1
Exhibit 10.2
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
CUSTOMER TRANSFER AGREEMENT
This serves to record the agreement (the "Agreement"), effective as of
the 1st day of February, 1997 between DIGENE CORPORATION ("DIGENE") of 0000
Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, X.X.X. and MUREX DIAGNOSTICS
CORPORATION ("MUREX") of Xxxxx Xxxx Xxxxx, Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
(the "Parties") relating to the transfer to DIGENE of the sales and customer
lists of MUREX and its AFFILIATES for the diagnostic products as specified in
SCHEDULE 1 hereto in those countries specified in SCHEDULE 2 hereto. All
currency amounts, including "$", set forth herein shall refer to United States
currency.
1. Definitions.
1.1 "Affiliate" shall mean any Person that controls, is controlled
by or is under common control with Murex or Digene, as the
context may require. For purposes of this definition "control"
shall mean: (a) in the case of corporate entities, direct or
indirect ownership of at least fifty percent (50%) of the
stock or shares entitled to vote for the election of
directors; and (b) in the case of non-corporate entities,
direct or indirect ownership of at least fifty percent (50%)
of the equity interest with the power to direct the management
and policies of such non-corporate entities.
1.2 "Customer" shall mean any Person who purchases exclusive
Products from Murex or any of its Affiliates in the Territory
or purchases non-exclusive Products from Murex or any of its
Affiliates in the Territory for HPV-testing purposes.
1.3 "Effective Date" shall mean the date first set forth herein.
1.4 "HPV" shall mean Human Papillomavirus.
1.5 "HPV Information" shall have the meaning set forth in Section
2.1 hereof.
1
2
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
1.6 "Person" shall mean an individual, a corporation, a
partnership, an association, a joint stock company, a trust,
any unincorporated organization or a government or political
subdivision thereof.
1.7 "Products" shall mean the exclusive and non-exclusive products
set forth on Schedule I attached hereto.
1.8 "Territory" shall mean the counties set forth on Schedule II
attached hereto.
2. Transfer of Customer Lists and Consideration.
2.1 Murex shall cause itself and its Affiliates to transfer all
HPV Information in their possession to Digene. For purposes of
this Agreement, HPV Information means the Customer lists
relating to Customers in the Territory to whom Products have
been sold in the previous 12 months, lists of Customers to
whom Products have been sold in the Territory but not in the
previous 12 months, lists of prospective Products Customers in
the Territory and any mailing lists used by Murex or any of
its Affiliates for sending information on Products to any
current or prospective Customers in the Territory and the
goodwill associated with such HPV Information. The aforesaid
HPV Information shall only be used by Digene in its normal
course of business, shall be confidential to the Parties and
Digene shall not resell or provide the foregoing HPV
Information to any other commercial organization unless it is
included as part of the sale or joint venture of the business
or Products lines. Without limitation of Murex's right to make
use of its customer lists, the foregoing is not intended to
preclude Murex's ability to continue to use its customer
lists, which may include the HPV Information, for non-HPV
purposes in the Territory and anywhere in the world or for any
purpose outside the Territory in the countries as listed on
Schedule 3 attached hereto.
2.2 Digene will pay Murex as consideration for the HPV Information
a total payment of $2,702,750, which payment will be made as
follows. Digene shall within 5 business days following the
Effective Date pay $500,000 to an account specified by Murex.
Within 5 business days following the Effective Date, Digene
will place the remaining $500,000 in an escrow account
specified by Murex (the "Escrow Payment") in accordance with
the terms of the Escrow Agreement between the Parties of even
date herewith (the "Escrow Agreement"), a form of which is
attached as Exhibit "A" to this Agreement. Murex will direct
the Escrow Agent (as defined in the Escrow Agreement) to
release the Escrow Payment to Murex on April 1, 1997, if Murex
has provided Digene with the HPV Information. In accordance
with the terms of the Escrow Agreement, Digene shall have the
right to instruct the Escrow
2
3
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Agent not to release the Escrow Payment. Digene agrees not to
issue such contrary instructions if Murex has provided the HPV
Information.
The payment of the remaining $1,702,750 will be made as
follows. Digene will, on the Effective Date, deliver to the
Escrow Agent an executed promissory note in the form of
Exhibit "B" hereto, effective as of [ ] (the "[ ]
Note"), in the amount of $[ ] payable to Murex in [ ]
installments, such subpayments to be made on the following
dates and in the following amounts:
[ ]
Murex will direct the Escrow Agent to release the [ ] Note to
Murex on or after [ ] if the Products sales target
levels set forth in Section 2.3 hereof are met. In accordance
with the terms of the Escrow Agreement, Digene shall have the
right to instruct the Escrow Agent not to release the July
Note. Digene agrees not to issue such contrary instructions if
the Products sales target levels are met.
Digene will, on the Effective Date, deliver to the Escrow
Agent an executed promissory note in the form of Exhibit "C"
hereto effective as of [ ] (the "[ ] Note"),
in the amount of $[ ] payable to Murex in [ ]
installments, such subpayments to be made on the following
dates and in the following amounts:
[ ]
Murex will direct the Escrow Agent to release the [ ]
Note to Murex on or after [ ] if the Products
sales target levels set forth in Section 2.3 hereof are met.
In accordance with the terms of the Escrow Agreement, Digene
shall have the right to instruct the Escrow Agent not to
release the [ ] Note. Digene agrees not to issue such
contrary instructions if the Products sales target levels are
met.
