[CONFIDENTIAL TREATMENT REQUESTED]
EXHIBIT 10.11
COPROMOTION AGREEMENT
This COPROMOTION AGREEMENT (the "Agreement") is made May ____, 1997, and is
effective April 25, 1997, by and between CYTYC CORPORATION, a Delaware
corporation maintaining its principal business offices at 85 Swanson Road,
Boxborough, Massachusetts 01719 ("Cytyc"), and MEAD JOHNSON & COMPANY, a
Delaware corporation maintaining its principal business offices at 2400 West
Lloyd Expressway, Evansville, Indiana 47721 ("MJC").
W I T N E S S E T H:
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WHEREAS, Cytyc manufactures, markets, and distributes a replacement for the
pap smear under the name "ThinPrep(R) Pap Test(TM)" which has received
premarketing approval by the United States Food and Drug Administration;
WHEREAS, MJC is engaged in the business of developing, manufacturing,
marketing, and/or distributing various nutritional and some pharmaceutical
products in the United States; and
WHEREAS, Cytyc wishes to expand the promotion of the Thin Prep Pap Test to
OBGYNs, and MJC desires to have the right to copromote the ThinPrep Pap Test to
OBGYNs, all upon the terms specified in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, Cytyc and MJC agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms will have
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the corresponding meanings set forth below:
A. [confidential treatment requested] has the meaning specified in
Section 11.
B. "Face-To-Face Call" has the meaning specified in Section 4.C.(5).
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C. "Follow-Up Call" has the meaning specified in Section 4.E.
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D. [confidential treatment requested] has the meaning specified in
Section 11.
E. "National Phase" has the meaning specified in Section 3.A.
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F. "OBGYNs" means obstetricians and gynecologists practicing patient care
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in the Territory [confidential treatment requested].
G. "POA" means "plan of action".
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H. "Primary Call" has the meaning specified in Section 4.C.
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I. "Product" means the ThinPrep Pap Test and any new and/or improved
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form, formulation, or delivery system specifically related to the ThinPrep Pap
Test.
J. "Product Sales" means for the applicable period the price actually
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charged by Cytyc or its licensees for the Product and for any processing
equipment for the Product to purchasers for their use or use by someone else or
for resale in the Territory, net of (i) actual returns and credits for rejected
Product and processing equipment, (ii) actual bad debt related to sales of the
Product and processing equipment, (iii) sales of Product for research and
development purposes, and (iv) sales taxes or similar taxes, the legal incidence
of which falls on Cytyc, to the extent identified on the invoice for the Product
or processing equipment or otherwise documented as part of the sale. If Product
or processing equipment is sold for compensation other than cash, Product Sales
will be calculated based on the fair market value of the Product or processing
equipment in cash.
K. "Profile Form" has the meaning specified in Section 4.B.
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L. "Promotional Materials" means all written promotional material
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provided to MJC by Cytyc in connection with this Agreement, including, but not
limited to, sample Products, user manuals, logos, symbols, designs, displays,
stationery, forms, articles, sales literature, technical manuals, and business
reply cards related to the Product or Cytyc's ThinPrep System generally.
M. "Regional Phase" has the meaning specified in Section 3.A.
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N. "Residual Phase" has the meaning specified in Section 3.A.
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O. "Select OBGYNs" are those OBGYNs who have been specially identified by
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Cytyc and MJC as provided for in Section 4.C.(6)(a).
P. "Term" has the meaning specified in Section 3.A.
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Q. "Territory" means the [confidential treatment requested].
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R. "Trademark" means the registered trademarks "Cytyc(R)", "ThinPrep(R)",
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"PreservCyt(R), and "TransCyt(R)", and the trademark "ThinPrep(R) Pap Test(TM)"
and any other trademark or trade name (whether registered or unregistered) used
on or with the Product or in any promotional material related to the Product in
the Territory.
2. GRANT OF RIGHTS TO MJC
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A. Cytyc engages MJC to copromote the Product on an exclusive basis to
OBGYNs upon the terms and conditions in this Agreement. During the Term, (i)
Cytyc and its affiliates retain the right, and have the obligation, to use
commercially reasonable efforts to promote the Product in the Territory, and
(ii) Cytyc retains and this Agreement in no way restricts Cytyc's right to
promote, distribute, and sell the Product in the Territory through labs, managed
care organizations, insurance companies, and any other organizations as Cytyc
deems necessary or
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appropriate in its sole discretion provided that Cytyc does not utilize the
services of [confidential treatment requested].
B. During the Term, Cytyc grants MJC a fully-paid up, nonexclusive right
and license to use the Trademark solely in connection with its promotion of the
Product and the other activities of MJC conducted in the Territory in accordance
with this Agreement. MJC will use the Trademarks only in furtherance of the
purposes of this Agreement and at all times will use the Trademarks in
accordance with the trademark guidelines promulgated by Cytyc and then in
effect. MJC acknowledges that the Trademarks and any Promotional Materials
provided by Cytyc under this Agreement are owned solely and exclusively by Cytyc
and that nothing contained in this Agreement will give MJC any ownership right
in the Trademarks or Promotional Materials. MJC will not reproduce, copy, or
alter the Promotional Materials in any manner. MJC will not alter, deface,
cover, or remove any copyright or trademark notice on the Promotional Materials.
MJC has no right to sub-license any such rights.
3. TERM
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A. The Term will consist of the Regional Phase, the National Phase, and
the Residual Phase.
(1) The Regional Phase will run from [confidential treatment
requested] , through [confidential treatment requested].
(2) The National Phase will run from [confidential treatment
requested], through [confidential treatment requested].
(3) The Residual Phase will run from [confidential treatment
requested], through [confidential treatment requested].
B. During the Regional Phase only, the Territory will be substantially
reduced so that it will consist only of the following [confidential treatment
requested] full MJC Districts and [confidential treatment requested] partial MJC
Districts:
(1) Full MJC Districts
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[confidential treatment requested]
(2) Partial MJC Districts [confidential treatment requested]
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[confidential treatment requested]
C. During the National Phase and the Residual Phase, the entire Territory
will apply.
D. On mutual agreement of Cytyc and MJC in their respective sole
discretion, the copromotion of the Product via Face-To-Face Calls, [confidential
treatment requested] each, and Follow-Up Calls may be continued beyond
[confidential treatment requested]. The exact terms
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and conditions of such additional copromotion activities would be as agreed to
between Cytyc and MJC.
4. COPROMOTION BY MJC
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A. During the Regional Phase and the National Phase, MJC will use
commercially reasonable efforts to copromote the Product to OBGYNs as set out in
this Agreement. MJC will utilize its sales representatives to copromote the
Product. MJC will not make any claims, warranties, or other statements
regarding the Product other than those contained in the Promotional Materials,
the Product's current package insert, or any other statement expressly
authorized by Cytyc. MJC and its sales representatives at all times will act in
a manner consistent with fair trade, fair competition, and good business ethics
and will attempt to maintain favorable relations with the OBGYNs and any other
person in connection with performing its obligations under this Agreement.
B. Cytyc and MJC jointly will develop a Profile Form to be used to help
identify the potential for Product business with an OBGYN. Information for
inclusion in the Profile Form will include [confidential treatment requested].
Cytyc will pay for the costs to develop, print, and distribute to MJC personnel
the Profile Form as needed by them. Information on the Profile Forms will be
for the benefit of and the property of [confidential treatment requested].
