**Exhibit 10.332**

 

| **CONFIDENTIAL** | ** ** | **REDACTED VERSION** |
|------------------|------------|----------------------|

 

**[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILEDSEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTEDPORTIONS.**

 

**AMENDMENT NO. 6 TO**

**AGREEMENT**

 

This Amendment No. 6 (“**AmendmentNo. 6**”) effective as of January 1, 2004 (the “**AmendmentEffective Date**”) to that certain Agreement between Gen-ProbeIncorporated, a Delaware corporation (“**Gen-Probe**”) andChiron Corporation, a Delaware corporation (“**Chiron**”)dated as of June 11, 1998, as amended from time to time as of the AmendmentEffective Date (the “**Agreement**”).

 

Recital

 

Chiron and GenProbe wish to make certain changes andclarifications to their respective rights and obligations under the Agreementfor the revenue sharing and accounting thereto relating to the TigrisInstrument all in accordance with the terms and conditions of this AmendmentNo. 6.  Capitalized terms used but notdefined herein shall have the meanings set forth in the Agreement.

 

Agreement

 

NOW, THEREFORE, for and in consideration of the mutualcovenants and agreements set forth in this Amendment No. 6, the parties agreeas follows:

 

# **1.****             Amendments**.

 

## **1.1****          Amendment to Definition of Net Sales**.  The first full paragraph of Section 1.46 (NetSales) of the Agreement is hereby amended by deleting such paragraph in itsentirety and replacing it with the following

 

“Net Sales” shall mean with respect to anyProduct(s), except as otherwise provided in this Section 1.46, on a per unitbasis where applicable and in the aggregate where applicable, the gross salesprice of such Product(s) invoiced by any of (i) Chiron, (ii) Chiron’sAffiliates, (iii) Gen-Probe, (iv) CDS or, (v) only as to Blood ScreeningAssays, **[***]**, (all of which areindividually referred to hereafter in this Section 1.46 as “Seller”) followingshipment to unaffiliated Third Parties less, to the extent actually paid oraccrued by such Seller (a) discounts, rebates or chargebacks actually allowedand taken, to the extent consistent with industry practices and pricereductions given for similar products by such Seller; and/or (b) amounts repaidor credited by reason of rejection, spoilage, expiration or return; and/or (c)to the extent separately stated on purchase orders, invoices or other documentsof sale, taxes levied on and/or other governmental charges made as toproduction, or transportation or insurance charges; and/or (d) charges forfreight, handling and transportation; and/or (e) sales, use and value-addedtaxes and other similar taxes incurred and separately stated on invoices;and/or (f) customs duties, surcharges and other governmental charges incurredin exporting or importing such

 

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Product. Transfer to any unaffiliated Third Party of a Blood Screening Instrumentqualifying for sale treatment under generally accepted accounting principles(GAAP) will be deemed to be a “sale” for purposes of this Agreement, includingwithout limitation the calculation of “Net Sales” under this Section 1.46and the compensation due Gen-Probe on account of sales under Section 3.3.6(including Sections 3.3.6(b) and (c)).

 

## **1.2****          Additional Provisions for Net Sales**.  Section 1.46 is further modified by addingnew Sections 1.46.5 and 1.46.6 immediately following the end ofSection 1.46.4:

##  

1.46.5      With respect to Blood Screening Assays and Future Blood Screening Assays soldconcurrently or in connection with the placement of Tigris Instruments **[***]**under any arrangement where the costof the Tigris Instrument is included in the price of such Blood ScreeningAssays or Future Blood Screening Assays, i.e., without separate charge to theCustomer for any such Tigris Instrument, Net Sales shall be calculated inaccordance with this Section 1.46.5. With respect to such Blood Screening Assays and Future Blood ScreeningAssays, “Net Sales” shall mean the gross sales price of such Blood ScreeningAssays and/or Future Blood Screening Assays less the cost of such TigrisInstrument, where the Tigris Instrument has been provided by Chiron or itsAffiliates without separate charge to the Customer using such Tigris Instrument(the “Applicable Site”), as follows:

 

(a)           Forpurposes of calculating “Net Sales” under this Section 1.46.5, TigrisInstrument “cost” shall be (i) an amount equal to the Transfer Priceactually paid to Gen-Probe by Chiron for such Tigris Instrument, amortized overa period of not less than five (5) years and applied pro-rata to such periodfor which Net Sales is calculated, and (ii) all shipping costs associatedwith initial delivery of such Tigris Instrument to the Applicable Site, to theextent shipping costs are permitted to be deducted under Section 3.3.6(a)hereof.

