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Exhibit 10.1
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.
AGENCY AND SALES REPRESENTATION AGREEMENT
This serves to record the agreement (the "Agreement"), effective as of February
1, 1997, between Digene Corporation ("Digene") of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇. and Murex Diagnostics Corporation ("Murex") of
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (each of Digene and Murex
a "Party" and collectively the "Parties") relating to the consignment inventory
holding, agency arrangements, distribution and sale of the diagnostic products
supplied by Digene as specified in Schedule I hereto (the "Products") or
subsequently added by agreement in writing between the Parties to customers in
those countries specified in Schedule II hereto (the "Territory"). Unless the
context specifically provides otherwise, 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 "Distribution Agreement" shall have the meaning ascribed to
such term in Section 3.2 hereof.
1.3 "Effective Date" shall mean February 1, 1997.
1.4 "HPV" shall mean Human Papillomavirus.
1.5 "Net Sales" shall mean, with respect to each Product, the
gross amount invoiced on behalf of Digene in connection with
sales of Products under this Agreement, expressed in US
Dollars, less the sum of the following:
1.5.1 sales, tariff duties and/or use or value added taxes
actually paid on behalf of customers by Murex or
Digene, as the case may be, in
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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.
connection with the manufacture, importation, use or
sale of such Product;
1.5.2 actual costs of packaging, insurance, freight,
storage and transportation paid on behalf of the
purchaser;
1.5.3 allowances actually made (and not merely reserved or
accrued) for any goods which are sold to customers
and are spoiled, damaged, outdated or returned after
they are shipped by Murex; or
1.5.4 refunds or allowances actually made on account of
retroactive price reductions.
Any Net Sales not expressed in United States dollars shall be
converted to such currency using the monthly weighted average
exchange rate calculated using the daily exchange rates
published in The Wall Street Journal for the period over which
such average is calculated.
1.6 "Nonaffiliate" shall mean any Person that is not an Affiliate
of Murex or Digene, or both, as the context may require.
1.7 "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.
1.8 "Work With" shall mean to provide reasonable assistance, to
consult, to offer advice and to take other reasonable steps
designed to help resolve technical or quality or customer
problems and to provide a professional, unified image to
customers, and timely cooperation in the execution of
marketing programs, pricing or policy changes; provided,
however, that "Work With" shall not mean incurring any capital
expenditure or incurring any expense other than as set forth
in this Agreement. For the purposes of this definition, a
failure to "Work With" shall include a habitual neglect or
failure to perform the activities outlined in this Agreement
over a commercially reasonable period of time, failure to act
in good faith, on a timely basis at the request of the other
Party, or acting in front of customers in a way which is not
consistent with the reasonable operating standards of Murex or
Digene, as the case may be. A failure to "Work With" must be
documented in writing which may include, without limitation,
the use of sworn affidavits as documentary evidence of a
failure to Work With. The Party receiving any notification of
a failure to Work With the other Party shall have sixty (60)
days to cure such failure. If such failure is not cured at the
end of such 60-day period the notifying Party may terminate
this Agreement for cause pursuant to Section 12 hereof.
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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. Appointment.
2.1 Digene hereby appoints Murex in the Territory with effect from
February 1, 1997 for the provision of agency services as
specified in Section 4 hereto (the "Agency Services") or as
subsequently amended by agreement in writing between the
Parties.
2.2 Digene hereby appoints Murex in the Territory with effect from
February 1, 1997 for the holding of consignment inventory of
Products (the "Inventory Holding Services") and Murex agrees
to act in that capacity subject to the terms and conditions
set forth in Appendix A, the "Distribution Inventory Holding
Agreement", attached hereto and made a part hereof. The
Parties agree there shall be a transition period of three (3)
months to establish the inventory consignment systems
contemplated by this Agreement. In such transition period,
Murex will book inventory transactions to credit sales to
Digene's account on a monthly basis.
2.3 Digene hereby appoints Murex in the Territory with effect from
February 1, 1997 to provide selling services as specified in
Section 6 hereto (the "Selling Services") for the Products and
Murex agrees to act in that capacity subject to the terms and
conditions as set forth herein.
2.4 Murex may appoint any of its Affiliates, distributors or
agents to undertake some or all of its obligations hereunder
and Murex shall ensure that any such Affiliate, distributor or
agent abides by all the terms and conditions of this Agreement
insofar as they relate to the promotion, sale, distribution or
inventory holding of Products in the countries of operation of
said Affiliate, distributor or agent.
2.4.1 Murex shall provide to Digene a list of all current
distributors and agents for the Territory which list
is attached hereto as Schedule IV. In the event Murex
elects to sub-appoint any other distributor or agent
to act on behalf of Murex under any of the
appointments set forth in Section 2.1, 2.2 or 2.3
above, Murex shall first notify Digene in writing in
advance. After such notification, Digene shall have
the right to accept or reject Murex's
sub-appointment. In the event Digene accepts Murex's
sub-appointment, Digene shall have the right to
review the agreement or other arrangement between
Murex and such distributor or agent in order to
confirm that Digene's interests will be protected,
and if necessary, in Digene's sole discretion,
provide for Digene to enter into an agreement
directly with such agent or distributor. In the event
Digene enters into an agreement with such distributor
or agent, Murex, at Murex's option, will have no
obligation
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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 provide Agency Services to such distributor or
agent as appointed by Digene, but will provide
services to Digene, at Digene's cost for expenses
pre-approved by Digene, to reasonably support Digene
during a transition period. The Parties agree there
shall be a transition period of three (3) months to
establish the agency and other systems contemplated
by this Agreement.
2.4.2 In the event Murex elects to sub-appoint an Affiliate
to undertake some or all of Murex's obligations
hereunder, the Agency Fees payable pursuant to
Section 5.2 hereof shall be calculated to reflect the
sales of Products from such Affiliate to the
third-party end purchaser or to a Nonaffiliate
distributor or agent. In the event Murex elects to
sub-appoint a Nonaffiliate distributor or agent to
undertake some or all of Murex's obligations
hereunder, the Agency Fees payable pursuant to
Section 5.2 hereof shall be calculated to reflect the
sales of Products by Murex to such Nonaffiliate
distributor or agent.
2.4.3 Provided that such termination does not directly
conflict with Murex's written contractual obligations
to such distributor or agent as of the Effective Date
or obligations pursuant to applicable law, if Digene
so chooses, at its sole discretion, Digene may
require that Murex terminate a Murex distributor or
agent upon 90 days written notice unless Digene and
the distributor or agent have agreed in writing to
other provisions, in which case, those provisions
will prevail. In the case of such a termination or
election not to accept a Murex agent or distributor,
no Agency Fees (as defined in Section 5.2 hereof)
will be due to Murex for servicing such distributor
or agent and Murex will have no obligation to provide
Agency Services to such distributor or agent as
appointed by Digene, but will provide services to
Digene, at Digene's cost, for expenses pre-approved
by Digene to reasonably support Digene during a
transition period. Any termination pursuant to this
Section 2.4.3 will not reduce the Selling Services
fees payable in the then current budget year as
determined in accordance with Section 8.4 hereof.
2.5 Murex and Digene will create an Operating Committee which will
be responsible for: reviewing the overall business status of
the Parties with respect to this Agreement; resolving
operating issues which may develop from time to time;
finalizing and agreeing to program budgets; and approving
specific Standard Operating Procedures ("SOP's") for the
operation of the Agency Services, the Inventory Holding
Services and the Selling Services. The Operating Committee
shall initially consist of R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇, on behalf of Murex, and ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
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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.
