<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 12, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DIGENE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
52-1536128
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
9000 VIRGINIA MANOR ROAD
BELTSVILLE, MD 20705
(301) 470-6500
(ADDRESS, INCLUDING ZIP CODE AND
TELEPHONE NUMBER, INCLUDING
AREA CODE OF REGISTRANT'S
PRINCIPAL EXECUTIVE OFFICES)
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CHARLES M. FLEISCHMAN
EXECUTIVE VICE PRESIDENT
9000 VIRGINIA MANOR ROAD
BELTSVILLE, MD 20705
(301) 470-6500
(NAME, ADDRESS, INCLUDING ZIP CODE
AND TELEPHONE NUMBER, INCLUDING
AREA CODE OF AGENT FOR SERVICE)
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Copies to:
MORRIS CHESTON, JR., ESQ.
BALLARD SPAHR ANDREWS & INGERSOLL
1735 MARKET STREET
51ST FLOOR
PHILADELPHIA, PA 19103
(215) 864-8609
(215) 864-8999 (FAX)
ALEXANDER D. LYNCH, ESQ.
BROBECK, PHLEGER & HARRISON LLP
1633 BROADWAY
47TH FLOOR
NEW YORK, NY 10019
(212) 581-1600
(212) 586-7878 (FAX)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
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<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share................ 2,875,000 $13.8125 $39,710,938 $12,034
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</TABLE>
(1) Includes 375,000 shares which the Underwriters have the option to purchase
from the Selling Stockholder to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended, based
upon the average of the high and low prices of the Common Stock as reported on
the Nasdaq National Market on September 8, 1997.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES
MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion, Dated September 12, 1997
PROSPECTUS
2,500,000 SHARES
[DIGENE LOGO]
COMMON STOCK
---------------------------
Of the 2,500,000 shares of Common Stock offered hereby, 2,000,000 are being
sold by Digene Corporation ("Digene" or the "Company") and 500,000 shares are
being sold by the Selling Stockholder. The Company will not receive any proceeds
from the sale of shares by the Selling Stockholder. See "Principal and Selling
Stockholders." The Company's Common Stock is quoted on the Nasdaq National
Market under the symbol "DIGE." On September 11, 1997, the last reported sale
price for the Common Stock was $13.00. See "Price Range of Common Stock."
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS," BEGINNING ON PAGE 6.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
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UNDERWRITING PROCEEDS TO
PRICE TO DISCOUNTS AND PROCEEDS TO SELLING
PUBLIC COMMISSIONS(1) COMPANY(2) STOCKHOLDER
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<S> <C> <C> <C> <C>
Per Share......... $ $ $ $
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Total(3).......... $ $ $ $
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</TABLE>
(1) For information regarding indemnification of the Underwriters, see
"Underwriting."
(2) Before deducting estimated expenses of $350,000 payable by the Company.
(3) The Selling Stockholder has granted the Underwriters an option, exercisable
within 30 days from the date hereof, to purchase up to 375,000 additional
shares of Common Stock on the same terms and conditions set forth above,
solely to cover over-allotments, if any. If such option is exercised in
full, total Price to Public will be $ , Underwriting Discounts and
Commissions will be $ , Proceeds to Company will be $ ,
and Proceeds to Selling Stockholder will be $ . See "Underwriting."
---------------------------
The shares of Common Stock offered by the Underwriters are subject to prior
sale, receipt and acceptance by them and subject to the right of the
Underwriters to reject any order in whole or in part and certain other
conditions. It is expected that delivery of such shares will be made through the
offices of UBS Securities LLC, 299 Park Avenue, New York, New York, on or about
, 1997.
---------------------------
UBS SECURITIES MONTGOMERY SECURITIES
September , 1997
<PAGE> 3
[A DESCRIPTION OF THE WOMEN'S HEALTH ISSUES AND BLOOD VIRUSES
FOR WHICH THE COMPANY'S TESTS ARE BEING DEVELOPED]
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IN CONNECTION WITH THIS OFFERING, CERTAIN UNDERWRITERS (AND SELLING GROUP
MEMBERS) MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE COMMON STOCK ON
THE NASDAQ NATIONAL MARKET IN ACCORDANCE WITH RULE 103 OF REGULATION M UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. SEE "UNDERWRITING."
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES.
SPECIFICALLY, THE UNDERWRITERS MAY OVER-ALLOT IN CONNECTION WITH THE OFFERING,
AND MAY BID FOR, AND PURCHASE, THE SECURITIES IN THE OPEN MARKET. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
2
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and the Consolidated Financial Statements and Notes thereto
appearing elsewhere in this Prospectus or incorporated herein by reference. This
Prospectus contains forward-looking statements which involve risks and
uncertainties. The Company's actual results may differ significantly from the
results discussed in the forward-looking statements. Factors that might cause
such a difference include, but are not limited to, those discussed under "Risk
Factors."
THE COMPANY
The Company develops, manufactures and markets proprietary DNA and RNA
tests for the detection, screening and monitoring of human diseases. The
Company's lead product, the Hybrid Capture HPV Test, is the only FDA-approved
test for the detection of human papillomavirus ("HPV"), the cause of essentially
all cervical cancer. In addition, Digene has developed and launched tests
internationally for the detection and viral load monitoring of major blood
viruses, including human immunodeficiency virus ("HIV"), cytomegalovirus ("CMV")
and hepatitis B virus ("HBV"), and tests for the detection of two of the most
common sexually transmitted diseases ("STDs"), chlamydia trachomatis
("chlamydia") and neisseria gonorrhea ("gonorrhea"). The Company's products are
designed to improve clinical outcomes and reduce the overall cost of disease
management. The Company believes its Hybrid Capture technology, the basis for
its DNA and RNA tests, represents a significant improvement over existing
technologies because of its sensitivity, speed, ease-of-use, accuracy and
ability to measure viral load.
The Company has initially focused on two major women's health issues,
cervical cancer and STDs. Cervical cancer is the second most common cancer among
women worldwide. Virtually all cases of cervical cancer are preventable if
detected in the precancerous stage. Although the Pap smear has successfully
reduced deaths caused by cervical cancer in the United States, it does not
detect HPV, the cause of essentially all cervical cancer. In addition, the Pap
smear is a subjective, labor intensive test that has limited sensitivity and
diagnostic accuracy leading to equivocal test results and false negative
diagnoses, which result in significant costs to the healthcare system due to
over-treatment or under-diagnosis. Clinical studies indicate that Digene's HPV
Test is capable of detecting cervical disease in up to 92% of the cases in which
cervical disease is present. This represents a significant improvement over the
Pap smear's estimated sensitivity of 60% to 80%. These studies further indicate
that when used in conjunction with Pap smear testing, the Company's HPV Test can
detect 95% to 100% of high grade lesions and virtually all instances of cervical
cancer. The Company's HPV Test allows physicians to identify women who are most
at risk of having or developing cervical disease and cervical cancer. Digene's
HPV Test has been approved by the United States Food and Drug Administration
(the "FDA") for the follow-up screening of women with equivocal Pap smears and
is being marketed in selected European and South American countries as a primary
cervical cancer screen either in conjunction with or separate from the Pap
smear. The Company is also developing its Chlamydia and Gonorrhea Tests which
deliver superior sensitivity compared to traditional culture techniques and can
be performed using the same patient sample obtained for HPV testing.
The Company believes that the adoption of its HPV Test by managed care
organizations is essential for rapidly achieving broad based market acceptance.
The Company is working with Kaiser Permanente on a study involving 46,000 women
which the Company believes will demonstrate the clinical utility and cost-
effectiveness of the Company's HPV HC II Test, based on its Hybrid Capture II
technology, in a managed care setting. Preliminary findings of this study
indicate that the Company's HPV HC II Test identified 90% of women with
high-grade cervical disease and could reduce the referral rate for colposcopy by
up to 61% from a population of patients with equivocal Pap smears. In addition,
the Company has recently received FDA approval to market its HPV Test together
with Cytyc Corporation's ThinPrep Pap Test, enabling cytology and HPV DNA
testing from a single patient specimen. The Company believes that by eliminating
the need for follow-up office visits to collect a second sample for HPV DNA
testing, the single sample approach will improve patient management, reduce
healthcare costs and, therefore, will be particularly attractive to managed care
organizations.
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<PAGE> 5
Blood viruses, such as HIV, CMV and HBV, are leading causes of morbidity
and death, and until recently, were untreatable. Early, accurate and ongoing
detection and monitoring of blood viruses is critical for effective patient
management. Over the last several years, antiviral therapies have been developed
for these diseases. Physicians rely on viral load monitoring to quantify the
amount of virus in the patient's system. By precisely measuring viral load and
identifying non-responders early in their treatment, physicians are able to
better tailor antiviral therapies by more precisely monitoring responses to
different therapies, recognizing when a patient develops drug resistance and
projecting how quickly the infection will progress to chronic disease. Digene's
tests for HIV, CMV and HBV provide highly sensitive, accurate, reproducible and
reliable measurement of viral load and enable physicians to monitor infection
levels on an ongoing basis. These products have been launched internationally
while the Company pursues appropriate regulatory approvals in the United States.
The Company currently sells its products, either directly or through
distributors, to more than 500 customers worldwide. In the United States, Digene
markets its products to substantially all major clinical reference and hospital
laboratories through a direct sales force supported by technical and customer
service representatives. In Europe, the Company's women's health products are
marketed primarily through a direct sales force that Digene has established with
International Murex Technologies Corporation, which also serves as a distributor
of the Company's blood virus products. The Company's products are also sold
through a network of distributors in Asia and South America, and in Brazil
through the Company's majority owned subsidiary.
Digene was incorporated under Delaware law in 1987, succeeding to the
business of a partnership organized in 1985. The Company's principal executive
office is located at 9000 Virginia Manor Road, Beltsville, Maryland 20705, and
its telephone number is (301) 470-6500.
THE OFFERING
Common Stock Offered by the Company....... 2,000,000 shares
Common Stock Offered by the Selling
Stockholder............................... 500,000 shares
Common Stock Outstanding after this
Offering.................................. 13,588,649 shares(1)
Use of Proceeds........................... To further expand sales and
marketing activities, to fund
increased research and
development, to expand
manufacturing capabilities, to
provide working capital, and for
other general corporate purposes
Nasdaq National Market Symbol............. DIGE
- ---------------
(1) Excludes 3,044,642 shares of Common Stock issuable upon exercise of stock
options outstanding at September 11, 1997, at a weighted average exercise
price of $6.06 per share. An additional 1,389,658 shares of Common Stock are
reserved for issuance under the Company's stock option plans.
4
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SUMMARY CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED JUNE 30,
-----------------------------
1995 1996 1997
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<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues................................................... $ 6,162 $ 6,740 $10,060
Cost of product sales............................................ 2,652 2,895 3,441
Gross margin on product sales.................................... 2,761 3,464 5,993
Total operating expenses......................................... 4,806 6,565 14,020
Loss from operations............................................. (1,296) (2,720) (7,401)
Net loss......................................................... $(1,514) $(2,635) $(5,994)
Net loss per share (1)........................................... $ (1.78) $ (1.30) $ (0.53)
Weighted average shares outstanding (1).......................... 850 2,027 11,394
</TABLE>
<TABLE>
<CAPTION>
AT JUNE 30, 1997
-------------------------
ACTUAL AS ADJUSTED(2)
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<S> <C> <C>
BALANCE SHEET DATA:
Cash, cash equivalents and short-term investments..................... $19,514 $ 43,604
Long-term debt, less current maturities............................... 553 553
Accumulated deficit................................................... (25,327) (25,327)
Total stockholders' equity............................................ 24,266 48,356
</TABLE>
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(1) Computed on the basis described in Note 2 of Notes to Consolidated Financial
Statements.
(2) Adjusted to reflect the sale of 2,000,000 shares of Common Stock offered
hereby by the Company at an assumed public offering price of $13.00 per
share and the application of the estimated net proceeds therefrom. See "Use
of Proceeds" and "Capitalization."
-------------------
"Digene" and "Hybrid Capture" are registered trademarks of the Company.
This Prospectus also includes trademarks and trade names of companies other than
the Company.
Except as otherwise indicated or in the Notes to Consolidated Financial
Statements, (i) all references to fiscal year refer to the Company's fiscal year
ending June 30, and all other references to years refer to calendar years, and
(ii) all information in this Prospectus assumes the Underwriters' over-allotment
option is not exercised.
5
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RISK FACTORS
Prospective investors should consider carefully the following risk factors,
in addition to the other information presented in this Prospectus, before
purchasing the shares of Common Stock offered hereby.
HISTORY OF OPERATING LOSSES; UNCERTAINTY OF PROFITABILITY; FLUCTUATIONS IN
QUARTERLY RESULTS
The Company has incurred substantial operating losses since inception and,
at June 30, 1997, had an accumulated deficit of approximately $25.3 million.
Such losses have resulted principally from expenses associated with the
Company's research and development programs, including preclinical studies,
clinical trials and regulatory submissions for the Company's women's health and
blood virus products, the scale-up of the Company's manufacturing facilities,
and the expansion of the Company's sales and marketing activities in the United
States and abroad. The Company expects such operating losses to continue for the
foreseeable future as it continues its product development efforts, seeks United
States Food and Drug Administration ("FDA") and foreign approvals of its women's
health and blood virus products, expands its manufacturing capabilities, and
further expands its sales and marketing activities. In order to achieve
profitability, the Company must successfully manufacture, market and sell its
women's health and blood virus products in the United States and abroad. The
markets targeted by the Company are heavily regulated and are characterized by
an increasing number of entrants, intense competition and a high rate of
failure. There can be no assurance that the Company will ever be able to
successfully commercialize its products or that profitability will ever be
achieved. The Company's quarterly operating results have fluctuated
significantly in the past and the Company believes that they may continue to
fluctuate significantly in the future with lower product revenues in the first
and second fiscal quarters as compared with the third and fourth fiscal
quarters, primarily attributable to the lower demand for certain women's
health-related medical procedures during the summer months and the December
holiday season in the United States and Europe. In addition, the Company's
quarterly operating results, as well as annual results, may fluctuate from
period to period due to the degree of market acceptance of the Company's
products, competition, the timing of regulatory approvals and other regulatory
announcements, the volume and timing of orders from and shipments to
distributors, variations in the Company's distribution channels, the timing of
new product announcements and introductions by the Company and its competitors,
product obsolescence resulting from new product introductions and other factors,
many of which are outside the Company's control. Due to one or more of these
factors, in one or more future quarters the Company's results of operations may
fall below the expectations of securities analysts and investors. In that event,
the market price of the Company's Common Stock could be materially and adversely
affected. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Overview."
UNCERTAINTY OF MARKET ACCEPTANCE
The Company's success depends, in part, upon the acceptance by the
worldwide medical community, including third-party payors, clinical laboratories
and health care providers, of the Company's Hybrid Capture technology as a
clinically useful and cost-effective method for detecting, screening and
monitoring human papillomavirus ("HPV"), chlamydia, gonorrhea, human
immunodeficiency virus ("HIV"), cytomegalovirus ("CMV"), and hepatitis B virus
("HBV"). There can be no assurance that the worldwide medical community will
accept the use of the Company's technology. Market acceptance of the Company's
products based on its Hybrid Capture II technology will depend on the Company's
ability to arrange for the distribution to its customers of luminometers with
the capability to analyze the results from such products. The Company has
identified a manufacturer for such luminometers and is currently arranging for
the manufacture and distribution of luminometers to its customers. No assurance
can be given that the Company's efforts will be successful. Failure to arrange
for the manufacture or distribution of such luminometers on a timely basis, or
any related delays, could delay or prevent market acceptance of the Company's
Hybrid Capture II products or increase the costs related to the distribution of
such luminometers, any of which could have a material adverse effect on the
Company's business, financial condition and results of operations. Furthermore,
the Company's growth and success will depend upon market acceptance by the
medical community of the Company's HPV tests for the follow-up screening of
women with equivocal Pap smears as a clinically useful and cost-effective
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<PAGE> 8
alternative to well-established follow-up procedures, such as Pap smear
re-testing, colposcopy and biopsy, which are widely accepted and have a long
history of use. There can be no assurance that HPV testing, in general, or the
Company's HPV tests, in particular, will achieve market acceptance in the United
States on a timely basis, or at all. Additionally, there can be no assurance
that the Company's products will be accepted in any markets outside the United
States due to the influence of established medical practices, lack of education
about women's health and blood viruses, and other social and economic factors
beyond the Company's control. Failure of the Company's technology or products to
achieve market acceptance would have a material adverse effect on the Company's
business, financial condition and results of operations. See " -- Limited
Manufacturing Experience; Uncertainties Regarding Manufacturing and Operations
Scale-up," "Business -- Sales and Marketing" and "-- Competition."
RISKS INHERENT IN INTERNATIONAL TRANSACTIONS
The Company sells its products both in the United States and abroad.
International sales and operations may be limited or disrupted by the imposition
of government controls, export license requirements, economic and political
instability, price controls, trade restrictions, changes in tariffs and
difficulties with foreign distributors. Foreign countries often establish
product standards different from those of the United States and any inability to
obtain or maintain international approvals on a timely basis could have a
material adverse effect on the Company's international business operations.
Additionally, the Company's business, financial condition and results of
operations may be materially and adversely affected by fluctuations in currency
exchange rates as well as increases in duty rates and difficulties in obtaining
required licenses and permits. There can be no assurance that the Company will
be able to successfully commercialize any of its products in any foreign market.
In addition, the laws of some countries do not protect the Company's proprietary
rights to the same extent as those of the United States.
The Company markets its women's health and blood virus products abroad
using both a direct sales force and a network of distributors. For the Company's
products being sold through distributors, such distributors are responsible for
obtaining regulatory approvals and establishing reimbursement from third-party
payors in their respective territories. Generally, the extent and complexity of
regulation of medical products are increasing worldwide, with regulation in some
countries already nearly as exhaustive as that in the United States. The Company
anticipates that this trend will continue, and that the cost and time required
to obtain approval to market in any given country will increase, with no
assurance that such approval will be obtained. The Company's inability to obtain
approval to market its products internationally would have a material adverse
effect on the Company's business, financial condition and results of operations.
See "Business -- Sales and Marketing" and " -- Government Regulation."
LIMITED SALES AND MARKETING EXPERIENCE
The Company has limited sales and marketing experience, and no assurance
can be given that the Company will be able to successfully establish and
maintain a significant sales and marketing organization or that the Company's
direct sales force will succeed in promoting the Company's products to
third-party payors, clinical laboratories, health care providers and government
entities worldwide. In addition, due to limited market awareness of the
Company's products, the Company believes that the marketing effort may be a
lengthy process, requiring the Company to educate the worldwide medical
community regarding both the clinical utility and cost-effectiveness of HPV
testing, in general, and the Company's HPV tests, in particular, and the
efficacy, clinical utility and cost-effectiveness of the Company's blood virus
products in detecting the presence of blood viruses and monitoring the
effectiveness of particular antiviral therapies. The Company intends to use a
direct sales force as well as a network of distributors to market and sell its
HPV tests in the United States and abroad. There can be no assurance that the
Company will be able to recruit and retain skilled sales, marketing, service or
support personnel, that agreements with foreign distributors will be available
on terms commercially reasonable to the Company, or at all, or that the
Company's sales and marketing efforts will be successful. Failure to
successfully establish and maintain a significant sales and marketing effort,
whether directly or through third parties, would have a material adverse effect
on the Company's business, financial condition and results of operations. The
Company's marketing success in the
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United States and abroad also will depend on whether it can obtain required
approvals for marketing, successfully demonstrate the clinical utility and
cost-effectiveness of its products, further develop a direct sales capability,
and establish arrangements with distributors and marketing partners. Failure by
the Company to successfully sell and market its products would have a material
adverse effect on the Company's business, financial condition and results of
operations. See "Business -- Sales and Marketing."
DEPENDENCE ON THIRD-PARTY REIMBURSEMENT
Sales of the Company's products in the United States and other markets will
depend, in part, on the availability of adequate reimbursement from third-party
payors such as government entities, managed care organizations and private
insurance plans. There is significant uncertainty concerning third-party
reimbursement for the use of any medical test incorporating new technology.
Reimbursement by a third-party payor may depend on a number of factors,
including the payor's determination that the use of the Company's products is
clinically useful and cost-effective, not experimental or investigational, and
medically necessary and appropriate for the specific patient. Since
reimbursement approval is required from each payor individually, seeking such
approvals is a time consuming and costly process which requires the Company to
provide scientific and clinical support for the use of each of the Company's
products to each payor separately. There can be no assurance that third-party
reimbursement will be consistently available for the Company's products or that
such third-party reimbursement will be adequate. Federal and state government
agencies are increasingly considering limiting health care expenditures. For
example, the United States Congress is currently considering various proposals
to significantly reduce Medicaid and Medicare expenditures. Such proposals, if
enacted, could have a material adverse effect on the Company's business,
financial condition and results of operations. In addition, third-party payors
are increasingly limiting reimbursement coverage for medical diagnostic products
and in many instances are exerting pressure on medical suppliers to lower their
prices. Outside the United States, the Company relies on a network of
distributors distributing certain of the Company's products to establish
reimbursement from third-party payors in their respective territories.
Accordingly, the establishment of reimbursement for certain of the Company's
products from third-party payors in such countries is outside the Company's
control. Health care reimbursement systems vary from country to country and,
accordingly, there can be no assurance that third-party reimbursement will be
available for the Company's products under any other reimbursement system. Lack
of or inadequate reimbursement by government and other third-party payors for
the Company's products would have a material adverse effect on the Company's
business, financial condition and results of operations. See "Business -- Third
Party Reimbursement."
