Exhibit 10.332


 




	
  CONFIDENTIAL

  	
   

  	
  REDACTED VERSION

  






 


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


 


AMENDMENT NO. 6 TO


AGREEMENT


 


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


 


Recital


 


Chiron and GenProbe wish to make certain changes and
clarifications to their respective rights and obligations under the Agreement
for the revenue sharing and accounting thereto relating to the Tigris
Instrument all in accordance with the terms and conditions of this Amendment
No. 6.  Capitalized terms used but not
defined herein shall have the meanings set forth in the Agreement.


 


Agreement


 


NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements set forth in this Amendment No. 6, the parties agree
as follows:


 


1.             Amendments.


 


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


 


“Net Sales” shall mean with respect to any
Product(s), except as otherwise provided in this Section 1.46, on a per unit
basis where applicable and in the aggregate where applicable, the gross sales
price of such Product(s) invoiced by any of (i) Chiron, (ii) Chiron’s
Affiliates, (iii) Gen-Probe, (iv) CDS or, (v) only as to Blood Screening
Assays, [***], (all of which are
individually referred to hereafter in this Section 1.46 as “Seller”) following
shipment to unaffiliated Third Parties less, to the extent actually paid or
accrued by such Seller (a) discounts, rebates or chargebacks actually allowed
and taken, to the extent consistent with industry practices and price
reductions given for similar products by such Seller; and/or (b) amounts repaid
or credited by reason of rejection, spoilage, expiration or return; and/or (c)
to the extent separately stated on purchase orders, invoices or other documents
of sale, taxes levied on and/or other governmental charges made as to
production, or transportation or insurance charges; and/or (d) charges for
freight, handling and transportation; and/or (e) sales, use and value-added
taxes and other similar taxes incurred and separately stated on invoices;
and/or (f) customs duties, surcharges and other governmental charges incurred
in exporting or importing such


 


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Product. 
Transfer to any unaffiliated Third Party of a Blood Screening Instrument
qualifying for sale treatment under generally accepted accounting principles
(GAAP) will be deemed to be a “sale” for purposes of this Agreement, including
without limitation the calculation of “Net Sales” under this Section 1.46
and 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 adding
new Sections 1.46.5 and 1.46.6 immediately following the end of
Section 1.46.4:


 


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


 


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


 


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


 


(c)           Subject to
the foregoing, Chiron may apply all deductions set forth in this
Section 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 into
between the parties effective as of January 1, 2001) only if (i) with
respect to Applicable Sites that use pools greater than or equal to [***], the per donation price exceeds [***] dollars ($[***]) per donation (where Chiron does not separately charge
for any Blood Screening Instrument), and (ii) with respect to Applicable
Sites that use pools less than [***]
and sites that perform IDT testing, the per donation price exceeds [***] dollars ($[***]) per donation (where Chiron does not separately charge
for any Blood Screening Instrument).  If
the donation prices are less than [***]
dollars ($[***]) for Applicable
Sites using pools greater than or equal to [***]
and [***] dollars ($[***]) for Applicable Sites using pools
less than [***] or that perform
IDT testing, the following pro rata deductions shall be applied based on the
corresponding 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 be
applied by Chiron solely to the Ultrio Assay Product.  The parties shall meet and negotiate in good
faith a schedule of allowable deductions applicable to any other Future Blood
Screening Assays.


 


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


 


1.46.6      With
respect to Tigris Instruments that were originally placed at an Applicable Site
under an operating lease, reagent rental agreement or similar arrangement [***] which are subsequently sold by Chiron
or its Affiliates to the Applicable Site, Net Sales shall mean the gross sales
price of such Tigris Instrument (less any applicable deductions described in
subparagraphs (a) through (c) of Section 1.46.5), calculated as
follows:


 


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


 


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


 


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


 


By way of an example but not limitation, if the Tigris
Instrument was placed in service under an operating lease, reagent rental
agreement or similar arrangement for [***]
months and then purchased for $[***],
the gross sales price of such Tigris Instrument for purposes of the Net Sales
under this Section 1.46, shall be equal to [($[***]) x [***]] =
$[***] (less any applicable
deductions described in subparagraphs (a) through (c) of
Section 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) of
the Agreement is hereby deleted in its entirety and restated to read as
follows:


 


