EXHIBIT 10.25
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.]
[LETTERHEAD OF NOVARTIS PHARMA AG]
Biosite Diagnostics Incorporated
00000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Gentlemen:
In the context and pursuit of the parties interactions with respect to the EASY
ASSAY LICENSE AGREEMENT and the ANTIBODY LICENSE AGREEMENT entered into by and
between Biosite Diagnostics Incorporated ("Biosite") and Sandoz Pharma Ltd.
("Sandoz") on the 22nd of September, 1995 (the "Easy Agreement" and the
"Antibody Agreement", respectively), Novartis Pharma AG ("Novartis"), the
successor in interest to Sandoz, has requested that Biosite conduct certain
development work relating to ***. The purpose of this Letter Agreement is to
set forth the terms and conditions under which Biosite will conduct such work
and Novartis will make payments to Biosite in regard to the same. (References
in this Letter Agreement to the term *** include references to *** and ***, and
these terms are used interchangeably).
This Letter Agreement represents an interim arrangement that will allow the
parties to initiate the Program while negotiations leading toward a global
agreement for the development and marketing of certain diagnostic products to be
developed under the Easy Agreement and the Antibody Agreement (as they may be
amended) continue. If the parties enter into a global agreement, the Program
will be integrated into such global agreement, and any payments made by Novartis
to Biosite in accordance with this Letter Agreement prior to the effective date
of the global agreement will be credited towards the payment obligations of
Novartis in the global agreement. In the event the parties do not enter into
such a new global agreement, then the *** which is the subject of this Letter
Agreement will continue to
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
constitute a CyA Easy Assay and a CyA Assay as defined in, and be subject to the
terms and conditions of, the Easy Agreement and the Antibody Agreement
respectively, and the *** which is the subject of this Letter Agreement will
continue to be subject to such terms and conditions.
The parties hereby agree as follows:
1. Novartis will make payments to Biosite on the dates set forth in the
schedule attached hereto as Appendix A ("Schedule"), subject to and in
accordance with the following:
(a) for each of the dates set forth in the Schedule from *** through ***,
Novartis will make the corresponding payment on the date set forth in the
Schedule;
(b) for the date set forth in the Schedule on ***, Novartis will make the
corresponding payment on such date, provided that the *** of the *** has been
demonstrated by Biosite in accordance with the *** set forth in Appendix B
attached hereto, to the reasonable satisfaction of Novartis and Biosite (and if
such *** is not so demonstrated until after such date, the corresponding payment
will be due on the date during the term of this Letter Agreement when it is so
demonstrated); and
(c) for the date set forth in the Schedule on ***, Novartis will make the
corresponding payment on such date, provided that the *** has been demonstrated
by Biosite in accordance with the *** set forth in Appendix C attached hereto,
to the reasonably satisfaction of Novartis and Biosite (and if such *** is not
so demonstrated until after such date, the corresponding payment will be due on
the date during the term of this Letter Agreement when it is so demonstrated);
and
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
(d) for each of the dates set forth in the Schedule from *** through ***,
Novartis will make the corresponding payment on such date, provided that the ***
has been demonstrated as described in clause (b) and (c) above, and in addition
the milestone corresponding to such date in the Schedule has been achieved by
Biosite to the reasonably satisfaction of Novartis and Biosite (and if such ***,
as appropriate, is not so demonstrated or such milestone is not so achieved
until after such date, the corresponding payment [subject, in the case of the
*** milestone, to reduction as provided in clause (ii) below] will be due on the
date during the term of this Letter Agreement when such *** is so demonstrated
and such milestone is so achieved). For the milestone on *** or ***, as
applicable, described in Appendix A,
(i) Biosite shall receive a bonus payment of *** that the achievement
of the *** milestone is accomplished in advance of ***, provided that the ***
listed in Appendix C has also been met to the reasonable satisfaction of both
Novartis and Biosite by such earlier date and
(ii) Novartis shall deduct *** , up to a maximum of *** in which such
delay is attributable exclusively to technical hurdles beyond the reasonably
control of Biosite.
All payments will be due within fifteen (15) days after receipt by Novartis of
an invoice from Biosite in the form of Appendix D attached hereto, but in no
case earlier than the date such payment is due in accordance with the foregoing.
2. Biosite will conduct work under the Program in accordance with the schedule
of tasks listed in Appendix E attached hereto ("Tasks") and will use diligent
efforts consistent with
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
the development of other projects undertaken by it to maintain the timelines
listed in the Tasks.