COMPETITION
The medical diagnostics and biotechnology industries are subject to intense
competition. The Company's competitors in the United States and abroad for DNA
and RNA diagnostic probes include Roche Diagnostic Systems, Abbott Laboratories,
Chiron Corporation and Gen-Probe Incorporated. Other companies, including large
pharmaceutical and biotechnology companies, may enter the market for DNA and RNA
probe diagnostics. Additionally, for certain of the Company's tests, the Company
competes against existing detection, screening and monitoring technologies,
including the Pap smear, tissue culture and antigen-based diagnostic
methodologies. In May 1996, Oncor, Inc. announced that it had received
notification from the FDA that its HPV test is approvable by the FDA, subject to
certain conditions. To date, the product has not been approved for clinical
diagnostic use. The Company's existing and potential competitors may be able to
develop technologies that are as effective as, or more effective or easier to
interpret than those offered by the Company, which would render the Company's
products noncompetitive or obsolete. Moreover, many of the Company's existing
and potential competitors have substantially greater financial, marketing,
sales, manufacturing, distribution and technological resources than the Company.
Such existing and potential competitors may be in the process of seeking FDA or
foreign regulatory approval for their respective products or may also enjoy
substantial advantages over the Company in terms of research and development
expertise, experience in conducting clinical trials, experience in regulatory
matters, manufacturing efficiency, name recognition, sales and marketing
expertise and distribution channels. In addition, many of these companies may
have established third-party reimbursement for their products. Accordingly,
there can be no assurance that the Company will
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<PAGE> 10
be able to compete effectively against such existing or potential competitors.
In marketing its HPV Test for the follow-up screening of women with equivocal
Pap smears in the United States, the Company competes with well-established
follow-up procedures, such as Pap smear retesting, colposcopy and biopsy, which
are widely accepted and have a long history of use. Additionally, in the event
the Company is able to obtain FDA and applicable foreign approvals to market its
HPV tests for primary cervical cancer screening either in conjunction with or
separate from the Pap smear, it will compete against the Pap smear, which is
widely accepted as an inexpensive and, with regular use, adequate screening test
for cervical cancer. Additionally, technological advancements designed to
improve quality control over sample collection and preservation, and to reduce
the Pap smear test's susceptibility to human error, may serve to increase
physician reliance on the Pap smear and solidify its market acceptance. Further,
if marketed as an adjunct to the Pap smear test for primary screening in the
United States, the Company's HPV tests may be seen as adding unnecessary expense
to the accepted cervical cancer screening methodology. Consequently, there is no
assurance that the Company's HPV tests will be able to attain market acceptance
as a primary screening test on a timely basis, or at all. The Company faces
competition from a variety of technologies in the blood virus area. There are
several advanced technologies commercially available for the detection and viral
load measurement of HIV and HBV. Additionally, there are several emerging DNA
probe amplification technologies to detect CMV being developed by competitors.
There can be no assurance that the Company's tests for CMV, HIV or HBV will be
able to gain market acceptance on a timely basis, or at all. There can be no
assurance that the Company will be able to compete successfully against existing
or future competitors or that competition will not have a material adverse
effect on the Company's business, financial condition and results of operations.
See "Business -- Competition."
LIMITED MANUFACTURING EXPERIENCE; UNCERTAINTIES REGARDING MANUFACTURING AND
OPERATIONS SCALE-UP
The Company has limited commercial-scale manufacturing experience and
capabilities and it is anticipated that the Company will be required to further
scale-up its manufacturing capabilities. In late 1997, the Company plans to
initiate either the lease and build-out of a new facility or the expansion of
its existing facility. The integration of the Company's manufacturing operations
into a new or expanded facility may result in inefficiencies and delays.
Specifically, companies often encounter difficulties in scaling up
manufacturing, including problems involving production yield, quality control
and assurance, and shortages of qualified personnel. In addition, the Company's
new or expanded manufacturing facilities will be subject to Quality Systems
Regulations ("QSRegs"), international quality standards and other regulatory
requirements. Difficulties encountered by the Company in expansion of
manufacturing or the failure by the Company to establish and maintain its
facilities in accordance with QSRegs, international quality standards or other
regulatory requirements could result in a delay or termination of manufacturing,
which could have a material adverse effect on the Company's business, financial
condition and results of operations. Additionally, ongoing sales of the
Company's Hybrid Capture II products will be dependent, in part, upon the
Company's ability to provide service and support to users of equipment and
related software. The Company's inability to successfully develop necessary
service and support capabilities could have a material adverse effect on the
Company's business, financial condition and results of operations. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources" and "Business -- Manufacturing."
DEPENDENCE ON EUROPEAN DISTRIBUTOR
For the fiscal year ended June 30, 1997, approximately 42% of the Company's
total revenues resulted from transactions with International Murex Technologies
Corporation (together with its affiliates, "Murex"). After this Offering, Murex
will own approximately 5.3% of the Company's outstanding shares of Common Stock.
The Company has established a direct European sales operation for its women's
health products whereby, pursuant to an agreement, the Company markets such
products directly using Murex's sales and marketing infrastructure. In addition,
the Company has a co-exclusive distribution agreement with Murex for sales of
its other products in Europe, the Middle East and Africa. Consequently, the
Company expects that sales to Murex will continue to constitute a significant
portion of total sales for the foreseeable future. The loss of Murex's sales and
marketing infrastructure, a significant decrease in product shipments to or an
inability to
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collect receivables from Murex or any other adverse change in the Company's
relationship with Murex could have a material adverse effect on the Company's
business, financial condition and results of operations. See "Business -- Sales
and Marketing" and "-- Distribution Arrangements."
UNCERTAINTY REGARDING PATENTS AND PROPRIETARY RIGHTS
The Company's success will depend, in part, on its ability, and the ability
of its collaborators or licensors, to obtain protection for its products and
technologies under United States and foreign patent laws, to preserve its trade
secrets, and to operate without infringing the proprietary rights of third
parties. Because of the substantial length of time and expense associated with
bringing new products through development to the marketplace, the medical
diagnostics and biotechnology industries place considerable importance on
obtaining, and maintaining, patent and trade secret protection for new
technologies, products and processes.
The Company has obtained rights to certain patents and patent applications
and may, in the future, obtain, or seek rights from third parties to additional
patents and patent applications. There can be no assurance that patent
applications relating to the Company's products or technologies will result in
patents being issued, that any issued patents will afford adequate protection to
the Company, or that such patents will not be challenged, invalidated, infringed
or circumvented. Furthermore, there can be no assurance that others have not
developed, or will not develop, similar products or technologies that will
compete with those of the Company without infringing upon the Company's
intellectual property rights.
Legal standards relating to the scope of claims and the validity of patents
in the medical diagnostics and biotechnology industries are uncertain and still
evolving, and no assurance can be given as to the degree of protection that will
be afforded any patents issued to, or licensed by, the Company. There can be no
assurance that, if challenged by others in litigation, any patents assigned to
or licensed by the Company will not be found invalid. Furthermore, there can be
no assurance that the Company's activities would not infringe patents owned by
others. Defense and prosecution of patent matters can be expensive and
time-consuming and, regardless of whether the outcome is favorable to the
Company, can result in the diversion of substantial financial, management and
other resources. An adverse outcome could subject the Company to significant
liability to third parties, require the Company to obtain licenses from third
parties, or require the Company to cease any related research and development
activities and product sales. No assurance can be given that any licenses
required under any such patents or proprietary rights would be made available on
terms acceptable to the Company, if at all. Moreover, the laws of certain
countries may not protect the Company's proprietary rights to the same extent as
United States law.
The Company has received inquiries regarding possible patent infringements
relating to, among other things, certain aspects of its Hybrid Capture
technology. The Company believes that the patents of others to which these
inquiries relate are either not infringed by the Company's Hybrid Capture
technology or are invalid. The Company currently is in discussions with a third
party regarding a license to a pending United States patent application which
might cover one of the HPV types utilized with its HPV HC II Test. Should a
license prove necessary, the failure of the Company to successfully negotiate
such a license on commercially reasonable terms, or at all, may require the
Company to redesign its HPV HC II Test to exclude this HPV type. Such exclusion
could result in delays in any approval of the Company's HPV HC II Test for
marketing and could have a material adverse effect on the Company's business,
financial condition and results of operations. There can be no assurance that
the Company will not be subject to further claims that its technology, including
its Hybrid Capture technology, or its products, infringe the patents or
proprietary rights of third parties.
The Company's success also is dependent upon the skill, knowledge, and
experience of its scientific and technical personnel. To help protect its
rights, the Company requires all employees, consultants, advisors and
collaborators to enter into confidentiality agreements that prohibit the
disclosure of confidential information to anyone outside the Company and require
disclosure, and in most cases, assignment to the Company of their ideas,
developments, discoveries and inventions. There can be no assurance, however,
that these agreements will provide adequate protection for the Company's trade
secrets, know-how or other proprietary information
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in the event of any unauthorized use or disclosure. See "Business -- Licenses,
Patents and Proprietary Information."
GOVERNMENT REGULATION
The Company's current and any future products are and will be subject to
extensive regulation by the FDA and, in some instances, by foreign governments.
Pursuant to the Federal Food, Drug and Cosmetic Act, as amended, and the
regulations promulgated thereunder (the "FDC Act"), the FDA regulates the
clinical testing, manufacture, labeling, distribution and promotion of medical
devices. Noncompliance with applicable requirements can result in, among other
things, fines, injunctions, civil penalties, recalls or seizures of products,
total or partial suspension of production, failure of the government to grant
premarket clearance or premarket approval for devices, withdrawal of marketing
approvals and criminal prosecution. The FDA also has the authority to request
repair, replacement or refund of the cost of any device manufactured or
distributed by the Company.
In April 1995, the Company obtained approval of a PMA application for its
HPV Test to detect the presence of HPV in women with equivocal Pap smears. In
August 1997, the Company obtained FDA approval of a PMA supplement for use of
the HPV Test using the Cytyc Corporation sample collection system. The Company
intends to submit a PMA supplement with the FDA to obtain market approval for
use of its HPV Test as a primary cervical cancer screening test either in
conjunction with or separate from Pap smear testing. The Company anticipates
that a substantial amount of clinical data will be required to support the pre-
market approval ("PMA") supplement. There can be no assurance that the data the
Company submits will be adequate to support the use of the HPV Test as a primary
cervical cancer screening test in the United States. Moreover, there can be no
assurance that the FDA will grant approval of a PMA supplement for use of the
HPV Test as a primary cervical cancer screening test in a timely manner, if at
all, or that the FDA will not require the submission of additional information,
data or a PMA application. Failure to obtain FDA approval for the HPV Test as a
primary cervical cancer screening test could have a material adverse effect on
the Company's business, financial condition and results of operations. The
Company intends to export its HPV Test as a primary cervical cancer screening
test prior to obtaining FDA approval for this use in the United States. Such
exports may require regulatory approvals from various countries. There can be no
assurance that such foreign regulatory agencies will grant approval of such
products, and failure on the part of the Company to obtain such approvals could
have a material adverse effect on the Company's business, financial condition
and results of operations.
The Company submitted a 510(k) notification for its CMV Test in December
1996. After changing certain reagents used in the test and following discussions
with the FDA, the Company decided to withdraw the original 510(k) notification
and a second 510(k) notification was submitted in March 1997. Upon review of the
second 510(k) notification, the FDA determined that additional data would be
needed and the submission was withdrawn on the basis that it would take the
Company more than 30 days to collect the necessary data. The Company expects to
submit another 510(k) notification for the CMV Test in late 1997 after
collecting the necessary data. The FDA will likely subject the CMV submission to
a "Tier 3" level of review which includes close scrutiny of the clinical data
that support the submission. The Company also understands that the FDA may seek
an advisory committee review and recommendation concerning the safety and
efficacy of the product. There can be no assurance that, when the Company
submits a third 510(k) notification for the CMV Test, the FDA will grant
clearance in a timely manner, if at all, or that the FDA will not require the
submission of additional clinical data or find the product not substantially
equivalent and require the submission of a PMA application.
The Company is developing tests for HIV and HBV which are class III devices
that will necessitate the collection of extensive clinical data and the eventual
submission and approval of a PMA application. There can be no assurance that the
Company will be able to collect adequate data to support a PMA application for
either the HIV Test or HBV Test or that when a PMA application is submitted, FDA
approval would be granted in a timely manner, if at all.
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<PAGE> 13
The Company is also developing tests for chlamydia and gonorrhea. The
Company believes marketing authorization for its Chlamydia and Gonorrhea Tests
in the United States can be obtained through the 510(k) notification process.
The Company understands that the FDA will subject the submissions to a "Tier 3"
level of review which includes close scrutiny of the clinical data that support
the submissions. The Company also understands that the FDA may seek an advisory
committee review and recommendation concerning the safety and efficacy of the
Chlamydia and Gonorrhea Tests. There can be no assurance that, once a 510(k)
notification is submitted for the Chlamydia and Gonorrhea Tests, the FDA will
grant clearance in a timely manner, if at all, or that the FDA will not find
such tests not substantially equivalent and require the submission of a PMA
application.
The Company intends to export the HPV Test as a primary cervical cancer
screening test prior to obtaining FDA approval for this use in the United
States. The Company also intends to export the HIV Test for clinical use abroad
prior to pursuing FDA approval in the United States. Exports of the HPV Test as
a primary cervical cancer screening test and exports of the HIV Test can be
undertaken without prior FDA approval provided, among other things, that the
marketing of these tests are not contrary to the laws of the country to which
they are intended for import, they are manufactured in substantial conformance
with QSRegs and the Company has valid marketing authorization by any member
country of the European Union, Australia, Canada, Israel, Japan, New Zealand,
Switzerland or South Africa. FDA approval must be obtained for exports of
products subject to the PMA requirements if these export conditions are not met.
The Company must also provide the FDA with simple notification indicating the
products to be exported and the countries to which they will be exported. There
can be no assurance that the Company will be able to obtain valid marketing
authorization for either test from one of the listed countries or that the FDA
would grant specific export approval. Failure of the Company to obtain valid
marketing authorization from one of the listed countries or otherwise meet the
FDA export approval requirements, could have a material adverse effect on the
Company's business, financial condition and results of operations.
The Company currently sells various products on a research use only ("RUO")
basis. Failure of the Company or recipients of the Company's RUO devices to
comply with the user certification requirements and other regulatory limitations
placed on the distribution and use of RUO devices could result in enforcement
action by the FDA that would adversely affect the Company's ability to
distribute the tests prior to obtaining FDA clearance or approval for the
products.
The FDA product clearance process is unpredictable and uncertain, and no
assurance can be given that the necessary approvals or clearances will be
granted on a timely basis, or at all. Delays in receipt of, or a failure to
receive, such approvals or clearances, or the loss of any previously received
approvals or clearances, could have a material adverse effect on the business,
financial condition and results of operations of the Company.
Any products manufactured or distributed by the Company pursuant to FDA
clearances or approvals are subject to pervasive and continuing regulation by
the FDA. Changes in existing requirements or adoption of new requirements or
policies could adversely affect the ability of the Company to comply with
regulatory requirements. Failure to comply with regulatory requirements could
have a material adverse effect on the Company's business, financial condition
and results of operations. There can be no assurance that the Company will not
be required to incur significant costs to comply with laws and regulations in
the future or that laws or regulations will not have a material adverse effect
upon the Company's business, financial condition and results of operations.
The FDC Act requires devices to be manufactured in accordance with QSRegs
which impose certain procedural and documentation requirements upon the Company
with respect to manufacturing and quality assurance activities. Noncompliance
with QSRegs can result in, among other things, fines, injunctions, civil
penalties, recalls or seizures of products, total or partial suspension of
production, failure of the government to grant premarket clearance or premarket
approval for devices, withdrawal of marketing approvals and criminal
prosecution. Any failure by the Company to comply with the requirements of
QSRegs could have a material adverse effect on the Company's business, financial
condition and results of operations.
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<PAGE> 14
The Company must comply with similar registration requirements of foreign
governments and with import and export regulations when distributing its
products to foreign nations. Each foreign country's regulatory requirements for
product approval and distribution are unique and may require the expenditure of
substantial time, money and effort. The regulation of medical devices in a
number of such jurisdictions, particularly in the European Union, continues to
develop and there can be no assurance that new laws or regulations will not have
a material adverse effect on the Company's business, financial condition and
results of operations. Noncompliance with state, local, federal or foreign
regulatory requirements can result in fines, injunctions, civil penalties,
recall or seizure of products, total or partial suspension of production, delay
or denial or withdrawal of premarket clearance or approval of devices and
criminal prosecution. See "Business -- Government Regulation."
DEPENDENCE ON SINGLE SOURCE SUPPLIERS
Certain key components of the Company's products are currently provided to
the Company, on a purchase-order basis, by single sources. The Company does not
have long-term supply contracts with any of such suppliers nor has the Company
arranged for alternative supply sources. In the event that the Company is unable
to obtain sufficient quantities of such components on commercially reasonable
terms, or in a timely manner, the Company would not be able to manufacture its
products on a timely and cost-competitive basis which would have a material
adverse effect on the Company's business, financial condition and results of
operations. In addition, if any of the components of the Company's products are
no longer available in the marketplace, the Company may be forced to further
develop its technology to incorporate alternate components. The incorporation of
new components into the Company's products may require the Company to seek
necessary approvals from the FDA or appropriate foreign regulatory agencies
prior to commercialization. There can be no assurance that such development
would be successful or that, if developed by the Company or licensed from third
parties, such alternative components would receive requisite regulatory approval
on a timely basis, or at all.
The success of the Company's products based on its Hybrid Capture II
technology will depend, in part, on its ability to arrange for the distribution
to its customers of luminometers and related software and equipment with the
capability to analyze the results of the Company's tests. The luminometers
currently are manufactured for the Company by a single supplier. Although the
Company believes that such luminometers could be acquired from alternative
sources, such sources may be more expensive than the Company's current supplier
and may require substantial lead time. Consequently, the failure of the
Company's supplier to produce luminometers in accordance with specifications, in
accordance with applicable regulations and on a timely basis, could
significantly inhibit the Company's ability to market its Hybrid Capture II
products and have a material adverse effect on the Company's business, financial
condition and results of operations.
UNCERTAINTIES RELATING TO PRODUCT DEVELOPMENT
There can be no assurance that the Company's new product development
efforts will result in any commercially viable or successful products. The
Company has a number of product candidates in various early stages of
development. These product candidates will require substantial additional
investment, laboratory development, clinical testing and regulatory approval
prior to their commercialization. The Company's inability to successfully
develop these product candidates or achieve market acceptance of such products
could have a material adverse effect on the Company's business, financial
condition and results of operations. See "Business -- Products" and "-- Research
and Development."
ATTRACTION AND RETENTION OF KEY PERSONNEL
The Company is highly dependent on the principal members of its management
team, the loss of whose services might impede achievement of the Company's
strategic objectives. The Company's success will depend on its ability to retain
key employees and to attract additional qualified employees. Competition for
such personnel is intense, and there can be no assurance that the Company will
be able to retain existing personnel and to attract, assimilate or retain
additional highly qualified employees in the future. If the
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<PAGE> 15
Company is unable to hire and retain personnel in key positions, such inability
would have a material adverse effect on the Company's business, financial
condition and results of operations.
POTENTIAL INADEQUACY OF PRODUCT LIABILITY INSURANCE
The Company's business is subject to product liability risks inherent in
the testing, manufacturing and marketing of its products. There can be no
assurance that product liability claims will not be asserted against the
Company, its collaborators or licensees. The Company currently maintains product
liability insurance coverage of $5,000,000 per occurrence and in the aggregate.
There can be no assurance, however, that this coverage will be adequate to
protect the Company against future product liability claims or that product
liability insurance will be available to the Company in the future on
commercially reasonable terms, if at all. Furthermore, there can be no assurance
that the Company will be able to avoid significant product liability claims and
the attendant adverse publicity. Consequently, a product liability claim or
other claim with respect to uninsured or underinsured liabilities could have a
material adverse effect on the Company's business, financial condition and
results of operations.
ENVIRONMENTAL REGULATION
The Company is subject to a variety of local, state and federal government
regulations relating to the storage, discharge, handling, emission, generation,
manufacture and disposal of toxic, infectious or other hazardous substances used
to manufacture the Company's products. Any failure by the Company to control the
use, disposal, removal or storage of hazardous chemicals or toxic substances
could subject the Company to significant liabilities, which could have a
material adverse effect on the Company's business, financial condition and
results of operations.
POSSIBLE VOLATILITY OF STOCK PRICE
The market price of the shares of Common Stock, like that of the common
stock of many other medical diagnostics and biotechnology companies, has been
and is likely to remain highly volatile. Factors such as announcements of
technological innovations or new products by the Company or its competitors,
clinical trial results relating to or regulatory approvals or disapprovals of
the Company's or competitors' product candidates, government regulation, health
care legislation, developments or disputes concerning patent or other
proprietary rights of the Company or its competitors, including litigation,
fluctuations in the Company's operating results and market conditions for health
care stocks and biotechnology stocks in general could have a significant impact
on the future price of the Common Stock. In addition, the stock market has
experienced from time to time extreme price and volume fluctuations that may be
unrelated to the operating performance of particular companies. Since the
Company's initial public offering of Common Stock on May 22, 1996, the average
daily trading volume in the Common Stock as reported on the Nasdaq National
Market has been relatively low. There can be no assurance that a more active
trading market will develop in the future. See "Price Range of Common Stock."
