Exhibit 10.72
***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4)
AND 240.24B-2
2003 AMENDMENT
TO THE RENEWED DISTRIBUTORSHIP AGREEMENT AND
THE DISTRIBUTORSHIP ARRANGEMENTS AGREEMENT
DATED MAY 2ND, 1997
This amendment is entered into as of the 2nd day of May 2003 by and between
Gen-Probe Incorporated, a Delaware corporation, with its principal place of
business located at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000
("GEN-PROBE) and bioMerieux S.A., a French corporation, having its principal
place of business at Xxxxxx xx x'Xxxx, 00000 Xxxxx X'Xxxxxx, Xxxxxx
("BIOMERIEUX").
RECITALS
A. GEN-PROBE and BIOMERIEUX have entered into a Distribution Agreement and a
Distributorship Arrangements Agreement ("the Agreements") both dated May
2nd, 1997, under which GEN-PROBE has appointed BIOMERIEUX as its exclusive
distributor for the sales of certain products in certain specified
countries.
B. The Distributorship Arrangements Agreement has been modified twice from
its date of conclusion, by way of amendments, in order to (i) delete
Singapore from the list of countries identified as Phase II Countries, and
(ii) to include Poland, a Phase III Country, into the definition of the
Territory pursuant to Section 1.5 of the Distributorship Arrangement
Agreement.
C. The Distribution Agreement has been modified once from its date of
conclusion, by way of amendment dated February 2, 1998, in order to (i)
modify the wording of Section 3.3 of the Distribution Agreement, and (ii)
to delete Exhibit C to the Distribution Agreement.
D. The Distribution Agreement and the Distribution Arrangements Agreement are
sometimes collectively referred to in this Amendment as "the Distribution
Agreements."
E. The original term of the Distribution Agreements has been extended by a
Renewal Amendment signed by the parties as of November 23, 1999.
F. Gen-Probe and BIOMERIEUX have entered into a Authorized Representative
Appointment Agreement dated July 15, 1998 in order to comply with the
requirements of the Council Directive 93/42/EEC of June 14, 1993
concerning medical devices and the sale of the Gen-Probe Collection Kits
in Europe.
G. GEN-PROBE and BIOMERIEUX have expressed their mutual interest in extending
the Distribution Agreements and have therefore decided to enter into this
2003 Amendment to the renewed Distribution Agreements.
1
AMENDMENT
Now, therefore, in consideration of the mutual commitments set forth below, the
parties hereto as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Agreements.
2. The parties hereto mutually agree to renew the Term of the Agreements for
a further period of three (3) years, starting from May 2nd, 2003 (the
"Renewed Term"), unless earlier terminated according to the provisions of
the Agreements. No less than one year prior to the scheduled expiration of
the Renewed Term, the parties shall commence good faith negotiations
regarding another possible extension of the Renewed Term on mutually
acceptable terms, provided that, unless the parties shall have reached
mutual agreement on the terms and conditions of such an extension within
six (6) months of the scheduled expiration of the Renewed Term, the
Renewed Term shall automatically expire on the date set forth in the first
section of this Section 2.
3. Notwithstanding the provisions of the foregoing Paragraph 2, during the
Renewed Term, either party may terminate the Agreements as of their
anniversary date in any year by giving notice to the other party at least
120 days prior to the anniversary date of an intention to terminate or
seek amendment of the Agreements. Furthermore, during the Renewed Term of
the Agreements, GEN-PROBE shall have the additional right and option to
terminate the Agreements, by giving 90-days notice, if BIOMERIEUX's
purchases of GEN-PROBE products under the Distribution Agreement during
any period of not less than [...***...] fall [...***...] or more below
purchases for the corresponding period of the prior year. The calculation
of the amount of decrease in BIOMERIEUX's purchases from GEN-PROBE for
purposes of the preceding sentence shall exclude any decline in
BIOMERIEUX's purchases from GP due to (i) sales of APTIMA Products by
GEN-PROBE from former customers for GP products and/or (ii) any recalls of
product by GEN-PROBE.
4. The Parties mutually agree to amend the Distribution Agreement with the
updated Product list and Parts list Pricing which is attached to this
Amendment as Attachment A.
5. The Parties mutually agree to amend the Distribution Arrangements
Agreement to define the Territories as those countries listed on
Attachment B to this Amendment.