3. Unless extended in writing by the parties, this Letter Agreement will
terminate on ***. In addition, either party will have the right to terminate
this Letter Agreement at any time upon the provision of *** prior written notice
to the other. Termination will not relieve either party of any of its
obligations to the other accruing prior to the effective date of such
termination.
4. This Letter Agreement amends and supplements the provisions of Article 7 of
the Antibody Agreement and the corresponding provisions of the Easy Agreement
(consisting of the provisions of Article 7 of the Antibody Agreement as
incorporated by reference into the Easy Agreement), in that this Letter
Agreement provides for the payment by Novartis for certain development work to
be conducted by Biosite in regard to the Program, as set forth in greater detail
herein. Except as amended and supplemented by this Letter Agreement as
described above, the provisions of the Easy Agreement and the Antibody Agreement
will remain in full force and effect.
5. This Letter Agreement shall be governed by, interpreted and enforced in
accordance with the substantive laws of Switzerland.
6. Any dispute, controversy or claim arising out of, resulting from or
relating to this Letter Agreement, or the performance by either party of its
obligations under this Letter Agreement (other than bona fide third party
actions or proceedings filed or instituted in an action or proceeding by a third
party against a party to this Letter Agreement), whether before or after
termination of this Letter Agreement, shall be finally resolved by binding
arbitration. Whenever a party shall decide to institute arbitration
proceedings, it shall give written notice to that effect to the other party.
Any such arbitration shall be conducted
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
under the Rules of Conciliation and Arbitration of the International Chamber of
Commerce by a panel of three arbitrators appointed in accordance with such
rules. Any such arbitration shall be conducted in the English language and
shall be held in Basle, Switzerland if brought by Biosite or in San Diego, USA
if brought by Novartis. The arbitrators shall have the authority to grant
specific performance and to allocate between the parties the costs of
arbitration in such equitable manner as they determine. Judgment upon the award
so rendered may be entered in any court having jurisdiction or application may
be made to such court for judicial acceptance of any award and an order of
enforcement, as the case may be. In no event shall a demand for arbitration be
made after the date when institution of a legal or equitable proceeding based
upon such claim, dispute or other manner in question would be barred by the
applicable statute of limitations.
If the above correctly reflects our mutual understanding, please sign below and
return one fully executed letter to the undersigned.
Sincerely yours,
Novartis Pharma AG
By /s/ X. Xxxxxx By Xx. X. Xxxxxx
---------------------------- ----------------------------
Title X. Xxxxxx, Head of Strategy Title Legal Counsel
---------------------------- ----------------------------
and Public Affairs
----------------------------
Date November 20, 1997 Date November 20, 1997
---------------------------- ----------------------------
Agreed and accepted:
Biosite Diagnostics Incorporated
By /s/ Xxx X. Xxxxxxxxxxxx
----------------------------
Title President and Chief
----------------------------
Executive Officer
----------------------------
Date November 20, 1997
----------------------------
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
APPENDIX A
Payment and Milestone Schedule
PROJECT SIT 115: ***
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
APPENDIX B
***
***
*** shall be declared when all the following conditions have been
met to the reasonable satisfaction of Novartis and Biosite. ***
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
APPENDIX C
***
***
*** shall be declared when all the following conditions have been met to the
reasonable satisfaction of Novartis and Biosite.
***
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
APPENDIX D
Sample Invoice
[COMPANY Letterhead]
[Date]
Novartis Pharma AG
Zentraler Fakureneingang
Attn: Xx. X. Xxxxx
BD&L Contract Administration
Xxxxxxxxxxxx 00
XX 0000 Xxxxx
Xxxxxxxxxxx
Dear Xx. Xxxxx:
Re: Biosite/Novartis/***/Interim Agreement (SIT 115)
This is an invoice requesting payment in connection with the above-captioned
agreement between Biosite Diagnostics Incorporated and Novartis Pharma AG.
Novartis Contract Code No.: [will be assigned by BD&L following execution]
Novartis Creditor No.: [will be assigned by BD&L following execution]
Reason for Payment: [please cite specific section or article in the agreement]
Amount and Currency: [self-explanatory]
Bank Address and Account No.: [insert the name and address of the bank to
which the payment should be sent and the account number to which it should
be credited]
Sincerely yours,
Biosite Diagnostics Incorporated
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
APPENDIX E
Schedule of Tasks
***
*** CONFIDENTIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