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of Common Stock (including shares issued upon
the exercise of outstanding options) in the public market after this Offering or
the prospect of such sales could adversely affect the market price of the Common
Stock and the Company's ability to raise additional equity capital. The number
of shares of Common Stock available for sale in the public market is limited by
restrictions under the Securities Act of 1933, as amended (the "Securities
Act"), and lock-up agreements ("Lock-Ups") under which the holders of 4,545,975
shares have agreed not to sell or otherwise dispose of any of their shares for a
period of 90 days after the date of this Prospectus without the prior written
consent of UBS Securities LLC. In its sole discretion and at any time without
notice, UBS Securities LLC may release all or any portion of the shares subject
to Lock-Ups. A majority of the 13,588,649 shares of Common Stock that will be
outstanding after this Offering will be freely tradeable without restriction or
further registration under the Securities Act following the Lock-Up period,
except (i) 4,560,651 shares currently owned by "affiliates" of the Company, as
that term is defined in Rule 144 under the Securities Act ("Affiliates"), and
(ii) 327,826 shares subject to the volume restrictions
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<PAGE> 16
and other provisions of Rule 144. These shares may generally be sold in
compliance with the applicable provisions of Rule 144. The Company has
registered 2,871,853 shares of Common Stock reserved for issuance under the
Company's stock option plans as of the date of this Prospectus and intends to
register an additional 500,000 shares of Common Stock issuable under the
Company's 1997 Stock Option Plan. As of September 11, 1997, the Company had
reserved 4,434,300 shares of Common Stock for issuance under the Company's stock
option plans. In addition, holders of approximately 5,268,025 shares of Common
Stock will be entitled to certain registration rights with respect to such
shares. If such holders, by exercising their registration rights, cause a large
number of shares to be registered and sold in the public market, such sales
could have a material adverse effect on the market price of the Company's Common
Stock. In addition, any demand of such holders to include such shares in
Company-initiated registration statements could have an adverse effect on the
Company's ability to raise needed capital. See "Shares Eligible for Future Sale"
and "Underwriting."
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FINANCING
The Company has incurred negative cash flows from operations since its
inception, and has expended, and expects to continue to expend in the future,
substantial funds to complete its planned product development efforts, expand
its sales and marketing activities and expand its manufacturing capabilities.
The Company expects that its existing capital resources, together with the net
proceeds of this Offering and the interest earned thereon, will be adequate to
fund the Company's operations through 1999. No assurance can be given that there
will be no change in the Company that would consume a significant amount of its
available resources before that time. The Company's future capital requirements
and the adequacy of available funds will depend on numerous factors, including
the successful commercialization of its products, progress in its product
development efforts, the magnitude and scope of such efforts, progress with
preclinical studies and clinical trials, progress with regulatory affairs
activities, the cost and timing of expansion of manufacturing capabilities, the
expansion of the Company's direct European sales operations, the development and
maintenance of effective sales and marketing activities, the cost of filing,
prosecuting, defending and enforcing patent claims and other intellectual
property rights, competing technological and market developments, and the
development of strategic alliances for the marketing of its products. To the
extent that funds generated from the Company's operations, together with its
existing capital resources and the proceeds of this Offering and the interest
earned thereon, are insufficient to meet current or planned operating
requirements, the Company will be required to obtain additional funds through
equity or debt financing, strategic alliances with corporate partners and
others, or through other sources. The terms and prices of any equity or debt
financings may be significantly more favorable to an investor than those of the
Common Stock sold in this Offering. The Company does not have any committed
sources of additional financing, and there can be no assurance that additional
funding, if necessary, will be available on acceptable terms, if at all. If
adequate funds are not available, the Company may be required to delay,
scale-back or eliminate certain aspects of its operations or attempt to obtain
funds through arrangements with collaborative partners or others that may
require the Company to relinquish rights to certain of its technologies, product
candidates, products or potential markets. If adequate funds are not available,
the Company's business, financial condition and results of operations will be
materially and adversely effected. See "Use of Proceeds" and "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
CONTROL BY MANAGEMENT
The Company's President and Executive Vice President will beneficially own
an aggregate of approximately 36.4% of the Company's outstanding shares of
Common Stock after this Offering (approximately 34.3% if the Underwriters'
over-allotment option is exercised in full). As a result, these officers, acting
together, will effectively control the election of directors and matters
requiring approval by the Company's stockholders. See "Principal and Selling
Stockholders."
ANTITAKEOVER CONSIDERATIONS
The Company's Board of Directors has the authority, without further action
by the stockholders, to issue from time to time, up to 1,000,000 shares of
Preferred Stock in one or more classes or series, and to fix the rights and
preferences of such Preferred Stock. The Company's Certificate of Incorporation
also provides for staggered terms for members of the Board of Directors. The
Company is subject to provisions of Delaware corporate law
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which, subject to certain exceptions, will prohibit the Company from engaging in
any "business combination" with a person who, together with affiliates and
associates, owns 15% or more of the Company's Common Stock (an "Interested
Stockholder") for a period of three years following the date that such person
became an Interested Stockholder, unless the business combination is approved in
a prescribed manner. Additionally, the Bylaws of the Company establish an
advance notice procedure for stockholder proposals and for nominating candidates
for election as directors. These provisions of Delaware law and of the Company's
Certificate of Incorporation and Bylaws may have the effect of delaying,
deterring or preventing a change in control of the Company, may discourage bids
for the Common Stock at a premium over market price and may adversely affect the
market price, and the voting and other rights of the holders, of the Common
Stock.
DILUTION
Purchasers of the Common Stock offered hereby will suffer an immediate and
substantial dilution in the net tangible book value from the public offering
price. See "Dilution."
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USE OF PROCEEDS
The net proceeds to the Company from the sale of the 2,000,000 shares of
Common Stock being offered by the Company at an assumed offering price of $13.00
per share are estimated to be approximately $24,090,000, after deduction of
underwriting discounts and commissions and estimated expenses payable by the
Company in connection with the Offering. The Company will not receive any
proceeds from the sale of Common Stock by the Selling Stockholder.
The Company expects to use the net proceeds of this Offering to further
expand its sales and marketing activities, to fund increased research and
development, including clinical trials, to expand manufacturing capabilities, to
provide working capital, and for other general corporate purposes. The Company
may also use a portion of the net proceeds for the acquisition of businesses,
products and technologies that are complementary to those of the Company,
although no such acquisitions are currently being negotiated and no portion of
the net proceeds has been allocated for any specific acquisition. The amounts
and timing of expenditures for each purpose will depend on a number of factors,
including successful commercialization of the Company's products, the progress
of the Company's research and development, the progress of the Company's
regulatory affairs activities, the results of clinical trials, the cost and
timing of expansion of manufacturing capabilities, the expansion of the
Company's direct European sales operations, the costs involved in preparing,
filing, prosecuting, maintaining and enforcing patent claims and other
proprietary rights, and the availability of third-party reimbursement. Pending
such uses, the Company intends to invest the net proceeds in interest-bearing,
investment grade securities.
DIVIDEND POLICY
The Company has never declared or paid cash dividends with respect to its
capital stock. The Company currently intends to retain any future earnings to
fund its operations and, therefore, does not anticipate paying any cash
dividends in the foreseeable future.
PRICE RANGE OF COMMON STOCK
The Company's Common Stock commenced trading on the Nasdaq National Market
under the symbol "DIGE" on May 22, 1996. On September 11, 1997, the last
reported sale price of the Company's Common Stock was $13.00. As of September
11, 1997, there were 163 holders of record of the Company's Common Stock. The
following table sets forth the high and low reported bid prices for the
Company's Common Stock during the periods indicated:
<TABLE>
<CAPTION>
HIGH LOW
--------- -------
<S> <C> <C>
FISCAL 1998
First quarter (through September 11, 1997).......................... $ 15 $ 12 3/8
FISCAL 1997
Fourth quarter...................................................... 13 1/2 9 1/2
Third quarter....................................................... 13 1/4 10 7/8
Second quarter...................................................... 12 3/4 5 1/8
First quarter....................................................... 8 5
FISCAL 1996
Fourth quarter (from May 22, 1996).................................. 11 1/2 8
</TABLE>
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CAPITALIZATION
The following table sets forth, at June 30, 1997 (i) the actual
capitalization of the Company and (ii) the capitalization of the Company as
adjusted to reflect the sale of the 2,000,000 shares of Common Stock being
offered by the Company in this Offering (at an assumed public offering price of
$13.00 per share) and the application by the Company of the estimated net
proceeds therefrom. This table should be read in conjunction with the
Consolidated Financial Statements and the related Notes thereto included
elsewhere in this Prospectus.
<TABLE>
<CAPTION>
AT JUNE 30, 1997
-----------------------
ACTUAL AS ADJUSTED
-------- -----------
(IN THOUSANDS)
<S> <C> <C>
Long-term debt, less current maturities................................ $ 553 $ 553
Stockholders' equity:
Preferred stock, $0.01 par value; 1,000,000 shares authorized; no
shares issued and outstanding on an actual or on an as adjusted
basis............................................................ -- --
Common stock, $0.01 par value; 50,000,000 shares authorized;
11,579,530 shares issued and outstanding on an actual basis; and
13,579,530 shares issued and outstanding on an as adjusted
basis(1)......................................................... 116 136
Additional paid-in capital............................................. 49,477 73,547
Accumulated deficit.................................................... (25,327) (25,327)
-------- -----------
Total stockholders' equity........................................ 24,266 48,356
-------- -----------
Total capitalization......................................... $ 24,819 $ 48,909
======== =========
</TABLE>
- ---------------
(1) Excludes 2,812,333 shares of Common Stock reserved for issuance pursuant to
options outstanding at June 30, 1997 at a weighted average exercise price of
$5.43 per share. At June 30, 1997 an additional 1,256,658 shares of Common
Stock were reserved for issuance under the Company's stock option plans.
18
<PAGE> 20
DILUTION
The net tangible book value of the Company at June 30, 1997 was
$21,958,000, or $1.90 per share. Net tangible book value per share represents
the amount of the Company's tangible assets less total liabilities, divided by
the total number of shares of Common Stock outstanding. Dilution per share
represents the difference between the amount per share paid by investors in this
Offering and the pro forma net tangible book value per share upon completion of
this Offering. After giving effect to the receipt of $24,090,000, representing
the estimated net proceeds to be received by the Company in this Offering (at an
assumed public offering price of $13.00 per share and after deducting
underwriting discounts and commissions and estimated offering expenses payable
by the Company), the pro forma net tangible book value of the Company at June
30, 1997 would have been $46,048,000, or $3.39 per share. This represents an
immediate increase in net tangible book value of $1.49 per share to existing
stockholders and an immediate dilution of $9.61 per share to purchasers in this
Offering.
The following table illustrates this per share dilution:
<TABLE>
<S> <C> <C>
Assumed public offering price per share.............................. $13.00
Net tangible book value per share at June 30, 1997.............. $1.90
Increase in book value per share attributable to new
investors...................................................... 1.49
-----
Pro forma net tangible book value per share after this Offering...... 3.39
------
Dilution per share to new investors.................................. $ 9.61
======
</TABLE>
The calculation of pro forma net tangible book value and the other
computations above assume no exercise of outstanding options. At June 30, 1997,
2,812,333 shares of Common Stock were issuable upon exercise of outstanding
stock options at a weighted average exercise price of $5.43 per share. To the
extent the outstanding options are exercised, there will be further dilution to
new investors. See "Capitalization" and Note 13 of Notes to Consolidated
Financial Statements.
19
<PAGE> 21
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data set forth below with respect to
the Company's Consolidated Statements of Operations for the fiscal years ended
June 30, 1995, 1996 and 1997 and with respect to the Company's Consolidated
Balance Sheets at June 30, 1996 and 1997 are derived from the audited
Consolidated Financial Statements of the Company which are included elsewhere in
this Prospectus and are qualified by reference to such Consolidated Financial
Statements and the related Notes thereto. Statement of Operations data for the
fiscal years ended June 30, 1993 and 1994 and Balance Sheet data at June 30,
1993, 1994 and 1995 are derived from the audited Financial Statements of the
Company not included herein. The selected financial data set forth below is
qualified by, and should be read in conjunction with the Consolidated Financial
Statements, the related Notes thereto and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included elsewhere in this
Prospectus.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED JUNE 30,
--------------------------------------------------------
1993 1994 1995 1996 1997
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues:
Product sales........................... $ 4,624 $ 4,767 $ 5,413 $ 6,359 $ 9,434
Research and development contracts...... 141 527 749 381 626
------- ------- ------- ------- ------
Total revenues....................... 4,765 5,294 6,162 6,740 10,060
Costs and expenses:
Cost of product sales................... 2,698 2,464 2,652 2,895 3,441
Research and development................ 1,047 1,103 1,856 2,430 4,131
Selling and marketing................... 1,194 1,398 1,375 2,095 5,236
General and administrative.............. 1,162 1,191 1,245 1,792 4,412
Amortization of intangible assets....... 349 265 330 248 241
------- ------- ------- ------- ------
Loss from operations...................... (1,685) (1,127) (1,296) (2,720) (7,401)
Other income (expense).................... 67 (13) 14 40 (36)
Interest income (expense)................. (299) (293) (232) 45 1,443
------- ------- ------- ------- ------
Net loss.................................. $ (1,917) $ (1,433) $ (1,514) $ (2,635) $ (5,994)
======= ======= ======= ======= ======
Net loss per share(1)..................... $ (2.34) $ (1.69) $ (1.78) $ (1.30) $ (0.53)
======= ======= ======= ======= ======
Weighted average shares outstanding(1).... 818 847 850 2,027 11,394
</TABLE>
<TABLE>
<CAPTION>
AT JUNE 30,
--------------------------------------------------------
1993 1994 1995 1996 1997
-------- -------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash, cash equivalents and short-term
investments............................. $ 397 $ 1,090 $ 1,217 $ 28,575 $ 19,514
Total assets.............................. 4,308 4,307 4,485 33,174 30,207
Long-term debt, less current maturities... 3,100 3,005 2,812 152 553
Redeemable Convertible Preferred Stock.... 10,276 11,768 13,115 0 0
Accumulated deficit....................... (13,750) (15,184) (16,698) (19,333) (25,327)
Total stockholders' equity (deficit)...... (10,058) (11,490) (13,004) 30,119 24,266
</TABLE>
- ---------------
(1) Computed on the basis described in Note 2 of Notes to Consolidated Financial
Statements.
20
<PAGE> 22
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of the financial condition and results of
operations of the Company should be read in conjunction with the Consolidated
Financial Statements and the related Notes thereto included elsewhere in this
Prospectus. This Prospectus contains forward-looking statements that involve
risks and uncertainties. The Company's actual results may differ significantly
from the results discussed in the forward-looking statements. Factors that might
cause or contribute to such differences include, but are not limited to, those
discussed under "Risk Factors," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business," as well as those
discussed elsewhere in this Prospectus.
OVERVIEW
Digene develops, manufactures and markets proprietary DNA and RNA tests,
based on its Hybrid Capture technology, for the detection, screening and
monitoring of HPV, STDs including chlamydia and gonorrhea, and blood viruses
including HIV, CMV and HBV. Currently, the Company is marketing its HPV Test in
the United States for the follow-up screening of women with equivocal Pap smears
and the Company is marketing its HPV tests internationally as a primary screen
to be used either in conjunction with or separate from the Pap smear.
Internationally, the Company launched its HBV Test in 1992, its CMV Test in
March 1997, and its HIV Test in July 1997. In addition, the Company introduced
its Chlamydia and Gonorrhea Tests internationally in August 1997. Other than the
Company's HPV Test, the Company's products currently are available in the United
States for research use only. The Company expects that sales of its HPV tests
will account for a substantial portion of the Company's revenues for at least
the next two years. In addition, the Company expects that international sales
will account for a significant portion of its revenues for at least the next two
years.
The Company currently markets its products in the United States through a
direct sales force supported by technical and customer service representatives.
In Europe, the Company's women's health products are marketed primarily through
a direct sales force that Digene has established with Murex, which also serves
as a distributor of the Company's blood virus products in certain European,
Middle Eastern and African markets. The Company's products are also sold through
a network of distributors in Asia and South America, and in Brazil through the
Company's majority owned subsidiary.
The Company has incurred substantial operating losses since inception,
resulting principally from expenses associated with the Company's research and
development programs, including preclinical studies, clinical trials and
regulatory submissions for the Company's women's health and blood virus
products, the scale-up of the Company's manufacturing facilities, and the
expansion of the Company's sales and marketing activities in the United States
and abroad. The Company expects such operating losses to continue for the
foreseeable future as it continues its product development efforts, seeks FDA
and foreign approvals of its women's health and blood virus products, expands
its manufacturing capabilities and further expands its sales and marketing
activities. In late 1997, the Company plans to initiate either the lease and
build-out of a new facility or the expansion of its existing facility for
additional manufacturing, laboratory, warehouse and office space, which will
increase operating expenses beginning in 1998. During the next two years, the
Company also intends to make a significant investment in luminometers and
related software and equipment, which will be provided to clinical laboratories
to assist in the Company's launch of the HPV HC II Test, primarily in Europe.
See "Risk Factors -- Uncertainty of Market Acceptance" and "-- Limited
Manufacturing Experience; Uncertainties Regarding Manufacturing and Operations
Scale-up."
The Company's quarterly operating results have fluctuated significantly in
the past and the Company believes that they may continue to fluctuate
significantly in the future with lower product revenues in the first and second
fiscal quarters as compared with the third and fourth fiscal quarters, primarily
attributable to the lower demand for certain women's health-related medical
procedures during the summer months and the December holiday season in the
United States and Europe. In addition, the Company's quarterly operating
results, as well as annual results, may fluctuate from period to period due to
the degree of market acceptance
21
<PAGE> 23
of the Company's products, competition, the timing of regulatory approvals and
other regulatory announcements, the volume and timing of orders from and
shipments to distributors, variations in the Company's distribution channels,
the timing of new product announcements and introductions by the Company and its
competitors, product obsolescence resulting from new product introductions and
other factors, many of which are outside the Company's control. Due to one or
more of these factors, in one or more future quarters the Company's results of
operations may fall below the expectations of securities analysts and investors.
In that event, the market price of the Company's Common Stock could be
materially and adversely affected.
RESULTS OF OPERATIONS
Comparison of Fiscal Year Ended June 30, 1997 to Fiscal Year Ended June 30,
1996
Product sales increased to $9,434,000 in fiscal 1997 from $6,359,000 in
fiscal 1996. The increase was due primarily to increased sales of the Company's
HPV tests. The Company anticipates that sales of its HPV tests will account for
a substantial portion of its product sales for at least the next two years.
Research and development contract revenues increased to $626,000 in fiscal
1997 from $381,000 in fiscal 1996 due primarily to revenues recorded under a new
contract.
Cost of product sales increased to $3,441,000 in fiscal 1997 from
$2,895,000 in fiscal 1996 due to increased sales volume. Gross margin on product
sales increased to 63.5% in fiscal 1997 from 54.4% in fiscal 1996. This increase
was due primarily to sales of higher margin HPV tests and increases in overhead
absorption and unit pricing. The Company expects gross margins to increase in
the future due to improved overhead absorption and manufacturing efficiencies,
and more favorable terms for its distribution relationships.
Research and development expenses increased to $4,131,000 in fiscal 1997
from $2,430,000 in fiscal 1996 due to the hiring of additional research and
development personnel and increases in clinical trial activity related to the
development of its blood virus and STD tests and to the further development of
the Company's Hybrid Capture II technology. The Company expects research and
development expense to increase for the next few years.
Selling and marketing expenses increased to $5,236,000 in fiscal 1997 from
$2,095,000 in fiscal 1996 due to substantial increases in sales and marketing
programs and to the hiring of additional selling and marketing personnel, as
well as to other selling costs, incurred under the Company's international
distribution agreements. The Company expects selling and marketing expenses to
increase substantially over the next few years as it expands its advertising and
promotional activities and increases its sales and marketing force.
General and administrative expenses increased to $4,412,000 in fiscal 1997
from $1,792,000 in fiscal 1996, due to the hiring of additional administrative
personnel, set-up costs associated with the Company's expansion into the
European market, and the related expenses incurred to support the Company's
requirements as a publicly traded company. In addition, general and
administrative expenses increased as a result of the formation of Digene do
Brasil, a majority-owned subsidiary. The Company expects general and
administrative expenses to increase over the next few years.
Amortization of intangible assets decreased to $241,000 in fiscal 1997 from
$248,000 in fiscal 1996. The Company expects amortization of intangible assets
to increase significantly in the next fiscal year and to remain at such
increased level through fiscal 2001 due to the acquisition during 1997 of
certain assets relating to the establishment of its women's health business in
Europe.
Interest income increased to $1,443,000 in fiscal 1997 from $45,000 in
fiscal 1996 due primarily to the investment of the net proceeds from the
Company's initial public offering, completed in May 1996, partially offset by a
decrease in interest expense due to the repayment of notes related to an
acquisition.
22
<PAGE> 24
Comparison of Fiscal Year Ended June 30, 1996 to Fiscal Year Ended June 30,
1995
Product sales increased to $6,359,000 in fiscal 1996 from $5,413,000 in
fiscal 1995. The increase was due, primarily, to increased sales of the
Company's Hybrid Capture Tests, which more than offset the decline of
radioactive product sales due to the discontinuance of the radioactive product
line in December 1995.
Research and development contract revenue decreased to $381,000 in fiscal
1996 from $749,000 in fiscal 1995 due to a decrease in contract development
services relating to its CMV Test, performed under the Company's development
agreement with Murex. For a more complete description of the Company's
relationship with Murex, see "Business -- Distribution Arrangements."