 

(b)           Chiron mayapply the deductions described in this Section 1.46.5 only if theApplicable Site screens at least **[***]**(**[***]**) donations per calendar year.

 

(c)           Subject tothe foregoing, Chiron may apply all deductions set forth in thisSection 1.46.5(c) with respect to Net Sales of the Ultrio Assay Product(as defined in the Future Blood Screening Assay – Ultrio Addendum entered intobetween the parties effective as of January 1, 2001) only if (i) withrespect to Applicable Sites that use pools greater than or equal to **[***]**, the per donation price exceeds **[***]**dollars ($**[***]**) per donation (where Chiron does not separately chargefor any Blood Screening Instrument), and (ii) with respect to ApplicableSites that use pools less than **[***]**and sites that perform IDT testing, the per donation price exceeds **[***]**dollars ($**[***]**) per donation (where Chiron does not separately chargefor any Blood Screening Instrument).  Ifthe donation prices are less than **[***]**dollars ($**[***]**) for ApplicableSites using pools greater than or equal to **[***]**and **[***]** dollars ($**[***]**) for Applicable Sites using poolsless than **[***]** or that performIDT testing, the following pro rata deductions shall be applied based on thecorresponding price per donation:

 

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| **Percentage of  deduction (described in  Section 1.46.5 above)  allowed** | ** ** | **Pools of****[***]****(or  greater)** | ** ** | **Pool size less than****[***]****(including IDT)** | ** ** |
|----------------------------------------------------------------------------|------------|----------------------------------------|------------|-----------------------------------------------------|------------|
| 100%                                                                       | ** ** | **$**                                  | **[***]**  | **per  donation**                                   | **$**      | **[***]** | **per  donation** |
| 75%                                                                        | ** ** | **$**                                  | **[***]**  | ** **                                          | **$**      | **[***]** | ** ** |
| 50%                                                                        | ** ** | **$**                                  | **[***]**  | ** **                                          | **$**      | **[***]** | ** ** |
| 25%                                                                        | ** ** | **$**                                  | **[***]**  | ** **                                          | **$**      | **[***]** | ** ** |

 

The foregoing deductions in this clause (c) may beapplied by Chiron solely to the Ultrio Assay Product.  The parties shall meet and negotiate in goodfaith a schedule of allowable deductions applicable to any other Future BloodScreening Assays.

 

(d)           Chironshall provide to Gen-Probe, no later than thirty (30) days following the end ofa calendar year, an annual report approved by the Vice President of Finance andOperations for Chiron Blood Testing, that (i) identifies with specificitythe number of Blood Screening Assays and Future Blood Screening Assays soldconcurrently or in connection with the placement of Tigris Instruments outsidethe U.S. or Canada, and the applicable deductions permitted pursuant to clause(c) above, and (ii) describes in reasonable detail the location andinformation evidencing that the standards described in clause (c) aboveapplicable thereto have been met. Gen-Probe shall have the right to audit the books and records of Chironto determine the accuracy and sufficiency of any such report in accordance withthis Agreement not more than once every other year.

 

1.46.6      Withrespect to Tigris Instruments that were originally placed at an Applicable Siteunder an operating lease, reagent rental agreement or similar arrangement **[***]**which are subsequently sold by Chironor its Affiliates to the Applicable Site, Net Sales shall mean the gross salesprice of such Tigris Instrument (less any applicable deductions described insubparagraphs (a) through (c) of Section 1.46.5), calculated asfollows:

 

gross sales price = (A/B) x **[***]**, where

 

‘A’ is the actual sales price for such TigrisInstrument invoiced by Seller; and

 

‘B’ is the remainder of **[***]** minus the number of months the Tigris Instrument wasplaced in service under the operating lease, reagent rental agreement orsimilar arrangement.