3
4
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
All payments under the [ ] Note and the [ ] Note shall
be without right of set-off, withholding or counterclaim by
Digene.
The obligations evidenced by the [ ] Note and the [ ]
Note are primary obligations of Digene hereunder. If for any
reason the [ ] Note or the [ ] Note are held to be
invalid or unenforceable, or are not issued because the Escrow
Agreement is for any reason held to be invalid or
unenforceable, Digene agrees to make such payments as are set
forth in this Section 2.2 directly to Murex upon the
respective scheduled payment dates, notwithstanding such
invalidity or unenforceability, subject only to the
satisfaction of the conditions provided in Section 2.3 hereof.
The foregoing will only be applicable in the event of such
invalidity or unenforceability and will not require Digene to
make duplicate payments.
2.3 The release to Murex of the [ ] Note and the [ ] Note
issued by Digene pursuant to Section 2.2 hereof are subject to
Digene having made Product sales in the Territory of a minimum
of US $[ ] per three month period in the most recent three
month period immediately preceding the release of the [ ]
Note or the [ ] Note, as applicable, for which sales
figures are available. If such minimum Product sales target
levels are not met in the three month period immediately
preceding the release of the [ ] Note or the [ ] Note,
as applicable, the Escrow Agent will be instructed by Murex to
release the [ ] Note or the [ ] Note, as applicable, to
Digene. Notwithstanding the aforesaid, if the three month
sales minimum referenced herein is not met due to any default
by Digene in the timely delivery of Product to customers in
the Territory or in the quantity and meeting the
specification, quality and performance claims of Digene, then
this Section 2.3 shall be of no effect.
2.4 In the event conflicting instructions are given to the Escrow
Agent regarding the release from escrow of any of the Escrow
Payment, the [ ] Note or the [ ] Note as described in
Section 2.2, the Parties agree to submit any such dispute to
arbitration immediately, and to inform the Escrow Agent of
such arbitration proceeding.
3. Miscellaneous.
3.1 Arbitration. Subject to the provisions of the Federal
Arbitration Act, 9 U.S.C. Section 1 et. seq., any claim,
controversy or dispute arising out of or relating to this
Agreement or any interpretation or breach thereof or
performance thereunder, including without limitation any
dispute concerning the scope of this arbitration provision,
shall be settled by submission to final
4
5
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
and binding arbitration ("Arbitration") for determination,
without any right by any Party to a trial de novo in a court
of competent jurisdiction. The Arbitration and all
pre-hearing, hearing, post-hearing arbitration procedures
shall be conducted in accordance with the Commercial
Arbitration Rules (the "Commercial Rules") of the American
Arbitration Association (herein referred to as the
"Association") as supplemented hereby. The Arbitration hearing
shall take place in Washington, D.C. All pre-hearing and
post-hearing matters and procedures shall take place at such
place and manner, including telephonically, as shall be agreed
by the Parties. In the event the parties fail to reach
agreement regarding the foregoing, the chair of the
Arbitration panel shall determine the manner and location of
such matters. In addition to the Commercial Rules, the Parties
shall also follow the procedures described below:
3.1.1 The Party seeking Arbitration shall give notice of a
demand to arbitrate (herein referred to as the
"Demand") to the other Party and to the Association.
The Demand shall include (i) the nature of the claim
that is being asserted and the remedy or relief that
is requested, or the issues to be determined if no
claim is being asserted, (ii) a copy of this
arbitration provision, and (iii) unless the Parties
shall have otherwise agreed upon the mutual selection
of a single arbitrator, the designation of one
arbitrator, who shall have no prior or existing
personal or financial relationship with the
designating Party.
3.1.2 Within thirty (30) days after receipt of the Demand,
the other Party shall give notice (herein referred to
as the "Response") to the Party that demanded
arbitration, and to the Association, of (i) any
additional issues to be arbitrated, (ii) its answer
to the claims or issues raised by the Party that sent
the Demand, and (iii) its designation of a second
arbitrator, who shall have no prior or existing
personal or financial relationship with the
designating Party.
3.1.3 If a Response designating a second arbitrator is not
received within the above-mentioned thirty (30) day
period, the Association shall immediately designate
the second arbitrator.
3.1.4 The two arbitrators as designated pursuant to the
foregoing provision shall then designate a third
arbitrator within ten (10) days after the designation
of the second arbitrator. If the two arbitrators
cannot agree on the designation of the third
arbitrator within the ten (10) day period allotted,
the Association shall designate the third arbitrator.
Such third
5
6
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
arbitrator designated pursuant to this Section 3.1.4
shall be the chair of the Arbitration panel.
3.1.5 The Arbitration panel as designated above shall
proceed with the Arbitration by giving notice to all
Parties of its proceedings and hearings in accordance
with the Association's applicable procedures. Within
15 days after all three arbitrators have been
appointed or at such other time as shall be agreed by
the Parties, an initial meeting among the chair of
the Arbitration panel and counsel for the Parties
shall be held for the purpose of establishing a plan
for administration of the Arbitration, including: (i)
definition of issues; (ii) scope, timing and type of
discovery, which may at the discretion of the
arbitrators include production of documents in the
possession of the Parties, but may not, without the
consent of the Parties, include depositions; (iii)
exchange of documents and filing of detailed
statements of claims and pre-hearing memoranda; (iii)
schedule and place of hearings; and (iv) any other
matters that may promote the efficient, expeditious
and cost-effective conduct of the proceeding. The
substantive law of the State of Maryland shall be
applied by the arbitrators to the resolution of the
dispute, provided that the arbitrators shall base
their decision on the express terms, covenants and
conditions of this Agreement. The arbitrators shall
be bound to make specific findings of fact and reach
conclusions of law, based upon the submissions and
evidence of the Parties, and shall issue a written
decision explaining the basis for the decision and
award. The arbitrators shall have the authority to
issue instructions to the Escrow Agent in connection
with any dispute pertaining to the Escrow Agreement.