6. As the manufacturer and as outlined in the 93/42/EEC Directive and
98/79/EC Directive (collectively the "Directives"), Gen-Probe is aware of
the terms of the Directives and acknowledges its obligations as the
manufacturer for the compliance of Products which are provided to
bioMerieux for distribution into the EEC. In conjunction with the
Directives, Gen-Probe also warrants to provide bioMerieux the following:
A. Gen-Probe will provide a 6-language standard Product. Additional
languages will be mutually discussed in the future.
B. Gen-Probe will provide bioMerieux with the following materials:
*CONFIDENTIAL TREATMENT REQUESTED
2
- The declaration of conformity for the Products covered by the
Directives and any relevant updates thereof, and
- A copy of the safety data sheet written in English for
Products considered to contain a dangerous substance as
defined in directives 67/548/EEC and 1999/45/EC and any
relevant updates thereof.
C. Both Parties agree to authorize and conduct audits in the premises
involved in the manufacturing, packaging, storage and shipment of
the Products as required by the Directives.
D. Gen-Probe agrees to implement appropriate corrective and / or
preventative actions for complaints relating to the Products.
7. For the MTC-NI Product, sold into the Industrial Marketplace (Non Clinical
sites) the Distribution rights of this Product will change from Exclusive
to Co-Exclusive.
8. Except as expressly modified hereby, all terms and conditions of the
original Distribution Agreements (as previously amended) shall remain
unchanged and in full force and effect.
AGREED TO AND ACCEPTED BY:
GEN-PROBE INCORPORATED BIOMERIEUX S.A.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx Adelus
--------------------- -----------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx Adelus
Title: President & CEO Title: Chief Executive Officer
3
ATTACHMENT A
PRODUCT LIST WITH PRICING
CAT # DESCRIPTION U.O.M. NEW PRICE
----- ----------- ------ ---------
1791F DETECTION REAGENT KIT Kit $ [...***...]
1792F PACE 2 CHLAMYDIA TRACHOMATIS Kit $ [...***...]
1793F PACE 2 NEISSERIA GONORRHOEAE Kit $ [...***...]
2325F STD PROFICIENCY PANEL, 3 VIALS/BOX Kit $ [...***...]
2930F FAST EXPRESS REAGENT KIT Kit $ [...***...]
3275F MALE COLLECTION KITS Kit $ [...***...]
3300F FEMALE COLLECTION KITS Kit $ [...***...]
3548F PACE 2 C. TRACHOMATIS PROBE COMPETITION ASSAY Kit $ [...***...]
3549F PACE 2 N. GONORRHOEAE PROBE COMPETITION ASSAY Kit $ [...***...]
3905F PACE 2C FOR C. TRACHOMATIS & N. GONORRHOEAE Kit $ [...***...]
1001F AMPLIFIED M. TUBERCULOSIS DIRECT Kit $ [...***...]
1043F MTD CONTROLS Kit $ [...***...]
LR0019F MTD NEG. CONTROL Each $ [...***...]
LR0030F MTD POS. CONTROL Each $ [...***...]
3890F GROUP A STREPTOCOCCUS DIRECT Kit $ [...***...]
4573F MYCOPLASMA T.C. NON-ISOTOPIC (MTC-NI) Kit $ [...***...]
301012F AMPLIFIED CHLAMYDIA TRACHOMATIS Kit $ [...***...]
301015F SWAB PROCESS, AMPLIFIED CT Kit $ [...***...]
301016F URINE PROCESS, AMPLIFIED CT Kit $ [...***...]
2810F ACCUPROBE CAMPYLOBACTER Kit $ [...***...]
2815F ACCUPROBE ENTEROCOCCUS Kit $ [...***...]
2820F ACCUPROBE GROUP B STREPTOCOCCUS Kit $ [...***...]
2825F ACCUPROBE HAEMOPHILUS INFLUENZAE Kit $ [...***...]
2830F ACCUPROBE NEISSERIA GONORRHOEAE Kit $ [...***...]
2865F ACCUPROBE STREPTOCOCCUS PNEUMONIAE Kit $ [...***...]
2875F ACCUPROBE STAPHYLOCOCCUS AUREUS Kit $ [...***...]
2920F ACCUPROBE LISTERIA MONOCYTOGENES Kit $ [...***...]
2925F ACCUPROBE GROUP A STREPTOCOCCUS Kit $ [...***...]