▇▇▇▇▇▇▇▇▇▇, on behalf of Digene. Any additional replacement
members of the Operating Committee will hold positions of
similar stature or responsibility with the Parties. The
Operating Committee shall also invite other Murex and/or
Digene representatives to participate, as necessary in any
meetings of the Operating Committee. The Operating Committee
shall meet either in person or by telephonic means at least
twice per year. The Parties will Work With each other in the
good faith implementation of this Agreement.
3. Exclusivity and Non-Competition.
3.1 The appointment of Murex to provide Agency Services and
Inventory Holding Services set forth in Section 2.1 and 2.2
shall be exclusive for all Products sold or distributed in the
Territory. Such agency appointments shall not be subject to
revocation separate from termination of this Agreement.
3.2 Murex agrees that during the term of this Agreement, Murex
shall not Compete with Digene. Murex shall have the right to
distribute, sell or sublicense the products of any
manufacturer or internally developed or acquired products
provided that such other products are not similar to or
competitive with the Products designated as exclusive Products
on Schedule I attached hereto or New Products (as defined
herein) and provided Murex does not Compete with Digene.
Without limitation of the foregoing, for purposes of this
Agreement, Murex shall not be deemed to Compete with Digene if
it engages in the research, development, sale or other
distribution of any non-HPV antibody or antigen detection
products or any multi-parameter drug resistance products in
the Inno-LiPA(TM) format. Except as provided in the preceding
two sentences, for purposes of this Agreement, Murex shall be
deemed to "Compete" with Digene if Murex, any of its
Affiliates, parent companies or respective agents begins
research and development of or commences the distribution or
sale of a DNA or RNA probe assay or other DNA or RNA based
product for detection of HPV or chlamydia or gonorrhea or
microtiter plate assay for detection of amplication reaction
products which is based on the SHARP Signal(TM)system assay
format or improvements to such a system previously disclosed
by Digene to Murex, any of its Affiliates or agents, assays
based on Digene Confidential Information, Patent Rights (such
terms as defined in the 1994 Development and License Agreement
dated May 31, 1994) or any pending patent claimed by Digene
and filed by Digene as of the date of the Distribution
Agreement between Digene and Murex Biotech Limited dated
February 28, 1996 (the "Distribution Agreement"), and detailed
in Exhibit G of the Distribution Agreement, incorporated
herein by reference, or any product based in any respect upon
Digene's Hybrid Capture(TM), SHARP Signal or Digene's
proprietary Hybrid Capture assay detection formats.
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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.
4. Responsibilities of Murex for Provision of Agency Services. Murex shall
provide the following Agency Services to Digene:
4.1 Subject to Section 4.2, Murex shall accept orders from
customers and supply Products to customers at Digene's CIP
country list prices. During the set-up period, Digene shall
review with Murex such country list prices then in effect.
Digene reserves the right to increase such prices twice per
calendar year. As soon as possible but in no event later than
three (3) months from the Effective Date, Murex shall raise
invoices on Digene-headed stationery for Products supplied to
customers. Digene may add new products ("New Products") to
Schedule I of this Agreement, subject to Murex's consent,
which consent shall not be unreasonably withheld. Digene may
withdraw Products from Schedule I, subject to Murex's consent,
which consent shall not be unreasonably withheld. Digene, in
its sole discretion, may withdraw New Products from Schedule I
at any time. Notwithstanding the foregoing, the Parties
recognize that tenders, tender offers or other contracts exist
as of the Effective Date in the name of Murex or Murex
Affiliates in the Territory and that future supply of Products
under such tenders, tender offers or other contracts shall be
made on Murex invoices where legally required.
4.2 Where Murex is providing Selling Services as detailed in
Section 6 of this Agreement and subject to specific
instructions received from Digene from time to time giving
details of the Digene discount structures to be applied to
Products sold in the Territory, Murex shall be free to apply
discounts to Digene's CIP country list prices utilizing
similar rules as Murex applies to its own products.
4.3 Where Murex is providing Selling Services as detailed in
Section 6 of this Agreement and subject to specific
instructions received from Digene from time to time, Murex
shall be free to apply credit terms to customer orders for
Products utilizing similar rules and controls as Murex applies
to its own customers.
4.4 Murex shall maintain an effective accounts receivable system
and shall advise Digene within 30 days after each month end
the amount of sales, where commercially practical, and Net
Sales made by Product by country in the preceding month, and
the amount of accounts receivable with an age profile of the
debt at the previous month end. Murex will make reasonable
efforts to provide such information within 15 days after each
month end.
4.5 Murex shall pay all distribution costs within the Territory
and the costs of shipping Products between Murex Affiliates in
the Territory which arises during the normal course of
business. Digene shall according to Section 8 of
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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 Agreement pay all Products import duties from the US and
any distribution costs arising from specific Products shipment
instructions received from Digene.
4.6 Murex shall carry out on behalf of and for the account of
Digene all importation and customs clearance activities for
Digene literature, samples and goods. All out of pocket
expenses incurred by Murex in connection with the foregoing
shall be reimbursed by Digene.
4.7 Murex shall enter into all sales contracts for the Products as
agent for Digene.
4.8 All Products shall be sold only in the packs supplied by
Digene; Murex shall make no claims as manufacturer of
Products. Murex shall not use, in connection with the
promotion and sale of the Products in the Territory, any
trademarks or brand names, whether in correspondence,
advertising, or otherwise, other than those used by Digene in
connection with the Products and made available to Murex,
without obtaining the prior consent in writing of Digene. For
purposes of this Section 4.8, Murex may use Murex letterhead
for correspondence purposes provided the correspondence
clearly identifies the Digene Product or issue related to such
correspondence.
4.9 Murex shall not, without the prior written authority of
Digene, make any representation or give any warranty or
guarantee in respect of any of the Products beyond those
contained in then current promotional or technical material
supplied by or approved by Digene in writing. Digene hereby
authorizes Murex to make, on Digene's behalf, such warranties
of Digene pertaining to Products as are set forth in Section 6
of the Distribution Agreement.
4.10 Murex undertakes to devote such reasonable time and effort as
is necessary in the exercise of the obligations imposed by
this Agreement.
4.11 Murex will Work With Digene to establish an effective customer
complaint tracking and response system. Such a system will
include front-line collection of information from the
customer, technical service and reporting in the Territory by
Murex. Digene will provide a second line of support directly
to Murex, or the customer, if necessary. Digene will pay all
reasonable, documented costs allocated to such support
services, including costs associated with any Products hold or
recall, as they relate to Digene's Products. Both Parties
agree to use their respective reasonable best efforts to
provide the other Party with copies of all customer
correspondence.
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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.
4.12 Murex shall keep full and accurate accounting records relating
to the invoicing and inventory holding of the Products. Digene
may inspect, at its own expense, such records no more than
twice per year during Murex's normal working hours, on giving
Murex 5 working days notice.
4.13 Murex shall provide Digene with such sales and operations
reports including, without limitation, historical and updated
customer reports, and sales by Product and by customer
reports, on a timely basis which reports Digene shall
reasonably request concerning the sales of Products in the
Territory and the provision of Agency Services, Inventory
Holding Services and Selling Services by Murex under this
Agreement. Digene shall reimburse Murex for all costs which
Murex shall reasonably incur in producing custom reports
requested by Digene. Where capital expenditures are made to
set-up systems specifically requested and paid for by Digene,
such systems will be the property of Digene.