3.1.6 The Parties agree that the arbitrators shall have no
power to alter or modify any express provision of
this Agreement or to render any award which, by its
terms, effects any such alteration or modification.
3.1.7 Upon written demand to any Party to the Arbitration
for the production of documents and things (including
computer discs and data) reasonably related to the
issues being arbitrated, the Party upon which such
demand is made shall promptly produce, or make
available for inspection and copying, such documents
or things without the necessity of any action by the
arbitrators, provided, however, that no such demand
shall be effective if made within the twenty (20) day
period prior to the first day of the Arbitration
hearing.
6
7
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
3.1.8 Subject to the limitations imposed by Section 3.1.5,
the arbitrators shall have the power to grant any and
all relief and remedies, whether at law or in equity,
including provisional relief, that the courts in the
State of Maryland may grant and such other relief as
may be available under the Commercial Rules, other
than punitive damages. Any award of the arbitrators
shall include pre-award and post-award interest at
the applicable rate or rates under Maryland law. The
decision of the arbitrators shall be final and as an
"award"within the meaning of the Commercial Rules and
the Federal Arbitration Act and judgment upon the
arbitration award may be entered in the United States
District Courts of Maryland ("Maryland District
Courts") or any other court having jurisdiction, as
if it were a judgment of that court. The Parties to
this Agreement expressly consent to the jurisdiction
of the Association, including, without limitation,
reasonable attorney's fees and the Parties waive any
objection they may have as to jurisdiction and venue
regarding the Maryland District Courts.
3.1.9 The Arbitration panel is specifically authorized to
award attorney's fees and expenses to the prevailing
Party, as determined by the Arbitration panel.
3.2 Entire Agreement.
This Agreement including the Exhibits and Schedules attached
hereto and the Escrow Agreement, the [ ] Note and the
[ ] Note set forth the entire agreement and understanding
between the Parties relative to the transfer of the HPV
Information and the payment therefor and supersede all other
agreements, oral and written, heretofore made between the
Parties, with respect to the transfer of the HPV Information
and the payment therefor. Any amendment hereto must be in
writing and signed by an authorized representative of each of
Digene and Murex.
3.3 Captions. Section titles or captions contained herein are for
reference only and shall not be considered in construing this
Agreement.
3.4 Notices. All notices and requests required or authorized
hereunder, shall, except where specifically provided
otherwise, be given in writing, and delivered either by
personal delivery to the Party to whom notice is to be given,
or sent by registered mail or by an internationally recognized
express delivery service, addressed to the Party intended at
the address set forth below. The date of delivery in the case
of personal or mail delivery or the date upon which it is
deposited with the express delivery service in the case of
7
8
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
notice by express delivery service, shall be deemed to be the
date of such notice.
Digene: Digene Corporation
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: President or Executive Vice President
Murex: Murex Diagnostics Corporation
Xxxxx Xxxx Xxxxx, Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx
Attn: Managing Director
3.5 Waivers. The waiver by either Party of any breach or alleged
breach of any provision hereunder shall not be construed to be
a waiver of any concurrent, prior or succeeding breach of said
provision or any other provision herein.
Any waiver must be in writing.
3.6 Press Release and Other Permitted Disclosures Regarding the
Agreement.
3.6.1 Press Releases. Each of Digene and Murex agree not to
announce this Agreement by press release or other
form of communication without the written approval of
the other Party.
3.6.2 Permitted Disclosure. The Parties agree to keep the
terms of this Agreement confidential with exception
of such information which in the opinion of counsel
to the disclosing party is required to be disclosed
by applicable law, rule, regulation or generally
accepted accounting practice, including any rules of
applicable stock exchanges and other self-regulatory
authorities or organizations on which the Parties or
their Affiliates are listed. Provided, however, that
in the event a Party or its Affiliate shall be
required to disclose any of the terms of this
Agreement, whether pursuant to subpoena, deposition,
interrogatory, or otherwise, or a Party or its
Affiliate shall otherwise propose to disclose any of
the terms of this Agreement (except in connection
with such Party's or such Affiliate's required
disclosure under any applicable securities laws, the
rules of any applicable stock exchange or other self
regulatory authority or organization or other
reporting requirements) such disclosing Party shall
provide the other Party with prompt written notice of
such requirement so that the other Party may seek a
protective order or other appropriate remedy and/or
waive compliance with the terms of this Agreement.
