Current assets

EX-10.72 5 a00945exv10w72.txt EXHIBIT 10.72 Exhibit 10.72 ***TEXT OMITTED AND FILED SEPARATELY CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80(b)(4) AND 240.24B-2 2003 AMENDMENT TO THE RENEWED DISTRIBUTORSHIP AGREEMENT AND THE DISTRIBUTORSHIP ARRANGEMENTS AGREEMENT DATED MAY 2ND, 1997 This amendment is entered into as of the 2nd day of May 2003 by and between Gen-Probe Incorporated, a Delaware corporation, with its principal place of business located at 10210 Genetic Center Drive, San Diego, California 92121 ("GEN-PROBE) and bioMerieux S.A., a French corporation, having its principal place of business at Chemin de l'Orme, 69280 Marcy L'Etoile, France ("BIOMERIEUX"). RECITALS A. GEN-PROBE and BIOMERIEUX have entered into a Distribution Agreement and a Distributorship Arrangements Agreement ("the Agreements") both dated May 2nd, 1997, under which GEN-PROBE has appointed BIOMERIEUX as its exclusive distributor for the sales of certain products in certain specified countries. B. The Distributorship Arrangements Agreement has been modified twice from its date of conclusion, by way of amendments, in order to (i) delete Singapore from the list of countries identified as Phase II Countries, and (ii) to include Poland, a Phase III Country, into the definition of the Territory pursuant to Section 1.5 of the Distributorship Arrangement Agreement. C. The Distribution Agreement has been modified once from its date of conclusion, by way of amendment dated February 2, 1998, in order to (i) modify the wording of Section 3.3 of the Distribution Agreement, and (ii) to delete Exhibit C to the Distribution Agreement. D. The Distribution Agreement and the Distribution Arrangements Agreement are sometimes collectively referred to in this Amendment as "the Distribution Agreements." E. The original term of the Distribution Agreements has been extended by a Renewal Amendment signed by the parties as of November 23, 1999. F. Gen-Probe and BIOMERIEUX have entered into a Authorized Representative Appointment Agreement dated July 15, 1998 in order to comply with the requirements of the Council Directive 93/42/EEC of June 14, 1993 concerning medical devices and the sale of the Gen-Probe Collection Kits in Europe. G. GEN-PROBE and BIOMERIEUX have expressed their mutual interest in extending the Distribution Agreements and have therefore decided to enter into this 2003 Amendment to the renewed Distribution Agreements. 1 AMENDMENT Now, therefore, in consideration of the mutual commitments set forth below, the parties hereto as follows: 1. Definitions. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreements. 2. The parties hereto mutually agree to renew the Term of the Agreements for a further period of three (3) years, starting from May 2nd, 2003 (the "Renewed Term"), unless earlier terminated according to the provisions of the Agreements. No less than one year prior to the scheduled expiration of the Renewed Term, the parties shall commence good faith negotiations regarding another possible extension of the Renewed Term on mutually acceptable terms, provided that, unless the parties shall have reached mutual agreement on the terms and conditions of such an extension within six (6) months of the scheduled expiration of the Renewed Term, the Renewed Term shall automatically expire on the date set forth in the first section of this Section 2. 3. Notwithstanding the provisions of the foregoing Paragraph 2, during the Renewed Term, either party may terminate the Agreements as of their anniversary date in any year by giving notice to the other party at least 120 days prior to the anniversary date of an intention to terminate or seek amendment of the Agreements. Furthermore, during the Renewed Term of the Agreements, GEN-PROBE shall have the additional right and option to terminate the Agreements, by giving 90-days notice, if BIOMERIEUX's purchases of GEN-PROBE products under the Distribution Agreement during any period of not less than [...***...] fall [...***...] or more below purchases for the corresponding period of the prior year. The calculation of the amount of decrease in BIOMERIEUX's purchases from GEN-PROBE for purposes of the preceding sentence shall exclude any decline in BIOMERIEUX's purchases from GP due to (i) sales of APTIMA Products by GEN-PROBE from former customers for GP products and/or (ii) any recalls of product by GEN-PROBE. 4. The Parties mutually agree to amend the Distribution Agreement with the updated Product list and Parts list Pricing which is attached to this Amendment as Attachment A. 5. The Parties mutually agree to amend the Distribution Arrangements Agreement to define the Territories as those countries listed on Attachment B to this Amendment. 6. As the manufacturer and as outlined in the 93/42/EEC Directive and 98/79/EC Directive (collectively the "Directives"), Gen-Probe is aware of the terms of the Directives and acknowledges its obligations as the manufacturer for the compliance of Products which are provided to bioMerieux for distribution into the EEC. In conjunction with the Directives, Gen-Probe also warrants to provide bioMerieux the following: A. Gen-Probe will provide a 6-language standard Product. Additional languages will be mutually discussed in the future. B. Gen-Probe will provide bioMerieux with the following materials: *CONFIDENTIAL TREATMENT REQUESTED 2 - The declaration of conformity for the Products covered by the Directives and any relevant updates thereof, and - A copy of the safety data sheet written in English for Products considered to contain a dangerous substance as defined in directives 67/548/EEC and 1999/45/EC and any relevant updates thereof. C. Both Parties agree to authorize and conduct audits in the premises involved in the manufacturing, packaging, storage and shipment of the Products as required by the Directives. D. Gen-Probe agrees to implement appropriate corrective and / or preventative actions for complaints relating to the Products. 7. For the MTC-NI Product, sold into the Industrial Marketplace (Non Clinical sites) the Distribution rights of this Product will change from Exclusive to Co-Exclusive. 8. Except as expressly modified hereby, all terms and conditions of the original Distribution Agreements (as previously amended) shall remain unchanged and in full force and effect. AGREED TO AND ACCEPTED BY: GEN-PROBE INCORPORATED BIOMERIEUX S.A. By: /s/ Henry L. Nordhoff By: /s/ Benoit Adelus --------------------- ----------------- Name: Henry L. Nordhoff Name: Benoit Adelus Title: President & CEO Title: Chief Executive Officer 3 ATTACHMENT A PRODUCT LIST WITH PRICING

*CONFIDENTIAL TREATMENT REQUESTED

*CONFIDENTIAL TREATMENT REQUESTED ATTACHMENT B TERRITORIES COVERED BY BIOMERIEUX EUROPE : France (Oct 97) Germany (Jan 98) Italy (Feb 98) Spain (Jan 98) UK (Jan 98) Ireland (sales made through UK) (Jan 99) Portugal (Jan 98) Greece (June 98) Switzerland (Jan 98) Belgium (Jan 98) Luxembourg (sales made through Belgium) (Jan 98) The Netherlands (Jan 98) Austria (Jan 98) Czech Republic (Sales made through Austria) (Jan 98) Hungary (Sales made through Austria) (Jan 98) Slovakia (Sales made through Austria) (Jan 98) Romania Tunisia Croatia (Sales made through A&B) (Jan 98) Macedonia (Sales made through Avicena) (April 00) Slovenia (Sales made through Mikro-polo) (Jan 98) Poland (Oct 98) Liechtenstein (Sales made through Switzerland) Malta (Jan 98) Iceland LATIN AMERICA : Argentina (June 99) Columbia Mexico (Jan 00) ASIA & PACIFIC : Australia (Jan 98) New Zealand (sales made through Australia) (Jan 99) China (Jan 01) Taiwan (March 03) India (May 00)