C. MJC will make Primary Calls and Face-To-Face Calls on OBGYNs as
follows:
(1) Primary Calls and Face-To-Face Calls will be made by MJC for the
purpose of attempting to identify and/or further develop the potential for
Product business with the OBGYN.
(2) A Primary Call to an OBGYN who at the time of the Primary Call is
not using the Product will consist of the following:
[confidential treatment requested]
(3) A Primary Call to an OBGYN who at the time of the Primary Call is
using the Product will consist of the following:
[confidential treatment requested]
(4) MJC will attempt to have Primary Calls with the OBGYN and key
office staff although such is not guaranteed as such attendance depends on MJC's
accessability to and the willingness of the OBGYN and key office staff. MJC,
however, does commit to the following:
(a) During the Regional Phase, conducting a Primary Call with not
less than [confidential treatment requested] of the OBGYNs in the Territory
covered by the Regional Phase.
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(b) From [confidential treatment requested] which are the
[confidential treatment requested] of the National Phase, making a total of
[confidential treatment requested] Primary Calls as follows:
(i) [confidential treatment requested] Primary Calls on OBGYNs who
have not had a prior Primary Call; provided, however, that the Primary Calls
made by MJC during the Regional Phase [confidential treatment requested]; and
(ii) [confidential treatment requested] additional Primary Calls on
OBGYNs who may or may not have had a prior Primary Call at any time earlier in
the Term.
(c) Notwithstanding anything to the contrary in Section 4.C.(4)(b)
above, if MJC fails to make the number of Primary Calls set out in Section
4.C.(4)(b) above by [confidential treatment requested] this will not be deemed a
breach by MJC if the shortfall is not due to bad faith by MJC, but in any event
Cytyc and MJC will meet to discuss and mutually agree in good faith on (i)
shifting the obligation to make such shortfall in Primary Calls, (ii) making a
prorata adjustment in the Call Fee provided for in Section 11.C.(1) below, or
(iii) some other mutually agreeable reasonable resolution.
(5) A Face-To-Face Call to an OBGYN will consist of the following:
[confidential treatment requested]
(6) During [confidential treatment requested] which comprises the
[confidential treatment requested] of the [confidential treatment requested],
MJC will use commercially reasonable efforts to [confidential treatment
requested].
(a) All Face-To-Face Calls will be with [confidential treatment
requested]. Cytyc and MJC, as part of the review process set forth in Section
4.F. below, mutually will agree on [confidential treatment requested].
(b) To count as a Face-To-Face Call, at least part of the Face-To-Face
Call must [confidential treatment requested]. [confidential treatment
requested], MJC will still perform the obligations set out in either Subsections
(5)(a)(vi) or Subsection (5)(b) (ii) through (v) above, as applicable. Such
visit, however, will not count as a Face-To-Face Call but will be recorded by
MJC as a promotional visit.
(7) One or more additional Primary Calls [confidential treatment requested]
or Face-to-Face Calls [confidential treatment requested] may be necessary in
some situations to accomplish the objectives in Subsections (2), (3), and (5)
above respectively. If [confidential treatment requested] Primary Call or Face-
To-Face Call, as applicable, on OBGYNs is necessary, the [confidential treatment
requested] Primary Call or Face -To-Face Call will be modified by MJC from the
requirements set out in Subsections (2), (3), and (5) above respectively as
dictated by the circumstances. In such situations, additional Primary Calls or
Face-To-Face Calls, as applicable, will be made during the respective periods
for such calls unless or until either a qualified lead is generated or the OBGYN
is judged by MJC and Cytyc to be of marginal value and/or have marginal interest
in the Product.
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(8) During all Primary Calls [confidential treatment requested].
D. Upon (i) completion of all Primary Calls necessary to enable
completion of the Profile Form on an OBGYN's office and (ii) MJC's ability to
obtain a commitment from the OBGYN to allow Cytyc's sales representative to make
a call on the OBGYN, MJC promptly, within [confidential treatment requested] MJC
business days if reasonable, will complete and send, by fax if reasonably
possible, to Cytyc a completed Profile Form.
E. Following Cytyc's receipt of a completed Profile Form from MJC, Cytyc
promptly will forward the completed Profile Form to Cytyc's local sales
representative for Follow-Up Calls on the OBGYN . The Cytyc sales
representative then will promptly, within [confidential treatment requested]
days if reasonable, will make an appointment with the OBGYN for a Follow-Up Call
which appointment will be for as soon as is mutually agreeable with the OBGYN.
The purpose of the appointment will be for the Cytyc sales representative to:
[confidential treatment requested]
Cytyc will use commercially reasonable efforts to notify the MJC sales
representative of the date and time for the appointment. [confidential treatment
requested]. Following the Cytyc sales representative's Follow-Up Call on the
OBGYN, the Cytyc sales representative will report the outcome to MJC's
designated coordinator and to Cytyc's designated coordinator. Depending on the
geographic market and the Profile Form data, Cytyc may elect to effect a Follow-
Up Call via either telephone or by referral of the Follow-Up Call to appropriate
processing laboratory sales personnel. A general guideline for use of such
alternative means of effecting a Follow-Up Call is set out in Exhibit 1.
In addition to the foregoing provisions of this Subsection E, [confidential
treatment requested].
F. In [confidential treatment requested], as mutually agreed to by MJC
and Cytyc, MJC and Cytyc will meet to discuss and evaluate their perspectives on
which [confidential treatment requested]. The focus of this discussion and
evaluation will be how to attempt to maximize Product Sales during the Term.
Some considerations for such discussion will be: (i) new OBGYNs that have been
or may be added during the balance of the National Phase, (ii) OBGYNs who,
based on prior Primary Calls and/or Follow-Up Calls, seemed to have a reasonable
interest in the Product but have not yet started using the Product, (iii)
particularly influential OBGYNs, and (iv) OBGYNs who are heavy users of the
Product. MJC will use this discussion and evaluation and other relevant
information available to MJC in determining where to target its Face-To-Face
Calls.
G. During the Term, designated representatives of Cytyc and MJC will
meet, either in person or via teleconference as mutually agreed to by Cytyc and
MJC, once every [confidential treatment requested] or more frequently as the
parties may agree, to monitor the progress and performance under this Agreement
and to analyze and assess procedures for marketing and promoting the Product in
an attempt to maximize Product Sales during the Term.
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5. PRODUCT RESPONSIBILITIES OF CYTYC; PROMOTION BY CYTYC
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A. Cytyc will use commercially reasonable efforts to promote, at its cost
and expense, the Product (i) via Follow-Up Calls to OBGYNs with its own sales
representatives as provided for in this Agreement, (ii) to all other relevant
doctors and other health care professionals, (iii) to hospitals, managed care
groups, pharmacy benefit manager organizations, formularies, processing labs,
health care insurance providers, and other relevant groups and personnel; and
(iv) via planning symposia, seminars, and other professional relations events
related to the Product. Since, when the Product is used, it is necessary for
the Product to be processed in order to obtain test results from the Product's
use, Cytyc's promotion obligations include promoting the sale of appropriate
processing equipment to labs and other relevant entities. Furthermore, since
insurance coverage for use of the Product can greatly enhance the use of the
Product, Cytyc's promotion obligations further include promoting the approval of
insurance coverage for the Product.
B. Cytyc has the sole authority to determine the price and other
applicable terms of sale for the Product.