Notwithstanding the foregoing, except as
8
9
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
otherwise required by the provisions of Section 3.6.1
hereof, (i) no prior written notice shall be required
in connection with any Party's (or its Affiliate's)
required compliance with applicable securities laws,
the rules of any applicable stock exchange or other
self-regulatory authority or organization or other
reporting requirements; and (ii) any Party shall be
permitted to submit this Agreement as evidence in any
proceeding in connection with any dispute between the
Parties. The provisions of this Section 3.6.2 shall
not restrict a Party from making any disclosure of
any terms of this Agreement to the extent such terms
become generally available to the public (other than
as a result of a disclosure by such Party in
violation of this Agreement), or restrict the ability
of the Parties from making disclosure to the extent
such disclosure is required for the effective
undertaking by the Parties of their respective rights
and obligations hereunder. By way of example and not
in limitation of the foregoing, Murex shall be
entitled to disclose to proposed customers the fact
that it is acting as an authorized agent of Digene.
3.7 Governing Law. This Agreement, and all of the rights and
duties in connection therewith, shall be governed by and
construed under the law of the State of Maryland, U.S.A.,
without regard to conflicts of laws principles, applicable to
agreements made and to be performed in that State.
3.8 Counterparts; Effectiveness of Agreement. This Agreement shall
be executed in counterparts, each of which shall be deemed an
original but both of which together shall constitute the same
instrument.
In consideration of the mutual covenants and conditions herein set
forth, the parties have executed this Agreement as of the day and year
above written.
Murex Diagnostics Corporation Digene Corporation
Signature /s/ XXXXXXX XXXX Signature /s/ XXXX XXXXX
-------------------- ----------------
By: Xxxxxxx Xxxx By: Xxxx Xxxxx
Title: Managing Director Title: President & CEO
Date 3/3/97 Date 3/3/97
------------------------- ---------------------
9
10
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE I - PRODUCTS
EXCLUSIVE PRODUCTS
Digene Part
Exclusive Product Description Number*
----------------------------- -------
HUMAN PAPILLOMAVIRUS DETECTION KIT
Human Papillomavirus (HPV) DNA Assay (6/11/42/43/44 and 4401-1030
16/18/31/35/45/51/52/56)
HPV DNA Test Panel 4401-1024
Digene Specimen Collection Kit 4203-0020
Digene Sample Transport Medium 4203-1030
Human Papillomavirus (HPV) Target: LI Region (Consensus) Probe Groups 4603-1100
(6/11/42/43/44 and 16/18/31/35/39/45/51/52/56/68)
INDIVIDUAL HPV PROBE PACKS:
HPV Type 6/11 4401-1611
HPV Type 16 4401-1016
HPV Type 18 4401-1018
HPV Type 31 4401-1031
HPV Type 33 4401-1033
HPV Type 35 4401-1035
HPV Type 42 4401-1042
HPV Type 43 4401-1043
HPV Type 44 4401-1044
HPV Type 45 4401-1045
HPV Type 51 4401-1051
HPV Type 52 4401-1052
HPV Type 56 4401-1056
NON-EXCLUSIVE PRODUCTS
Digene Part
Non-Exclusive Product Description Number*
--------------------------------- -------
HYBRID CAPTURE SYSTEM EQUIPMENT AND ACCESSORIES
DCR-1 Luminometer 4300-1010
Rotary Shaker Assembly (22v) 4300-1025
Printer Paper (DCR-1 Compatible) 4300-1012
Wash Apparatus 4301-1001
Decanting Racks 4301-1002
Hybridization Rack 4301-1003
Disposable Transfer Pipettes 4301-1500
Luminometer Validation Reagents 0000-0000
Xxxxxxxxxxxxx Tube Caps (red) 4400-1040
Hybridization Tube Caps (green) 4400-1041
SHARP Signal System Assay 4600-1192
--------
* Represents all current products within such part number category.
11
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE II - TERRITORY
EUROPE
Germany
Switzerland
Austria
Belgium
Netherlands
Luxembourg
France
Italy
Spain
United Kingdom
EASTERN EUROPE
Poland
Czech and Slovak Republics
Hungary
Romania
Commonwealth of Independent States
Bulgaria
Estonia
Slovenia
Croatia
Macedonia
Lithuania
12
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE III - OTHER TERRITORY
Denmark
Finland
Ireland
Norway
Portugal
Sweden
Greece - for HPV Hybrid Capture products only
Africa - all countries
United Arab Emirates
Saudi Arabia
13
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of the 1st day of February, 1997, among
Murex Diagnostics Corporation ("Murex"), a corporation organized and existing
under the laws of Barbados, Digene Corporation, a Delaware corporation (the
"Company"), and Xxxx & Priest LLP (the "Escrow Agent"). Capitalized terms used
herein and not defined shall have the meanings ascribed to such terms in that
certain Customer Transfer Agreement, dated of even date herewith, by and between
Murex and the Company (the "Customer Transfer Agreement") a copy of which is
attached hereto as Appendix A.
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement, Murex and
the Company are entering into the Customer Transfer Agreement, which provides,
among other things, for the transfer by Murex to the Company of the HPV
Information;
WHEREAS, pursuant to the Customer Transfer Agreement, the Company is
required to place $500,000 in escrow within five (5) business days of the date
hereof, to be disbursed in connection with the provision by Murex to the Company
of the HPV Information;
WHEREAS, pursuant to the Customer Transfer Agreement, the Company is
required to place in escrow two promissory notes (the "Notes"), which are to be
released from escrow at designated times if the sales of the Company's Products
meet certain sales target levels, as described in Section 2.3 of the Customer
Transfer Agreement; and
WHEREAS, the parties to this Agreement desire to define the terms and
conditions pursuant to which the Escrow Agent shall hold and release such funds
or portions thereof and Notes;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Establishment of Escrow. Pursuant to Section 2.2 of the Customer
Transfer Agreement, the Company shall deliver in escrow $500,000 to the Escrow
Agent (the "Escrow Funds"), which will be invested by the Escrow Agent in an
interest bearing account maintained by the Escrow Agent at Citibank, N.A. Upon
delivery of the Escrow Funds, the Escrow Agent shall acknowledge receipt of the
Escrow Funds in escrow pursuant to the terms and conditions of this Agreement.
