AMENDMENT NO. 7 TO AGREEMENT
EXHIBIT 10.90
AMENDMENT NO. 7 TO
AGREEMENT
AGREEMENT
This Amendment No. 7 (“Amendment No. 7”) is entered into effective as of May 20, 2005 (the
"Amendment Effective Date”), pursuant to and amending that certain Agreement between Gen-Probe
Incorporated, a Delaware corporation (“Gen-Probe”) and Chiron Corporation, a Delaware corporation
(“Chiron”). Capitalized terms used but not defined herein shall have the meanings set forth in the
Agreement.
Recitals
A. The parties entered into the Agreement as of June 11, 1998 pursuant to which, among other
things, the parties described their respective rights and obligations with respect to the
development, manufacture, marketing and distribution of Products in the Blood Screening and
Clinical Diagnostic Fields.
B. The Agreement has been previously amended and supplemented by further written agreements of
the parties.
C. Subsequent to the execution of the Agreement, Chiron assigned its rights and obligations
with respect to Clinical Diagnostic Products to Chiron Diagnostics Corporation (“CDC”), and sold
the common stock of CDC to Bayer Corporation (CDC, Bayer Corporation, and Bayer Corporation’s
affiliates being collectively referred to as “Bayer”). Chiron retained all rights and obligations
under the Agreement with respect to Blood Screening Products. This amendment is effective as
between Chiron and Gen-Probe with respect to Blood Screening Products only, and nothing herein
shall affect any rights or obligations of Gen-Probe or Bayer with respect to Clinical Diagnostic
Products.
D. The parties have discussed a revision to and clarification of their respective rights and
obligations with respect to Section 1.29, and have agreed to make certain changes to the Agreement
in connection therewith, in accordance with the provisions of this Amendment No. 7.
Agreement
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth in
this Amendment No. 7, the parties agree as follows:
1. Definition of First Commercial Sale. Section 1.29 of the Agreement shall be and is
hereby amended to read as follows:
1.29 “First Commercial Sale” shall mean, with respect to any Product, the
first sale of such Product in the United States, for use by a Third Party, after FDA
license approval or clearance of such Product (and without considering product
transfers made pursuant to an Investigational New Drug application).
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2. No Other Amendment. Except as is expressly set forth in this Amendment No. 7, all
other terms and conditions of the Agreement shall continue in full force and effect.
3. Counterparts. This Amendment No. 7 may be executed in counterparts, each of which
shall be an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 7 to be executed and the
persons signing below warrant that they are duly authorized to sign for and on behalf of the
respective parties.
Gen-Probe: | Chiron: | |||||||||
GEN-PROBE INCORPORATED, | CHIRON CORPORATION, | |||||||||
a Delaware corporation | a Delaware corporation | |||||||||
By:
|
/s/ Xxxxx Xxxxxxxx | By: | /s/ Xxxx Xxxxxxx | |||||||
Xxxxx Xxxxxxxx | Xxxx Xxxxxxx | |||||||||
Its: President & Chief Executive Officer | Its: President, Chiron Blood Testing | |||||||||
Date: May 16, 2005 | Date: May 20, 2005 |
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