C. Cytyc has the sole responsibility, at its cost and expense, for
Product manufacture, shipping, distribution, and warehousing, for the invoicing
and billing of purchasers of the Product, and for the collection of receivables
resulting from Product Sales.
D. Cytyc will furnish MJC with copies of all promotional materials made
available to Cytyc's sales force as may be reasonably requested by MJC to
satisfy its needs in the course of detailing the Product and otherwise
fulfilling its obligations under this Agreement. Cytyc and MJC will discuss in
good faith the quantity and type of any other Promotional Materials reasonably
needed by MJC to satisfy its needs in the course of detailing the Product and
otherwise fulfilling its obligations under this Agreement. All Promotional
Materials will be provided by Cytyc to MJC at Cytyc's sole cost and expense.
E. Cytyc has the sole responsibility for ensuring the Product complies
with all federal, state, and local laws and regulations including, by way of
example only and not limitation, the federal Food, Drug, and Cosmetic Act, as
amended, and all regulations issued pursuant to such law.
F. Notwithstanding anything in this Section to the contrary, Cytyc will
have strategic responsibility and sole authority and responsibility for
obtaining all legal, regulatory, and medical approvals related to the selling
and use of Promotional Materials used by Cytyc or MJC in marketing the Product.
6. RECORDS. Cytyc and MJC each will maintain, in accordance with its
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customary practices including its customary record retention practices, records
of all Primary Calls (including any Profile Forms), Face-To-Face Calls, and
promotional visits (as identified in the last sentence of Section 4.C.(6)(b)
above), in the case of MJC, and Follow-Up Calls, in the case of Cytyc, made
during the Regional Phase and National Phase of the Term. If a disagreement
between the parties exists as to such calls in the context of a material dispute
under this Agreement, the challenging party and their independent public
accountants, upon reasonable prior notice and
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[CONFIDENTIAL TREATMENT REQUESTED]
subject to reasonable confidentiality obligations, will have access to the
relevant available records of the other so as to conduct a review or audit of
such records. Such access will be given during normal business hours during the
Term and for a period of [confidential treatment requested] after its expiration
or termination.
7. TRAINING OF MJC SALES REPRESENTATIVES
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A. Cytyc will provide MJC's sales representatives with appropriate
training with respect to the Product. There will be [confidential treatment
requested] program for all of MJC's sales representatives who will be part of
the [confidential treatment requested] and [confidential treatment requested]
for all of MJC's sales representatives who will be part of the [confidential
treatment requested]. Cytyc and MJC together will develop and mutually agree to
the Product related training programs and schedule for such purpose. A
preliminary draft outline of such programs and schedule is attached as Exhibit
2.
All reasonable costs and expenses related to training [confidential
treatment requested] will be paid by [confidential treatment requested],
including, by way of example only and not limitation, all training materials
including their preparation, trainers, reasonable travel and related expenses
for MJC and Cytyc personnel to attend training including airfare, car, room and
board, and food, facilities, and aids.
B. Additionally, the Product will be incorporated as part of
[confidential treatment requested] to the extent it is commercially reasonable.
If additional training related to the Product that is incorporated into
[confidential treatment requested] to be extended, Cytyc will be responsible
only for any such [confidential treatment requested] due to the extension.
C. After each of the [confidential treatment requested] will submit a
statement to [confidential treatment requested] identifying in reasonable detail
the actual costs and expenses incurred by [confidential treatment requested] in
connection with such Product related training programs for which [confidential
treatment requested] is responsible and will provide any supplementary
documentation as [confidential treatment requested] may reasonably request to
verify such costs and expenses. Within [confidential treatment requested] days
after its receipt of such a statement, [confidential treatment requested] will
reimburse [confidential treatment requested] for such costs and expenses.
8. PRODUCT SAMPLES. [confidential treatment requested] will provide MJC and
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its sales force, with quantities of samples of the Product as is mutually agreed
to in good faith by [confidential treatment requested] and [confidential
treatment requested] as being reasonably needed by [confidential treatment
requested] for use in its copromotion activities for the Product. [confidential
treatment requested] will use commercially reasonable efforts to ship
[confidential treatment requested] to [confidential treatment requested] on a
schedule mutually agreed to by [confidential treatment requested] in good faith
in order to meet the needs of [confidential treatment requested].
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9. CERTAIN REGULATORY AND OTHER MATTERS
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A. All regulatory matters regarding the Product will remain under the
exclusive control and responsibility of Cytyc.
B. Cytyc and MJC will collaborate in good faith in developing the
copromotion strategy and tactics for copromoting the Product under this
Agreement. Furthermore, Cytyc may attend and provide input to MJC on the
Product related portion of MJC's pre-POA and management POA process.
C. Beginning as of the date of this Agreement, each party promptly will
notify the other party of any significant event(S) that affect or may affect the
marketing of the Product, including, by way of example only and not limitation,
adverse reactions and governmental inquiries, whether within or outside the
Territory.
D. Beginning as of the date of this Agreement, each party promptly will
notify the other party in writing of any order, request, or directive of a court
or other governmental authority to recall or withdraw the Product in any
jurisdiction. Cytyc will be responsible, at its sole cost and expense, for the
costs of any recall or withdrawal of the Product.
10. COMPLIANCE WITH LAW. Each party will maintain in full force and effect all
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necessary licenses, permits, and other authorizations required by law to carry
out its respective duties and obligations under this Agreement. Each party will
comply with all laws, ordinances, rules, and regulations applicable to its
respective activities under this Agreement, including, by way of example only
and not limitation, any requirements of any license applicable to its respective
activities in the Territory.
11. COMPENSATION
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A. As compensation for the copromotion services rendered by MJC during
the Term, Cytyc will pay to MJC [confidential treatment requested].
B. For the [confidential treatment requested], Cytyc will pay MJC a
[confidential treatment requested] of [confidential treatment requested]. Cytyc
will make this payment to MJC [confidential treatment requested].
C. For the [confidential treatment requested], Cytyc will pay MJC:
(1) For the period from [confidential treatment requested], Cytyc will
pay MJC [confidential treatment requested] of [confidential treatment
requested]. Cytyc will pay this [confidential treatment requested] to MJC in
[confidential treatment requested] of [confidential treatment requested] on
[confidential treatment requested]. The foregoing is subject to possible
modification pursuant to Section 4.C.(4)(C) above.
(2) For [confidential treatment requested], a [confidential treatment
requested] of [confidential treatment requested] per [confidential treatment
requested] made during [confidential treatment requested]. In the event Cytyc
requests MJC to [confidential treatment requested] during [confidential
treatment requested] than needed for MJC to generate
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[confidential treatment requested] of at least [confidential treatment
requested], then [confidential treatment requested] and the [confidential
treatment requested] earned by MJC during [confidential treatment requested] as
calculated via the [confidential treatment requested] of [confidential treatment
requested]. Cytyc will pay [confidential treatment requested] to MJC in payments
of [confidential treatment requested] per month [confidential treatment
requested] during [confidential treatment requested]. At the end of each
[confidential treatment requested] during [confidential treatment requested], a
[confidential treatment requested] will be done by MJC to compare the
[confidential treatment requested] earned by MJC at the rate of [confidential
treatment requested] per [confidential treatment requested] made from
[confidential treatment requested], through the end of the relevant
[confidential treatment requested] versus the collective [confidential treatment
requested] payments made by Cytyc towards the [confidential treatment requested]
during the applicable period. Any amount due MJC will be paid by Cytyc to MJC,
[confidential treatment requested] days following the end of the relevant
[confidential treatment requested]. MJC will not be obligated to, but in its
sole discretion may, [confidential treatment requested] during [confidential
treatment requested]; provided, however, that MJC will not [confidential
treatment requested] for any [confidential treatment requested] in excess of
[confidential treatment requested] unless otherwise agreed to in advance by
Cytyc and MJC.