4.14 At Digene's cost, for expenses pre-approved by Digene, Murex
shall use its reasonable commercial efforts to comply with and
help Digene to comply with all present and future regulations
and/or licensing requirements as they relate to Product
registration and approval promulgated by authorized
governmental authorities effective during the term of this
Agreement and required in order to carry out the provisions of
this Agreement and the activities performed hereunder. Murex
shall comply with routine regulatory responsibilities
associated with the performance of the Agency Services and the
Selling Services at its cost unless Murex can demonstrate that
incremental costs are expected to be incurred with respect to
the Products. In such case, Digene will be responsible for
expenses pre-approved by Digene for incremental regulatory
compliance costs. Murex shall notify Digene promptly of any
changes to such regulatory and/or licensing requirements
affecting the activities performed under this Agreement of
which Murex has knowledge. Both Parties agree to use their
respective best efforts to provide the other Party with copies
of all governmental or regulatory correspondence.
5. Set Up and Ongoing Agency Services and Inventory Holding Fees.
5.1 To cover Murex's initial and ongoing costs during 1997 of
setting up the administration of Agency Services in the
Territory for the Products, Digene shall pay Murex the sum of
$[ ] (the "Set Up Payment") made up of:
$[ ] for UK set up
$[ ] for Germany set up
$[ ] for France set up
$[ ] for Italy set up
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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.
$[ ] for Czech Republic set up
$[ ] for Switzerland set up
$[ ] for Spain set up
$[ ] for Benelux set up
$[ ] in total
The Set Up Payment shall be divided into 4 payments of
$[ ], $[ ], $[ ] and $[ ] with such Set Up
Payment installments payable by Digene to Murex on each of the
Effective Date, May 1, 1997, August 1, 1997, and November 1,
1997. Murex shall contribute as partial consideration for the
Set Up Payment, Products literature remaining in the Territory
on the Effective Date. The Set-Up Payment shall be
compensation for the specific activities and services
performed by Murex as set forth on Schedule III attached
hereto and made a part hereof.
5.2 In consideration for the provision of Agency Services and
Inventory Holding Services as described in Section 4 and
Appendix A of this Agreement, Digene shall pay Murex,
according to Section 8 of this Agreement, agency fees (the
"Agency Fees"). Subject to the provisions of Section 2.4.2
hereof, the Agency Fees shall be calculated as a percentage of
Net Sales of Products in the Territory. The percentage rate
shall be [ ] percent ([ ]%) of the Net Sales of Products in
the Territory. In addition, Digene shall refund Murex for any
documented out of pocket costs and expenses incurred by Murex
for shipment of Products at Digene's request free of charge or
at a substantial discount.
5.3 All payments required to be paid by Digene hereunder shall be
deemed to be expressed herein exclusive of value added, sales
or similar taxes, and such taxes, if any, shall be the sole
obligation of Digene.
6. Responsibility of Murex for Selling Services. Murex shall provide the
following Selling Services to Digene:
6.1 Murex shall, from February 1, 1997, provide all the services
of selling Products in the Territory as outlined below. Both
Parties will Work With each other in good faith and with
reasonable endeavor to make the terms of this Agreement work
in the interests of growing the business for the Products in
the Territory. In the performance of Selling Services Murex
shall:
6.1.1 Use its reasonable efforts in the Territory to sell,
service and support the Products including, without
limitation, the requirement as agreed with Digene to
market the Products to customers, advertise the
Products and participate and exhibit the Products at
major local
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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.
exhibitions for infectious disease diagnostics on a
country by country basis each year. All expenses or
expenditures incurred by Murex and prior approved by
Digene associated with this Section 6.1.1 will be
reimbursed by Digene.
6.1.2 Maintain an adequate and competent technical
assistance system, at a level no less than current
systems, in support of any prospective or actual
Products sales in the Territory including training
salesmen and end users.
6.1.3 Work With Digene to maintain at all times an
inventory of Products as necessary to supply
reasonable estimated demand therefor with
consideration given to normal time delays, subject to
Digene's obligation to meet its Products delivery
schedules as set forth in Section 7.2 hereof.
6.1.4 Provide reasonable customer and technical support for
the Products and reasonably assist Digene in the
discharge of Selling Services obligations to
customers.
6.1.5 Provide to end users written instructions which have
been agreed upon by Digene and Murex as to the usage
of each of the Products.
6.1.6 Deliver Products in the packaging agreed upon by
Digene and Murex and provided by Digene. This
packaging will include the name and logo of Digene,
as the manufacturer.
6.1.7 Work With Digene quarterly to determine Murex's
estimated Products requirements for the next quarter,
marketing potential, trends and forecasts,
competition, marketing techniques, current
developments in the Territory, changes of regulations
governing the sale of Products in the Territory and
amounts of Products sold.
All employees providing Selling Services under this Section
6.1 shall report directly to Murex but will be responsible to
operate within the norms and operating procedures established
by Digene for its European operations and to cooperate with
Digene personnel. In the event a Murex employee fails to meet
such standards, and following good faith discussions to
resolve any issues, Digene will have the right to request that
such Murex employee be removed from the team servicing Digene.
In the event of termination under Section 12 hereof, other
than a Termination for Cause by Murex, Digene shall have the
right to offer employment to any employees providing Selling
Services under this Agreement on a full-time basis.
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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.
6.2 In the event that Digene desires to appoint its own personnel
and desires such personnel to be based in the offices of Murex
or a Murex Affiliate in the Territory, Murex agrees, at
Digene's request, to pay the salary, any pension contributions
and expenses of such personnel as authorized by Digene and
Digene agrees to reimburse Murex for such authorized payments
on a monthly basis according to Section 8 of this Agreement.
For the purposes of this Section 6.2, telephone and fax
charges incurred by Digene personnel shall be deemed to be
incurred as if prior authorized by Digene. Such personnel will
report directly to Digene but will be responsible to operate
within the norms and operating procedures established by Murex
and to cooperate with Murex personnel. In the event an
employee fails to meet such standards and following good faith
discussions to resolve any issues, Murex will have the right
to request that such employee of Digene be removed from the
Digene team operating in Murex facilities. In the event of
termination under Section 12, Digene shall have the right to
begin paying any of its own personnel operating under this
Section 6.2 directly.
6.3 Utilization by Digene personnel of Murex's office space shall
be subject to Murex's prior approval, which approval shall not
be unreasonably withheld and shall be based upon factors
including availability of office space and facilities. In the
event that Digene personnel utilize office space on a
full-time basis within a Murex or Murex Affiliate facility as
agreed by Murex, Digene shall pay Murex on a monthly basis
according to Section 8 of this Agreement a proportion of
Murex's and Murex's Affiliate's general office facility
expenses, as applicable, at the rate to be agreed upon by
Murex and Digene based on the allocated cost of an individual
full time equivalent (total office costs divided by the
relevant full time equivalent value) (the "Facility Charge").
Murex shall have the right to increase the monthly Facility
Charge on January 1st of each year during the term of this
Agreement in line with the rate of inflation in each country
where Digene utilizes the office facilities of Murex or a
Murex Affiliate.
6.4 Digene shall be responsible for payment to Murex on a monthly
basis according to Section 8 of this Agreement of all other
expenses incurred or authorized by Digene or its personnel and
paid by Murex or a Murex Affiliate.
