Co-Promotion Agreement (57K)
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CO-PROMOTION AGREEMENT
between
CYTYC CORPORATION
and
DIGENE CORPORATION
Dated as of January 17, 2001
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH "*" AND BRACKETS AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CO-PROMOTION AGREEMENT
This Co-Promotion Agreement (the "Agreement") is made as of January 17,
2001 (the "Effective Date"), by and between CYTYC CORPORATION, a Delaware
corporation maintaining its principal business offices at 85 Swanson Road,
Boxborough, Massachusetts 01719 ("Cytyc"), and DIGENE CORPORATION, a Delaware
corporation maintaining its principal business offices at 1201 Clopper Road,
Gaithersburg, Maryland 20878 ("Digene").
W I T N E S S E T H:
WHEREAS, Cytyc develops, manufactures and markets its ThinPrep(R) System
for medical diagnostic applications, including a replacement for the
conventional Pap smear called the ThinPrep(R) Pap Test(TM) (including any
successor tests thereto, referred to herein as the "ThinPrep Pap Test"), which
is significantly more effective than the conventional Pap smear as a screening
tool for cervical cancer;
WHEREAS, Digene develops, manufactures and markets various diagnostic
tests for women's health, including Hybrid Capture(R) 2 HPV DNA Assays for the
detection of the human papillomavirus ("HPV"), a virus which causes certain
kinds of cervical cancer; and
WHEREAS, Cytyc and Digene wish to enter into an exclusive relationship
to co-promote the HPV tests within the United States and Puerto Rico and share
in certain revenues from sales of the Digene's HPV tests, all upon the terms
specified in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in
this Agreement and intending to be legally bound hereby, Cytyc and Digene agree
as follows:
ARTICLE I - DEFINITIONS
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
1.1 "Affiliate" means any corporation, company, partnership, joint
venture and/or firm which controls, is controlled by or is under common control
with a Party. For purposes of this Section 1.1, "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 interests with the power
to direct the management and policies of such non-corporate entities.
1.2 "Confidential Information" means any proprietary and/or
confidential information which may relate to the products, technology, trade
secrets, know-how, and/or other business or technical information of a Party,
whether disclosed prior to, on or after the Effective Date.
{PAGE} 3
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH "*" AND BRACKETS AND HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
1.3 "Co-Promoted Solution" means the use of Digene Products using
samples taken from Cytyc's ThinPrep Pap Test vials.
1.4 "Cytyc Product" means the ThinPrep Pap Test.
1.5 "Digene Base Case" shall mean the estimated invoiced sales of
Digene Products in each relevant period of the Term in the Territory as set
forth on Schedule B attached hereto.
1.6 "Digene Products" means Digene's various HPV diagnostic tests
for women's health, including Hybrid Capture(R) 2 HPV DNA Assays for the
detection of HPV, and also including, without limitation, those products with
the product numbers listed on Schedule G attached hereto, such Schedule G to be
updated from time to time by the Parties, based on changes in such product
numbers and the like.
1.7 "Digene Product Revenues" means, with respect to each relevant
period during the Term, Digene's invoiced sales of Digene Products for such
period in the Territory, less [*************************************************
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1.8 "Digene Fiscal Year" means Digene's fiscal year ending on June
30 of each calendar year.
1.9 "Laboratory Sales Force" means, with respect to each Party, the
sales and other representatives of such Party responsible for promoting and/or
selling Products directly to hospitals, reference laboratories, independent
laboratories and public health laboratories (collectively, "Laboratories").
1.10 "Managed Care Sales Force" means, with respect to each Party,
the sales and other representatives of such Party responsible for promoting
and/or selling Products directly to or seeking reimbursement coverage approval
from insurance companies, managed health care organizations and the like
(collectively, "Payers").
1.11 "Party" means Cytyc or Digene and "Parties" means Cytyc and
Digene, in each case, as applicable.
1.12 "Physician Sales Force" means, with respect to each Party, the
sales and other representatives of such Party responsible for promoting and/or
selling Products directly to physicians and their staff (collectively,
"Physicians").
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