing after the effective date of the termination thereof.
6. Notwithstanding anything to the contrary in this Agreement, (a) the
obligations of BIOSITE to repurchase MERCK's unused inventory of PRODUCTS
pursuant to Section 7.3(b) of the Distributorship Agreement shall survive
termination of the Distributorship Agreement; (b) in accordance with Section 4.8
of the Distributorship Agreement, the indemnification provisions of Section 4.8
shall survive termination of the Distributorship Agreement; and (c) in
accordance with Section 6.1 of the Distributorship Agreement, the
confidentiality provisions of Section 6.1 shall survive termination of the
Distributorship Agreement for a period of five (5) years from the date of the
termination thereof.
7. Prior to the six (6) month anniversary of the termination of the
Distribution Agreement, neither MERCK nor any of its affiliated companies shall,
directly or indirectly, sell, offer for sale, promote or act as sales agent for
the solicitation of orders in the TERRITORY for any products for the detection
of more than four (4) drugs of abuse.
8. Prior to *** of the termination of the Distribution Agreement, neither
BIOSITE nor any of its affiliated companies shall, directly or indirectly, sell,
offer for sale, promote or act as sales agent for the solicitation of orders in
the TERRITORY for ***, provided, however, that BIOSITE and its affiliated
companies shall have the right to sell, offer for sale, promote or act as sales
agent for the solicitation of orders in the TERRITORY for *** to customers of
Biosite and its affiliated companies existing as of the date of the termination
of the Distributorship Agreement.
9. MERCK shall execute all such further documents, instruments and
agreements, and take all such further actions as reasonably necessary to
facilitate the transition from MERCK to BIOSITE of the distribution rights under
the Distributorship Agreement. MERCK shall not directly or indirectly take any
action to discourage MERCK's existing customers for PRODUCTS from continuing to
purchase PRODUCTS.
10. All terms used, but not defined, in this Agreement shall have the
respective meanings set forth in the Distributorship Agreement.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without reference to the conflicts of law
principles thereof.
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
-2-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first set forth above.
BIOSITE DIAGNOSTICS INCORPORATED
By: /s/ Xxx X. Xxxxxxxxxxxx
---------------------------------
Title: President
------------------------------
E. MERCK KGaA
ppa.
By: /s/ Xx. Xxxxxxx
---------------------------------
Title: General Manager
----------------------------
Laboratory Products Division
ppa.
By: /s/ Xx. Xxxxxxx
---------------------------------
Xx. Xxxxxxx
Title: /s/ General Manager
------------------------------
Environmental and Bioanalysis
Darmstadt, Dec. 8, 1997
-3-