6.5 During the 90 day period following the Effective Date, Murex
shall, at the cost of Digene, carry on all necessary servicing
of certain luminometers and shakers (the "Equipment") used by
customers of Products in the Territory in the same manner in
which Murex has been providing such servicing to such
customers. Murex shall determine the aforesaid reasonable cost
for such Equipment servicing during said 90 day period and
Digene shall pay such costs in accordance with Section 8 of
this Agreement.
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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.
6.6 During the 90 day period following Effective Date, Murex and
Digene will Work With each other in good faith to agree on the
appropriate way for the future provision of Equipment
servicing and the payment of the associated costs.
6.7 Murex acknowledges and agrees that all Digene proprietary
rights in Products delivered to Murex by Digene are and shall
remain at all times the exclusive property of Digene or its
licensors, and may not be duplicated by Murex or used except
pursuant to this Agreement and that Murex, by taking delivery
of, making payment for, distributing, and selling or otherwise
using or transferring any of the Products, shall not become
entitled to any proprietary rights in any such Products.
Neither Murex or any of its Affiliates shall take any action
to interfere with Digene's proprietary rights in the Products.
6.8 Trademark Protection. Murex is hereby granted a non-exclusive
license to use Digene's current and future trademarks solely
for the purposes of promoting the Products and fulfilling its
obligation under the terms of this Agreement. Murex agrees not
to apply for registration of any trademarks used by Digene or
any other Person relative to the Products, except with the
consent of Digene.
6.9 In consideration of the provision by Murex of the Selling
Services performed in the Territory as described in this
Section 6, and until such time as the Parties shall agree on a
revision to the fees as determined in Section 8.4 of this
Agreement, Digene shall pay Murex for 7.5 full time
equivalents according to Section 8 of this Agreement, a
monthly Selling Services fee of $[ ].
7. Responsibilities of Digene. Digene shall:
7.1 Be responsible for the placement of Equipment and subject to
Section 6.6 all costs including servicing of the Equipment
supporting Products in the Territory and for all marketing
activities, including promotion, associated with the Products
in the Territory, unless otherwise agreed with Murex.
7.2 Make every reasonable effort to deliver Products advised by
Murex as required to maintain adequate inventory levels within
Murex and Murex Affiliates to meet customers' orders. Delivery
by Digene of Products except for the SHARP Signal System Assay
and HPV Probe Groups, Digene Part No. 4603-1100 shall be made
to Murex or a Murex Affiliate as determined by Murex no later
than 45 days from the date on which the order is received.
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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.
Digene reserves the right to immediately cease all shipments
of any Product upon the discovery of a non-conformity to
specification in such Product. Digene shall renew shipment
only upon correction of such non-conformity. Digene shall be
responsible for all costs associated with recalling the
Products in the Territory. If Murex is providing Selling
Services, Digene shall notify Murex of the discovery and
nature of any non-conformity of any Product to its product
specification and/or product claims, and keep Murex informed
of the progress of corrective actions instigated by Digene.
7.3 Take all reasonable steps to ensure that the Products comply
with all present and future regulations and licensing
requirements issued by any authorized governmental authority
which are effective during the term of this Agreement where
such compliance is required by law to carry out the
distribution and sale of the Products within the Territory.
Murex agrees to provide Digene, at Digene's cost, with
reasonable assistance in the performance of its obligations
pursuant to this paragraph.
7.4 Take all reasonable steps necessary to gain and maintain all
governmental approvals necessary for the manufacture,
marketing, export and sale of the Products and without
prejudice to the generality of the foregoing, all FDA
approvals for Murex to act as agent or as sales representative
for the Products, in the Territory, as applicable. Murex shall
at Digene's cost take all reasonable steps to assist Digene to
obtain such regulatory approvals as are necessary for
marketing and sale of Products in the Territory.
8. Payments for Services.
8.1 Beginning on the Effective Date, Murex and its Affiliates will
continue to cause funds received from customers for payment of
Digene Products purchased in the Territory to be deposited in
bank accounts established by Murex or its Affiliates. Such
funds are hereinafter referred to as the Digene Receivables.
Murex and each Murex Affiliate responsible for the bank
accounts holding the Digene Receivables shall transfer such
Digene Receivables, on a monthly basis as soon as practicable
but in no event longer than the last working day of the
following month to a Digene account identified by Digene.
Prior to each transfer, the Murex Affiliate or Murex may
offset the Digene Receivables to be transferred only by the
amount of documented costs and expenses prior approved by
Digene and actually incurred by Murex or such Affiliate and
specifically arising under Sections 2.4.1, 2.4.3, 4.5, 4.6,
4.11, 4.13, 4.14, 6.2, 6.3, 6.4, 6.5, 6.6, and Appendix A,
Sections 3.2 and 4 under this Agreement. In the set-up period,
the Parties shall begin promptly to work in good faith,
subject to commercial impracticality, to establish separate
Digene bank accounts in the Territory for
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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.
the deposit of the Digene Receivables directly from customers.
Murex shall use all reasonable efforts to establish such
systems and to revise payment instructions and methods so that
Products customers will deposit the Digene Receivables in such
Digene accounts. Digene shall pay Murex for all reasonable,
documented costs associated with the establishment and
maintenance of such accounts and payment systems. The Parties
agree to Work With each other as needed on a case by case
basis to prevent either Party from losing business as a result
of the implementation of the activities contemplated by this
Section 8.1.
8.2 Murex shall provide Digene within 30 days of each month end a
statement detailing and reconciling the Digene Receivables.
Murex shall also invoice Digene within 30 days of each month
end for the costs and expenses reimbursement to be paid by
Digene to Murex under this Agreement, specifically arising
under Sections 2.4.1, 2.4.3, 4.5, 4.6, 4.11, 4.13, 4.14, 5.2,
6.2, 6.3, 6.4, 6.5, 6.6, 6.9, 7.1, 8.1 and Appendix A,
Sections 3.2 and 4 and not paid to the Murex Affiliates
directly pursuant to Section 8.1 hereof. Digene shall pay such
invoice in full within 30 days of receipt. Digene may, in its
discretion, at the request of Murex, authorize specific Murex
employees to have signatory power to withdraw funds from the
Digene account(s) established to reimburse Murex or its
Affiliates for costs and expenses incurred by Murex and its
Affiliates and prior approved by Digene arising from the
Agency Services, Inventory Holding Services and Selling
Services provided under this Agreement, and such authorization
by Digene shall not be unreasonably withheld. In the event
such authorization is provided and the Digene Receivables are
insufficient to cover the total invoice, Murex shall invoice
Digene for such shortfall and Digene shall pay such shortfall
invoice in full within 30 days of receipt.
8.3 Murex and its Affiliates agree to use the same level of due
diligence to collect outstanding Digene Receivables as they
use to collect their own outstanding receivables. Digene shall
bear the cost of any bad debt incurred in the sale of Products
in the Territory; provided, however, that Digene shall perform
a quarterly reconciliation of all bad debt existing. Digene
reserves the right, following good faith discussions with
Murex, to invoice Murex for reimbursement of the Agency Fees
paid with respect to uncollected receivables less the
distribution and shipping costs incurred by Murex and
pertaining to such uncollected receivables, upon Digene's
having recognized and written off such uncollected receivables
for its own financial reporting purposes, and certifying the
same in writing to Murex, and Murex shall pay the invoice in
full within 30 days of receipt.