Upon prior notice to the Company and Murex, the Escrow Agent may deposit the
Escrow Funds in another commercial bank comparable to Citibank, N.A. in New
York, New York.
14
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
2. Escrow of Notes. Pursuant to Section 2.2 of the Customer Transfer
Agreement, the Company has delivered in escrow (a) a promissory note in the form
of Exhibit A hereto, fully executed by the Company ("Note A"), and (b) a
promissory note in the form of Exhibit B hereto, fully executed by the Company
("Note B"). The Escrow Agent acknowledges receipt of the Notes in escrow
pursuant to the terms and conditions of this Agreement.
3. Disbursement of Escrow Funds; Delivery of Notes. Subject to the
provisions of Paragraph 4 below, the Escrow Funds will be disbursed, and Notes
will be issued to Murex or the Company, as applicable, as follows:
(a) Request for Funds. Murex shall, at any time provide a
written request for the Escrow Funds ("Request for Funds") to the
Escrow Agent and to the Company. Such Request for Funds shall certify
that Murex has delivered to the Company the HPV Information.
(b) Disbursement of Funds. Unless the Escrow Agent shall have
received a Stop Order (as defined herein) from the Company on or before
the fifteenth (15th) day following the Escrow Agent's receipt of a
Request for Funds, the Escrow Agent shall disburse the Escrow Funds to
Murex on the eighteenth (18th) day following its receipt of a Request
for Funds, but in no event earlier than April 1, 1997. A "Stop Order"
shall mean a written notice from the Company certifying that Murex has
not delivered the HPV Information to the Company. Any Stop Order
provided by the Company to the Escrow Agent under this Agreement must
also be provided by the Company to Murex.
(c) Stop Order. Upon receipt of a Stop Order, the Escrow Agent
shall withhold any disbursement of the Escrow Funds until the Escrow
Agent receives written instructions from the Company directing the
disbursement of the Escrow Funds, or until the Escrow Agent receives
instructions from an arbitration panel or other tribunal in a
proceeding to which Murex and the Company are parties, in accordance
with the provisions of Paragraph 5 hereof.
(d) Requests for Note A and Note B. As applicable, Murex
shall, on or after June 1, 1997, provide a written request for Note A
("Request for Note A") and, on or after October 1, 1997, provide a
written request for Note B ("Request for Note B"), to the Escrow Agent
and to the Company. Such Request for Note A and Request for Note B
shall certify that the requisite target sales levels, as described in
Section 2.3 of the Customer Transfer Agreement pertaining to the
conditions for the release of Note A, or Note B, as applicable, have
been met.
(e) Release of Note A and Note B to Murex. Following the
Escrow Agent's receipt of a Request for Note A or a Request for Note B,
unless the Escrow Agent shall have received a Non-Release Order (as
defined herein) from the Company pertaining to the applicable Note on
or before the fifteenth (15th) day following the
15
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Escrow Agent's receipt of such Request for Note A or Request for Note
B, as applicable, the Escrow Agent shall release Note A to Murex on the
eighteenth (18th) day following its receipt of a Request for Note A,
but in no event earlier than [ ], and shall release Note B to
Murex on the eighteenth (18th) day following its receipt of a Request
for Note B, but in no event earlier than [ ]. A
"Non-Release Order" shall mean a written notice from the Company
certifying that the requisite target sales levels, as described in
Section 2.3 of the Customer Transfer Agreement, have not been met. Any
Non-Release Order provided by the Company to the Escrow Agent under
this Agreement must also be provided by the Company to Murex.
(f) Non-Release Order. Upon receipt of a Non-Release Order in
respect of Note A or Note B, the Escrow Agent shall withhold any
release of Note A or Note B, as applicable, until the Escrow Agent
receives written instructions from the Company directing the release to
Murex of Note A or Note B, as applicable, or until the Escrow Agent
receives instructions from an arbitration panel or other tribunal in a
proceeding to which Murex and the Company are parties, in accordance
with the provisions of Paragraph 5 hereof.
(g) Release of Note A or Note B to Digene. In the event the
requisite sales target levels, as set forth in Section 2.3 of the
Customer Transfer Agreement, are not met in the time period prior to
[ ] or [ ], as applicable, Murex shall provide
written instructions to the Escrow Agent providing for the release of
Note A or Note B, as applicable, to Digene. The Escrow Agent shall
release Note A or Note B, as applicable, to Digene no later than the
third (3rd) day following its receipt of such instructions from Murex.
(h) Interest. All interest earned on the Escrow Funds shall be
added to the Escrow Funds and disbursed by the Escrow Agent with the
Escrow Funds to the party entitled to the Escrow Funds.