Cost of product sales increased to $2,895,000 in fiscal 1996 from
$2,652,000 in fiscal 1995 due to increased sales volume. Gross margins are
typically higher on the Hybrid Capture line than on the discontinued radioactive
product line.
Research and development expense increased to $2,430,000 in fiscal 1996
from $1,856,000 in fiscal 1995 due to increased personnel costs associated with
the development of new products utilizing the Company's Hybrid Capture
technology.
Selling and marketing expense increased in amount and as a percentage of
sales to $2,095,000 in fiscal 1996 from $1,375,000 in fiscal 1995 due to
increased personnel costs resulting from the addition of marketing personnel to
support the Hybrid Capture product line, and increased sales commissions and
royalties as a result of higher sales volume. Sales personnel receive a salary
plus commissions based upon the attainment of certain sales levels.
General and administrative expense increased to $1,792,000 in fiscal 1996
from $1,245,000 in fiscal 1995, due to increased personnel costs, as well as
increased professional fees associated with becoming a publicly held company.
Amortization of intangible assets decreased to $248,000 in fiscal 1996 as
compared to $330,000 in fiscal 1995 as a result of certain intangibles becoming
fully amortized during the year.
Interest income (expense) increased to $45,000 in fiscal 1996 from
($232,000) in fiscal 1995, due to a reduction in the interest rate and
subsequent repayment of the note issued by the Company in connection with an
acquisition and the investment of the proceeds from the Company's initial public
offering which was completed in May 1996.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, the Company's expenses have significantly exceeded its
revenues, resulting in an accumulated deficit of approximately $25.3 million at
June 30, 1997. The Company has funded its operations primarily through the sale
of equity securities. At June 30, 1997, the Company had cash, cash equivalents
and short-term investments aggregating approximately $19,514,000. Short-term
investments of $75,000 are restricted under a collateral agreement related to
leasehold improvements. Net cash used in the Company's operating activities was
$6,527,000 for the fiscal year ended June 30, 1997.
Capital expenditures increased to $971,000 in fiscal 1997 from $330,000 for
fiscal 1996, due primarily to the acquisition of leasehold improvements and
related furniture and equipment associated with the expansion of the Company's
Beltsville, Maryland facility and to additional laboratory and computer
equipment purchases. In late 1997, the Company plans to initiate either the
lease and build-out of a new facility or the expansion of its existing
facilities. The integration of the Company's operations into a new or expanded
facility may result in inefficiencies and delays. Specifically, companies often
encounter difficulties in scaling up manufacturing, including problems involving
production yield, quality control and assurance, and shortages of qualified
personnel. During the next two years, the Company also intends to make a
significant investment in luminometers, software and related equipment, which
will be provided to clinical laboratories to assist in the Company's launch of
the HPV Test, based on the Company's second generation Hybrid Capture
technology, primarily in Europe. See "Risk Factors -- Limited Manufacturing
Experience; Uncertainties Regarding Manufacturing and Operations Scale-up."
23
<PAGE> 25
The Company does not have any bank financing arrangements. The Company's
indebtedness consists of notes payable in the principal amount of $1,762,000
related to its expansion into the European market, notes payable in the
principal amount of $85,000 to former stockholders of the Company, and notes
payable in the principal amount of $44,000 related to leasehold improvements.
The Company anticipates that working capital requirements will increase
significantly for the foreseeable future due to increased accounts receivables
as a result of direct sales to European customers, which have a longer
collection cycle than sales to distributors.
The Company has incurred negative cash flows from operations since its
inception, and has expended, and expects to continue to expend in the future,
substantial funds to complete its planned product development efforts, expand
its sales and marketing activities and expand its manufacturing capabilities.
The Company expects that its existing capital resources, together with the net
proceeds of this Offering and the interest thereon, will be adequate to fund the
Company's operations through 1999. No assurances can be given that there will be
no changes in the Company that would consume a significant amount of its
available resources before that time. The Company's future capital requirements
and the adequacy of available funds will depend on numerous factors, including
the successful commercialization of its products, progress in its product
development efforts, the magnitude and scope of such efforts, progress with
preclinical studies and clinical trials, progress in its regulatory affairs
activities, the cost and timing of expansion of manufacturing capabilities, the
expansion of the Company's direct European sales operations, the development and
maintenance of effective sales and marketing activities, the cost of filing,
prosecuting, defending and enforcing patent claims and other intellectual
property rights, competing technological and market developments, and the
development of strategic alliances for the marketing of its products. To the
extent that the Company's existing capital resources and funds generated from
the Company's operations, together with its existing capital resources and the
proceeds of this Offering and the interest earned thereon, are insufficient to
meet current or planned operating requirements, the Company will be required to
obtain additional funds through equity or debt financing, strategic alliances
with corporate partners and others, or through other sources. The terms and
prices of any equity or debt financings may be significantly more favorable to
investors than those of the Common Stock sold in this Offering. The Company does
not have any committed sources of additional financing, and there can be no
assurance that additional funding, if necessary, will be available on acceptable
terms, if at all. If adequate funds are not available, the Company may be
required to delay, scale back or eliminate certain aspects of its operations or
attempt to obtain funds through arrangements with collaborative partners or
others that may require the Company to relinquish rights to certain of its
technologies, product candidates, products or potential markets. If adequate
funds are not available, the Company's business, financial condition and results
of operations will be materially and adversely effected.
24
<PAGE> 26
BUSINESS
THE COMPANY
The Company develops, manufactures and markets proprietary DNA and RNA
tests for the detection, screening and monitoring of human diseases. The
Company's lead product, the Hybrid Capture HPV Test, is the only FDA-approved
test for the detection of human papillomavirus ("HPV"), the cause of essentially
all cervical cancer. In addition, Digene has developed and launched tests
internationally for the detection and viral load monitoring of major blood
viruses, including human immunodeficiency virus ("HIV"), cytomegalovirus ("CMV")
and hepatitis B virus ("HBV"), and tests for the detection of two of the most
common sexually transmitted diseases ("STDs"), chlamydia trachomatis
("chlamydia") and neisseria gonorrhea ("gonorrhea"). The Company's products are
designed to improve clinical outcomes and reduce the overall cost of disease
management. The Company believes its Hybrid Capture technology, the basis for
its DNA and RNA tests, represents a significant improvement over existing
technologies because of its sensitivity, speed, ease-of-use, accuracy and
ability to measure viral load.
BACKGROUND: WOMEN'S HEALTH AND BLOOD VIRUSES
WOMEN'S HEALTH
The Company has initially focused on two major women's health issues,
cervical cancer and sexually transmitted diseases. Cervical cancer is the second
most common cancer among women worldwide. Although the Pap smear has
successfully reduced deaths caused by cervical cancer in the United States, it
does not detect HPV, which is the cause of essentially all cervical cancer. In
addition, the Pap smear is a subjective, labor intensive test that has limited
sensitivity and diagnostic accuracy leading to equivocal test results and false
negative diagnoses, resulting in significant costs to the healthcare system due
to over-treatment or under-diagnosis.
Sexually transmitted diseases, in addition to HPV, are also a serious
health problem, with more than 300 million new cases worldwide each year. Women
are five times more likely than men to have a sexually transmitted disease.
Although treatments are available for most sexually transmitted diseases, many
people remain undiagnosed. If undetected and left untreated in women, STDs, such
as chlamydia and gonorrhea, have potentially serious and costly consequences,
including infertility and pelvic inflammatory disease.
Cervical Cancer
Cervical cancer is the second most common cancer among women worldwide,
with approximately 440,000 new cases reported annually. If detected in the
precancerous stage, virtually all cases of cervical cancer are preventable. The
treatment of cervical cancer after it reaches the invasive stage may require
chemotherapy, radiation treatment or surgery, including hysterectomy. These
treatments are expensive and often unsuccessful. The United States has a
relatively low incidence of cervical cancer due to widespread use of cervical
cancer screening and significant expenditures on screening infrastructure, which
includes sophisticated laboratory facilities and highly trained
cytotechnologists, and extensive regulatory oversight. Outside the United
States, limited resources and underdeveloped or non-standardized testing
infrastructure often lead to under-diagnosis of cervical disease, resulting in a
significantly higher incidence of cervical cancer.
HPV Infection and Cervical Cancer
According to the National Institutes of Health ("NIH"), HPV is the cause of
essentially all cervical cancer. Recent studies have demonstrated that at least
93% of cervical cancers and high-grade cervical lesions contain one or more
cancer-causing types of HPV. Moreover, a recent prospective study conducted by
the National Cancer Institute ("NCI") on 21,000 women with a history of normal
Pap smears found that approximately 80% of those who tested positive for
cancer-causing types of HPV developed clinically significant cervical lesions
within four years.
25
<PAGE> 27
Pap Smear Testing
To enable the early detection of cervical cancer, gynecologists typically
recommend annual screening examinations. The standard screening method in the
United States and in other major industrialized countries is the Pap smear test,
in which a sample of cervical cells is examined under a microscope. Pap smears
have been the principal means of cervical cancer screening in the United States
since the 1940s. More than 50 million Pap smears are performed annually in the
United States, and the Company believes that approximately 100 million are
performed in the rest of the world. Each Pap smear is classified according to
the Bethesda System for Reporting Cervical/Vaginal Cytologic Diagnoses into one
of five categories: (1) Negative; (2) Atypical Squamous Cells of Undetermined
Significance ("ASCUS"); (3) Low Grade Squamous Intraepithelial Lesions ("LSIL");
(4) High Grade Squamous Intraepithelial Lesions ("HSIL"); and (5) Carcinoma. For
purposes of this Prospectus, negative Pap smear results are referred to as
"normal;" ASCUS, as "equivocal;" and LSIL, HSIL and Carcinoma, as "abnormal." An
equivocal classification is given to Pap smear results that cannot be definitely
classified as either normal or abnormal. The estimated percentage of Pap smears
classified in each category annually is shown below.
CLASSIFICATION OF PAP SMEARS IN THE UNITED STATES
<TABLE>
<S> <C> <C>
TOTAL PAP SMEARS:
50 MILLION
NORMAL PAP SMEARS: EQUIVOCAL PAP SMEARS: ABNORMAL PAP SMEARS:
45 MILLION 3.5 MILLION 1.5 MILLION
90% 7% 3%
</TABLE>
Follow-up testing and treatment is based on the classification of the Pap
smear result. Women with normal Pap smears typically require no follow-up beyond
continuation with annual Pap smear testing. In general, women with abnormal Pap
smears undergo a colposcopic examination (visual examination of the cervix with
the aid of a colposcope). Most of these women also undergo biopsy at the time of
colposcopy, and many go on to have any suspected lesions ablated (physically
removed with a scalpel or cauterizing instrument). Many women with equivocal Pap
smears are treated as if they have abnormal Pap smears, even though only an
estimated 25% to 35% of these women actually have cervical disease.
Problems With the Pap Smear
Although the Pap smear has been successful in reducing deaths due to
cervical cancer in the United States, Pap smears have significant limitations,
including the following:
Equivocal Pap Smears Lead to Unnecessary, Costly Intervention. Each year
in the United States, approximately 3.5 million Pap smears are classified as
equivocal. It is estimated that 65% to 75% of women with equivocal Pap smears do
not have cervical disease. However, women with equivocal Pap smears often
undergo colposcopy and biopsy. These invasive procedures cost approximately $300
and $100, respectively, and may result in significant physical and emotional
stress.
Pap Smears are Difficult to Interpret. Screening and interpreting Pap
smears is a highly subjective, complex and tedious task. The screening process
requires intense visual review through a microscope of a large volume of slides
containing cervical cells. A Pap smear may contain only a small number of
abnormal cells
26
<PAGE> 28
among 50,000 to 300,000 normal cells. The subjective nature of this screening
process often leads to equivocal test results. In addition, the difficulty and
tediousness of the screening process and the limitations of the visual review
result in a large number of Pap smears which are misinterpreted as normal
("false negatives").
False Negative Diagnoses. Pap smears fail to identify cervical disease in
a significant number of women. The sensitivity of Pap smears is estimated to be
60% to 80%. As a result, 20% to 40% of cervical disease is not detected by Pap
smear testing. False negatives may result in delayed treatment for cervical
lesions and in the failure to detect cervical cancer at an early stage. Delays
in treatment may also allow the disease to progress further, thereby increasing
the need for invasive and costly treatments, and reducing the efficacy of
available therapies and the likelihood of patient survival. False negative
diagnoses present a particular health risk for women who do not undergo routine
Pap smear testing at recommended time intervals.
Pap Smears Have Limited Predictive Value. The Pap smear is not designed,
and is unable, to detect the presence of HPV, the cause of essentially all
cervical cancer. Consequently, Pap smears do not allow the clinician to identify
women with no overt signs of cervical disease but who are infected with
cancer-causing types of HPV and are therefore likely to develop cervical cancer
or advanced cervical lesions in the future.
Limited Availability of Pap Smear Screening. In many countries, Pap smears
are not widely used or are unavailable. Extensive cervical disease screening
programs using the Pap smear require large numbers of cytotechnologists and
sophisticated laboratory procedures. Properly trained cytotechnologists and
adequate laboratory facilities are often unavailable in developing countries. As
a result, there is a substantially higher incidence of cervical cancer outside
the United States.
Chlamydia and Gonorrhea
Chlamydia is the most common sexually transmitted disease in the United
States, and is a major health problem worldwide, with approximately 89 million
new cases reported annually. Genital chlamydia infection, if left untreated, has
serious potential consequences, such as infertility, ectopic pregnancy,
cervicitis, and pelvic inflammatory disease. Gonorrhea, which affects
approximately 62 million people worldwide, is the second most common sexually
transmitted disease in the United States and, if left untreated, may result in
severe genital complications in both women and men. If properly detected, both
chlamydia and gonorrhea are easily treatable with low cost antibiotic therapy.
However, routine and broad based screening for chlamydia and gonorrhea has been
limited by the insufficient sensitivity of some culture methods, the invasive
and cumbersome specimen collection methods frequently employed and the time and
cost associated with performing these tests.
BLOOD VIRUSES AND VIRAL LOAD MONITORING
Blood viruses, such as HIV, CMV and HBV, are leading causes of morbidity
and death, and until recently, were untreatable. Early, accurate and ongoing
detection of blood viruses and monitoring of viral load is essential for
effective patient management. Over the last several years, antiviral therapies
have been developed to treat these diseases. To maximize the efficacy of these
expensive and toxic therapies, physicians rely on viral load monitoring to
quantify the amount of virus present in the patient's system. By precisely
measuring viral load and identifying non-responders early in their treatment,
physicians are able to better tailor antiviral therapies by more precisely
monitoring responses to different therapies, recognizing when a patient develops
drug resistance and projecting how quickly the infection will progress to
chronic disease.
Human Immunodeficiency Virus
Development of antiviral therapies for HIV is an area of intense research
and development. The availability of numerous potent drugs to inhibit HIV
replication has permitted the design of therapeutic strategies involving
combinations of antiviral drugs that may accomplish prolonged suppression of HIV
in patients to undetectable levels. However, the Company believes that
approximately 25% of these patients have exhibited some level of resistance to
these antiviral drugs, thereby necessitating continual re-evaluation of the
efficacy of the combination therapy. Measurement of viral load has been
demonstrated to be a powerful predictor of the efficacy of potential therapeutic
agents, as well as an important indicator of an individual's risk
27
<PAGE> 29
of progressing to AIDS and death. Recent NIH treatment guidelines for AIDS
patients recommend the measurement of HIV viral load at the time of diagnosis
and at least every three to four months thereafter.
Currently, there is only one FDA approved test capable of detecting HIV RNA
viral load. However, clinical reference laboratories frequently rely on
internally developed HIV tests or commercially produced tests designed for
research purposes to measure HIV viral load. The Company believes that the
currently available HIV tests are technically complex to perform, and as a
result, may produce unreliable or irreproducible results. Additionally, these
tests are unable to detect certain important subtypes of the HIV virus,
resulting in false negative diagnoses.
Cytomegalovirus
CMV is a systemic infection that causes complications in several sites in
the body, including the retina, gastrointestinal tract, lungs, liver and central
nervous system. CMV is the most common viral opportunistic infection in
transplant patients and AIDS patients, with approximately 60% and 95% of
patients being infected, respectively. An estimated $1 billion is spent annually
in the United States on the prevention and treatment of CMV-related diseases.
The drugs available to treat CMV infection are both toxic and expensive, and
ideally, should be administered only when active CMV infection has been
confirmed.
While tests exist to detect the presence of CMV, these tests suffer from
significant limitations. Conventional tissue culture tests have a low level of
sensitivity, can require up to 28 days to produce results and are labor
intensive. Rapid culture tests can provide results within one or two days, but
have a low level of sensitivity. In addition, culture-based tests often provide
inaccurate results when used to monitor patients being treated with CMV
antiviral therapies. Although antigen tests can detect active CMV infection and
are highly sensitive, they are technically complex and labor intensive and have
limited reliability. Antibody tests, which are currently used to detect viruses
such as HIV, are of limited utility in detecting CMV since most healthy adults
have antibodies against CMV. Additionally, current tests do not provide viral
load quantification, and therefore, have limited effectiveness in monitoring CMV
infection.
Hepatitis B Virus
HBV is the fifth most common cause of death from disease worldwide, causing
an estimated one million deaths annually, and is the second most common chronic
infectious disease worldwide. The World Health Organization estimates that more
than two billion people are infected with HBV, including an estimated 300
million people chronically infected. HBV is 100 times more contagious than the
HIV virus and is transmitted through blood transfusions, contaminated needles,
sexual contact and vertical transmission (from mother to child). Currently, the
only approved drug for the treatment of HBV is alpha interferon, which is only
effective in approximately 25% to 40% of infected patients. However, new
therapies are being developed, including several nucleoside analogues, such a
lamivudine and famciclovir, which have demonstrated great promise for the
treatment of patients with chronic HBV infection. HBV viral load monitoring is
required to measure the efficacy of HBV antiviral therapy and to identify the
onset of drug resistance.
Antigen tests have significant limitations in the diagnosis of HBV
infection and the monitoring of HBV therapeutic response. Since antigen tests
can only detect HBV antigens, they are not capable of measuring viral load and
cannot adequately monitor therapeutic response. In addition, certain mutant
strains of HBV do not produce antigens and therefore cannot be detected by
antigen tests, resulting in false negative diagnoses.
Currently available HBV DNA tests lack the sensitivity and range of
quantification necessary for use with the new therapeutic approaches under
development. These tests are adequate for monitoring alpha interferon therapy,
but because their sensitivity is limited (typically not less than 50,000 viral
genome copies per milliliter), they cannot be used to confirm the complete
suppression of HBV virus in serum. As with current HIV treatment guidelines, the
new HBV therapeutic approaches are designed to eliminate the HBV virus from a
patient's blood. Consequently, new tests are required to measure viral load over
a very broad range.
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<PAGE> 30
THE DIGENE SOLUTION
Digene develops, manufactures and markets proprietary DNA and RNA tests,
based on its Hybrid Capture technology, for the detection, screening and
monitoring of HPV, STDs including chlamydia and gonorrhea, and blood viruses
including HIV, CMV and HBV. The Company's products are designed to improve
clinical outcomes by providing more rapid, accurate and objective detection of
disease and reduce the overall cost of disease management. The Company believes
its Hybrid Capture technology is a significant improvement over existing
technologies because of its sensitivity, speed, ease of use, accuracy and
ability to quantify viral load. In addition, the Company believes its tests can
be reliably used without the necessity of sophisticated technology or highly
trained lab technicians.
Women's Health
Digene manufactures and markets the only FDA-approved test for the
detection of cancer-causing types of HPV. The Company's HPV Test allows
physicians to identify women who are most at risk of having or developing
cervical disease and cervical cancer. Digene's HPV Test has been approved by the
FDA for the follow-up screening of women with equivocal Pap smears and is being
marketed in selected European and South American countries as a primary screen
either in conjunction with or separate from the Pap smear. The Company is also
developing its Chlamydia and Gonorrhea Tests to deliver superior sensitivity
compared to traditional culture methods and the Company believes such tests are
well suited for use in moderate to high volume laboratory environments. In
addition, the Company's Chlamydia and Gonorrhea Tests can be performed using the
same sample obtained for HPV detection. The Company believes that the key
benefits provided by its Hybrid Capture technology for the detection, screening
and monitoring of HPV and STDs include the following:
Enables Cost-Effective Follow-up Screening of Equivocal Pap
Smears. Digene's HPV Test enables clinicians to, in effect, classify equivocal
Pap smears as either normal or abnormal. The Company's test detects the presence
of cancer-causing types of HPV, thereby allowing the clinician to identify women
who are most at risk of having or developing cervical disease and cervical
cancer. The Company believes that the use of its HPV Test for the follow-up
screening of women with equivocal Pap smears will improve the ability to
accurately screen for cervical cancer and reduce the need for costly and
invasive follow-up procedures, such as colposcopy and biopsy.
Under Digene's recommended follow-up protocol, women with equivocal Pap
smears undergo the Company's HPV Test to determine the presence of
cancer-causing HPV types. Only those patients testing positive for
cancer-causing types of HPV undergo colposcopy and biopsy, while those testing
negative require no immediate follow-up beyond routine Pap smear testing. The
Company's HPV Test may be performed with clinical samples taken at the same time
as the Pap smear, thus eliminating the need for a return visit to the
physician's office. The following diagram outlines the use of the Company's HPV
Test for the follow-up screening of women with equivocal Pap smears.