D. Cytyc also will pay MJC [confidential treatment requested]. The
[confidential treatment requested] will cover the [confidential treatment
requested].
(1) For the [confidential treatment requested], Cytyc will pay
[confidential treatment requested] to MJC equal [confidential treatment
requested] of [confidential treatment requested] during the [confidential
treatment requested] in excess of [confidential treatment requested]. This
[confidential treatment requested] will be paid by Cytyc to MJC [confidential
treatment requested].
(2) For the [confidential treatment requested], Cytyc will pay an
[confidential treatment requested] to MJC based on [confidential treatment
requested] during the [confidential treatment requested] as set out in Exhibit
3. This [confidential treatment requested] will be paid by Cytyc to MJC
[confidential treatment requested].
E. All payments by Cytyc to MJC will be made by wire transfer in
immediately available funds in legal currency of the United States and will be
delivered to the account designated by MJC in writing from time to time.
12. REPORTING
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A. Cytyc will furnish MJC, within [confidential treatment requested] days
after [confidential treatment requested], an unaudited report setting forth the
Product Sales in the Territory during such month, categorized as mutually agreed
to by Cytyc and MJC.
B. MJC will furnish Cytyc, within [confidential treatment requested] days
after [confidential treatment requested], an unaudited report setting forth the
number of Primary Calls, Face-To-Face Calls, and promotional visits (as
identified in the last sentence of Section 4.C.(6)(b) above) by MJC District
made by MJC during such month.
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C. Cytyc will maintain complete and accurate books and records in
sufficient detail to enable verification of the compensation payable to MJC
under this Agreement. Upon reasonable prior notice to Cytyc, MJC and its
independent public accountants, subject to confidentiality obligations as set
forth in the Confidentiality Agreement as defined in and as set forth in Section
14 below, will have access to the relevant books and records of Cytyc to conduct
a review or audit. Such access will be given during normal business hours not
more than once each calendar year during the Term and for a period of
[confidential treatment requested] years after its expiration or termination.
The accountants will be entitled to report its conclusions and calculations to
MJC.
13. INDEMNIFICATION AND INSURANCE
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A. Cytyc will defend, indemnify, and hold MJC and its parents,
subsidiaries, affiliates, contractors, successors, and assigns, and their
respective employees, agents, officers, and directors (collectively a "MJC
Party") harmless from and against any and all losses, liabilities, obligations,
claims, fees (including, by way of example only and not limitation, reasonable
attorneys fees), expenses, and lawsuits brought against or incurred by a MJC
Party to the extent resulting from or arising in connection with (i) the breach
by Cytyc of any covenant, representation, warranty, or other obligation of Cytyc
contained in this Agreement, (ii) the manufacturing, sale, or distribution of
the Product by Cytyc or any licensee or affiliate of Cytyc, or any copromoter of
the Product, including, without limitation, any claim of patent infringement,
(iii) any product liability claim related to the Product, including, by way of
example only and not limitation, the use by any person of the Product
manufactured, sold, or distributed by Cytyc or any licensee or affiliate of
Cytyc, or any copromoter of the Product, (iv) any contamination of or defect in
the Product, (v) any Promotional Materials, or (vi) any negligent or wrongful
act or omission of any Cytyc Party (as defined in Section 13.B below).
Notwithstanding anything in this Section 13.A., Cytyc will not be obligated to
defend, indemnify, or hold harmless a MJC Party for any liability for which MJC
explicitly has assumed an indemnification obligation under Section 13.B. below.
B. MJC will defend, indemnify, and hold Cytyc and its parents,
subsidiaries, affiliates, contractors, successors, and assigns, and their
respective employees, agents, officers, and directors (collectively a "Cytyc
Party") harmless from and against any and all losses, liabilities, obligations,
claims, fees (including, by way of example only and not limitation, attorneys
fees), expenses, and lawsuits brought against or incurred by a Cytyc Party to
the extent resulting from or arising in connection with the breach by MJC of any
covenant, representation, warranty, or other obligation of MJC contained in this
Agreement or for any negligent or wrongful act or omission of any MJC Party (as
defined in Section 13.A. above). Notwithstanding anything in this Section
13.B., MJC will not be obligated to defend, indemnify, or hold harmless a Cytyc
Party for any liability for which Cytyc explicitly has assumed an
indemnification obligation under Section 13.A. above.
C. To receive the benefits of the indemnity under Subsections A or B
above, as applicable, the indemnified party must give the indemnifying party
written notice of any claim or potential claim promptly after the indemnified
party receives notice of any such claim. The
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indemnifying party will have the obligation to assume the defense of any such
claim to the extent the indemnifying party has responsibility to the indemnified
party under this Section 13. The indemnified party may participate in, but not
control, the defense of such claim at its sole cost and expense. An indemnifying
party will have no liability under this Section 13 as to any claim for which
settlement or compromise or an offer of settlement or compromise is made by the
indemnified party without the prior consent of the indemnifying party.
D. Except as to breaches of the Confidentiality Agreement or Section 14
below, neither party will be liable to the other party for any special,
consequential, or indirect damages suffered by the other party including,
without limitation, lost profits, except to the extent attributable to the
indemnifying party's grossly negligent and/or willful and wanton acts.
E. Each party will use commercially reasonable efforts to maintain
insurance against such risks (including product liability) and upon such terms
(including coverages, deductible limits, and self-insured retentions) as is
customary for the activities to be conducted by it under this Agreement and is
appropriate to cover its indemnification obligations under this Agreement. Such
insurance will be primary to any other valid or collectable insurance coverage
which the indemnified party, or any of its parents, subsidiaries, affiliates,
principals, agents, or assigns, may have or obtain ("Indemnified's Insurance")
and provide that no Indemnified's Insurance will become effective in respect to
any claim intended by this Agreement to be covered by the indemnifier's
insurance until all the indemnifier's insurance is fully exhausted. Each party
will furnish to the other party evidence of such insurance, upon request.
14. CONFIDENTIALITY. Cytyc and MJC each acknowledge that they have entered into
---------------
a Confidentiality Agreement dated February, 1997 ("Confidentiality Agreement"),
a copy of which is attached as Exhibit 4, and that such confidential information
disclosed by the parties prior to or during this Agreement will be governed by
the terms and conditions in such Confidentiality Agreement.
15. REPRESENTATIONS AND WARRANTIES
------------------------------
A. Cytyc represents and warrants to MJC that: (i) the execution,
delivery, and performance of this Agreement by Cytyc does not conflict with, or
constitute a breach of, any order, judgment, agreement, or instrument to which
Cytyc is a party; (ii) the execution, delivery, and performance of this
Agreement by Cytyc does not require the consent of any person or the
authorization of (by notice or otherwise) any governmental or regulatory
authority; (iii) the rights granted by Cytyc to MJC under this Agreement do not
conflict with any rights granted by Cytyc to any third party; (iv) Cytyc has not
received any notice of, and is not aware of any valid basis for, any claim that
the manufacture, use, or sale of the Product infringes any valid patent or other
intellectual property right of any third party; and (v) the Product, all
Promotional Materials, and all other marketing materials relating to the Product
comply and throughout the Term will continue to comply with all applicable
federal, state, and local laws and regulations including, by way of example only
and not limitation, the federal Food, Drug, And Cosmetic Act, as amended, and
all regulations issued pursuant to such law. The foregoing provisions of this
Subsection A set forth Cytyc's sole and exclusive representations and warranties
with respect to the Product and Cytyc makes no other warranty of any kind
whatsoever with regard to the Product, express or
-12-
[CONFIDENTIAL TREATMENT REQUESTED]
implied. Cytyc specifically disclaims all implied warranties of merchantability
and fitness for a particular purpose with regard to the Product, whether arising
from a statute or otherwise in law or from a course of dealing or usage of
trade.