4. Termination of Escrow. Except as otherwise provided in Paragraph
5(d) hereof, the escrow arrangements provided for under this Agreement shall
terminate at the earlier to occur of (a) the release of the Escrow Funds,
together with all interest thereon, and the Notes in accordance with the
provisions of Paragraph 2 hereof or (b) the mutual agreement of Murex and the
Company to terminate this Agreement. In the event Murex and the Company elect to
terminate this Agreement, they shall provide the Escrow Agent with joint
instructions with respect to the disbursement of the Escrow Funds and the Notes
remaining in escrow, as applicable.
5. Rights, Duties and Responsibilities of the Escrow Agent. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and are limited to those expressly set forth in this Agreement. It is
further agreed that:
16
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
(a) The Escrow Agent shall not be required to enforce the
Customer Transfer Agreement, or any other agreement between the Company
and Murex. In addition, the Escrow Agent shall not be responsible for
the performance under or compliance by the Company or Murex of their
respective obligations under this Agreement or for verifying the
accuracy or completeness of any certificate, demand or other document
submitted to it by either the Company or Murex or both.
(b) The Escrow Agent shall have the right to act in reliance
upon any document, instrument or signature believed by it to be genuine
and to assume that any person purporting to give notice or instructions
pursuant to this Agreement or in connection with any transaction to
which this Agreement relates has been duly authorized to do so. The
Escrow Agent shall not be obligated to make any inquiry as to the
authority, capacity, existence or identity of any person purporting to
give such notice or instructions.
(c) Disbursement of Escrow Funds and release of the Notes by
the Escrow Agent from escrow under this Agreement shall be to Murex or
the Company, as the case may be, to the address or the account set
forth in the notice of payment, and shall not be to any third party.
(d) In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions with
respect to the Escrow Funds or Notes which, in its sole opinion, are in
conflict with either other instructions received by it or any provision
of this Agreement, or shall receive an objection to the making of any
requested disbursement, the Escrow Agent shall be entitled to hold the
Escrow Funds and/or the Notes pending the resolution of such
uncertainty, conflict, dispute or objection, to the Escrow Agent's sole
satisfaction, by written agreement of the Company and Murex or by final
judgment of an arbitration panel or other tribunal of competent
jurisdiction; or the Escrow Agent, at its option, may deposit the
Escrow Funds and the Notes in the registry of a court or arbitration
tribunal of competent jurisdiction in a proceeding to which all parties
in interest are joined.
(e) The Escrow Agent shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the rights or powers conferred upon it by this Agreement, and
may consult with counsel of its own choice and shall have full and
complete authorization and protection for any action taken or suffered
by it hereunder in good faith and in accordance with the opinion of
such counsel.
(f) The Company acknowledges that the Escrow Agent has
represented affiliates of Murex in connection with corporate and
litigation matters, and may continue to represent Murex or its
affiliates in the future.
6. Fees. The Escrow Agent shall receive an annual fee of $1,000 for
acting as the escrow agent hereunder, payable upon commencement of this
Agreement and each
17
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
anniversary date hereof, and shall be reimbursed for all expenses incurred in
connection with its services under this Agreement. The Company and Murex shall
each be responsible for fifty (50%) percent of such fees and expenses.
7. Resignation. The Escrow Agent may resign and be discharged from its
duties or obligations hereunder by giving notice in writing of such resignation
specifying a date when such resignation shall take effect. In the case of the
Escrow Agent's resignation or discharge, its only duty shall be to hold and
dispose of the Escrow Funds and the Notes in accordance with the original
provisions of this Agreement until a successor escrow agent shall be appointed
and written notice of the name and address of such successor escrow agent shall
be given to the original Escrow Agent by the Company and Murex, whereupon the
Escrow Agent's only duty shall be to pay or transfer over to the successor
escrow agent the Escrow Funds and Notes remaining in escrow and to deliver a
statement reflecting any previous disbursements in accordance with the terms of
this Agreement.
8. Indemnification and Contribution. The Company and Murex each agrees
to indemnify the Escrow Agent for and hold it harmless against any loss,
liability or expense (including reasonable attorneys' fees) incurred without
negligence or bad faith on the part of the Escrow Agent arising out of or in
connection with its entering into this Agreement and carrying out its duties
hereunder, including the costs and expenses of defending itself against any
claim of liability hereunder.
9. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York (without giving effect to
conflicts of laws). Any proceeding or arbitration brought by the Escrow Agent
under this Agreement may be instituted in the City of New York, State of New
York, and neither the Company nor Murex shall object to such jurisdiction.
10. Assignment. This Agreement shall be binding upon the parties hereto
and their respective successors, assigns, heirs and administrators; provided,
however, that any assignment or transfer by the Company or Murex of its rights
under this Agreement or with respect to the Escrow Funds and the Notes shall be
void as against the Escrow Agent unless: (a) notice thereof shall be given to
the Escrow Agent, and (b) the Escrow Agent shall have consented to such
assignment and transfer.
11. Notices. All notices, requests and other materials required to be
given in connection with this Agreement shall be in writing and delivered in
person or by internationally recognized overnight courier delivery service, sent
by facsimile or sent by registered or certified mail, return receipt requested,
and addressed as follows:
18
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
To Murex at:
Murex Diagnostics Corporation
Xxxxx Xxxx Xxxxx
Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx
Attn: Managing Director
FAX: 000-000-0000
With a copy to:
Murex Biotech Limited
Central Road, Temple Hill
Dartford, Xxxx
Xxxxxxx
Attn: Vice President and General Manager
FAX: 00-0000-000000
To the Company at:
Digene Corporation
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: President or Executive Vice President
FAX: (000) 000-0000
To the Escrow Agent at:
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
FAX: (000) 000-0000
or to such address as any party hereto may duly give to the other parties
hereto. Notices shall be effective upon actual receipt by the party to whom
notice was intended.