 

By way of an example but not limitation, if the TigrisInstrument was placed in service under an operating lease, reagent rentalagreement or similar arrangement for **[***]**months and then purchased for $**[***]**,the gross sales price of such Tigris Instrument for purposes of the Net Salesunder this Section 1.46, shall be equal to [($**[***]**) x **[***]**] =$**[***]** (less any applicabledeductions described in subparagraphs (a) through (c) ofSection 1.46.5).

 

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## **1.3****          Amendment to Definition of “Transfer Price”**.  For purposes of the Blood Screening Products(but not the Clinical Diagnostic Products), Section 1.58.8 (Transfer Price) ofthe Agreement is hereby deleted in its entirety and restated to read asfollows:

##  

1.58.8      The“Transfer Price” for the Tigris Instrument shall be calculated in accordancewith this Section 15.8.8.  Prior tothe date Chiron, its Affiliates and the Major Distributor has receivedaggregate Net Sales from the sale or placement of Blood Screening Instrumentsequal to the Blood Screening Instrument Cap (as defined in Section 3.3.6(b)below), the Transfer Price for each Tigris Instrument shall be equal to thelesser of (a) **[***]** and **[***]**dollars ($**[***]**), or (b) the amount **[***]**to Gen-Probe by its manufacturer.  After Chiron, its Affiliates and the MajorDistributor has received aggregate Net Sales from the sale or placement ofBlood Screening Instruments equal to the Blood Screening Instrument Cap, theTransfer Price for each Tigris Instrument shall be equal to the amount **[***]** to Gen-Probe by itsmanufacturer.  The Transfer Price for anyBlood Screening Instrument, other than the Tigris Instrument and theLeader/Magnetic Separation Instrument, shall be negotiated between the partiesconcurrently with the negotiation of any development program for such otherBlood Screening Instrument pursuant to Section 3.3.1 (Development Program)or as part of the offer described in Section 3.3.8 (Other Blood ScreeningInstruments).

 

## **1.4****          Amendment to Transfer Price. **Forpurposes of the Blood Screening Products (but not the Clinical DiagnosticProducts), Section 3.3.6(a) (Transfer Price) of the Agreement is hereby amendedand restated in its entirety as follows:

##  

(a)           TransferPrice; Shipping.  Within thirty (30)days of invoice, Chiron shall pay to Gen-Probe the Transfer Price for eachBlood Screening Instrument purchased by Chiron, its Affiliates or the MajorDistributor.  Chiron shall pay allshipping costs for such Blood Screening Instrument from Gen-Probe’smanufacturer’s warehouse to the location requested by such Seller.  From and after the date Chiron, itsAffiliates and the Major Distributor has received aggregate Net Sales from thesale or placement of Blood Screening Instruments in the United States andCanada equal to the Blood Screening Instrument Cap, Chiron may deduct shippingcosts actually paid by any Seller (other than Gen-Probe or CDS) in calculatingNet Sales.

 

## **1.5****          Amendment to Instrument Sales in the UnitedStates and Canada. **For purposes of the BloodScreening Products (but not the Clinical Diagnostic Products), Section 3.3.6(b)(Instrument Sales in the United States and Canada) of the Agreement is herebyamended and restated in its entirety as follows:

##  

(b)           InstrumentSales in the United States and Canada.

 

                (i) Chiron,its Affiliates and the Major Distributor (as applicable) shall be entitled toretain an aggregate amount of Net Sales (including lease revenues andinstrument placement fees) from the sale or placement of Blood ScreeningInstruments by Chiron, its Affiliates or the Major Distributor in the UnitedStates or Canada, (the “Blood Screening Instrument Cap”).  The Blood Screening Instrument Cap shall be adollar amount equal to **[***]**the **[***]**actual Transfer Price of the TigrisInstruments sold to Chiron (such

 

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average actual Transfer Price to be calculated fromtime-to-time until such time as Chiron, its Affiliates and the MajorDistributor (as applicable) have retained an aggregate amount of Net Sales ofBlood Screening Instruments equal to the Blood Screening Instrument Cap).  (By way of example, and not by way oflimitation, if the Transfer Price for each Tigris Instrument is $**[***]** then the Blood Screening InstrumentCap is **[***]** and **[***]**dollars ($**[***]**); or if the Transfer Price for ten Tigris Instruments is$**[***]** and for **[***]** Tigris Instruments is $**[***]**, then the Blood Screening InstrumentCap is **[***]** $**[***]**or $**[***]**).