B. MJC represents and warrants to Cytyc that (i) the execution, delivery,
and performance of this Agreement by MJC does not conflict with, or constitute a
breach of, any order, judgment, agreement, or instrument to which MJC is a
party, (ii) the execution, delivery, and performance of this Agreement by MJC
does not require the consent of any person or the authorization of (by notice or
otherwise) any governmental or regulatory authority, (iii) the rights granted by
MJC to Cytyc under this Agreement do not conflict with any rights granted by MJC
to any third party; and (iv) the number of OBGYNs as of the date of this
Agreement [confidential treatment requested] and MJC will use commercially
reasonable efforts throughout the Term to have [confidential treatment
requested] OBGYNs.
16. NOTICES. Any notice or other communication required or permitted in this
-------
Agreement will be in writing and sent by overnight delivery or registered or
certified mail, return receipt requested, with postage and all other charges
prepaid. All notices will be addressed to the respective party at the address
below or to such other address as the party may designate in writing. Notices
will be deemed effective upon delivery or the first good faith reasonable
attempt to deliver during regular business hours.
If to Cytyc: Cytyc Corporation
85 Swanson Road
Boxborough, Massachusetts 01719
Attention: President
If to MJC: Mead Johnson & Company
2400 West Lloyd Expressway
Evansville, Indiana 47721
Attention: Vice President Sales and Distribution
cc: Vice President and Senior Counsel
17. NON-SOLICITATION AND NONCOMPETITION
-----------------------------------
A. [confidential treatment requested] neither Cytyc nor MJC, without the
written consent of the other, directly or indirectly will solicit or hire any
person who was a member of the other party's sales force or marketing group
related to the Product in the Territory at [confidential treatment requested].
B. During the Term, [confidential treatment requested]. For purposes of
the preceding sentence, [confidential treatment requested] will mean
[confidential treatment requested].
C. The restrictions set forth in Section 17.B. above will not restrict
either MJC or Cytyc from investing in or acquiring in any manner in whole or in
part whatsoever any business,
-13-
[CONFIDENTIAL TREATMENT REQUESTED]
organization, company, or any other entity (the "Acquired Entity") which owns,
manages, operates, controls, finances, or otherwise supports any business that
otherwise would be a violation of the applicable noncompete in Section 17.B.
above, so long as such otherwise violative business of the Acquired Entity is
not the primary or material part of the business of the Acquired Entity.
18. MISCELLANEOUS PROVISIONS
------------------------
A. Sale, Transfer, Assignment, and Changes in Management. This Agreement
-----------------------------------------------------
will bind and inure to the benefit of the parties and their successors and
assigns except that neither party will have any right whatsoever to make any
assignment of any of its respective rights or obligations without the written
approval of the other party. No sale, assignment, transfer, conveyance, or
encumbrance, whether by law or otherwise, including an acquisition of either
party by (a) sale, issuance, exchange, or transfer, in a single transaction or a
series or related transactions, of greater than fifty percent (50%) of the
outstanding capital stock of such party to a third party, (b) sale of all or
substantially all of the assets of such party, or (c) a merger, consolidation,
or other reorganization involving such party and one or more other entities in
which the shares of such party's outstanding capital stock immediately prior to
such transaction are converted into, exchanged for, or represent less than a
majority of the voting power of the surviving or resulting entity, will be of
any force or effect unless such written approval will have been first obtained.
Any approval required under this Subsection A will not be unreasonably withheld;
provided, however, that if such consent is reasonably withheld, then the party
requesting, but having reasonably been denied, such consent may elect to
terminate this Agreement effective as of the consummation of the applicable
sale, assignment, transfer, conveyance, or encumbrance; provided further,
however, that in the event of such a termination of this Agreement by either
Cytyc at any time or by MJC on or after the later of [confidential treatment
requested] or the completion of [confidential treatment requested] Primary Calls
as set forth in [confidential treatment requested] (and as may be extended
pursuant to [confidential treatment requested] in order to complete a
[confidential treatment requested] Primary Calls), MJC will be entitled to the
[confidential treatment requested] subject to an equitable adjustment as agreed
to in good faith between MJC and Cytyc. No person, firm, or corporation will
succeed to any of the rights of a party under this Agreement by virtue of any
voluntary or involuntary proceeding in bankruptcy, receivership, attachment,
execution, or assignment for the benefit of creditors, or other legal process.
B. Modification. The terms of this Agreement may not be altered, waived,
------------
modified, or discharged except by an express declaration in writing on behalf of
the parties by duly authorized officers and specifically stating that this
Agreement is being modified, and no separate oral or other written agreement
which may be made between any of the parties' employees will in any way modify
this Agreement. Furthermore, any waiver of the requirements of this Subsection
B likewise must be explicit and in a writing signed by a duly authorized
representative of each party.
-14-
[CONFIDENTIAL TREATMENT REQUESTED]
C. Dispute Resolution
------------------
(1) Before filing a legal action with a court, each party will use its
respective reasonable efforts to resolve any disagreement arising under this
Agreement. In the event that the parties are unable to reach agreement, then
either party may send written notice to the other that a "disagreement exists"
and "reasonable efforts" are to be utilized in an effort to resolve the
disagreement. If the disagreement is not resolved within [confidential
treatment requested] days after receipt of such notice, then either party may
request that the parties try to resolve the disagreement by either mediation or
non-binding arbitration. Upon such request, the parties will proceed to mediate
or arbitrate, as elected by the requesting party, the dispute in accordance with
this Subsection C.
(2) Any mediation will be conducted in accordance with the then
current CPR Model Procedure for Mediation of Business Disputes except as
otherwise explicitly set forth in this Subsection C.(2). The neutral third
party mediator will be selected from the CPR Panels of Neutrals, with the
assistance of CPR, unless the parties agree otherwise. Any mediation will be
conducted in [confidential treatment requested]. Each party will bear its own
costs and share the cost of the mediation. The mediation will take place as
soon as possible but no later than [confidential treatment requested] days after
mediation is requested under this Agreement.
(3) Any arbitration will be conducted in accordance with the then
current CPR Rules for Non-Administered Arbitration of Business Disputes except
as otherwise explicitly set forth in this Subsection C. (3). The arbitration
will be before three (3) (unless the parties agree to one (1)) independent and
impartial arbitrator(S) (e.g., no arbitrator has had any prior business dealings
with either party), chosen as follows: Cytyc, on the one hand, and MJC, on the
other hand, each will select one (1) arbitrator from a list of independent and
impartial arbitrators provided by CPR. Neither of these two (2) arbitrators
will be told which party selected the arbitrator. These two (2) arbitrators
will agree on one (1) other independent and impartial person to serve as the
third arbitrator. Any arbitration proceedings will be conducted in
[confidential treatment requested]. Each party will bear its own costs and
share the cost of the arbitrator(S). The arbitration will take place as soon as
possible but no later than [confidential treatment requested] days after
arbitration is requested pursuant to this Agreement, and the arbitrator(S) will
render a written decision within [confidential treatment requested] days after
the close of the hearing record.