12. Entire Agreement; Modification. This Agreement sets forth the
entire agreement among the parties hereto with respect to the subject matter
herein, and cannot be amended or modified except by an agreement in writing
executed by the parties hereto.
13. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provision to persons or circumstances
19
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
other than those to which it is held invalid or unenforceable shall not be
affected thereby and shall be valid and enforceable to the fullest extent
permitted by law.
14. Execution in Counterparts. This Agreement may be executed in
counterparts, and all of such counterparts shall constitute one instrument,
binding on all of the parties hereto.
15. Interpretation. For purposes of this Agreement, "day" shall be a
calendar day, and should the day for performance be a day which is a legal
holiday in the State of New York or which is a day when banks chartered in the
State of New York are closed, the day for performance shall be the next
succeeding day which is not a legal holiday and on which such banks are open.
16. Captions. All captions are for convenience only and shall not limit
or define the text hereto.
IN WITNESS WHEREOF, this Escrow Agreement has been executed by the
parties as of the date first above written.
MUREX DIAGNOSTICS CORPORATION
By: ____________________
Name:
Title:
DIGENE CORPORATION
By: ____________________
Name:
Title:
XXXX & PRIEST LLP
By: ____________________
Name:
Title:
20
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
THIS NOTE WAS ORIGINALLY ISSUED ON [ ] AND HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY COMPARABLE STATE SECURITIES
LAW. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH
HEREIN.
EXHIBIT B
PROMISSORY NOTE
$[ ] [ ]
FOR VALUE RECEIVED, Digene Corporation ("Maker") hereby
promises to pay to the order of Murex Diagnostics Corporation or its assigns
(the "Payee") the principal sum of [ ] Dollars ($[ ]), payable in
installments in the payment schedule provided herein, upon the terms
hereinafter set forth.
The payments to be made hereunder by Maker shall be payable to
the Payee on such dates and in such amounts as follows:
[ ]
The Maker of this Note shall be entitled to prepay this Note, without
premium or penalty, in whole or in part, at any time.
All payments under this Note shall be made in lawful currency of the
United States to such place as shall be designated in writing by the Payee, and
without setoff, withholding or counter-claim.
The following events shall constitute an "Event of Default" hereunder:
(a) The failure of Maker to make any payment within thirty
(30) days of the date when due hereunder; or
(b) The filing by Maker of a voluntary petition of bankruptcy
or a voluntary petition or answer seeking reorganization, arrangement, or
readjustment of its
21
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
debts, or any other relief under any applicable bankruptcy laws or insolvency
laws, state, federal, or other, within the United States, or outside the United
States, now or hereafter existing, or any agreement by Maker indicating consent
to, approval or acquiescence in any such petition or proceeding; or
(c) The application by Maker or the consent or acquiescence of
Maker in the appointment of a receiver or trustee for all or a substantial part
of any of its properties; or
(d) The making by Maker of a general assignment for the
benefit of creditors; or
(e) The inability of Maker or the admission of Maker in
writing of its inability to pay its debts as they mature; or
(f) The filing of an involuntary petition against Maker
seeking reorganization, arrangement or readjustment of its debts or for any
other relief under any applicable bankruptcy laws or insolvency laws, state,
federal, or other, within the United States or outside the United States, now or
hereafter existing, or the involuntary appointment of a receiver or trustee of
Maker all or a substantial part of its property or assets, or the issuance of a
warrant of attachment, or execution of similar process against a substantial
part of the property of Maker and the continuance of such for sixty (60) days
undismissed or undischarged.
Upon the occurrence of an Event of Default, as defined herein, at the
option of the Payee or any assignee or holder of this Note and without demand,
presentation, or notice of any kind, any and all of the indebtedness represented
by this Note may be declared and thereupon immediately shall mature and become
due and payable, and the holder may exercise any rights available to the holder
by operation of law. It is agreed that the failure of the Payee to exercise any
right to accelerate the maturity of the indebtedness hereunder, or indulgence
granted, from time to time, shall in no event be considered as a waiver of such
right of acceleration or prevent the Payee from exercising such right.
Maker will from time to time and at all times hereafter upon every
reasonable request of the Payee do, execute, acknowledge and deliver or cause to
be done, executed, acknowledged and delivered all such further acts,
assignments, transfers, conveyances, powers of attorney and assurances as may be
required by the Payee in order to effectively carry out the purposes and intents
evidenced by this Note.
Time is of the essence in the payment and performance of this Note.
MAKER HEREBY WAIVES PRESENTMENT, DEMAND, PROTEST AND NOTICE OF
DISHONOR.
22
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Upon the occurrence of an Event of Default by Maker hereunder,
Maker shall pay all reasonable attorney's fees, charges and expenses and all
other costs and expenses which may be incurred in the enforcement of this Note.
This Note may be transferred only as a whole and not in part.
This Note has not been registered under the Securities Act or any comparable
state securities law.
After all amounts payable under this Note have been paid in
full, this Note shall be surrendered to Maker for cancellation and shall not be
reissued.
Notices to Maker shall be sent to the following address:
Digene Corporation
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President or Executive Vice President
or to such other address as specified in a written notice delivered to the Payee
by Maker.