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<PAGE> 31
FOLLOW-UP SCREENING OF EQUIVOCAL PAP SMEARS WITH HPV TESTING
<TABLE>
<S> <C> <C>
TOTAL PAP SMEARS:
NORMAL PAP SMEARS: EQUIVOCAL PAP SMEARS: ABNORMAL PAP SMEARS:
90% 7% 3%
HYBRID CAPTURE HPV
TEST
HPV NEGATIVE:REPEAT PAP HPV POSITIVE: PROCEED TO
SMEAR IN 6 MONTHS COLPOSCOPY/BIOPSY/ABLATION
</TABLE>
Provides Accurate, Easily Interpreted Results. Clinical studies conducted
by the Company indicate that the Company's HPV Test is highly sensitive for the
detection of cervical disease. Such clinical studies indicate that Digene's HPV
Test is capable of detecting cervical disease in up to 92% of the cases in which
cervical disease is present. This represents a significant improvement over the
Pap smear's estimated sensitivity of 60% to 80%. The results generated by the
Company's HPV Test are objective, providing a clear determination of the
presence of cancer-causing types of HPV, thereby reducing the need for highly
trained cytotechnologists.
Reduces Likelihood of False Negatives. The high level of sensitivity of
the Company's HPV Test should increase the possibility that precancerous
cervical lesions will be detected. Studies indicate that when used in
conjunction with Pap smear testing, the Company's HPV Test can detect 95% to
100% of high grade lesions and virtually all instances of cervical cancer. The
Company believes that by reducing the number of false negatives, many cases of
precancerous cervical disease will be detected at earlier stages, when therapies
are more effective and survival rates are higher.
Predicts Development of Disease. The Company believes that testing for the
presence of cancer-causing types of HPV has considerable predictive value. In
one study, approximately 80% of women with a history of normal Pap smears who
tested positive for cancer-causing types of HPV developed clinically significant
cervical lesions within four years.
Reducing Laboratory Costs by Linking STD Testing to HPV Detection. Digene
believes that the ability to test for chlamydia and gonorrhea from the same
patient sample used for Digene's HPV Test will provide a marketing advantage by
reducing laboratory costs and providing greater convenience to physicians and
patients. The Chlamydia and Gonorrhea Tests are designed to deliver superior
sensitivity as compared to traditional culture methods. Preliminary results of
clinical studies on women indicate that Digene's Chlamydia Test is capable of
detecting chlamydia in up to 97% of the cases in which the disease is present,
while the Gonorrhea Test is capable of detecting gonorrhea in up to 91% of the
cases in which it is present. Since these tests are based on a 96-well
microtiter plate format, the Company believes they are ideally suited for
moderate to high volume testing. Additionally, unlike traditional culture-based
tests, the Chlamydia and Gonorrhea Tests can be performed using urine samples.
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<PAGE> 32
Blood Viruses
The Company is currently developing Hybrid Capture tests for HIV, CMV and
HBV. The Company's tests for these blood viruses are designed to provide highly
sensitive, accurate, reproducible and reliable viral detection and viral load
measurement. Similar to its tests for detection of HPV and STDs, the Company's
blood virus tests are easier to use than current tests and do not require
expensive or sophisticated laboratory equipment or highly trained lab
technicians to generate timely and reliable results.
Digene's Hybrid Capture blood virus tests have been designed to provide
highly sensitive, accurate, reproducible and reliable measurement of viral load
and enable physicians to monitor infection levels on an ongoing basis. As a
result, the Company believes that physicians using the Company's tests will be
able to make more informed treatment decisions regarding the timing and
effectiveness of antiviral therapy for the treatment of HIV, CMV and HBV. The
Company believes that the major benefits provided by its blood virus tests
include the following:
Improved HIV Detection and Monitoring. Based on preliminary tests
conducted by an independent third party, the Company believes that its HIV Test
is a significant improvement over currently available tests because of its
sensitivity, rapid processing time, improved accuracy and ability to quantify
viral load. In addition, currently available HIV RNA tests are unable to detect
certain important subtypes of the HIV virus. Consequently, current HIV viral
load tests may produce false negative diagnoses, which can result in infected
patients remaining untreated. The Company's HIV Test can detect 92% of the HIV
genome, which allows accurate detection of critical subtypes of HIV. As a
result, the Company believes that its HIV Test will reduce the number of false
negative diagnoses and allow earlier detection of the virus, thereby allowing
antiviral therapy to be initiated at an earlier stage.
Confirmation of Active CMV Infection. The Company believes that its CMV
Test can accurately measure and differentiate active from latent CMV infection
in transplant, AIDS and other immunocompromised patients. In clinical trials,
the Hybrid Capture CMV Test accurately detected CMV infection in 94% of the
cases in which it was present. The Company believes that its test will improve
patient management by ensuring that costly and toxic CMV therapies are only
administered when active CMV infection is confirmed.
Accurately Measure the Effectiveness of HBV Antiviral Therapies. The
Company has designed its HBV Test to measure the effectiveness of new nucleoside
analogue therapies. The Company's test is capable of measuring viral load across
a broad range of HBV levels, from approximately seven thousand to one billion
viral genome copies per milliliter. The Company believes that its test is more
sensitive than currently available antigen tests and will therefore reduce the
number of false negative results, resulting in a significant improvement in the
standard of care.
STRATEGY
The Company's principal objective is to establish its proprietary Hybrid
Capture technology as a standard of care in the areas of women's health and
blood virus testing. The key components of the Company's strategy are as
follows:
Establish HPV Testing as a New Standard of Care. The Company is focused on
establishing its HPV Test as a new standard of care for cervical cancer
screening. The Company is working closely with clinical reference laboratories,
third-party payors, health care providers, and their affiliated physicians who
influence the introduction and acceptance of new technologies. The Company has
supported and participated in more than a dozen major multi-center trials,
involving more than 75,000 patients, including an ongoing 7,200 patient NCI
study designed to establish the clinical utility and the cost-effectiveness of
HPV screening of women with equivocal or low grade Pap smears.
The Company believes that the adoption of the Company's HPV Test by managed
care organizations is essential to achieve broad based market acceptance of the
Company's HPV Test as the new standard of care for cervical cancer screening.
Accordingly, the Company is working with a number of managed care organizations,
including Kaiser Permanente (the largest health maintenance organization in the
United States) and Omnia, Inc., a provider of gynecological services to managed
care organizations, to demonstrate
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<PAGE> 33
the clinical utility and cost-effectiveness of the Company's HPV Test, based on
its Hybrid Capture II technology. Preliminary findings of an independent study
conducted by Kaiser Permanente indicate that the Company's HPV Test identified
90% of women with high grade cervical disease from a population of patients with
equivocal Pap smears. The preliminary results further indicate that use of the
Company's HPV Test could reduce the referral rate for colposcopy of patients
with equivocal Pap smears by up to 61%, thereby eliminating laboratory tests and
doctors office procedures and significantly decreasing costs associated with
cervical cancer screening.
Leveraging Core Technology to Develop New Proprietary Tests. The Company
has used the expertise gained in the development of its Hybrid Capture HPV Test
to create and commercialize a portfolio of DNA and RNA tests for the detection,
screening and monitoring of STDs and blood viruses. The Company intends to
continue to leverage its Hybrid Capture technology platform to develop
additional tests.
Capitalize on Near Term Revenue Opportunities. The Company has launched
its HPV Test in the United States and its HPV, Chlamydia, Gonorrhea, HIV, CMV,
and HBV Tests internationally. The Company believes that its HPV tests, in
particular, represent an immediate market opportunity. Currently, the Company is
marketing its HPV Test in the United States as a follow-up screen for women with
equivocal Pap smears, while internationally, the Company is marketing its HPV
tests as primary screens either in conjunction with or separate from the Pap
smear. In August 1997, the Company launched its Chlamydia and Gonorrhea Tests
internationally. The Company believes that these tests will generate near term
revenue since they can be performed using the same samples obtained for HPV
testing.
Leverage Existing Customers and Distribution Channels. The Company
currently markets its products to more than 500 customers through a global sales
and distribution organization. The Company intends to leverage its existing
distribution channels as well as its reputation for developing high quality,
sensitive DNA probe-based tests, including tests for HPV and HBV, to accelerate
the adoption of the Company's sexually transmitted disease and blood virus
tests.
Pursue Strategic Alliances. The Company intends to continue to pursue
strategic alliances with manufacturers of medical devices, pharmaceutical
companies and clinical reference laboratories in order to increase market
acceptance of its products and to expand its marketing efforts. The Company
currently is working with Cytyc Corporation to develop methods and protocols
which enable physicians to obtain cervical cancer screening, cytology and
virology test results from a single patient specimen. The new single sample
approach, approved by the FDA in September 1997, enables the use of the Digene
HPV Test with the patient specimen collected by Cytyc ThinPrep Pap Test to
eliminate the need for a return office visit and second sampling of the patient
to confirm disease. The Company is pursuing other co-marketing and distribution
agreements with clinical testing laboratories and pharmaceutical companies for
the co-promotion of the Company's women's health and blood virus tests. The
Company believes these marketing efforts will encourage physicians to request
the Company's women's health tests as a regular part of their cervical cancer
screening protocol and blood virus tests as a regular part of their patient
monitoring protocol.
PRODUCTS
Digene's Hybrid Capture technology, which is the basis for all of the
Company's DNA and RNA tests, is a rapid, accurate, easy-to-use, sensitive
technology which can be used with standard laboratory equipment. The Company
believes that its Hybrid Capture technology is a significant improvement over
other detection technologies because of its sensitivity, speed, ease-of-use,
improved accuracy and ability to quantify viral load. The Company has developed
two versions of its Hybrid Capture technology, Hybrid Capture I ("HC I") and
Hybrid Capture II ("HC II"). HC I, the Company's first generation detection
technology, tests samples individually in polystyrene tubes. HC II uses a
96-well microtiter plate format which permits simultaneous screening of multiple
samples from a single plate and is designed to be more efficient, less expensive
and easier to use than HC I.
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<PAGE> 34
The Company is using its Hybrid Capture technology to develop and
commercialize a wide range of DNA and RNA tests for the detection, screening and
monitoring of HPV, STDs including chlamydia and gonorrhea, and blood viruses
such as HIV, CMV and HBV. The following table summarizes the status of the
Company's DNA and RNA tests:
<TABLE>
<CAPTION>
STATUS(1)
-------------------------------------------------------------- POTENTIAL
OUTSIDE WORLDWIDE
TARGET UNITED STATES UNITED STATES MARKET
- ------------------- ------------------------------ ------------------------------ -----------------
<S> <C> <C> <C>
Human HPV HC I Test approved for HPV HC I Test marketed for 10 million(2)
Papillomavirus follow-up screening of women screening of women in
with equivocal Pap smears conjunction with Pap smear
HPV HC I Test approved for
testing with Cytyc's sample
collection system
PMA supplement for HPV HC II HPV HC II Test marketed for 150 million(2)
Test for follow-up screening primary screening of women
of women with equivocal Pap
smears expected to be
submitted in 1997
Chlamydia and 510(k) notification for Launched in August 1997 89 million(3)
Gonorrhea Chlamydia and Gonorrhea HC II (Chlamydia) 62
Tests expected to be submitted million(3)
in 1998 (Gonorrhea)
Human Expect to begin clinical Launched in July 1997 21 million(3)
Immunodeficiency trials in 1998 on HIV HC II
Virus Test
Cytomegalovirus 510(k) notification expected Launched in March 1997 1 million(5)
to be submitted in late 1997
for CMV HC I Test(4)
Hepatitis B Virus HBV HC I Test available for HBV HC I Test marketed and 300 million(6)
research use only distributed
Launch of HBV HC II Test
expected in 1998
</TABLE>
---------------------
(1) As described herein, certain of the Company's products have not
received marketing approvals from the FDA or certain foreign
authorities. There can be no assurance that any such products will
receive such approvals on a timely basis, if at all. See "Risk
Factors -- Government Regulation."
(2) 10 million and 150 million are estimates of the total number of
equivocal Pap smears diagnosed annually and the total number of Pap
smears performed annually, respectively.
(3) Based on worldwide incidence.
(4) 510(k) notification withdrawn in July 1997. The Company is currently
compiling additional data and expects to submit another 510(k)
notification in late 1997.
(5) Based on incidence of active CMV infections.
(6) Based on incidence of chronic HBV infections.
Digene HPV Test
Digene manufactures and markets the only test approved by the FDA to detect
cancer-causing types of HPV. Clinical studies indicate that the Company's HPV HC
I Test, utilizing 14 HPV types, is capable of detecting cervical disease in up
to 92% of the cases in which cervical disease is present. The Company's HPV
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<PAGE> 35
HC II Test utilizes DNA sequences for 18 HPV types. Preliminary studies indicate
that the HPV HC II Test is capable of detecting cervical disease in up to 95% of
those cases in which cervical disease is present.
Currently, the Company's HPV HC I Test is being marketed and distributed in
the United States for the follow-up screening of women with equivocal Pap
smears. The Company expects to submit a PMA supplement to the FDA for its HPV HC
II Test in 1997. In March 1997, the Company launched its HPV HC II Test
internationally where it is being marketed for the primary screening of women
either in conjunction with or separate from the Pap smear.
Digene Chlamydia and Gonorrhea Tests
The Company is developing its HC II Chlamydia and Gonorrhea Tests to
provide clinicians with accurate, timely and non-invasive means of diagnosing
these STDs. The Digene Chlamydia and Gonorrhea Tests can be run either together
or individually. In addition, these tests are the only STD tests which can be
run from the same patient sample as the HPV HC II Test, thereby reducing the
number of specimens collected and lowering overall costs associated with disease
management. The tests detect the presence of chlamydia and gonorrhea in women
through samples taken with cervical swabs, as well as in men through the
collection of urine samples. Preliminary clinical studies on women have
indicated that Digene's Chlamydia Test is capable of detecting chlamydia in up
to 97% of the cases in which the disease is present, and the Gonorrhea Test is
capable of detecting gonorrhea in up to 91% of the cases in which it is present.
The Company intends to submit 510(k) notifications for its Chlamydia and
Gonorrhea Tests to the FDA in 1998 and launched the tests outside the United
States in August 1997.
Digene HIV Test
Digene is currently developing its HIV HC II Test for HIV detection,
screening and monitoring. The HIV HC II Test was shown in an independent
preliminary study conducted by the Ministry of Health of the Republic of Mexico
to provide highly sensitive, accurate, reproducible and reliable measurements of
HIV viral load. In the preliminary study, the test was also shown to be easy to
perform in an independent laboratory setting. The Company's HIV HC II Test is
the only test which can detect 92% of the HIV genome, which allows accurate
detection of critical subtypes of HIV. In conjunction with its marketing
relationship with Murex, Digene's HIV Test is expected to be the first HIV RNA
test to be available in combination with HIV drug resistance monitoring, CMV
DNA, and traditional HIV serology tests. Clinical studies in the United States
relating to the HIV HC II Test are expected to begin in 1998. The Company
launched the HIV HC II Test internationally in July 1997.
Digene CMV Test
Digene's CMV HC I Test delivers both qualitative and quantitative viral
load information to accurately differentiate active from latent CMV infection
for AIDS, transplant and other immunocompromised patients. The Company plans to
market its CMV HC I Test to (i) AIDS patients at risk of CMV end organ disease
who would benefit from preemptive therapy, (ii) select transplant patients with
active CMV infection needing protective therapy, and (iii) monitor patients
receiving CMV antiviral therapy. The Company expects to market its CMV and HIV
Tests together for the management of patients with HIV/AIDS.
Digene conducted clinical trials of its CMV HC I Test at The Mayo Clinic,
The Cleveland Clinic and the UCLA Medical Center. The preliminary results of
these trials indicated that the CMV HC I Test detected active CMV infection in
94% of the cases in which it was present. Based on these results the Company
submitted a 510(k) notification to the FDA in January 1997. The 510(k)
notification was subsequently withdrawn in July 1997 and the Company is
currently compiling additional data and expects to re-file a 510(k) notification
in 1997. The Company has marketed its CMV HC I Test outside the United States
since March 1997.
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<PAGE> 36
Digene HBV Test
Digene is developing its HBV HC II Test for improved detection, screening
and monitoring of patients with HBV infection. The test is expected to detect
viral levels across a broad range of HBV genomes. Preliminary studies indicate
that the Company's HBV DNA Test can detect approximately seven thousand to one
billion viral genome copies per milliliter. The Company believes the HBV HC II
Test will be effective for determining disease prognosis as well as optimizing
the efficacy of the antiviral therapy by monitoring viral load. In addition, the
HBV HC II Test is designed to replace antigen-based monitoring methods because
it is able to detect patients who have HBV infection but do not have HBV
antigens. The HBV HC I Test is currently marketed and distributed outside the
United States and the Company expects to launch its HBV HC II Test outside the
United States in 1998.
SALES AND MARKETING
The Company's sales and marketing strategy is to achieve broad market
acceptance of its Hybrid Capture technology in the areas of women's health and
blood virus detection, screening and monitoring. The Company markets its
products, either directly or through distributors, to more than 500 customers
worldwide.
United States Market
The Company currently markets its products in the United States to
substantially all major clinical reference and hospital laboratories through a
direct sales force supported by technical and customer service representatives.
The Company expects to increase its 10 person sales force to approximately 20
persons by 1999.
The Company believes that adoption of its HPV Test by managed care
providers is essential for rapidly achieving broad based acceptance.
Accordingly, the Company is working with Kaiser Permanente on a study involving
46,000 women which the Company believes will demonstrate the clinical utility
and cost-effectiveness of the Company's HPV Test in a managed care setting.
Preliminary findings of the Kaiser Permanente study indicate that the Company's
HPV Test based on its HC II technology identified 90% of women with high-grade
cervical disease from a population of patients with equivocal Pap smears. The
preliminary results further indicate that use of the Company's HPV Test could
reduce the referral rate for colposcopy of patients with equivocal Pap smears by
up to 61%, thereby eliminating laboratory tests and doctors office procedures
and significantly decreasing costs associated with cervical cancer screening.
The Company intends to market this data and its relationship with Kaiser
Permanente to other managed care providers.
The Company intends to market its products through joint marketing programs
with clinical reference laboratories and through co-marketing arrangements with
other strategic partners. For example, the Company is currently marketing its
HPV Test together with Cytyc Corporation's ThinPrep Pap Test, a sample
preparation system which allows for the automated preparation of cervical cell
specimens. The collaboration with Cytyc is designed to provide physicians with a
cost-effective and practical procedure for better management of those patients
with equivocal Pap smears. The new single sample approach, approved by the FDA
in September 1997, enables the use of the Digene HPV Test with the Cytyc
ThinPrep Pap Test to eliminate the need for a return office visit to collect a
second sample for HPV DNA testing.
Revenues from product sales in the United States were $2,689,000,
$2,948,000 and $3,882,000 in fiscal 1995, 1996 and 1997, respectively.
International Markets
In Europe, the Company's women's health products are marketed primarily
through a direct European sales force that Digene has established using the
sales and marketing infrastructure of Murex. Murex also serves as the European,
Middle Eastern and African distributor of the Company's blood virus products. In
Asia and South America, the Company's products are sold through a network of
distributors. In Brazil, the
35
<PAGE> 37
Company's products are sold through the Company's majority owned subsidiary,
Digene do Brazil LTDA. See "-- Distribution Arrangements" for information
regarding the Company's relationship with Murex.
The Company expects to tailor its marketing efforts and healthcare
educational campaigns to the circumstances of each country to encourage
physicians, local authorities and industry opinion leaders to accept the
Company's women's health and blood virus products. In particular, the Company is
working closely with EUROGIN (the European Research Organization on Genital
Infection and Neoplasia), the Imperial Cancer Research Foundation of the United
Kingdom and other leading research groups to accelerate the implementation of
HPV testing.
Revenues from export sales were $3,295,000, $3,759,000 and $5,979,000 in
fiscal 1995, 1996 and 1997, respectively.
RESEARCH AND DEVELOPMENT
The Company's principal research and development programs relate to further
improving the sensitivity, ease of interpretation and improved productivity of
its Hybrid Capture technology. In an effort to simplify and shorten test
processing, the Company has developed HC II, based on a 96-well microtiter plate
format, as a replacement for HC I, based on individual tubes. In addition, the
Company intends to develop a fully automated next generation Hybrid Capture III
delivery platform to incorporate direct DNA and RNA detection technologies. The
Company is also developing a proprietary target amplification system to couple
with the Hybrid Capture technology that may permit enhanced clinical sensitivity
for detecting particular viruses and bacteria.
At June 30, 1997, the Company had 44 employees engaged in research and
development. Company-sponsored research and development expenditures in fiscal
1995, 1996 and 1997 were approximately $1,107,000, $2,048,000 and $3,719,000,
respectively. In addition to Company-sponsored research and development, the
Company performs research and development through contracts with third parties,
such as Murex.
MANUFACTURING
Manufacturing of the Company's products involves the combination of more
than 200 biological reagents, inorganic and organic reagents and kit components
(such as vials and packaging material) into finished test kits. Biological
reagents include DNA and RNA probes, antibodies and detection reagents. These
reagents are manufactured in the Company's manufacturing facility in Beltsville,
Maryland. Kit components, inorganic and organic reagents and other reagents and
materials that are classified as low-complexity components are generally
purchased from outside vendors and processed into finished reagents and test
products. The Company has established a quality control program, including a set
of standard manufacturing and documentation procedures intended to ensure that,
where required, the Company's products are manufactured in accordance with
Quality Systems Regulations ("QSRegs"). In late 1997, the Company plans to
initiate either the lease and build-out of a new facility or the expansion of
its existing facilities for manufacturing purposes. See "Risk Factors -- Limited
Manufacturing Experience; Uncertainties Regarding Manufacturing and Operations
Scale-up" for a discussion of those risks involved in the integration of the
Company's operations into a new facility.