(4) This Subsection C does not in any way alter or diminish the
notice, cure, and/or termination rights otherwise set forth in this Agreement.
Rather, this provision merely provides an alternative dispute resolution option
that may be exercised before, and ultimately possibly in addition to, the rights
of the parties to this Agreement to seek remedies through the courts except as
otherwise set forth in this Agreement. In any court action between the parties
relating to this Agreement, the prevailing party in such action will recover its
attorney fees from the non-prevailing party.
D. Entirety of Agreement. This Agreement and the Confidentiality
---------------------
Agreement referenced in Section 14 contains the entire understanding of the
parties with respect to the subject matter and supersede all previous
agreements, representations, and warranties, whether written or verbal, with
respect to such subject matter.
-15-
[CONFIDENTIAL TREATMENT REQUESTED]
E. Public Announcements. The form and content of any public announcement
--------------------
regarding this Agreement, or the subject matter contained in this Agreement,
will be subject to the prior mutual agreement of the parties, except as may be
required by applicable law.
F. Governing Law. This Agreement will be construed and enforced in
-------------
accordance with the laws of the State of [confidential treatment requested]
without regard to its conflict of laws principles.
G. Relationship of the Parties. In making and performing this Agreement,
---------------------------
the parties act and will act at all times as independent entities and nothing
contained in this Agreement will be construed or implied to create an agency,
partnership, franchise, or employer and employee relationship between Cytyc and
MJC. Neither party may make any representation, warranty, or commitment,
whether express or implied, on behalf of or incur any charges or expenses for or
in the name of the other party. Neither party will be liable for the act of any
other party unless such act is expressly authorized in writing by both parties
to this Agreement.
H. Counterparts. This Agreement will become binding when any one or more
------------
counterparts, individually or taken together, bear the signatures of each of the
parties. This Agreement may be executed in any number of counterparts, each of
which will be deemed an original as against the party whose signature appears on
it, but all of which taken together will constitute but one and the same
instrument.
I. Non-Waiver; Non-Exclusive. No failure by any party to exercise any
-------------------------
power given in, or to insist upon strict compliance by the other party of any
obligation under, this Agreement will constitute a waiver of the party's right
to later demand exact compliance with the terms of this Agreement. No remedy
made available to any party by any of the provisions of this Agreement is
intended to be exclusive of any other remedy, and each and every remedy will be
cumulative and in addition to every other remedy available under this Agreement,
at law, in equity, or otherwise.
J. Severability. Should any provision(S) of this Agreement be declared
------------
invalid or unenforceable pursuant to a final determination of a court of
competent jurisdiction or as a result of future legislative action, such
determination or action will be construed so as not to affect the validity or
enforceability hereof or thereof and will not affect the validity or effect of
any other portion hereof or thereof. Any invalid portion will be deemed removed
from this Agreement as of the date on which the ruling becomes final and will be
deemed replaced by the closest enforceable provision as determined by such
court.
K. Force Majeure and Default
-------------------------
(1) Delays by either party in the performance or non-performance of
its obligations under this Agreement will be excused if due to any cause beyond
such party's reasonable control, including by way of example only and not
limitation Acts of God, governmental laws, rules, or regulations, wars, fires,
the elements, labor troubles, interruption or shortage of transport facilities,
or inability to obtain raw material or packaging supplies; provided, however,
that such party will be excused from its obligations under this Agreement
-16-
[CONFIDENTIAL TREATMENT REQUESTED]
only (i) to the extent and for the period in which such cause delays or prevents
performance, (ii) if such party immediately notifies the other party of any such
actual or anticipated non-performance, and (iii) if such party, in cases where
the non-performance is curable or its adverse impacts on the other party reduced
under reasonable available means, uses reasonable efforts, including taking
economically reasonable action necessary, to rectify such barrier to such
party's performance and permit such party to fully perform as soon as possible.
(2) If either party defaults in the performance of its obligations
under this Agreement, the non-defaulting party may notify the defaulting party
of such default and the time to cure such default, which time will be
[confidential treatment requested] days in the case of a failure to pay amounts
due, and [confidential treatment requested] days for all other defaults, after
the defaulting party receives such notice of the default. If the default
continues uncorrected beyond the specified time period, the non-defaulting party
will be entitled to give written notice of its intent to terminate this
Agreement if the default is not cured within [confidential treatment requested]
days after such second notice. If the default is not cured within [confidential
treatment requested] days after such second notice, this Agreement will be
deemed terminated. The termination of this Agreement in whole or in part
pursuant to this Subsection will not relieve either party from the obligations
in this Agreement which survive termination.
L. Survival. All of a party's rights and privileges provided under this
--------
Agreement, to the extent they are fairly attributable to events or conditions
occurring or existing on or prior to the expiration or termination of this
Agreement, will survive the expiration or termination and be enforceable by the
party and its successors and assigns.
M. Descriptive Headings. The descriptive headings of the Sections in
--------------------
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
IN WITNESS WHEREOF, Cytyc and MJC have duly executed this Agreement as of
the day and year written above.
CYTYC CORPORATION MEAD JOHNSON & COMPANY
By:_________________________ By:__________________________
Name:_______________________ Name:________________________
Title:______________________ Title:________________________
-17-
[CONFIDENTIAL TREATMENT REQUESTED]
EXHIBIT 1
---------
[CONFIDENTIAL TREATMENT REQUESTED] NUMBER OF PAP TESTS CONDUCTED BY OBGYN OFFICE
[Confidential Treatment Requested]
[Confidential Treatment
Requested] Closest Cytyc
Sales Representative
---------------------- ----------------------- ------------------------
Live Call Live Call Live Call or
[confidential treatment by by Phone Call
requested] Cytyc Cytyc by Cytyc
---------------------- ----------------------- ------------------------
[confidential treatment Live Call Live Call by Live Call by
requested] by Lab or Lab or
Cytyc Phone Call by Phone Call by
Lab or Cytyc Lab or Cytyc
---------------------- ----------------------- ------------------------
[confidential treatment Live Call Live Call by Live Call by
requested] by Cytyc Lab or Lab or
or Lab Phone Call by Phone Call by
Lab or Cytyc Lab or Cytyc
---------------------- ----------------------- ------------------------
-18-
[CONFIDENTIAL TREATMENT REQUESTED]
EXHIBIT 2
TRAINING
--------
I. REGIONAL PHASE TRAINING
The training program for the MJC representatives and managers involved with the
Regional Phase will consist of a home study segment and a formal training
meeting, tentatively set for [confidential treatment requested].
A. HOME STUDY SEGMENT
------------------
Date Completed: Activity Responsibility
- ---------------------- ---------------------------------------- --------------------------------
[confidential Training Manual Cover Memo and Address [confidential treatment
treatment Labels for Participants and RBDs mailed requested] MJC
requested ] to Cytyc,[confidential treatment
requested].