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REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
8.4 Prior to January 1, 1998 and every year thereafter during the
term of this Agreement, Murex and Digene shall discuss and
agree to revisions in the level of Selling Services to be
provided in the following calendar year and the associated
costs payable by Digene to Murex. In the event that Digene has
not notified Murex of any change in the level of Selling
Services to be provided by Murex under Section 6 of this
Agreement prior to the end of any calendar year, then the
level of Selling Services shall continue at the level then set
and the associated Selling Services fees and related expenses
as set forth in Section 6 of this Agreement payable by Digene
to Murex shall remain at the then current level subject to an
increase in line with the rate of inflation in the country
where the Selling Services are performed. In the event the
Parties cannot agree on the level of Selling Services or
Selling Services fees in any given year during the term of
this Agreement then either Party shall be free to terminate
the use of Murex employees in the provision of Selling
Services as described in Section 6 of this Agreement. In such
event, the Selling Services fees set forth in Section 6.9 will
no longer be payable to Murex and Murex will no longer be
responsible for performing the Selling Services.
9. Term.
This Agreement shall become effective on February 1, 1997 and shall
continue in full force and effect for a period of 5 years unless
terminated earlier under Section 12 hereof. Unless this Agreement is
terminated early under Section 12 hereof or is terminated at the end of
the initial 5 year term by either Party giving to the other no less
than six (6) months notice in writing, the term of the Agreement shall
automatically continue until either Party serves six (6) months'
written notice of termination on the other at any time thereafter.
10. Relationship.
This Agreement is personal to Murex and Digene and shall not be
assigned or delegated by either Party without the prior written
agreement of the other Party, except that Murex may assign any or all
of its rights and delegate any or all of its obligations to one or more
of its Affiliates, agents or distributors as provided herein; provided,
however, that in such event, Murex shall guarantee and be responsible
for the performance of such obligations by such Affiliate, agent or
distributor.
11. Confidentiality.
11.1 From time to time, Digene may make available to Murex
information of a confidential nature (the "Digene Confidential
Information") including, but not limited to, medical and
technical data, test and analysis data, marketing,
application, manufacturing, financial, bookkeeping, business,
market and
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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 information in a written form or orally. Subject to
the remainder of this Section 11.1, Murex shall not use such
Digene Confidential Information without Digene's prior written
consent, except as contemplated by this Agreement or another
agreement between Digene and Murex or an Affiliate thereof,
and shall not disclose such Digene Confidential Information to
others or use such Digene Confidential Information without the
prior written consent of Digene, except to the extent required
to be disclosed to Murex's Affiliates, agents and distributors
in the course of performing its obligations under this
Agreement, required to be disclosed pursuant to other
provisions of this Agreement or other agreements between the
Parties (including their Affiliates) and except as required by
law.
Murex further recognizes that it may acquire access to other
proprietary information of Digene including Digene's
proprietary technology, trade secrets, patented procedures,
research and development data, know-how, formulae, pricing
policies of Digene, the substance of agreements between Digene
and its customers and others and any documents embodying the
foregoing, and, with respect to the Products and New Products,
the following Digene Market Information (as defined herein).
The "Digene Market Information" shall include all (i) customer
lists owned by Digene pertaining to Products and New Products,
(ii) computer software paid for entirely by Digene and (iii)
customer lists, address books, rolodexes, business cards,
telephone lists, price lists, contract forms, books, records
and files, but only such of the foregoing items as are
provided by Digene to Murex for the purposes of the
performance of this Agreement, or generated by Murex under
this Agreement for the purpose of fulfilling its obligations
to provide the Agency Services, Inventory Holding Services and
Selling Services and pertaining solely to Products and New
Products under this Agreement. The Parties recognize that the
Digene Market Information is proprietary to Digene. The Digene
Confidential Information and the Digene Market Information is
hereinafter collectively referred to as the "Digene
Information". All Digene Information acquired by Murex during
the term of this Agreement shall be treated by Murex with the
same care as it would exercise in the handling of its own
proprietary information. In no event shall the Digene
Information be disclosed to any Person including any employee,
consultant and/or contractor unless such Person agrees to be
bound by the terms of this provision or another agreement
providing for the same obligation. The provisions of the
preceding sentence shall not apply to any disclosure required
pursuant to any other provisions of this Agreement or other
agreements between the Parties or between Digene and an
Affiliate of Murex, or required by law. Upon termination or
cancellation of this Agreement for any reason, all such Digene
Information which has been reduced to a writing shall be
immediately returned by Murex to an officer of Digene and the
limitations and undertakings
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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.
specified in this Section 11.1 shall remain in effect for a
period of four (4) years from the date of termination or
expiration of this Agreement. Notwithstanding anything else in
this Section 11.1 to the contrary, Digene Information as
referred to in this Section 11.1 shall not include information
(i) which is or becomes public knowledge other than as a
result of a disclosure by Murex or its Affiliates in violation
of this Agreement; (ii) which is disclosed to Murex on a
non-confidential basis by a third party having no obligation
of secrecy to Digene or its Affiliates; (iii) which Murex can
show by documentary evidence was already in Murex's possession
at the time of disclosure by Digene, and not subject to
another confidentiality agreement with, or obligation of
secrecy to, Digene or its Affiliates; or (iv) which is in
Murex's possession at the time such information is provided to
Digene and is used at the time of this disclosure to Digene
for non-HPV testing purposes. The provisions of this Section
11.1 shall not be construed to prevent Murex or its Affiliates
from developing, or acquiring from third parties, its own
customer lists and subsequently selling or marketing products
or services to those customers even if they are Digene
customers or using such customer lists for any business
purpose not otherwise conflicting with Murex's obligations
under this Agreement. Digene agrees to make available to Murex
such Digene Market Information to enable Murex to perform the
Agency Services, Inventory Holding Services and Selling
Services as required to be performed hereunder. Digene Market
Information shall exclude all "Murex Market Information," as
defined in Section 11.2 hereof.
11.2 From time to time, Murex may make available to Digene
information of a confidential nature (the "Murex Confidential
Information") including, but not limited to, medical and
technical data, test and analysis data, marketing,
application, manufacturing, financial, bookkeeping, business,
market and customer information in a written form or orally.
Subject to the remainder of this Section 11.2, Digene shall
not use such Murex Confidential Information without Murex's
prior written consent, except as contemplated by this
Agreement or another agreement between Digene and Murex or an
Affiliate thereof, and shall not disclose such Murex
Confidential Information to others without the prior written
consent of Murex, except to the extent required to be
disclosed to Digene's Affiliates in the course of performing
its obligations under this Agreement, required to be disclosed
pursuant to other provisions of this Agreement or other
agreements between the Parties (including their Affiliates)
and except as required by law.