COMPETITION
The medical diagnostics and biotechnology industries are subject to intense
competition. The Company's competitors in the United States and abroad for DNA
and RNA diagnostic probes include Roche Diagnostic Systems, Abbott Laboratories,
Chiron Corporation and Gen-Probe Incorporated. Other companies, including large
pharmaceutical and biotechnology companies, may enter the market for DNA and RNA
probe diagnostics. Additionally, for certain of the Company's tests, the Company
competes against existing screening, monitoring and diagnostic technologies,
including the Pap smear, tissue culture and antigen based diagnostic
methodologies.
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<PAGE> 38
In May 1996, Oncor, Inc. announced that it received notification from the
FDA that its HPV test is approvable by the FDA, subject to certain conditions.
To date, the product has not been approved for clinical diagnostic use. Although
the Company believes the Digene HPV Test has commercial advantages over the
competing test, Oncor, Inc. and other competitors and potential competitors may
be able to develop technologies that are as effective as, or more effective or
easier to interpret than, those offered by the Company, which would render the
Company's products noncompetitive or obsolete. Moreover, many of the Company's
existing and potential competitors have substantially greater financial,
marketing, sales, distribution and technological resources than the Company.
Accordingly, there can be no assurance that the Company will be able to compete
effectively against such potential competitors. Such existing and potential
competitors may be in the process of seeking FDA or foreign regulatory approval
for their respective products or may also enjoy substantial advantages over the
Company in terms of research and development expertise, experience in conducting
clinical trials, experience in regulatory matters, manufacturing efficiency,
name recognition, sales and marketing expertise and distribution channels. In
addition, many of these companies may have established third-party reimbursement
for their products.
In marketing its HPV Test for the follow-up screening of women with
equivocal Pap smears in the United States, the Company competes with
well-established follow-up procedures, such as Pap smear retesting, colposcopy
and biopsy, which are widely accepted and have a long history of use.
Additionally, in the event the Company is able to obtain FDA and applicable
foreign approvals to market its HPV tests as primary cervical cancer screening
tests, it will compete against the Pap smear, which is widely accepted as an
inexpensive and, with regular use, adequate screening test for cervical cancer.
Additionally, technological advancements designed to improve quality control
over sample collection and preservation, and to reduce the Pap smear test's
susceptibility to human error, may serve to increase physician reliance on the
Pap smear and solidify its market acceptance. Further, if marketed as an adjunct
to the Pap smear test for primary screening in the United States, the Company's
HPV tests may be seen as adding unnecessary expense to the accepted cervical
cancer screening methodology. Consequently, there is no assurance that the
Company's HPV tests will be able to attain market acceptance as screening tests
on a timely basis, or at all.
The Company faces competition from a variety of technologies in the blood
virus area. There are several advanced technologies commercially available for
the detection and viral load measurement of HIV and HBV. Additionally, there are
several emerging DNA probe amplification technologies to detect CMV being
developed by competitors. There can be no assurance that the Company's tests for
CMV, HIV or HBV will be able to gain market acceptance on a timely basis, or at
all. There can be no assurance that the Company will be able to compete
successfully against existing or future competitors or that competition will not
have a material adverse effect on the Company's business, financial condition
and results of operations.
The Company believes the primary competitive factors in the market for DNA
and RNA probe diagnostics are clinical performance and reliability, ease-of-use,
cost, proprietary position, regulatory approvals and availability of
reimbursement.
GOVERNMENT REGULATION
The medical devices to be marketed and manufactured by the Company are
subject to extensive regulation by the FDA, and, in some instances, by foreign
governments. Pursuant to Federal Food, Drug and Cosmetic Act, as amended, and
the regulations promulgated thereunder (the "FDC Act"), the FDA regulates the
clinical testing, manufacture, labeling, distribution and promotion of medical
devices. Noncompliance with applicable requirements can result in, among other
things, fines, injunctions, civil penalties, recalls or seizures of products,
total or partial suspension of production, failure of the government to grant
premarket clearance or premarket approval for devices, withdrawal of marketing
approvals and criminal prosecution. The FDA also has the authority to request
repair, replacement or refund of the cost of any device manufactured or
distributed by the Company.
In the United States, medical devices and diagnostics are classified into
one of three classes (class I, II or III) on the basis of the controls deemed
necessary by the FDA to reasonably assure their safety and effectiveness. Under
FDA regulations, class I devices are subject to general controls (for example,
labeling,
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premarket notification and adherence to QSRegs), and class II devices are
subject to general and special controls (for example, performance standards,
postmarket surveillance, patient registries and FDA guidelines). Generally,
class III devices are those which must receive a PMA by the FDA to ensure their
safety and effectiveness (for example, life-sustaining, life-supporting and
implantable devices, or new devices which have not been found substantially
equivalent to legally marketed devices).
Before a new device can be introduced into the market, the manufacturer
generally must obtain marketing clearance through the filing of either a 510(k)
notification or a PMA application. A 510(k) clearance will be granted if the
submitted information establishes that the proposed device is "substantially
equivalent" to a legally marketed class I or II medical device or to a class III
medical device for which the FDA has not called for a PMA. It generally takes
from four to twelve months from submission to obtain a 510(k) clearance, but it
may take longer. The FDA may determine that a proposed device is not
substantially equivalent to a legally marketed device or that additional
information or data is needed before a substantial equivalence determination can
be made, either of which could delay market introduction of a new product. A
request for additional data may require that clinical studies of the device's
safety and efficacy be performed. Additionally, modifications or enhancements
that could significantly affect the safety or efficacy of the device or that
constitute a major change to the intended use of the device will require new
510(k) submissions.
A PMA application must be filed if a proposed device is not substantially
equivalent to a legally marketed class I or class II device or if it is a class
III device for which the FDA has called for a PMA. A PMA application must be
supported by valid scientific evidence, including preclinical and clinical trial
data, to demonstrate the safety and effectiveness of the device. The PMA
application must also contain the results of all relevant bench tests,
laboratory and animal studies, a complete description of the device and its
components, a detailed description of the methods, facilities and controls used
to manufacture the device in addition to device labeling and advertising
literature.
If a PMA application is accepted for filing, the FDA begins an in-depth
review of the submission. FDA review of a PMA application generally takes one to
two years from the date the PMA application is accepted for filing, but may take
significantly longer. The PMA review process includes an inspection of the
manufacturer's facilities to ensure that the facilities are in compliance with
the applicable QSRegs requirements. In addition, an advisory committee made up
of clinicians and/or other appropriate experts is typically convened to evaluate
the application and make recommendations to the FDA as to whether the device
should be approved. The PMA process can be expensive, uncertain and lengthy, and
a number of devices for which FDA approval has been sought by other companies
have never been approved for marketing.
Modifications to a device that is the subject of an approved PMA, its
labeling or manufacturing process may require approval by the FDA of PMA
supplements or new PMAs. Supplements to a PMA often require the submission of
the same type of information required for an initial PMA to support the proposed
change.
Although clinical investigations of most devices are subject to the
investigational device exemption ("IDE") requirements, clinical investigations
of in vitro diagnostic ("IVDs") tests are exempt from the IDE requirements,
including FDA approval of investigations, provided the testing meets certain
exemption criteria. IVD manufacturers must also establish distribution controls
to assure that IVDs distributed for the purpose of conducting clinical
investigations are used only for that purpose. Pursuant to current FDA policy,
manufacturers of IVDs labeled for investigational use only ("IUO") or research
use only ("RUO") are encouraged by the FDA to establish a certification program
under which investigational IVDs are distributed to or utilized only by
individuals, laboratories, or health care facilities that have provided the
manufacturer with a written certification of compliance indicating that the IUO
or RUO product will be restricted in use and will, among other things, meet
institutional review board and informed consent requirements.
Exports of products subject to 510(k) notification requirements, but not
yet cleared to market, are permitted without FDA export approval, provided that
certain requirements are met. Unapproved products subject to PMA requirements
can be exported to any country without prior FDA approval provided, among other
things, they are not contrary to the laws of the country to which they are
intended for import, they are manufactured in substantial compliance with the
QSRegs and have been granted valid marketing authoriza-
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tion by any member country of the European Union, Australia, Canada, Israel,
Japan, New Zealand, Switzerland or South Africa. The Company must also provide
FDA with simple notification indicating the products to be exported and the
countries to which they will be exported. Failure on the part of the Company to
obtain valid marketing authorization from one of the listed countries, when
needed, could have a material adverse effect on the Company's business,
financial condition and results of operations.
FDA approval must be obtained for exports of products subject to the PMA
requirements if these export conditions are not met. To obtain export approval,
when required, certain requirements must be met and information must be provided
to the FDA, including, with some exceptions, documentation demonstrating that
the product is approved for import into the country to which it is to be
exported and, in some cases, safety data for the device. There can be no
assurance that the FDA will grant export approval, when necessary, or that
countries to which the device is to be exported will approve the device for
import. Failure on the part of the Company to obtain FDA export authorization,
when necessary, could have a material adverse effect on the Company's business,
financial condition and results of operations.
In April 1995 the Company obtained a PMA for its HPV test to detect the
presence of HPV in women with equivocal Pap smears. In August 1997, the Company
obtained FDA approval of a PMA supplement for use of the HPV Test using the
Cytyc Corporation sample collection system. The Company intends to submit a PMA
supplement to obtain market approval for use of its HPV Test as a primary
cervical cancer screening test either in conjunction with or separate from Pap
smear testing. The Company anticipates that a substantial amount of clinical
data will be required to support the PMA supplement. There can be no assurance
that the data the Company submits will be adequate to support the use of the HPV
Test as a primary cervical cancer screening test. Moreover, there can be no
assurance that the FDA will grant approval of a PMA supplement for use of the
HPV Test as a primary cervical cancer screening test in a timely manner, if at
all, or that the FDA will not require the submission of additional information,
data or a PMA application. Failure to obtain FDA approval for the HPV Test as a
primary cervical cancer screening test could have a material adverse effect on
the Company's business, financial condition and results of operations.
The Company submitted a 510(k) notification for its CMV Test in December
1996. After changing certain reagents used in the test and following discussions
with the FDA, the Company decided to withdraw the original 510(k) notification
and a second 510(k) notification was submitted in March 1997. Upon review of the
second 510(k) notification, the FDA determined that additional data would be
needed and the submission was withdrawn on the basis that it would take the
Company more than thirty days to collect the necessary data. The Company expects
to submit another 510(k) notification for the CMV Test in late 1997 after
collecting the necessary data. The FDA will likely subject the CMV submission to
a "Tier 3" level of review which includes close scrutiny of the clinical data
that support the submission. The Company also understands that the FDA may seek
an advisory committee review and recommendation concerning the safety and
efficacy of the product. There can be no assurance that when the Company submits
a third 510(k) notification for the CMV Test, the FDA will grant clearance in a
timely manner, if at all, or that the FDA will not require the submission of
additional clinical data or find the product not substantially equivalent and
require the submission of a PMA application.
The Company also is developing tests for HIV and HBV which are Class III
devices that will necessitate the collection of extensive clinical data and the
eventual submission and approval of a PMA application. There can be no assurance
that the Company will be able to collect adequate data to support a PMA
application for either the HIV or HBV Tests or that when a PMA application is
submitted, FDA approval would be granted in a timely manner, if at all.
The Company also is developing tests for chlamydia and gonorrhea. The
Company believes marketing authorization for its Chlamydia and Gonorrhea Tests
in the United States can be obtained through the 510(k) notification process.
The Company anticipates that FDA may subject the 510(k) notifications to a "Tier
3" level of review which includes close scrutiny of the clinical data that
support the submissions. The Company also understands that the FDA may seek an
advisory committee review and recommendation concerning the safety and efficacy
of the Chlamydia and Gonorrhea Tests. There can be no assurance that once a
510(k) notification is submitted for the Chlamydia and Gonorrhea Tests the FDA
will grant clearance in a
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timely manner, if at all, or that the FDA will not find the product not
substantially equivalent and require the submission of a PMA application.
The Company intends to export the HPV Test as a primary cervical cancer
screening test prior to obtaining FDA approval for this use in the United
States. The Company also intends to export the HIV Test for clinical use abroad
prior to pursuing FDA approval in the United States. Exports of the HPV Test as
a primary cervical cancer screening test and exports of the HIV Test can be
undertaken without prior FDA approval provided, among other things, these tests
are not contrary to the laws of the country to which they are intended for
import, they are manufactured in substantial conformance with the QSRegs and the
Company has valid marketing authorization by any member country of the European
Union, Australia, Canada, Israel, Japan, New Zealand, Switzerland or South
Africa. FDA approval must be obtained for exports of products subject to the PMA
requirements if these export conditions are not met. There can be no assurance
that the Company will be able to obtain valid marketing authorization for either
test from one of the listed countries. Failure of the Company to obtain valid
marketing authorization from one of the listed countries or otherwise obtain
appropriate FDA export approval, if necessary, could have a material adverse
effect on the Company's business, financial condition and results of operations.
The Company has developed viral and bacterial tests that it distributes in
the United States on a RUO basis. Failure of the Company or recipients of the
Company's RUO devices to comply with the regulatory limitations on the
distribution and use of RUO devices could result in enforcement action by the
FDA that would adversely affect the Company's ability to distribute the tests
prior to obtaining FDA clearance or approval for them.
Any products manufactured or distributed by the Company pursuant to FDA
clearances or approvals are subject to pervasive and continuing regulation by
the FDA, including recordkeeping requirements and reporting of adverse
experiences with the use of the device. Device manufacturers are required to
register their establishments and list their devices with the FDA and are
subject to periodic inspections by the FDA and certain state agencies. The FDC
Act requires devices to be manufactured in accordance with QSRegs, which impose
certain procedural and documentation requirements upon the Company with respect
to manufacturing and quality assurance activities.
The FDA actively enforces regulations prohibiting the promotion of devices
for unapproved uses and the promotion of devices for which premarket clearance
or approval has not been obtained. Failure to comply with these requirements can
result in regulatory enforcement action by the FDA and possible limitations on
the promotion of the Company's products.
The Company and its products are subject to a variety of state laws and
regulations in those states and localities where its products are or will be
marketed. Any applicable state or local regulations may hinder the Company's
ability to market its products in those states or localities. Manufacturers are
also subject to numerous federal, state and local laws relating to such matters
as safe working conditions, manufacturing practices, environmental protection,
fire hazard control and disposal of hazardous or potentially hazardous
substances. There can be no assurance that the Company will not be required to
incur significant costs to comply with such laws and regulations now or in the
future or that such laws or regulations will not have a material adverse effect
upon the Company.
International sales are subject to foreign government regulation, the
requirements of which vary substantially from country to country. The time
required to obtain foreign approval may be longer or shorter than that required
for FDA approval and the requirements may substantially differ. Within the next
year a company must obtain the CE Mark prior to engaging in sales within the EU
of certain medical devices. During this process the sponsor must also
demonstrate compliance with ISO manufacturing and quality requirements. Failure
on the part of the Company to obtain necessary foreign approvals could have a
material adverse effect on the Company's business, financial condition and
results of operations.
The introduction of the Company's developmental stage test products in
foreign markets will also subject the Company to foreign regulatory clearances,
which may impose additional substantial costs and burdens. International sales
of medical devices are subject to the regulatory requirements of each country.
The
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regulatory review process varies from country to country and many countries also
impose product standards, packaging requirements, labeling requirements and
import restrictions on devices. In addition, each country has its own tariff
regulations, duties and tax requirements.
The approval by the FDA and foreign government authorities is unpredictable
and uncertain, and no assurance can be given that the necessary approvals or
clearances will be granted on a timely basis or at all. Delays in receipt of, or
a failure to receive, such approvals or clearances could have a material adverse
effect on the business, financial condition and results of operations of the
Company.
Changes in existing requirements or adoption of new requirements or
policies could adversely affect the ability of the Company to comply with
regulatory requirements. Failure to comply with regulatory requirements could
have a material adverse effect on the Company's business, financial condition
and results of operations. There can be no assurance that the Company will not
be required to incur significant costs to comply with laws and regulations in
the future or that laws or regulations will not have a material adverse effect
upon the Company's business, financial condition and results of operations.
The FDC Act requires devices to be manufactured in accordance with QSRegs
which impose certain procedural and documentation requirements upon the Company
with respect to manufacturing and quality assurance activities. Noncompliance
with QSRegs can result in, among other things, fines, injunctions, civil
penalties, recalls or seizures of products, total or partial suspension of
production, failure of the government to grant premarket clearance or premarket
approval for devices, withdrawal of marketing approvals, and criminal
prosecutions. The FDA also has proposed changes to the QSRegs which, if
finalized, would likely increase the cost of compliance with the requirements.
Any failure by the Company to comply with QSRegs could have a material adverse
effect on the Company's business, financial condition and results of operations.
LICENSES, PATENTS AND PROPRIETARY INFORMATION
The Company's success will depend in part on its ability, and the ability
of its collaborators or licensors, to obtain and maintain patent protection for
its products and technologies under United States and foreign patent laws, to
preserve its trade secrets, and to operate without infringing the proprietary
rights of third parties. Because of the substantial length of time and expense
associated with bringing new products through development to the marketplace,
the medical diagnostics and biotechnology industries place considerable
importance on obtaining and maintaining patent and trade secret protection for
new technologies, products and processes. Despite these precautions, it may be
possible for unauthorized third parties to utilize the Company's technology or
to obtain and use information that the Company regards as proprietary. The laws
of some countries do not protect the Company's proprietary rights in its
technologies, products and processes to the same extent as do the laws of the
United States.
The Company holds four issued U.S. patents relating to HPV types 35, 43, 44
and 56. These patents expire in 2007. Corresponding patents have issued in
Canada and several European countries and a corresponding application is pending
in Japan. The patents relating to HPV types 35, 43 and 56 have been licensed to
Institut Pasteur (see Cross License discussion below). In addition, the Company
is the exclusive, worldwide licensee of (i) an issued U.S. patent and certain
corresponding foreign patents and patent applications relating to HPV type 52
and an issued U.S. patent and certain corresponding foreign patents relating to
the use of the L1 gene sequence to detect specific HPV types (see Georgetown
License discussion below) as well as (ii) certain trade secrets relating to HPV
type 58 (see Kanebo License discussion below).
Through a cross license with Institut Pasteur (the "Cross License"), the
Company has obtained a worldwide license to U.S. patents and patent applications
and corresponding foreign patents and patent applications relating to HPV types
33, 39 and 42. In return, the Company has granted to Institut Pasteur a
worldwide license to its three U.S. patents and corresponding foreign patents
and applications relating to HPV types 35, 43 and 56. The Company has granted
Institut Pasteur the right to extend the scope of the Cross License to include
the U.S. patent and corresponding patent applications relating to HPV type 44 at
such time as Institut Pasteur shall have discovered and developed an additional
HPV type which is equivalent in value to HPV type 44. In return for such an
extension, the Company will receive a license to the new HPV type discovered and
developed by Institut Pasteur. The Cross License is co-exclusive, except that
Institut Pasteur
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has sublicensed its rights to Beckman Instruments, Diagnostic Pasteur, and their
affiliates, and the Company has sublicensed its rights on a non-exclusive basis
to Toray Fuji Bionics, and its affiliates, for use outside North America and
certain countries in Western Europe. See "Business -- Competition." There can be
no assurance that a sublicensee will not use its rights under the Cross License
to develop additional products or services that compete with the Company's
products. The Company believes that the Cross License terminates on the last to
expire of the underlying patent rights. Any prior termination of the Cross
License could have a material adverse effect on the Company's business,
financial condition and results of operations.
Through a license with Georgetown University (the "Georgetown License"),
the Company has obtained exclusive, worldwide rights to an issued U.S. patent
and corresponding foreign patents and patent applications relating to HPV type
52 and to a U.S. patent and corresponding foreign patents relating to the use of
the L1 gene sequence to detect specific HPV types. Unless terminated earlier,
the Georgetown License will terminate upon the last to expire of the licensed
patent rights. All of the issued foreign patents relating to HPV type 52 and the
L1 related patent will expire in 2008. The Company is obligated to make certain
royalty payments to Georgetown University based on the percentage of net sales
of products incorporating the licensed technologies.
Through a license with Kanebo, Ltd. (the "Kanebo License"), the Company has
obtained exclusive, worldwide rights (except for Japan where Kanebo, Ltd.
retained the right to grant a non-exclusive sublicense to Toray Industries,
Inc.) to a HPV type 58 probe and a related Japanese patent application. Unless
terminated earlier, the Kanebo License expires on the later to occur of January
1, 2010 or the expiration of any patent relating to HPV type 58. The Company is
obligated to make certain royalty payments to Kanebo, Ltd. based on a percentage
of net sales of products incorporating or using HPV type 58. The Company will be
required to obtain FDA approval in order to utilize HPV type 58 as part of its
HPV test, and there can be no assurance that the Company will be successful in
obtaining the required FDA approval. See "Risk Factors -- Government Regulation"
and "Business -- Government Regulation."
The Company has pending U.S. patent applications relating to certain
aspects of its Hybrid Capture technology and to its continuous amplification
reaction ("CAR") amplification method. The inventions claimed by these
applications may be used in the Company's DNA probes and any patents that issue
from such applications may provide some ancillary protection for certain aspects
of the Company's products. Under current law, patent applications in the United
States are maintained in secrecy until patents are issued and patent
applications in foreign countries are maintained in secrecy for a period of time
after filing. There can be no assurance that a U.S. patent or any foreign
patents relating to the Company's Hybrid Capture technology will be issued to
the Company on a timely basis, or at all.