[confidential Training Manuals Received by MJC RBDs, [confidential treatment
treatment DBMs, and Regional Phase requested ] Cytyc
requested ] Representatives
[confidential Memo to Regional Phase [confidential treatment
treatment representatives/BTLs To Complete Exam requested ] MJC
requested ] and Forward to DBM for Summarizing and
Reporting to MJC
[confidential [confidential treatment requested ] [confidential treatment
treatment Presentation Content Slides For requested ] MJC
requested ] [confidential treatment requested]
Training Meeting to Cytyc, Attn:
[confidential treatment requested]
[confidential All Field Testing Completed for Product MJC DBMs
treatment Study Manual, Results Shipped to MJC
requested ] Training and Co-Promotion
[confidential Sales Materials Received by Regional [confidential treatment
treatment Phase Representatives, DBMs requested ] Cytyc
requested ]
[confidential Sales Materials Thoroughly Reviewed By MJC Representatives and Managers
treatment All Workshop Participants
requested ]
-19-
CONFIDENTIAL TREATMENT REQUESTED
B. REGIONAL PHASE TRAINING MEETING CALENDAR
----------------------------------------
Date Completed: Activity Responsibility
- ---------------------- ------------------------------------------- -----------------------------
[confidential Product Regional Phase Overview to RBDs at [confidential treatment
treatment [confidential treatment requested] Meeting requested] MJC
requested]
[confidential RBDs and DBMs Arrive at Training Site MJC Managers and Launch Team
treatment [confidential treatment requested] for
requested] Training Meeting
[confidential AM: Product Overview to RBDs and DBMs Cytyc Training Team
treatment
requested]
[confidential [confidential treatment requested] Cytyc Training Team and MJC
treatment afternoon, and [confidential treatment DBMs
requested] requested] Training For All Participants
in Regional Phase
C. REGIONAL PHASE TRAINING MEETING
-------------------------------
[confidential treatment requested]: Arrival by evening
[confidential treatment requested]: Day I
Morning Session
8:00 AM- Introduction
8:15 AM- Abbreviated Product Overview
8:45 AM- "Flow of the Money" Discussion ( How Labs, MDs, and Cytyc Make Money)
9:15 AM- Marketing Strategies for the Product
9:45 AM- Break
10:00 AM- Roles and Responsibilities Cytyc and MJC
-20-
CONFIDENTIAL TREATMENT REQUESTED
10:30 AM- Communications- Transmitting Profile Forms, Follow-Up, Coordination,
etc.
~Cytyc National/Regional Resources
~ Administration/Changes
~ Cytyc Professional Relations, Medical Questions, 1-888#, etc.
11:45 AM- Regional Labs/National Labs Situation; Incentive Compensation
12:00 PM- Lunch/Adjourn
[confidential treatment requested]: Day 1
Afternoon Session
1:00 PM- Opening
1:30 PM- Overview of Cervical Cancer
2:30 PM- Product Overview
~ Product Description, Features, Benefits, etc
~ Package Insert, Clinical Trials
4:00 PM- Market Overview
~ Market Potential
~ Sales Support Materials
~ Professional Services (1-888-ThinPrep)
4:30 PM- Roles, Responsibilities, and Expectations
5:00 PM- Buffet Dinner
~History of Cytyc Corporation
~ Dinner
6:00 PM- District Breakout Session
~ Flow of the Dollars
~ Reimbursement
-21-
~ Implementation
7:30 PM- Adjourn
[confidential treatment requested]: Day II
Morning Session
8:00 AM- Product Competition
~ Competitors
~ Clinical Papers, Proof Sources
9:00 AM- District Breakouts
~ Developing Selling Message
~ Incorporating Proof Sources
~ Practice and Role Plays
11:00 AM- Handling Objections (Incorporate into role plays)
12:00 PM- Lunch Buffet
[confidential treatment requested]: Day II
Afternoon Session
1:00 PM- District Breakouts
~ Cue Responses
~ District Business
~ Goals and Expectations
~ Forms and Administration
~ Communication
~ Current Status
3:30 PM- General Session
~ Incentive Compensation
~ Competitive Advice
~ Maintain list of Learnings and Questions for DBMS/BTLs at District
POAs
~ We're Launched!
4:15 PM- Adjourn
D. FURTHER DETAIL
--------------
1. Home Study
----------
-22-
CONFIDENTIAL TREATMENT REQUESTED
MJC will use current Cytyc training materials, Cytyc's current Product training
manual, along with an audiotape, clinical reports, letter to [confidential
treatment requested] Release, and sales visuals to study and prepare for the
training meeting. [confidential treatment requested] will write a cover letter
for the training materials and Cytyc will produce sufficient copies of all
materials and will ship materials to participating MJC sales representatives and
district business managers. RBD copies will be determined based upon production
dates at Cytyc.
Cytyc will prepare a study guide for the training manual to facilitate home
study. A post-test will also be provided by Cytyc for testing MJC sales
representatives' comprehension of the materials. This exam will be given to MJC
sales representatives upon leaving the training meeting on [confidential
treatment requested] to be completed as an open-book exam and returned to MJC's
Sales Training before their district meetings.
2. Training Meeting
----------------
The training meeting will be conducted in two parts on [confidential treatment
requested].
Site location and meeting arrangements will be handled by Mead Johnson but paid
for by Cytyc.
Part I will be a 4 hour program for addressing key questions about the Product
---------------
and the Regional Phase. MJC District Managers will arrive for the meeting on
the evening of [confidential treatment requested] and attend the first session
of the workshop on the morning of [confidential treatment requested]. The
agenda and content will be developed by Cytyc subject to MJC's approval. This
program will be an overview of the MJC sales representative training program.
Part II will be a one and one-half day program for MJC managers and sales
representatives at the same location as Part I. MJC sales representatives will
arrive the morning of [confidential treatment requested] and depart on the
afternoon of [confidential treatment requested].
Cytyc will be responsible for developing the agenda and the content for the
training program subject to MJC's approval. Cytyc also will provide workshop
leaders and general session speakers for the program. [confidential treatment
requested] will work with [confidential treatment requested] on developing the
expectations and the "What's In It For Me" sessions at the meeting.
E. ASSESSMENT OF PERFORMANCE
-------------------------
1. Call Reporting
--------------
Procedures and processes are still to be determined.
-23-
CONFIDENTIAL TREATMENT REQUESTED
2. Incentive Compensation
----------------------
Incentive compensation, if any, will be paid by MJC to its sales representatives
based upon the following three potential criteria:
- - Quantity of legitimate, bona fide leads provided to Cytyc sales
representatives;
- - Quality of the bona fide leads, i.e., did they result in a conversion to the
Product; and
- - Increase in sales on a regional basis (Cytyc's Region Boundaries).
[confidential treatment requested] will develop a recommendation for
[confidential treatment requested], but initial thoughts are that the incentive
would be derived by a catalog prize system. The higher the points earned by
MJC's sales representatives, the more expensive the prize they would be able to
choose. The final decision of whether MJC will have an incentive system for its
sales representatives and, if it does, what kind of system to have, will be at
MJC's sole discretion.
F. COMMUNICATIONS/COORDINATION
---------------------------
To be developed by Cytyc and MJC is a Profile Form to be completed by MJC during
its Primary Calls and used for determining potential Product business for
OBGYNs.
Also, the process for getting interested OBGYNs and the Cytyc representatives
together to discuss the details of using or switching to the Product were
developed.
Need: MJC representatives will need a list of HMOs and Managed Care
Organizations that reimburse for the Product.
II. NATIONAL PHASE TRAINING
A. MANAGER TRAINING
----------------
National Phase training will be in the form of MJC District meetings. MJC's
DBMs will be prepared to conduct these meetings via a one day MJC Managers'
training session during the week of [confidential treatment requested].