Digene further recognizes that it may acquire access to other
proprietary information of Murex, including Murex's
proprietary technology, trade secrets, patented procedures,
research and development data, know-how, formulae, pricing
policies and the substance of agreements between Murex or
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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.
an Affiliate of Murex or another party on whose behalf Murex
serves as agent, and customers or others, and all documents
embodying the foregoing, and the following Murex Market
Information (as defined herein). "Murex Market Information"
shall include customer lists, computer software, address
books, rolodexes, business cards, telephone lists, price
lists, contract forms, catalogs, books, records and files of
Murex, but shall not include any of the foregoing items which
(i) are provided to Murex by Digene for the purpose of the
performance of this Agreement or (ii) pertain exclusively to
the Products and New Products and are generated by Murex for
the purpose of fulfilling its obligations to provide the
Agency Services, Inventory Holding Services and Selling
Services under this Agreement. The Parties recognize that the
Murex Market Information is proprietary to Murex. The Murex
Confidential Information and the Murex Market Information is
hereinafter collectively referred to as the "Murex
Information". All Murex Information acquired by Digene during
the term of this Agreement shall be treated by Digene with the
same care as it would exercise in the handling of its own
proprietary information and in no event shall such Murex
Information be disclosed to any Person including any employee,
consultant and /or contractor unless such Person agrees to be
bound by the terms of this provision or another Agreement
providing for the same obligation. The provisions of the
preceding sentence shall not apply to any disclosure required
pursuant to any other provisions of this Agreement or other
agreements between the Parties or between Digene and an
Affiliate of Murex, or required by law. Upon termination or
cancellation of this Agreement for any reason, all such Murex
Information shall be immediately returned by Digene to an
officer of Murex and the limitations and undertakings
specified in this Section 11.2 shall remain in effect for a
period of four (4) years from the date of termination or
expiration of this Agreement. Murex Information as referred to
in this Section 11.2 shall not include information (i) which
is or becomes public knowledge other than as a result of a
disclosure by Digene or its Affiliates in violation of this
Agreement; (ii) which is disclosed to Digene on a
non-confidential basis by a third party having no obligation
of secrecy to Murex or its Affiliates; or (iii) which Digene
can show by documentary evidence was already in Digene's
possession at the time of disclosure by Murex, and not subject
to another confidentiality agreement with, or obligation of
secrecy to, Murex or its Affiliates. The provisions of this
Section 11.2 shall not be construed to prevent Digene or its
Affiliates from developing, or acquiring from third parties,
its own customer lists and subsequently selling or marketing
products or services to those customers even if they are Murex
customers or using such customer lists for any business
purpose not otherwise conflicting with Digene's obligations
under this Agreement.. Murex Market Information shall exclude
all "Digene Market Information," as defined in Section 11.1
hereof.
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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.
12. Termination.
12.1 Digene may terminate this Agreement by sixty (60) days notice
to Murex upon occurrence of any of the following events
("Termination for Cause"), should any such event not be
remedied within such sixty day notice period.
12.1.1 Murex fails to remit a payment which is due to
Digene.
12.1.2 Murex fails to fulfill one or more of its obligations
under Section 2, 3, 4, 5, 6, 7, 8, 11, 14, or 15 of
this Agreement.
12.1.3 Murex or International Murex Technologies Corporation
("IMTC") becomes bankrupt, insolvent or becomes
unable to pay its obligations when they become due.
12.1.4 One or both of the Development and License Agreements
dated May 31, 1994 or April 14, 1993, respectively
between IMTC and Digene are terminated by Digene
because of a breach by IMTC.
12.2 Murex may terminate this Agreement by sixty (60) days notice
to Digene upon occurrence of any of the following Termination
for Cause events should any such event not be remedied within
such sixty day notice period.
12.2.1 Digene fails to remit a payment which is due to
Murex.
12.2.2 Digene fails to fulfill one or more of its
obligations under Section 2, 3, 4, 5, 6, 7, 8, 11,
13, 14 or 15 of this Agreement.
12.2.3 Digene becomes bankrupt, insolvent or becomes unable
to pay its obligations when they become due.
12.2.4 One or both of the Development and License Agreements
dated May 31, 1994 or April 14, 1993, respectively
between IMTC and Digene are terminated by IMTC
because of a breach by Digene.
12.3 Either Party may terminate this Agreement without cause by
providing six (6) months written notice to the other Party,
provided that Murex shall not be entitled to terminate without
cause prior to January 1, 1999, and provided, further, that if
Digene terminates this Agreement without cause it shall pay to
Murex all payments due and owing to Murex as contemplated by
this Agreement as of the date of termination.
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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.
12.4 If there is a Termination for Cause by Digene, no further
payments will be required from Digene under this Agreement
except for obligations payable to Murex under Section 8 of
this Agreement up to the date of termination and for services
which may be provided during any agreed-upon wind down period
which may occur.
12.4.1 For purposes of this Section 12.4, "July Target Sales
Levels" shall mean Products sales in the Territory of
a minimum of $[ ] per three-month period in the most
recent three-month period preceding July 1, 1997, for
which sales figures are available. For purposes of
this Section 12.4, "November Target Sales Levels"
shall mean Products sales in the Territory of a
minimum of $[ ] per three-month period in the most
recent three-month period preceding November 1, 1997,
for which sales figures are available.
12.4.2 In the event of termination under this Section 12.4,
under circumstances whereby Digene shall not have
made the July Target Sales Levels and shall not have
made the November Target Sales Levels, Murex shall
pay to Digene, on April 1, 1997, the sum of $[ ], but
only for a termination effective on or prior to April
1, 1997.
12.4.3 In the event of termination under this Section 12.4
under circumstances whereby Digene shall have made
the July Target Sales Levels, but shall not have made
the November Target Sales Levels, Murex shall pay to
Digene the payments designated below, but only to the
extent that the dates set forth below occur after the
effective date of such termination:
April 1, 1997 $[ ]
September 30, 1997 $[ ]
December 31, 1997 $[ ]
March 31, 1998 $[ ]
June 30, 1998 $[ ]
September 30, 1998 $[ ]
December 31, 1998 $[ ]
12.4.4 In the event of termination under this Section 12.4
under circumstances whereby Digene shall not have
made the July Target Sales Levels, but shall have
made the November Target Sales Levels, Murex shall
pay to Digene the payments
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REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
designated below, but only to the extent that the
dates set forth below occur after the effective date
of such termination:
April 1, 1997 $[ ]
December 31, 1997 $[ ]
March 31, 1998 $[ ]
June 30, 1998 $[ ]
September 30, 1998 $[ ]
December 31, 1998 $[ ]
12.4.5 In the event of termination under this Section 12.4
under circumstances whereby Digene shall have made
the July Target Sales Levels and shall have made the
November Target Sales Levels, Murex shall pay to
Digene the payments designated below, but only to the
extent that the dates set forth below occur after the
effective date of such termination:
April 1, 1997 $[ ]
September 30, 1997 $[ ]
December 31, 1997 $[ ]
March 31, 1998 $[ ]
June 30, 1998 $[ ]
September 30, 1998 $[ ]
December 31, 1998 $[ ]
All payments under this Section 12.4 shall be without right of
set-off, withholding or counterclaim by Murex.
12.5 If there is a Termination for Cause by Murex, Digene shall pay
all Set Up Payment installments still owed under this
Agreement whether or not due and shall pay all obligations of
Digene under Section 8 of this Agreement up to the date of
termination and for services which may be provided during any
agreed-upon wind down period which may occur.
12.6 In the event this Agreement is terminated by Digene under the
provisions of Section 12.3, but there is no Termination for
Cause under Section 12.1, then Digene shall make the following
termination payment to Murex within 30 days of the date of
termination.
12.6.1 If less than or equal to $[ ] in Agency Fees have
been paid then $[ ] will be payable.
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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.
12.6.2 If more than $[ ] of Agency Fees have been paid, but
less than $[ ], then the difference between $[ ] and
the amount paid will be payable.
12.6.3 If $[ ] or more of Agency Fees have been paid by
Digene over the course of the term of this Agreement,
then no termination payment will be due.