 

                (ii) AfterChiron, its Affiliates and the Major Distributor have received Net Sales fromthe sale or placement of Blood Screening Instruments equal to the BloodScreening Instrument Cap, within forty-five (45) days after the end of eachfiscal quarter, Chiron shall pay to Gen-Probe an amount equal to **[***]**percent (**[***]**%) of (A) Net Sales of each Blood ScreeningInstrument sold by Chiron, its Affiliates or the Major Distributor toindependent customers in the United States and Canada during such fiscalquarter, less (B) the Transfer Price actually paid to Gen-Probe for eachBlood Screening Instrument included with the calculation of Net Sales for suchfiscal quarter.

 

## **1.6****          Instrument Service Revenues**.  Section 3.3.6(d) (Service Revenues) of theAgreement (as it was modified by paragraph D of the Settlement Agreement) ishereby amended and restated in its entirety as follows:

##  

Chiron may exclude fromNet Sales all revenues received by Chiron in consideration for providinginstrument maintenance and repair service for Blood Screening Instruments,including TECAN Genesis automatic pipetting stations (whether deemed part of aBlood Screening Instrument or not), regardless of the form of the instrumenttransfer (sale, lease, or rental), location (U.S./Canada or foreign), partyproviding instrument (Chiron or Third Party), or party providing service(Chiron or Third Party service provider). Chiron shall charge no more for such services than commerciallyreasonable values for the diagnostic and/or blood screening markets consistentwith standard industry practice in those markets.

 

# **2.****             Effect of Amendment.**

#  

## **2.1****          No Effect of Clinical Diagnostic Products. **ThisAmendment No. 6 is effective as between Chiron and Gen-Probe with respect toBlood Screening Products only, and nothing herein shall affect any rights orobligations of Gen-Probe or Bayer with respect to Clinical Diagnostic Products.

##  

## **2.2****          TECAN Instruments**.  Nothing herein is intended to amendprovisions applicable to the sales or placements of TECANs (as defined inparagraph C of the Settlement Agreement between the parties dated November 16,2001 (the “Settlement Agreement”)).  Theprovisions of paragraph C of the Settlement Agreement control the placement andsale of TECAN Instruments, and the sharing of revenues therefrom.

##  

## **2.3****          Settlement Agreements**.  Theprovisions of this Amendment No. 6 are intended to, and hereby, supercede anyprovisions in the Definitive Written Settlement Agreement entered

 

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## into by and between theparties, dated December 5, 2001, and the Short Form Agreement entered into byand between the parties, dated November 16, 2001, on the same subject matter.  Except as expressly set forth in this Amendment No. 6,all other terms and conditions of the Agreement, the parties’ DefinitiveWritten Settlement Agreement, dated December 5, 2001, and the Short FormAgreement, dated November 16, 2001, are hereby ratified and shall continue infull force and effect.  In the event of aconflict between the terms of this Amendment No. 6 and the Agreement, the termsof this Amendment No. 6 shall control.

##  

## **2.4****         ****No OtherAmendment**.  Except as is set forth in this Amendment No.6, all other terms and conditions of the Agreement shall continue in full forceand effect.

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# **3.****             Counterparts. **This Amendment No. 6 may be executed in counterparts, each of which shallbe an original, and all of which together shall constitute one and the sameinstrument.

#  

IN WITNESS WHEREOF, the parties have causedthis Amendment No. 6 to be executed effective as of the Amendment EffectiveDatand the persons signing below warrant that they are duly authorized to signfor and on behalf of the respective parties.

 

 
| **Gen-Probe**:                                      | **Chiron**:                                     |
|-----------------------------------------------------|-------------------------------------------------|
| ** **                                          | ** **                                      |
| **GEN-PROBE INCORPORATED**,  a Delaware corporation | **CHIRON CORPORATION**,  a Delaware corporation |
| ** **                                          | ** **                                      |
| ** **                                          | ** **                                      |
| By:                                                 | **/s/ HANK NORDHOFF**                           | ** ** | By: | **/s/ GENE W. WALTHER** |
| Its:                                                | **CEO**                                         | ** ** | Its: | **President** |
| Date:                                               | **2-12-05**                                     | ** ** | Date: | **18 Feb. 2005** |

 

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