Managers would arrive by noon on [confidential treatment requested] for a 1:00
pm session. The second day would continue with the agenda and adjourn at or
about noon on [confidential treatment requested]. This meeting would include a
"nice dinner" and perhaps some form of team building activity during the
evening.
Key Points related to National Phase training for Managers:
~ Everyone will be trained during one session, versus regional programs.
-24-
CONFIDENTIAL TREATMENT REQUESTED
~ Cytyc will bring subject matter experts and other training personnel to
the training
session.
~ Cytyc will develop content for the training session ( probably similar to
the Regional
Phase Training Session).
~ A facilitators guide will be prepared by Cytyc, in coordination with MJC,
to assist the
MJC District Managers to conduct the National Phase training meetings.
~ Specific roles will be defined for Cytyc and MJC Regional Phase sales
representatives
at the National Phase launch District Meetings.
~ MJC will assume responsibility for site selection for MJC Managers
training session.
~ Cytyc will assume responsibility for developing training content and
delivery.
B. REPRESENTATIVE TRAINING
-----------------------
Rollout meetings to train MJC sales representatives will occur during the week
of [confidential treatment requested]. For planning purposes, the National
Phase plan will be put into motion immediately upon execution of this Agreement.
Key Points related to the National Phase meeting for MJC representatives:
~ Meetings will be scheduled for the week of [confidential treatment
requested].
~ National Phase will be done via MJC District level training sessions.
~ Where possible, joint District meetings, i.e. two or three Districts
meeting together, will be scheduled so as to maximize use of Cytyc
personnel and MJC sales representatives
involved with the Regional Phase.
~ Facilitators guides will be developed by [confidential treatment
requested], from Cytyc, and [confidential treatment requested],
from MJC.
~ Meetings will be upbeat and include some "fun" learning activities, nice
plated dinner,
and other amenities to make the meeting special, i.e. prizes, premium
items, etc.
~ MJC will be responsible for site selection and administrative
arrangements for the
meetings.
~ Cytyc will assume responsibility for developing the meeting content,
videotapes, and
other meeting material, in coordination with MJC Training and Co-
Promotion
Department.
-25-
CONFIDENTIAL TREATMENT REQUESTED
~ Meetings will be scheduled for no more than two days, preferably one and
one-half
days.
C. TRAINING - GENERAL
------------------
In general, training for the National Phase will be modeled after the Regional
Phase training with learning from the Regional Phase training incorporated into
training for the National Phase.
D. COMPENSATION
------------
[confidential treatment requested]
-26-
EXHIBIT 3
---------
CONFIDENTIAL TREATMENT REQUESTED
-27-
EXHIBIT 4
---------
CONFIDENTIALITY AGREEMENT
-------------------------
THIS AGREEMENT entered into this ___ day of February, 1997, by and
between CYTYC CORPORATION, a Delaware corporation with its offices at 85 Swanson
Road, Boxborough, Massachusetts 01719 ("Contractor") and MEAD JOHNSON & COMPANY,
a Delaware corporation with its offices 2400 West Lloyd Expressway, Evansville,
Indiana 47721 ("MJC").
WHEREAS, MJC is considering an arrangement for MJC to assist in the
promotion of Contractor's pap smear test known as "Thin Prep 2000"; and
WHEREAS, in the course of considering and/or entering into such
arrangement, MJC will disclose to Contractor certain confidential information
concerning the products and business of MJC and Contractor will disclose to MJC
certain confidential information concerning its products and business;
NOW, THEREFORE, in consideration of the promises and covenants
contained herein, Contractor and MJC agree as follows:
1. As used herein, "Confidential Information" shall mean any and all
information, data, methods, processes, formulas, know-how,
inventions, strategies, trade secrets, product development
information, or business or technical information relating to the
business of the disclosing party, in any form, including written,
oral, electronic data, tape and other forms, regardless of whether
such information is designated as "confidential" when disclosed or
generated.
2. Contractor and MJC, and their respective agents, employees and
subcontractors, shall each hold in confidence the Confidential
Information disclosed to it by the other party or generated by it
for other party, shall not disclose such information to anyone,
and shall not use such information for a purpose not covered by
this Agreement for a period of [confidential treatment requested]
unless: (a) such information was part of the public domain prior
to the date of this Agreement; or (b) such information became part
of the public domain not due to some unauthorized act or omission
of the promising party; or (c) the promising party had
independently developed knowledge of such information either prior
to or subsequent to the date of this Agreement and can document
the same by written records; or (d) such information was disclosed
to the promising party by a third party having no obligation to
keep the same confidential. Each party agrees not to solicit,
attempt to solicit, recruit or hire any of the other party's
employees without the written consent of the other party for a
period of six months from the date hereof.
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[CONFIDENTIAL TREATMENT REQUESTED]
3. Contractor and MJC shall each use its best efforts to ensure that
all of its employees to whom such Confidential Information is
disclosed shall take all reasonable precautions to safeguard and
preserve the confidential status of such information. Each party
shall be liable for any use or disclosure in breach of this
Agreement by any of its agents, employees or subcontractors.
4. Contractor and MJC each agrees to return to the other, upon
request, any and all Confidential Information furnished by or
generated for the other party and no copies and/or duplication of
such Confidential Information shall be made without the written
consent of the other party. The return of this material shall not
affect the obligation of Contractor and MJC to treat the
information disclosed to or generated by it as confidential.
Neither party grants a license, by implication or otherwise, under
any of its trade secrets, patents, copyrights or other
intellectual property rights to the receiving party.
5. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the parties, but neither party may
assign this Agreement without the prior written consent of the
other party. Any performance of any portion of the rights or
obligations of either party by an agent or subcontractor shall
constitute an assignment.
6. Each of Contractor and MJC warrants and represents to each other
that the terms of this Agreement are not inconsistent with any
other contractual obligations it may have.
7. Each of Contractor and MJC agrees that, without the other party's
prior written consent, it will not disclose to any person the
existence of this Agreement or its contents, the nature of the
parties' business with each other, or the fact that either is
considering doing business with the other.
8. Each of Contractor and MJC agrees that, upon any actual or
threatened breach of any provision of this Agreement by it, the
other party shall be entitled to an injunction prohibiting such
breach and recovery of its expenses, including but not limited to
attorneys fees, incurred in obtaining such injunction. This
provision shall not preclude any other remedies to which a party
may be entitled under applicable laws with respect to a breach of
any provision of this Agreement.
9. Nothing in this Agreement shall be construed to bind or obligate
either party to pursue any further agreements or commercial
arrangements with one another.
10. This Agreement is to be made under and shall be construed in
accordance with the laws of the State of Indiana, constitutes the
entire subject matter hereof and merges any and all prior
agreements, understandings and representations.
11. No modification or waiver of any of the provisions of this
Agreement shall be valid unless in writing and signed by the
parties hereto. This Agreement shall continue to apply to these
parties performing under any Agreement entered into by them
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[CONFIDENTIAL TREATMENT REQUESTED]
relating to the subject of the disclosures made pursuant to this
Agreement. No subsequent agreement between these same parties
shall be construed to supersede this Agreement unless such
intention is expressly stated in such subsequent agreement.
IN WITNESS WHEREOF the parties have hereunto set their hands the day and
year first above written.
MEAD JOHNSON & COMPANY
By:
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Title:
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CYTYC CORPORATION
By:
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Vice President
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