Payments and any notice to the Payee hereunder are to be
delivered to the Payee the following address:
Murex Diagnostics Corporation
Xxxxx Xxxx Xxxxx
Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx
Attention: Managing Director
or to such other address or account, in the case of payments, as specified in a
written notice, delivered to Maker by the Payee. Notices sent to either Maker or
the Payee shall be deemed received when delivered personally or two (2) days
after being sent by Federal Express or other internationally recognized
overnight carrier or upon receipt if sent by certified or registered mail.
This Note shall be governed as to validity, interpretation,
construction and in all other respects by the laws of the State of Maryland.
23
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed all as of the date first above written.
DIGENE CORPORATION
By:_________________________
Name:_______________________
Title:______________________
24
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
THIS NOTE WAS ORIGINALLY ISSUED ON [ ] AND HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY COMPARABLE STATE SECURITIES
LAW. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH
HEREIN.
EXHIBIT C
PROMISSORY NOTE
$[ ] [ ]
FOR VALUE RECEIVED, Digene Corporation ("Maker") hereby
promises to pay to the order of Murex Diagnostics Corporation or its assigns
(the "Payee") the principal sum of [
] Dollars ($[ ]), payable in installments in the payment
schedule provided herein, upon the terms hereinafter set forth.
The payments to be made hereunder by Maker shall be payable to
the Payee on such dates and in such amounts as follows:
[ ]
The Maker of this Note shall be entitled to prepay this Note, without
premium or penalty, in whole or in part, at any time.
All payments under this Note shall be made in lawful currency of the
United States to such place as shall be designated in writing by the Payee, and
without setoff, withholding or counterclaim.
The following events shall constitute an "Event of Default" hereunder:
(a) The failure of Maker to make any payment within thirty
(30) days of the date when due hereunder; or
(b) The filing by Maker of a voluntary petition of bankruptcy
or a voluntary petition or answer seeking reorganization, arrangement, or
readjustment of its debts, or any other relief under any applicable bankruptcy
laws or insolvency laws, state,
25
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
federal, or other, within the United States, or outside the United States, now
or hereafter existing, or any agreement by Maker indicating consent to, approval
or acquiescence in any such petition or proceeding; or
(c) The application by Maker or the consent or acquiescence of
Maker in the appointment of a receiver or trustee for all or a substantial part
of any of its properties; or
(d) The making by Maker of a general assignment for the
benefit of creditors; or
(e) The inability of Maker or the admission of Maker in
writing of its inability to pay its debts as they mature; or
(f) The filing of an involuntary petition against Maker
seeking reorganization, arrangement or readjustment of its debts or for any
other relief under any applicable bankruptcy laws or insolvency laws, state,
federal, or other, within the United States or outside the United States, now or
hereafter existing, or the involuntary appointment of a receiver or trustee of
Maker all or a substantial part of its property or assets, or the issuance of a
warrant of attachment, or execution of similar process against a substantial
part of the property of Maker and the continuance of such for sixty (60) days
undismissed or undischarged.
Upon the occurrence of an Event of Default, as defined herein, at the
option of the Payee or any assignee or holder of this Note and without demand,
presentation, or notice of any kind, any and all of the indebtedness represented
by this Note may be declared and thereupon immediately shall mature and become
due and payable, and the holder may exercise any rights available to the holder
by operation of law. It is agreed that the failure of the Payee to exercise any
right to accelerate the maturity of the indebtedness hereunder, or indulgence
granted from time to time, shall in no event be considered as a waiver of such
right of acceleration or prevent the Payee from exercising such right.
Maker will from time to time and at all times hereafter upon every
reasonable request of the Payee do, execute, acknowledge and deliver or cause to
be done, executed, acknowledged and delivered all such further acts,
assignments, transfers, conveyances, powers of attorney and assurances as may be
required by the Payee in order to effectively carry out the purposes and intents
evidenced by this Note.
Time is of the essence in the payment and performance of this Note.
MAKER HEREBY WAIVES PRESENTMENT, DEMAND, PROTEST AND NOTICE OF
DISHONOR.
26
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Upon the occurrence of an Event of Default by Maker hereunder,
Maker shall pay all reasonable attorney's fees, charges and expenses and all
other costs and expenses which may be incurred in the enforcement of this Note.
This Note may be transferred only as a whole and not in part.
This Note has not been registered under the Securities Act or any comparable
state securities law.
After all amounts payable under this Note have been paid in
full, this Note shall be surrendered to Maker for cancellation and shall not be
reissued.
Notices to Maker shall be sent to the following address:
Digene Corporation
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President or Executive Vice President
or to such other address as specified in a written notice delivered to the Payee
by Maker.
Payments and any notice to the Payee hereunder are to be
delivered to the Payee at the following address:
Murex Diagnostics Corporation
Xxxxx Xxxx Xxxxx
Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx
Attention: Managing Director
or to such other address or account, in the case of payments, as specified in a
written notice, delivered to Maker by the Payee. Notices sent to either Maker or
the Payee shall be deemed received when delivered personally or two (2) days
after being sent by Federal Express or other internationally recognized
overnight carrier or upon receipt if sent by certified or registered mail.
This Note shall be governed as to validity, interpretation,
construction and in all other respects by the laws of the State of Maryland.
27
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed all as of the date first above written.
DIGENE CORPORATION
By:_______________________
Name:_____________________
Title:____________________