12.7 The termination of this Agreement shall not relieve either
Party of liability for any breach having occurred prior to
such termination, or for any obligation to pay amounts owing
hereunder prior to such termination.
13. Representations and Warranties.
13.1 Representations and Warranties by Digene. Digene hereby represents
and warrants to Murex as of the Effective Date as follows:
13.1.1 Digene has full legal right, power and authority to
execute, deliver and perform its obligations under
this Agreement;
13.1.2 The execution, delivery and performance by Digene of
this Agreement do not contravene or constitute a
default under any provision of its organizational
documents or of any agreement or other instrument
binding upon Digene; and
13.1.3 To the best of Digene's knowledge, the performance by
the Parties does not violate or contravene the
applicable laws and governmental regulations in the
Territory.
13.2 Representations and Warranties by Murex. Murex hereby represents
and warrants to Digene as of the Effective Date as follows:
13.2.1 Murex has full legal right, power and authority to
execute, deliver and perform its obligations under
this Agreement;
13.2.2 The execution, delivery and performance by Murex of
this Agreement do not contravene or constitute a
default under any provision of its organizational
documents or of any agreement or other instrument
binding upon Murex; and
13.2.3 To the best of Murex's knowledge, the performance by
the Parties does not violate or contravene the
applicable laws and governmental regulations in the
Territory.
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REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
14. Indemnification.
14.1 Indemnification by Digene. Digene shall indemnify, defend and
hold harmless Murex and its Affiliates and their respective
directors, officers, employees, consultants and agents (each,
including Murex and its Affiliates, a "Murex Indemnified
Person") from and against any and all claims, actions,
proceedings, expenses, liabilities or losses, including
reasonable attorneys' and accountants' fees and expenses (the
"Losses") suffered or incurred by any such Murex Indemnified
Person either in its individual capacity or as a stockholder
as a result of, or with respect to, or arising out of, or
incidental to, the performance by Murex and such Murex
Indemnified Persons of their obligations under this Agreement
or, arising from or based on a material breach of Digene's
representations, warranties and covenants contained in this
Agreement except to the extent that any such Loss shall, as
determined by final judgment rendered by a court or
arbitration panel of competent jurisdiction, have resulted
from a material breach by such Murex Indemnified Person of the
provisions of this Agreement or from the intentional
misconduct of Murex or such Murex Indemnified Person in the
performance of such activities under the Agreement. Without
limiting the foregoing, Digene agrees to indemnify and hold
harmless Murex and the Murex Indemnified Persons as a result
of or with respect to any claim of personal or property injury
or patent, trademark, trade secret or other property right
infringement arising from or related to the manufacture, use
or sale of any Product distributed, sold or otherwise disposed
of by Murex and its Affiliates, agents or distributors,
provided, however, that nothing contained herein shall serve
to expand Digene's product liability or otherwise conflict
with Digene's warranties with respect to such Products as such
warranties are set forth in Section 6 of the Distribution
Agreement and incorporated herein by reference.
Notwithstanding anything herein contained to the contrary, the
provisions of this Section 14.1 and Digene's obligations under
Section 14.3 shall survive the termination of this Agreement
to the maximum extent permitted by law.
14.2 Indemnification by Murex. Except to the extent caused by the
intentional misconduct of Digene, Murex shall indemnify,
defend and hold harmless Digene and its Affiliates and their
respective directors, officers, employees, consultants and
agents from and against any and all Losses arising from or
based on a material breach of Murex's representations,
warranties and covenants contained in this Agreement.
Notwithstanding anything herein contained to the contrary, the
provisions of this Section 14.2 and Murex's obligations under
Section 14.3 shall survive the termination of this Agreement
to the maximum extent permitted by law.
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SECURITIES AND EXCHANGE COMMISSION.
14.3 Notice and Defense of Third-Party Claims. If any action, claim
or proceeding shall be brought or asserted under this Section
14 against an indemnified party or any successor thereto (the
"Indemnified Person") in respect of which indemnity may be
sought under this Section 14 from an indemnifying person or
any successor thereto (the "Indemnifying Person"), the
Indemnified Person shall give prompt written notice of such
action or claim to the Indemnifying Person who shall assume
the defense thereof, including the employment of counsel
reasonably satisfactory to the Indemnified Person and the
payment of all expenses; the Indemnified Person shall have the
right to employ separate counsel in any of the foregoing
actions, claims or proceedings and to participate in the
defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnified Person unless both
the Indemnified Person and the Indemnifying Person are named
as parties and in the opinion of counsel for the Indemnified
Person common counsel would be inappropriate due to actual or
potential conflicts of interest between the Parties. In the
event that the Indemnifying Person, within ten days after
notice of any such action or claim, fails to assume the
defense thereof, the Indemnified Person shall have the right
to undertake the defense, compromise or settlement of such
action, claim or proceeding for the account of the
Indemnifying Person, subject to the right of the Indemnifying
Person to assume, at its expense, the defense of such action,
claim or proceeding with counsel reasonably satisfactory to
the Indemnified Person at any time prior to the settlement,
compromise or final determination thereof. Anything in this
Section 14 to the contrary notwithstanding, the Indemnifying
Person shall not, without the Indemnified Person's prior
written consent, settle or compromise any action or claim or
consent to the entry of any judgment with respect to any
action, claim or proceeding for anything other than money
damages paid by the Indemnifying Person. The Indemnifying
Person may, without the Indemnified Person's prior written
consent, settle or compromise any such action, claim or
proceeding or consent to entry of any judgment with respect to
any such action or claim that requires solely the payment of
money damages by the Indemnifying Person and that includes as
an unconditional term thereof the release by the claimant or
the plaintiff of the Indemnified Person from all liability
with respect to such action, claim or proceeding.
15. Miscellaneous Provisions.
15.1 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 and binding
arbitration ("Arbitration") for determination, without any
right by
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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:
15.1.1 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.
15.1.2 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. The Response shall also set forth
all third party claims and the relief requested in
respect thereof that are intended to be asserted by
such Party providing the Response.
15.1.3 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.
15.1.4 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
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within the ten (10) day period allotted, the
Association shall designate the third arbitrator.
Such third arbitrator designated pursuant to this
Section 15.1.4 shall be the chair of the Arbitration
panel.
15.1.5 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.
15.1.6 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.
15.1.7 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
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made within the twenty (20) day period prior to the
first day of the Arbitration hearing.
15.1.8 Subject to the limitations imposed by Section 15.1.5,
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.
15.1.9 The Arbitration panel is specifically authorized to
award attorney's fees and expenses to the prevailing
Party, as determined by the Arbitration panel.
15.2 Force Majeure. Either Party shall be excused from any delay or
failure in performance hereunder caused by any labor dispute,
governmental requirement, act of God, earthquake, inability to
secure materials and transportation facilities, and other
causes beyond its control. If such delay, except for any such
delay caused by governmental regulations, shall continue for
more than 90 days, and 135 days in the case of Digene's
inability to deliver Products to customers, the Party injured
by the inability of the other Party to perform shall have the
right, upon written notice to the other Party, to terminate
this Agreement. If a delay or failure to perform hereunder
shall continue for more than 90 days, and 135 days in the case
of Digene's inability to deliver Products to customers and is
caused by any implementation of governmental restrictions or
regulations that make it commercially impossible for Digene to
sell the Products in the Territory, either Party injured by
the inability to perform under the Agreement shall have the
right, upon written notice to the other Party, to terminate
this Agreement. In the event a termination arising only under
the preceding sentence of this Section 15.2 occurs, Digene
shall not be responsible for any payments not then due and
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owing to Murex under this Agreement, except for the Set-Up
Payments set forth in Section 5.1 hereof, and Murex shall be
required to pay the amounts set forth in Section 12.4 hereof,
as if there had been Termination for Cause by Digene.