1.58.8      The
“Transfer Price” for the Tigris Instrument shall be calculated in accordance
with this Section 15.8.8.  Prior to
the date Chiron, its Affiliates and the Major Distributor has received
aggregate Net Sales from the sale or placement of Blood Screening Instruments
equal 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 the
lesser of (a) [***] and [***] dollars ($[***]), or (b) the amount [***] to Gen-Probe by its manufacturer.  After Chiron, its Affiliates and the Major
Distributor has received aggregate Net Sales from the sale or placement of
Blood Screening Instruments equal to the Blood Screening Instrument Cap, the
Transfer Price for each Tigris Instrument shall be equal to the amount [***] to Gen-Probe by its
manufacturer.  The Transfer Price for any
Blood Screening Instrument, other than the Tigris Instrument and the
Leader/Magnetic Separation Instrument, shall be negotiated between the parties
concurrently with the negotiation of any development program for such other
Blood Screening Instrument pursuant to Section 3.3.1 (Development Program)
or as part of the offer described in Section 3.3.8 (Other Blood Screening
Instruments).


 


1.4          Amendment to Transfer Price.  For
purposes of the Blood Screening Products (but not the Clinical Diagnostic
Products), Section 3.3.6(a) (Transfer Price) of the Agreement is hereby amended
and restated in its entirety as follows:


 


(a)           Transfer
Price; Shipping.  Within thirty (30)
days of invoice, Chiron shall pay to Gen-Probe the Transfer Price for each
Blood Screening Instrument purchased by Chiron, its Affiliates or the Major
Distributor.  Chiron shall pay all
shipping costs for such Blood Screening Instrument from Gen-Probe’s
manufacturer’s warehouse to the location requested by such Seller.  From and after the date Chiron, its
Affiliates and the Major Distributor has received aggregate Net Sales from the
sale or placement of Blood Screening Instruments in the United States and
Canada equal to the Blood Screening Instrument Cap, Chiron may deduct shipping
costs actually paid by any Seller (other than Gen-Probe or CDS) in calculating
Net Sales.


 


1.5          Amendment to Instrument Sales in the United
States and Canada.  For purposes of the Blood
Screening Products (but not the Clinical Diagnostic Products), Section 3.3.6(b)
(Instrument Sales in the United States and Canada) of the Agreement is hereby
amended and restated in its entirety as follows:


 


(b)           Instrument
Sales in the United States and Canada.


 


                (i) Chiron,
its Affiliates and the Major Distributor (as applicable) shall be entitled to
retain an aggregate amount of Net Sales (including lease revenues and
instrument placement fees) from the sale or placement of Blood Screening
Instruments by Chiron, its Affiliates or the Major Distributor in the United
States or Canada, (the “Blood Screening Instrument Cap”).  The Blood Screening Instrument Cap shall be a
dollar amount equal to [***] the [***] actual Transfer Price of the Tigris
Instruments sold to Chiron (such


 


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


 


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


 


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


 


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


 


2.             Effect of Amendment.


 


2.1          No Effect of Clinical Diagnostic Products.  This
Amendment No. 6 is effective as between Chiron and Gen-Probe with respect to
Blood Screening Products only, and nothing herein shall affect any rights or
obligations of Gen-Probe or Bayer with respect to Clinical Diagnostic Products.


 


2.2          TECAN Instruments.  Nothing herein is intended to amend
provisions applicable to the sales or placements of TECANs (as defined in
paragraph C of the Settlement Agreement between the parties dated November 16,
2001 (the “Settlement Agreement”)).  The
provisions of paragraph C of the Settlement Agreement control the placement and
sale of TECAN Instruments, and the sharing of revenues therefrom.


 


2.3          Settlement Agreements.  The
provisions of this Amendment No. 6 are intended to, and hereby, supercede any
provisions in the Definitive Written Settlement Agreement entered


 


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into by and between the
parties, dated December 5, 2001, and the Short Form Agreement entered into by
and 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’ Definitive
Written Settlement Agreement, dated December 5, 2001, and the Short Form
Agreement, dated November 16, 2001, are hereby ratified and shall continue in
full force and effect.  In the event of a
conflict between the terms of this Amendment No. 6 and the Agreement, the terms
of this Amendment No. 6 shall control.


 


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


 


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


 


IN WITNESS WHEREOF, the parties have caused
this Amendment No. 6 to be executed effective as of the Amendment Effective
Datand the persons signing below warrant that they are duly authorized to sign
for 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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