The Company has received inquiries regarding possible patent infringements
relating to, among other things, certain aspects of its Hybrid Capture
technology. The Company believes that the patents of others to which these
inquiries relate are either not infringed by the Company's Hybrid Capture
technology or are invalid. The Company currently is in discussions with a third
party regarding a license to a pending United States patent application which
might cover one of the HPV types utilized by its Hybrid Capture II technology.
If such a license is necessary, the failure of the Company to successfully
negotiate such a license may require the Company to redesign its Hybrid Capture
II technology to exclude such HPV type. Such exclusion would result in delays in
the approval of Hybrid Capture II for marketing and could have a material
adverse effect on the Company's business, financial condition and results of
operations. However, there can be no assurance that the Company will not be
subject to further claims that its technology, including its Hybrid Capture
technology, or its products infringe the patents or proprietary rights of third
parties. The defense of any such claims, if made, could be time consuming and
expensive, even if the outcome is favorable. An adverse outcome could subject
the Company to significant liabilities to third parties, require the Company to
obtain licenses from third parties, or require the Company to cease sales of
related products. No assurance can be given that any licenses required under any
such third party patents or proprietary rights would be made available on
commercially reasonable terms, if at all.
No assurance can be given that the United States Patent and Trademark
Office or any foreign patent office will grant patent protection for the subject
matter of any pending patent applications, or that present or
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future patents will provide commercially significant protection to the Company's
present or future technologies, products, or processes. Furthermore, no
assurance can be given that others will not independently develop substantially
equivalent proprietary information not covered by patents to which the Company
owns rights or obtain access to the Company's know-how or that others will not
be issued patents that may prevent the sale of one or more of the Company's
products, or require licensing and the payment of significant fees or royalties
by the Company to third parties in order to enable the Company to conduct its
business. There can be no assurance that such licenses would be available or, if
available, would be on terms acceptable to the Company or that the Company would
be successful in any attempt to redesign its products or processes to avoid
infringement. The Company's failure to obtain these licenses or to redesign its
products or processes would have a material adverse effect on the Company's
business, financial condition and results of operations. Legal standards
relating to the scope of claims and the validity of patents in the biotechnology
field are still evolving, and no assurance can be given as to the degree of
protection any patents issued to or licensed by the Company will not be
infringed by the products of others. Defense and prosecution of patent claims
can be expensive and time consuming, regardless of whether the outcome is
favorable to the Company, and can result in the diversion of substantial
resources from the Company's other activities. An adverse outcome could subject
the Company to significant liabilities to third parties, require the Company to
obtain licenses from third parties, or require the Company to cease any related
research and development activities or product sales. In addition, the laws of
certain countries may not protect the Company's intellectual property.
The Company's success is also dependent upon the skill, knowledge, and
experience of its scientific and technical personnel. To help protect its
rights, the Company requires all employees, consultants, advisors, and
collaborators to enter into confidentiality agreements that prohibit the
disclosure of confidential information to anyone outside the Company and require
disclosure and, in most cases, assignment to the Company of their ideas,
developments, discoveries, and inventions. There can be no assurance, however,
that these agreements will provide adequate protection for the Company's trade
secrets, know-how, or other proprietary information in the event of any
unauthorized use or disclosure. See "Risk Factors -- Uncertainty Regarding
Patents and Proprietary Rights."
DISTRIBUTION ARRANGEMENTS
In August 1997, the Company and Murex entered into a distribution agreement
(the "1997 Distribution Agreement") granting Murex the exclusive right to
distribute the Company's HIV, CMV and HBV HC II Tests in most of Europe, Eastern
Europe, Africa, the Middle East and Singapore. Pursuant to the 1997 Distribution
Agreement, Murex has agreed to use its reasonable efforts to distribute and
support the products, to maintain a qualified sales force, to provide technical
support for the products, to comply with the Company's packaging and delivery
requirements, and to assist the Company in protecting its proprietary rights in
the products. The Company is required to use reasonable efforts to deliver
products ordered by Murex, to provide current promotional materials and to
assist Murex in making sales presentations. The 1997 Distribution Agreement has
an initial term of four years and seven months, subject to automatic renewal for
successive one-year terms. Two years after the effective date of the 1997
Distribution Agreement, however, the Company will have the right to terminate
the 1997 Distribution Agreement with respect to particular countries, subject to
Murex's right to continue such products within any such country on a
co-exclusive basis during a "wind-down" period of six months.
In February 1997, the Company entered into two agreements (the "Agency
Agreement" and the "Customer Transfer Agreement," collectively the "1997
Agreements") with Murex to create a Digene-direct European sales operation for
the Company's women's health business. Under the 1997 Agreements, the Company
has begun marketing its HPV Test directly in Europe using Murex's distribution
infrastructure. The 1997 Agreements provide for a transition period during which
the administrative infrastructure will be agreed to and established. During this
transition period, the Company is recording its transactions consistent with a
prior distribution agreement with Murex. Prior to February 1, 1997, Murex had
been acting as the exclusive distributor in certain designated non-US
territories for the Company's HPV Test and other of the Company's products.
Under the 1997 Agreements, Murex will act as the exclusive agent for the Company
in designated European and Eastern European countries for a period of five years
during which Murex will receive selling
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service fees and a percentage of the Company's HPV revenues in the designated
territory. No other Digene products (except the Company's HPV products)
exclusively distributed by Murex in Europe and Eastern Europe will be affected
by the 1997 Agreements.
THIRD-PARTY REIMBURSEMENT
Hospitals, physicians and other health care providers rely on third-party
payors, such as government entities, managed care organizations and private
insurance plans, to reimburse the costs and fees associated with the use of
women's health and blood virus tests. Successful sales of the Company's products
in the United States and other markets will depend, in part, on the availability
of adequate reimbursement from third-party payors such as government entities,
managed care organizations and private insurance plans. There is significant
uncertainty concerning third-party reimbursement for the use of any medical test
incorporating new technology. Reimbursement by a third-party payor may depend on
a number of factors, including the payor's determination that the use of the
Company's products is clinically useful and cost-effective, not experimental or
investigational, and medically necessary and appropriate for the specific
patient. Since reimbursement approval is required from each payor individually,
seeking such approvals is a time consuming and costly process which requires the
Company to provide scientific and clinical support for the use of each of the
Company's products to each payor separately. According to a third party report
commissioned by the Company, numerous providers have indicated they reimburse
for the Company's HPV HC I Test, including Aetna Life Insurance Company, United
Healthcare Corporation, CIGNA Corp. and Travelers Group. The report also
indicates that CPT codes, which are used in the submission of claims to insurers
for reimbursement for medical services, specific for HPV testing have been
proposed by the American Medical Association ("AMA") for its 1998 CPT manual.
The AMA assigns, maintains and revises CPT codes. There can be no assurance that
third-party reimbursement will be consistently available for the Company's
products, that such third-party reimbursement will be adequate or that CPT codes
for HPV testing will be adopted. Federal and state governmental agencies are
increasingly considering limiting health care expenditures. For example, the
United States Congress is currently considering various proposals to
significantly reduce Medicaid and Medicare expenditures. Such proposals, if
enacted, could have a material adverse effect on the Company's business,
financial condition and results of operations.
Outside the United States, the Company relies on a network of distributors
to establish reimbursement from third-party payors for certain of the Company's
products in their respective territories. The Company or its distributors have
established reimbursement for the HPV HC I Test in Germany, the Czech Republic
and Brazil. Accordingly, the establishment of reimbursement for certain of the
Company's products from third-party payors in such countries is outside the
Company's control. Health care reimbursement systems vary from country to
country and, accordingly, there can be no assurance that third-party
reimbursement will be made available for the Company's products under any other
reimbursement system.
Third-party payors are increasingly limiting reimbursement coverage for
medical diagnostic products and in many instances are exerting significant
pressure on medical suppliers to lower their prices. Lack of or inadequate
reimbursement by governmental and other third-party payors for the Company's
products could have a material adverse effect on the Company's business,
financial condition and results of operations.
PRODUCT LIABILITY
The Company's business is subject to product liability risks inherent in
the testing, manufacturing and marketing of the Company's products. There can be
no assurance that product liability claims will not be asserted against the
Company, its collaborators or licensees. The Company currently maintains product
liability insurance coverage of $5,000,000 per occurrence and in the aggregate.
There can be no assurance, however, that this coverage will be adequate to
protect the Company against future product liability claims or that product
liability insurance will be available to the Company in the future on
commercially reasonable terms, if at all. Furthermore, there can be no assurance
that the Company will be able to avoid significant product liability claims and
the attendant adverse publicity. Consequently, a product liability claim or
other claim with respect to uninsured or underinsured liabilities could have a
material adverse effect on the Company's business, financial condition and
results of operations.
44
<PAGE> 46
LEGAL PROCEEDINGS
The Company is not a party to any material legal proceedings and is not
aware of any threatened litigation that could have a material adverse effect on
the Company's business, financial condition and results of operations.
EMPLOYEES
At August 29, 1997, the Company employed 120 persons, including 44 in
research and development, 41 in manufacturing, including quality assurance, 24
in sales and marketing and 11 in accounting, finance and administration. The
Company is not subject to any collective bargaining agreements and believes that
its relationship with its employees is good.
FACILITIES
The Company's executive office and manufacturing facility is located in
Beltsville, Maryland. The lease on this 28,280-square-foot facility expires on
July 31, 1998, and can be renewed by the Company for an additional five-year
period. In addition, the Company has a 9,286-square-foot research and
development facility in Silver Spring, Maryland. The lease on this facility will
terminate on December 31, 1998, subject to renewal at the Company's option. Due
to the Company's recent and expected future growth, in late 1997 the Company
plans to initiate either the lease and build-out of a new facility or the
expansion of its existing Beltsville, Maryland facility. See "Risk
Factors -- Limited Manufacturing Experience; Uncertainties Regarding
Manufacturing and Operations Scale-up."
45
<PAGE> 47
MANAGEMENT
DIRECTORS, EXECUTIVE OFFICERS AND SENIOR MANAGEMENT
The following table sets forth certain information with respect to each of
the directors and executive officers of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITIONS WITH THE COMPANY
- ------------------------------------- --- -------------------------------------------------------
<S> <C> <C>
Evan Jones........................... 40 President, Chief Executive Officer and Chairman of the
Board of Directors
Charles M. Fleischman................ 39 Executive Vice President, Chief Operating Officer,
Chief Financial Officer and Director
Attila D. Lorincz, Ph.D. ............ 42 Vice President, Research and Development, and
Scientific Director
Steven A. Owings..................... 45 Vice President, Sales and Marketing
Deborah J. Oronzio................... 45 Vice President, Marketing
William J. Payne, Jr. ............... 46 Vice President, Development
Donna Marie Seyfried................. 39 Vice President, Business Development
Joseph P. Slattery................... 32 Controller
John J. Whitehead(1)(2).............. 52 Director
Joseph M. Migliara(2)................ 53 Director
Wayne T. Hockmeyer, Ph.D.(1)(2)...... 52 Director
John H. Landon....................... 57 Director
</TABLE>
- ---------------
(1) Member of Compensation Committee
(2) Member of Audit Committee
Mr. Jones has served as President and Chief Executive Officer and a
director since Armonk Partners acquired a controlling interest in the Company in
July 1990, and Chairman of the Board since September 1995. Mr. Jones is a
step-brother of Mr. Whitehead.
Mr. Fleischman has served as Executive Vice President and a director since
Armonk Partners acquired a controlling interest in the Company in July 1990,
Chief Operating Officer since September 1995 and Chief Financial Officer since
March 1996.
Dr. Lorincz has served as Vice President, Research and Development, and
Scientific Director since the Company's acquisition of the molecular diagnostics
division of Life Technologies, Inc. in December 1990. His research career
includes postdoctoral fellowships at the University of California. Dr. Lorincz
also serves on a number of advisory committees and is an Adjunct Associate
Professor in the Georgetown University Medical School Department of Pathology.
Mr. Owings has served as Vice President, Sales and Marketing since January
1997. From August 1992 until January 1997 he served as Director, PCR Business
Unit USA, of Roche Diagnostic Systems, Inc.
Ms. Oronzio has served as Vice President, Marketing since March 1996 and
served as Director of Sales and Marketing from August 1991 to March 1996.
Mr. Payne has served as Vice President, Development since July 1997. From
August 1995 to July 1997, he was Vice President, Research and Development in the
IVD Medical Diagnostic division of Sigma Diagnostics. From July 1993 to July
1995, Mr. Payne served as Director of Research and Development in the IVD
Diagnostic Medical division of Sanofi Diagnostic Pasteur. From August 1990 to
July 1993, he was the Manager, Research and Development, for Sanofi Diagnostic
Pasteur.
Ms. Seyfried has served as Vice President, Business Development since
October 1996. From October 1985 to September 1996 Ms. Seyfried held several
positions with Perkins-Elmer Corp., serving most recently as Senior Director,
Business Development from March 1993 to September 1996 and Director, PCR
Instrumentation Business Unit from 1990 to March 1993.
46
<PAGE> 48
Mr. Slattery has served as Controller since February 1996. From March 1995
to February 1996, Mr. Slattery was Director, Business Management, for I-NET,
Inc., a computer services company. From April 1994 to March 1995, he was the
Managing Principal of Payne, Slattery and Company, a management consulting firm.
From October 1992 to April 1994, Mr. Slattery was Treasurer and Vice President,
Finance and Accounting, for Telos Corporation, a computer hardware and services
company. From August 1992 to October 1992, Mr. Slattery was self employed as a
management consultant.
Mr. Whitehead has served as a director of the Company since February 1992.
Since 1993, Mr. Whitehead has been a partner of Whitehead Partners, a private
investment company. From 1986 to 1993, Mr. Whitehead was the Chief Executive
Officer of TDS Healthcare Systems Corporation, a hospital information systems
company. He is a director emeritus of i-STAT Corporation, a medical device
company, and a director of the Whitehead Institute for Biomedical Research at
the Massachusetts Institute of Technology. Mr. Whitehead is a step-brother of
Mr. Jones.
Mr. Migliara has served as a director of the Company since October 1992.
Since 1980, he has been President of Migliara/Kaplan Associates, a marketing
research firm that conducts primary research in the biomedical, diagnostics and
pharmaceutical markets. He is a past president of the Biomedical Marketing
Association.
Dr. Hockmeyer has served as a director of the Company since October 1996.
Dr Hockmeyer is the founder of MedImmune, Inc., a company that manufactures
vaccines, and has served as President, Chief Executive Officer and a director of
MedImmune, Inc. since 1988, and Chairman since May 1993. Dr. Hockmeyer serves on
the advisory board of the University of Maryland Biotechnology Institute and is
a member of the High Technology Council of Maryland.
Mr. Landon has served as a director of the Company since April 1997. Since
October 1996, Mr. Landon has been retired. From March 1992 to September 1996,
Mr. Landon was Vice President and General Manager, Medical Products with the
DuPont Company. Prior to 1992 he held various general management and marketing
positions in DuPont's Diagnostics, Biotechnology and Diagnostic Imaging
businesses. Mr. Landon currently serves as a director of Christiana Care
Corporation, a diversified healthcare delivery company, and Christiana Care
Physicians Organization, an independent physicians organization.
47
<PAGE> 49
PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of the Common Stock as of September 11, 1997, and is adjusted to
reflect the sale of the Common Stock offered hereby by: (i) each person known by
the Company to be the beneficial owner of more than 5% of the Common Stock, (ii)
each director of the Company, (iii) each of the five most highly compensated
executive officers of the Company for the fiscal year ended June 30, 1997, (iv)
the Selling Stockholder and (v) all executive officers and directors of the
Company as a group.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OWNED AFTER THE
THE OFFERING(1) NUMBER OF OFFERING
-------------------- SHARES BEING --------------------
NAME OF BENEFICIAL OWNER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------------------------------- --------- ------- ------------ --------- -------
<S> <C> <C> <C> <C> <C>
Armonk Partners (2)........................ 4,987,115 43.0% 500,000 4,487,115 33.0%
Murex Diagnostics Corporation (3).......... 714,002 6.2 -- 714,002 5.3
Charles M. Fleischman (4).................. 5,325,996 44.7 -- 4,825,996 34.7
Wayne T. Hockmeyer, Ph.D. (5).............. 18,332 * -- 18,332 *
Evan Jones (6)............................. 5,332,581 44.8 -- 4,832,581 34.8
John H. Landon (5)......................... 6,666 * -- 6,666 *
Attila D. Lorincz, Ph.D. (7)............... 178,184 1.5 -- 178,184 1.3
Joseph M. Migliara (8)..................... 183,499 1.6 -- 183,499 1.3
Deborah J. Oronzio (5)..................... 32,130 * -- 32,130 *
Donna Marie Seyfried....................... -- * -- -- *
John J. Whitehead (9)...................... 22,849 * -- 22,849 *
All executive officers and directors
as a group (12 persons) (10)............. 6,113,192 48.4 -- 5,613,192 38.3
</TABLE>
- ---------------
* Less than one percent.
(1) Beneficial ownership is determined in accordance with rules of the
Securities and Exchange Commission (the "SEC"). Shares of Common Stock
subject to options currently exercisable or exercisable within 60 days of
the date of this Prospectus are deemed outstanding for computing the
percentage beneficially owned by such holder but are not deemed outstanding
for purposes of computing the percentage beneficially owned by any other
person. Except as otherwise indicated, the Company believes that the
beneficial owners of the Common Stock listed above, based on information
furnished by such owners, have sole investment and voting power with
respect to such shares, subject to community property laws where
applicable, and that there are no other affiliations among the stockholders
listed in the table.
(2) The general partners of Armonk Partners are Messrs. Jones and Fleischman.
The address for Armonk Partners is 9000 Virginia Manor Road, Beltsville,
Maryland 20705.
(3) The address for Murex Diagnostics Corporation is 2nd Floor, Trident House,
Bridgetown, St. Michael, Barbados. Murex Diagnostics Corporation is an
affiliate of International Murex Technologies Corporation.
(4) Includes (i) 4,987,115 shares owned by Armonk Partners, as to which Mr.
Fleischman shares voting and investment power as a general partner; (ii)
16,672 shares held in trust for the benefit of Mr. Fleischman's minor
children, as to which shares Mr. Fleischman disclaims beneficial ownership;
and (iii) 314,118 shares issuable upon exercise of stock options. The
address for Mr. Fleischman is 9000 Virginia Manor Road, Beltsville,
Maryland 20705.
(5) Represents shares issuable upon exercise of stock options.
(6) Includes (i) 4,987,115 shares owned by Armonk Partners, as to which Mr.
Jones shares voting and investment power as a general partner; (ii) 14,676
shares owned by Mr. Jones' wife, as to which shares Mr. Jones disclaims
beneficial ownership; and (iii) 314,118 shares issuable upon exercise of
stock options. The address for Mr. Jones is 9000 Virginia Manor Road,
Beltsville, Maryland 20705.
(7) Includes (i) 16,672 shares owned jointly with Dr. Lorincz's wife, as to
which Dr. Lorincz shares voting and investment power; and (ii) 160,759
shares issuable upon exercise of stock options.
(8) Represents shares issuable upon exercise of stock options held by Valley
Partners, a partnership organized by Mr. Migliara.
(9) Represents shares issuable upon exercise of stock options. Mr. Whitehead is
a limited partner in Armonk Partners, but he does not have voting or
investment power with respect to the shares held by Armonk Partners.
(10) See Notes (4) through (9). Also includes 70 shares issuable upon exercise
of stock options.
48
<PAGE> 50
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of Common Stock (including shares issued upon
the exercise of outstanding options) in the public market after this Offering or
the prospect of such sales could adversely affect the market price of the Common
Stock and the Company's ability to raise additional equity capital. The number
of shares of Common Stock available for sale in the public market is limited by
restrictions under the Securities Act of 1933, as amended (the "Securities
Act"), and lock-up agreements ("Lock-Ups") under which the holders of 4,545,975
shares have agreed not to sell or otherwise dispose of any of their shares for a
period of 90 days after the date of this Prospectus without the prior written
consent of UBS Securities LLC. In its sole discretion and at any time without
notice, UBS Securities LLC may release all or any portion of the shares subject
to Lock-Ups. A majority of the 13,588,649 shares of Common Stock that will be
outstanding after this Offering will be freely tradeable without restriction or
further registration under the Securities Act following the Lock-Up period,
except 4,560,651 shares currently owned by "affiliates" of the Company, as that
term is defined in Rule 144 under the Securities Act ("Affiliates"), which
shares may generally be sold in compliance with the applicable provisions of
Rule 144, and 327,826 shares subject to the volume restrictions and other
provisions of Rule 144. The Company has registered 2,871,853 shares of Common
Stock reserved for issuance under the Company's stock option plans as of the
date of this Prospectus and intends to register an additional 500,000 shares of
Common Stock issuable under the Company's 1997 Stock Option Plan. As of
September 11, 1997, the Company had reserved 4,434,300 shares of Common Stock
for issuance under the Company's stock option plans. In addition, holders of
approximately 5,268,025 shares of Common Stock will be entitled to certain
registration rights with respect to such shares. If such holders, by exercising
their registration rights, cause a large number of shares to be registered and
sold in the public market, such sales could have a material adverse effect on
the market price of the Company's Common Stock. In addition, any demand of such
holders to include such shares in Company-initiated registration statements
could have an adverse effect on the Company's ability to raise needed capital.