Termination under this Section 15.2 shall not relieve either
Party of any payment obligation due and owing under this
Agreement or for liability for any breach hereunder.
15.3 Entire Agreement.
This Agreement sets forth the entire agreement and
understanding between the Parties relative to the subject
matter contained herein and supersedes all other agreements,
oral and written, heretofore made between the Parties, with
respect to the subject matter herein. Any amendment hereto
must be in writing and signed by an authorized representative
of each of Digene and Murex.
15.4 Captions. Section titles or captions contained herein are for
reference only and shall not be considered in construing this
Agreement.
15.5 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
notice by express delivery service, shall be deemed to be the
date of such notice.
Digene: Digene Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President or Executive Vice President
Murex: Murex Diagnostics Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn: Managing Director
15.6 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.
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15.7 Records. Murex shall keep accurate and detailed records of all
sales of the Products, and Murex shall permit examination and
inspection of such records by authorized representatives of
Digene, no more than two times per calendar year, during usual
business hours upon five working days notice. Murex may limit
inspection of such information to an agreed independent
auditor, only to the extent such inspection may divulge
confidential information of Murex. In the event Murex
exercises its right to limit inspection to an auditor, written
records of sales not containing such confidential information
shall be supplied by Murex per the terms of Sections 4.13 and
6.1.7 hereof.
15.8 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.
15.9 Press Release and Other Permitted Disclosures Regarding the
Agreement.
15.9.1 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.
15.9.2 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 otherwise
required by the provisions of Section 15.9.1 hereof,
(i) no prior written
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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 15.9.2 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.
15.10 Guaranty. International Murex Technologies Corporation shall,
subject to the consent of Bank of America, FSB (the "Bank"),
guarantee the payment obligations of Murex and its Affiliates
arising hereunder. Digene hereby consents to Murex's
disclosure to the Bank of such information pertaining to this
Agreement as is relevant to Murex's request for the Bank to
grant such consent.
15.11 Severability. In case any one or more of the provisions or
parts of a provision contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall
not affect any other provision or part of a provision of this
Agreement, but this Agreement shall be reformed and construed
as if such invalid or illegal or unenforceable provision or
part of a provision had never been contained herein.
15.12 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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In consideration of the mutual covenants and conditions herein set
forth, the Parties have executed this Agreement as of the Effective Date.
Murex Diagnostics Corporation Digene Corporation
Signature /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ Signature /s/ ▇▇▇▇ ▇▇▇▇▇
---------------- ----------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director Title: President & CEO
Date 3/3/97 Date 3/3/97
--------------------- ---------------------
FOR PURPOSES OF SECTION 15.10 ONLY:
International Murex Technologies Corporation
Signature /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
By: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
Date 2/1/97
--------------------------
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APPENDIX A
DISTRIBUTION INVENTORY HOLDING AGREEMENT
TERMS AND CONDITIONS
1. Storage Facilities
1.1 Murex shall provide secure storage facilities acceptable to
Digene adequate for the Products to be maintained at 2 to
8 degrees C and -20 degrees C as required.
1.2 Inspection of the storage facilities by an authorized
representative of Digene shall be permitted at all reasonable
times on five (5) working days notice during Murex's normal
business hours.
1.3 Digene shall inform Murex if, at any time, it is aware of any
fault or problem which could lead to abnormal deterioration of
Products.
1.4 Murex shall ensure that the facilities and services provided
under this Agreement are compliant with those GMP and
governmental regulations which apply in the Territory and are
relevant to the performance of all activities contemplated by
this Agreement.
2. Inventory Reporting
Murex shall provide to Digene within 30 days of the end of every month
during this Agreement an inventory report detailing the quantity of
each inventory item of Products held in each Affiliate warehouse in the
Territory.
3. Inventory Holding
3.1 All inventory of Products shall remain the property of Digene.
Murex shall label the outer door of Murex's stores containing
Products with the Part Codes of Digene Products held in such
stores and with a statement to the effect that such Products
are the property of Digene, and, in addition, to the extent
space in Murex's facilities is available, segregate Digene's
Products from Murex's products within the facilities of Murex,
and maintain the Products as property of Digene throughout the
term of the Agreement. Murex shall cooperate in the execution
and delivery of any and all documents and filings made by
Digene to assert and maintain its property interest in the
inventory of Products while in the physical possession of
Murex, including, if applicable, security interest filings.
A-1
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3.2 Duties of Murex as inventory holder shall include the
importation of Products into the Territory. All taxes and
duties for importation shall be for the account of Digene and
shall be paid by Digene according to Section 8 of this
Agreement.
3.3 Subject to Section 3.5 below, Murex shall only deliver
Products to customers up to a time one month prior to a
Product's expiration date as shown on the package and shall
not deliver any Products found to be defective.
3.4 Under no circumstances whatsoever shall Murex supply Products
to a customer after that Product's expiration date.
3.5 Murex shall maintain a strict inventory rotation system at all
times and shall use all reasonable endeavors to sell batches
of Products prior to their life expiration.
4. Discards
Murex shall notify Digene of all Products remaining unsold within one
(1) month of the expiration date assigned by Digene as shown on its
packaging. Expired Products shall be disposed of by Murex as directed
by Digene and at Digene's cost, such cost to be invoiced at the time of
disposal, provided that Murex shall be responsible for the cost of
disposal of Products which require disposal due to the actions of
Murex.
A-2
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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 ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ 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.
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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
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SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE III
SET-UP ACTIVITIES
1. Set up, where applicable, new electronic databases to segregate Digene
exclusive Products from Murex products.
2. Define and implement how and when non-exclusive Products will be
recognized within Murex systems.
3. Agree with Digene all reports required from Murex systems and produce,
or have produced, any special program code for this.
4. Determine the appropriate way to capture costs and expenses to be
reimbursed by Digene.
5. Determine and set up all new accounting systems to enable correct
reporting to Digene on Digene's inventory and Digene's sales.
6. Determine and recruit the additional Murex full time equivalents
required to operate the Agreement effectively.
7. Investigate, where determined applicable, Digene bank accounts.
8. Labeling cold stores to list the Digene exclusive Products contained
inside.
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SCHEDULE IV
MUREX DISTRIBUTORS AND AGENTS FOR THE PRODUCTS IN ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ - ▇▇▇▇▇-Scandic HandelsgmbH & Co KG
Czech Republic - ▇▇▇▇▇▇▇ s.r.o.
Lachema a.s.
P-Lab
Chis s.r.o.
Slovak Republic - Timed Spol s.r.o.
- Tatra Alpine a.s.
Hungary - Unilab
Reanal
Estonia - ▇▇▇▇
Promed
Lithuania - Generix
Poland - Alexim sp.z.o.o.
Cefarm - Dialab
Bulgaria - Global Medical Ltd
Gerganov
Romania - Tamisa Trading srl
Russia - Nearmedic
Dynatech GmbH
Biochemmack
Slovenia - A-Z Consulting
Iris
Croatia - Biognost
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REQUEST. REDACTED MATERIAL IS BRACKETED AND HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
G.A.M. Ideja
Macedonia - Replek - Makedonija