2800F ACCUPROBE GENERIC REAGENT KIT Kit $ [...***...]
2890F ACCUPROBE BLASTOMYCES DERMATITIDIS Kit $ [...***...]
2895F ACCUPROBE COCCIDIOIDES IMMITIS Kit $ [...***...]
2910F ACCUPROBE HISTOPLASMA CAPSULATUM Kit $ [...***...]
2835F ACCUPROBE MYCOBACTERIUM AVIUM Kit $ [...***...]
2840F ACCUPROBE M. INTRACELLULARE Kit $ [...***...]
2845F ACCUPROBE M. AVIUM COMPLEX Kit $ [...***...]
2850F ACCUPROBE MYCOBACTERIUM GORDONAE Kit $ [...***...]
2855F ACCUPROBE MYCOBACTERIUM KANSASII Kit $ [...***...]
2860F ACCUPROBE M TUBERCULOSIS COMPLEX Kit $ [...***...]
2775F GEN-PROBE HEAT BATH (20 tube capacity) Each $ [...***...]
3100i LEADER(R) 50i Each $ [...***...]
0000 XXX-XXXXX HEAT BATH (50 tube capacity) Each $ [...***...]
1639F PACE(R) MAGNETIC SEPARATION UNIT (80 tube capacity) Each $ [...***...]
1714 BOTTLE TOP DISPENSER (2mL) Each $ [...***...]
1847F LEADER(R) PRINTER PAPER (1 roll/pack) Package $ [...***...]
*CONFIDENTIAL TREATMENT REQUESTED
CAT # DESCRIPTION U.O.M. NEW PRICE
----- ----------- ------ ---------
2065F PACE(R) REACTION TUBES (120 tubes/box) Box $ [...***...]
2085F PACE(R) SEALING CARDS (35/pack) Package $ [...***...]
0000 XXXXXXXXX REPEAT PIPETTOR Each $ [...***...]
2168F TRITIUM STANDARD Each $ [...***...]
2440F POLYPROPYLENE TUBES (250 tubes/pack) Package $ [...***...]
2775A HEATING BLOCK INSERT (20 tube capacity) Each $ [...***...]
3078 BOTTLE TOP DISPENSER (5mL) Each $ [...***...]
3919 WASH BOTTLE & CAP ASSEMBLY (200 ml capacity) Each $ [...***...]
3994F 50-WELL STRIP RACK SYSTEM (50 tubes) Each $ [...***...]
4008 BLUE SNAP CAPS (150/package) Package $ [...***...]
4027F SONICATOR RACK (50 hole) Each $ [...***...]
4085F PLUGGED PIPETTE TIPS (175 mL - 1 case, 6 boxes/case, 120/box) Case $ [...***...]
4224F PLUGGED PIPET TIPS, EXT. LENGTH 250 mL (6 boxes/case) Case $ [...***...]
4316F PLUGGED PIPET TIPS, 1250 mL (6 boxes/case) Case $ [...***...]
1042F LDR CHECK-D Each $ [...***...]
*CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
TERRITORIES COVERED BY BIOMERIEUX
EUROPE :
France (Oct 97)
Germany (Jan 98)
Italy (Feb 98)
Spain (Jan 98)
UK (Jan 98)
Ireland (sales made through UK) (Jan 99)
Portugal (Jan 98)
Greece (June 98)
Switzerland (Jan 98)
Belgium (Jan 98)
Luxembourg (sales made through Belgium) (Jan 98)
The Netherlands (Jan 98)
Austria (Jan 98)
Czech Republic (Sales made through Austria) (Jan 98)
Hungary (Sales made through Austria) (Jan 98)
Slovakia (Sales made through Austria) (Jan 98)
Romania
Tunisia
Croatia (Sales made through A&B) (Jan 98)
Macedonia (Sales made through Avicena) (April 00)
Slovenia (Sales made through Mikro-polo) (Jan 98)
Poland (Oct 98) Liechtenstein (Sales made through Switzerland)
Malta (Jan 98)
Iceland
LATIN AMERICA :
Argentina (June 99)
Columbia
Mexico (Jan 00)
ASIA & PACIFIC :
Australia (Jan 98)
New Zealand (sales made through Australia) (Jan 99)
China (Jan 01)
Taiwan (March 03)
India (May 00)