In general, under Rule 144 as currently in effect, a person (or persons
whose shares are aggregated) including an Affiliate, who has beneficially owned
shares for at least one year (including the holding period of certain prior
owners), will be entitled to sell in "broker's transactions" or to market
makers, within any three-month period commencing 90 days after the Company
becomes subject to the reporting requirements of Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), a number of shares that
does not exceed the greater of (i) one percent of the then outstanding shares of
Common Stock (approximately 13,588,649 shares immediately after this offering)
or (ii) the average weekly trading volume in the Common Stock during the four
calendar weeks immediately preceding such sale, subject, generally, to the
filing of a Form 144 with respect to such sales and certain other limitations
and restrictions. In addition, a person (or person whose shares are aggregated),
who is not deemed to have been an Affiliate at any time during the 90 days
immediately preceding the sale and who has beneficially owned the shares
proposed to be sold for at least two years, is entitled to sell such shares
under Rule 144(k) without regard to the limitations described above.
49
<PAGE> 51
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
underwriters named below (the "Underwriters"), for whom UBS Securities LLC and
Montgomery Securities are acting as representatives (the "Representatives"),
have agreed to purchase from the Company and the Selling Stockholder the
following respective number of shares of Common Stock:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS SHARES
----------------------------------------------------------------- ---------
<S> <C>
UBS Securities LLC...............................................
Montgomery Securities............................................
---------
Total.................................................. 2,500,000
=========
</TABLE>
The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent, including the absence
of any material adverse change in the Company's business and the receipt of
certain certificates, opinions and letters from the Company and its counsel. The
nature of the Underwriters' obligation is such that they are committed to
purchase all shares of Common Stock offered hereby if any such shares are
purchased. The Underwriting Agreement contains certain provisions whereby if any
Underwriter defaults in its obligations to purchase shares, and the aggregate
obligations of the Underwriters so defaulting do not exceed ten percent of the
shares offered hereby, the remaining Underwriters, or some of them, must assume
such obligations.
The Representatives have advised the Company and the Selling Stockholder
that the Underwriters propose to offer the shares of Common Stock directly to
the public at the offering price set forth on the cover of this Prospectus, and
to certain dealers at such price less a concession not in excess of $ per
share. The Underwriters may allow and such dealers may reallow a concession not
in excess of $ per share to certain other dealers. After the public offering
of the shares of Common Stock, the offering price and other selling terms may be
changed by the Underwriters.
The Selling Stockholder has granted to the Underwriters an option,
exercisable no later than 30 days after the date of this Prospectus, to purchase
up to 375,000 additional shares of Common Stock to cover over-allotments, if
any, at the public offering price set forth on the cover page of this
Prospectus, less the underwriting discounts and commissions. To the extent that
the Underwriters exercise such option, each of the Underwriters will have a firm
commitment to purchase approximately the same percentage thereof which the
number of shares of Common Stock to be purchased by it shown in the above table
bears to the total number of shares of Common Stock offered hereby. The Selling
Stockholder will be obligated, pursuant to the option, to sell such shares to
the Underwriters to the extent the option is exercised.
The Company and the Selling Stockholder have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act, and to contribute to payments the Underwriters may be required
to make in respect thereof.
The executive officers, directors and Armonk Partners who own an aggregate
of 5,045,975 shares of Common Stock outstanding prior to this Offering, have
agreed that they will not, without the prior written consent of UBS Securities
LLC, offer, sell or otherwise dispose of any shares of Common Stock, options to
acquire shares of Common Stock or securities exchangeable for or convertible
into shares of Common Stock owned by them for a period of 90 days after the date
of this Prospectus. The Company has agreed that it will not, without the prior
written consent of UBS Securities LLC, offer, sell or otherwise dispose of any
shares of Common Stock, options or warrants to acquire shares of Common Stock or
securities exchangeable for or convertible into shares of Common Stock for a
period of 90 days after the date of this Prospectus, except that
50
<PAGE> 52
the Company may grant additional options under its stock option plans and issue
shares upon the exercise of outstanding stock options.
In connection with the Offering, the Underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Common Stock. Specifically, the Underwriters may overallot the Offering,
creating a syndicate short position. In addition, the Underwriters may bid for
and purchase shares of Common Stock in the open market to cover syndicate short
positions or to stabilize the price of the Common Stock. Finally, the
Underwriters may reclaim selling concessions from syndicate members in the
Offering if the syndicate repurchases previously distributed Common Stock in
syndicate covering transactions, in stabilizing transactions or otherwise. Any
of these activities may stabilize or maintain the market price of the Common
Stock above independent market levels. The Underwriters are not required to
engage in these activities, and may end any of these activities at any time.
In connection with this Offering, certain Underwriters, who are qualified
registered market makers on the Nasdaq Stock Market, may engage in passive
market making on Nasdaq in accordance with Rule 103 of Regulation M under the
Exchange Act during the one day period before the commencement of the offers or
sales of the Common Stock. The passive market making transactions must comply
with applicable volume and price limits and be identified as such. In general, a
passive market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids are lowered
before the passive market maker's bid, however, such bid must then be lowered
when certain purchase limits are exceeded. Passive market making may stabilize
the market price of the Common Stock above independent market levels and, if
commenced, may be discontinued at any time.
The Representatives have advised the Company that the Underwriters do not
intend to confirm sales to any account over which they exercise discretionary
authority in excess of five percent of the number of shares of Common Stock
offered hereby.
LEGAL MATTERS
Certain legal matters in connection with the shares of Common Stock being
offered hereby will be passed upon for the Company by Ballard Spahr Andrews &
Ingersoll, Philadelphia, Pennsylvania. Certain legal matters relating to this
Offering will be passed upon for the Underwriters by Brobeck, Phleger & Harrison
LLP, New York, New York.
EXPERTS
The consolidated financial statements of Digene Corporation at June 30,
1996 and 1997, and for each of the three fiscal years in the period ended June
30, 1997, appearing in this Prospectus and Registration Statement have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon appearing elsewhere herein, and are included in reliance upon
such reports given upon the authority of such firm as experts in accounting and
auditing.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Exchange Act,
and, in accordance therewith files reports, proxy statements and other
information with the SEC. Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
SEC at Room 1024, 450 5th Street, N.W., Washington, DC 20549, and at the
regional offices of the SEC, which include: Chicago Regional Office, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661, and 7 World
Trade Center, Suite 1300, New York, NY 10048. Such material can also be
inspected and copied at the offices of the Nasdaq Stock Market, 1735 K Street,
NW, Washington, DC 20006, on which the Company's Common Stock is listed. Copies
can be obtained from the SEC by mail, at prescribed rates, or from the SEC's
internet web site at http://www.sec.gov.
51
<PAGE> 53
The Company has filed with the SEC a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act, with respect to the shares
of Common Stock offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto, certain parts of which are omitted in accordance with the
rules and regulations of the SEC. For further information pertaining to the
Common Stock and the Company, reference is made to the Registration Statement
and the exhibits and schedules thereto. Statements contained in this Prospectus
as to the contents of any contract or other document referred to are not
necessarily complete, and with respect to any contract or other document filed
as an exhibit to the Registration Statement, each such statement is qualified in
all respects by reference to such exhibit. Copies of the Registration Statement
and the exhibits thereto are on file at the offices of the SEC and may be
obtained upon payment of the prescribed fee or may be examined without charge at
the public reference facilities of the SEC described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarters ended
September 30, 1996, December 31, 1996 and March 31, 1997;
(c) The Company's Current Report on Form 8-K dated January 22, 1997;
and
(d) The Company's Registration Statement on Form 8-A dated April 3,
1996.
All reports and other documents filed pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of this Offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any and all of the documents incorporated by reference herein (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents). Requests for such copies should be
submitted in writing to Digene Corporation, 9000 Virginia Manor Road,
Beltsville, MD 20705, Attention: Charles M. Fleischman.
52
<PAGE> 54
DIGENE CORPORATION
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Report of Ernst & Young LLP, Independent Auditors..................................... F-2
Consolidated Balance Sheets........................................................... F-3
Consolidated Statements of Operations................................................. F-4
Consolidated Statements of Stockholders' Equity (Deficit)............................. F-5
Consolidated Statements of Cash Flows................................................. F-6
Notes to Consolidated Financial Statements............................................ F-7
</TABLE>
F-1
<PAGE> 55
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Digene Corporation
We have audited the accompanying consolidated balance sheets of Digene
Corporation as of June 30, 1996 and 1997, and the related consolidated
statements of operations, stockholders' equity (deficit), and cash flows for
each of the three years in the period ended June 30, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Digene Corporation at June 30, 1996 and 1997, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended June 30, 1997, in conformity with generally accepted accounting
principles.
/s/ Ernst & Young LLP
-------------------------------------
ERNST & YOUNG LLP
Vienna, Virginia
August 15, 1997
F-2
<PAGE> 56
DIGENE CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 30,
----------------------------
1996 1997
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................... $ 24,107,325 $ 8,452,864
Short-term investments...................................... 4,467,978 11,061,283
Accounts receivable, less allowance of approximately $61,000
at June 30, 1996 and 1997................................. 845,727 1,767,682
Due from related party...................................... 780,319 2,395,792
Inventories (Note 4)........................................ 1,806,333 2,425,167
Prepaid expenses and other current assets................... 299,435 446,368
------------ ------------
Total current assets............................................. 32,307,117 26,549,156
Property and equipment, net (Note 5)............................. 705,040 1,214,548
Intangible assets, net (Note 6).................................. 49,008 2,308,641
Deposits......................................................... 112,462 134,564
------------ ------------
Total assets..................................................... $ 33,173,627 $ 30,206,909
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable............................................ $ 1,852,417 $ 2,093,893
Accrued expenses............................................ 521,858 772,037
Accrued payroll............................................. 206,761 602,555
Due to related party........................................ -- 443,332
Current maturities of long-term debt (Note 8)............... 109,857 1,338,220
------------ ------------
Total current liabilities........................................ 2,690,893 5,250,037
Long-term debt, less current maturities (Note 8)................. 151,532 552,733
Accrued rent (Note 9)............................................ 149,907 100,618
Deferred rent.................................................... 62,014 37,318
Commitments (Notes 9, 10 and 14)
Stockholders' equity:
Preferred stock, $0.01 par value, 1,000,000 shares
authorized, no shares issued and outstanding.............. -- --
Common stock, $0.01 par value, 50,000,000 shares authorized,
11,303,705 and 11,579,530 shares issued and outstanding at
June 30, 1996 and 1997, respectively...................... 113,037 115,795
Additional paid-in capital.................................. 49,339,001 49,477,621
Accumulated deficit......................................... (19,332,757) (25,327,213)
------------ ------------
Total stockholders' equity....................................... 30,119,281 24,266,203
------------ ------------
Total liabilities and stockholders' equity....................... $ 33,173,627 $ 30,206,909
=========== ===========
</TABLE>
See accompanying notes.
F-3
<PAGE> 57
DIGENE CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
-----------------------------------------
1995 1996 1997
----------- ----------- -----------
<S> <C> <C> <C>
Revenues:
Product sales.................................... $ 5,413,370 $ 6,359,062 $ 9,434,183
Research and development contracts............... 749,217 381,425 626,096
----------- ----------- -----------
Total revenues........................................ 6,162,587 6,740,487 10,060,279
Costs and expenses:
Cost of product sales............................ 2,652,091 2,894,731 3,440,963
Research and development......................... 1,855,988 2,429,711 4,131,090
Selling and marketing............................ 1,375,496 2,094,696 5,236,246
General and administrative....................... 1,245,128 1,792,426 4,411,899
Amortization of intangible assets................ 330,164 248,435 240,902
----------- ----------- -----------
Loss from operations.................................. (1,296,280) (2,719,512) (7,400,821)
Other income (expense):
Other income (expense)........................... 14,446 40,072 (36,825)
Interest expense................................. (232,076) (207,349) (83,777)
Interest income.................................. -- 251,776 1,526,967
----------- ----------- -----------
Net loss.............................................. $(1,513,910) $(2,635,013) $(5,994,456)
========== ========== ==========
Net loss per share.................................... $ (1.78) $ (1.30) $ (0.53)
========== ========== ==========
Weighted average shares outstanding................... 849,924 2,026,815 11,393,978
========== ========== ==========
</TABLE>
See accompanying notes.
F-4
<PAGE> 58
DIGENE CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL TOTAL
---------------------- PAID-IN ACCUMULATED STOCKHOLDERS'
SHARES AMOUNT CAPITAL DEFICIT EQUITY (DEFICIT)
---------- -------- ----------- ------------ ----------------
<S> <C> <C> <C> <C> <C>
Balance at June 30, 1994....... 368,338 $ 3,683 $ 3,690,013 $(15,183,834) $(11,490,138)
Exercise of Common Stock
options...................... 18 1 12 -- 13
Net loss....................... -- -- -- (1,513,910) (1,513,910)
---------- -------- ----------- ------------ ----------------
Balance at June 30, 1995....... 368,356 3,684 3,690,025 (16,697,744) (13,004,035)
Issuance of Common Stock, net
of offering costs of
$3,768,678................... 3,000,000 30,000 30,701,322 -- 30,731,322
Exercise of Common Stock
warrants..................... 70,436 704 467,695 -- 468,399
Exercise of Common Stock
options...................... 40,510 405 25,261 -- 25,666
Conversion of Redeemable
Convertible Preferred
Stock........................ 7,824,403 78,244 14,454,698 -- 14,532,942
Net loss....................... -- -- -- (2,635,013) (2,635,013)
---------- -------- ----------- ------------ ----------------
Balance at June 30, 1996....... 11,303,705 113,037 49,339,001 (19,332,757) 30,119,281
Exercise of Common Stock
options...................... 275,825 2,758 138,620 -- 141,378
Net loss....................... -- -- -- (5,994,456) (5,994,456)
---------- -------- ----------- ------------ ----------------
Balance at June 30, 1997....... 11,579,530 $115,795 $49,477,621 $(25,327,213) $ 24,266,203
========= ======== ========== =========== ============
</TABLE>
See accompanying notes.
F-5
<PAGE> 59
DIGENE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
------------------------------------------
1995 1996 1997
----------- ----------- ------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net loss............................................. $(1,513,910) $(2,635,013) $ (5,994,456)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization of property and
equipment..................................... 346,401 356,680 461,603
Amortization of intangible assets............... 330,164 248,435 240,902
Start-up expenses............................... -- -- 833,179
Changes in operating assets and liabilities:
Accounts receivable........................ (195,014) (115,801) (921,955)
Due from related party..................... (133,355) (382,087) (1,615,473)
Inventories................................ (61,196) (817,018) (618,834)
Prepaid expenses and other current
assets................................... 15,563 (228,276) (146,933)
Deposits................................... (6,720) (52,022) (22,102)
Accounts payable........................... 387,035 1,402,113 241,476
Accrued expenses........................... 82,746 (59,937) 250,179
Accrued payroll............................ 15,981 145,226 395,794
Due to related party....................... -- -- 443,332
Accrued rent............................... (39,226) (33,869) (49,289)
Deferred rent.............................. (12,815) (16,796) (24,696)
----------- ----------- ------------
Net cash used in operating activities................ (784,346) (2,188,365) (6,527,273)
INVESTING ACTIVITIES
Purchases of short-term investments.................. -- (4,392,978) (15,045,827)
Sales of short-term investments...................... -- -- 8,452,522
Capital expenditures................................. (246,436) (329,661) (971,111)
Acquisition of customer lists........................ -- -- (1,000,000)
Additions to goodwill and intangible assets.......... (100,773) (10,528) (3,363)
----------- ----------- ------------
Net cash used in investing activities................ (347,209) (4,733,167) (8,567,779)
FINANCING ACTIVITIES
Net proceeds from issuance of Redeemable Convertible
Preferred Stock.................................... 1,347,000 1,418,000 --
Net proceeds from issuance of Common Stock........... -- 30,731,322 --
Exercise of Common Stock warrants.................... -- 468,399 --
Exercise of Common Stock options..................... 13 25,666 141,378
Principal repayments on long-term debt............... (88,148) (2,756,796) (700,787)
----------- ----------- ------------
Net cash provided by (used in) financing
activities......................................... 1,258,865 29,886,591 (559,409)
----------- ----------- ------------
Net increase (decrease) in cash and cash
equivalents........................................ 127,310 22,965,059 (15,654,461)
Cash and cash equivalents at beginning of year....... 1,014,956 1,142,266 24,107,325
----------- ----------- ------------
Cash and cash equivalents at end of year............. $ 1,142,266 $24,107,325 $ 8,452,864
========== ========== ===========
SUPPLEMENTAL CASH FLOW INFORMATION
Interest paid........................................ $ 172,000 $ 313,000 $ 17,000
========== ========== ===========
</TABLE>
See accompanying notes.
F-6
<PAGE> 60
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND NATURE OF OPERATIONS
Digene Corporation (the "Company") was incorporated in the state of
Delaware in 1987. The Company develops, manufactures and markets proprietary DNA
and RNA tests for the detection, screening and monitoring of human diseases. The
Company's lead product, the Hybrid Capture HPV Test, is the only FDA-approved
test for the detection of human papillomavirus ("HPV"), the cause of essentially
all cervical cancer. In addition, Digene has developed and launched tests
internationally for the detection and viral load monitoring of major blood
viruses, including human immunodeficiency virus, cytomegalovirus and hepatitis B
virus, and tests for the detection of two of the most common sexually
transmitted diseases, chlamydia trachomatis and neisseria gonorrhea.
On June 28, 1996, Digene Corporation entered into a joint venture agreement
with a Brazilian national and pursuant thereto, established Digene do Brasil, a
majority-owned subsidiary of Digene Corporation.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
MANAGEMENT ESTIMATES
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
PRINCIPLES OF CONSOLIDATION
The accompanying financial statements include the accounts of Digene
Corporation and its majority-owned subsidiary. All significant intercompany
transactions have been eliminated in consolidation.
RECLASSIFICATION
Certain 1996 balances have been reclassified to conform with the 1997
presentation.
CASH AND CASH EQUIVALENTS
Cash equivalents, which are stated at cost, consist of highly liquid
investments with original maturities of three months or less.
SHORT-TERM INVESTMENTS
The Company classifies its short-term investments as available-for-sale.
Investments in securities that are classified as available-for-sale and have
readily determinable fair values are measured at fair market value in the
consolidated balance sheets. As of June 30, 1996 and 1997, short-term
investments are stated at cost, which approximates market.
IMPAIRMENT OF LONG-LIVED ASSETS
In the event that facts and circumstances indicate that long-lived assets
or other assets may be impaired, an evaluation of recoverability would be
performed. If an evaluation is required, the estimated future undiscounted cash
flows associated with the asset would be compared to the asset's carrying amount
to determine if a write-down is required. If a write-down is required, the
Company would prepare a discounted cash flow analysis to determine the amount of
the write-down.
F-7
<PAGE> 61
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
REVENUE RECOGNITION
Revenue from product sales is recognized upon shipment of goods. Revenue
from research and development contracts is recognized as research and
development activities are performed. Cash received in advance of services being
performed is deferred until the related revenue has been earned.
SIGNIFICANT CUSTOMERS
For the years ended June 30, 1995, 1996 and 1997, the Company generated
38%, 43% and 42%, respectively, of total revenues from a single customer who is
also a stockholder. Export sales accounted for approximately 53% in 1995, 56% in
1996, and 59% in 1997, respectively, of total revenues.
Export sales consist of the following:
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30
--------------------------------------
1995 1996 1997
---------- ---------- ----------
<S> <C> <C> <C>
Europe........................................... $2,660,767 $3,019,004 $4,342,175
South America.................................... 49,463 221,131 881,048
Pacific Rim...................................... 295,398 301,067 592,480
Other............................................ 289,789 217,717 162,815
---------- ---------- ----------
Total export sales............................... $3,295,417 $3,758,919 $5,978,518
========= ========= =========
</TABLE>
FOREIGN CURRENCY VALUATION
Certain of the Company's accounts receivable may be paid in a foreign
currency and as such a foreign currency gain (loss) may be recorded in the
Company's future statements of operations.
RESEARCH AND DEVELOPMENT
The Company expenses its research and development costs as incurred.
ADVERTISING COSTS
The Company expenses advertising costs as incurred. Advertising costs
amounted to approximately $107,000, $93,000, and $188,000 during fiscal 1995,
1996 and 1997, respectively.
INCOME TAXES
The Company provides for income taxes in accordance with the liability
method. Under this method, deferred tax assets and liabilities are determined
based on differences between financial reporting and tax bases of assets and
liabilities and are measured using the enacted tax rates and laws that will be
in effect when the differences are expected to reverse.
NET LOSS PER SHARE
The Company's net loss per share calculations are based upon the weighted
average number of shares of Common Stock outstanding. Pursuant to the
requirements of Securities and Exchange Commission Staff Accounting Bulletin No.
83, Redeemable Convertible Preferred Stock, Common Stock and options and
warrants to purchase Common Stock issued at prices below the initial public
offering price during the twelve months immediately preceding the filing of the
registration statement relating to the initial public offering
F-8
<PAGE> 62
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
NET LOSS PER SHARE (CONTINUED)
("IPO") of the Company's Common Stock in May 1996 have been included in the
computation of net loss per share as if they were outstanding for the years
ended June 30, 1995 and 1996 (using the treasury method assuming repurchase of
Common Stock at the IPO price). Other shares issuable upon the exercise of stock
options and warrants or conversion of Redeemable Convertible Preferred Stock
have been excluded from the computation because the effect of their inclusion
would be antidilutive. In periods subsequent to the IPO, Common Stock options
and warrants under the treasury stock method will be included to the extent they
are dilutive.
STOCK-BASED COMPENSATION
In October 1995, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 123 ("SFAS No. 123"), "Accounting for
Stock-Based Compensation," which is effective for the Company's June 30, 1997
financial statements. SFAS No. 123 allows companies to account for stock-based
compensation either under the provisions of SFAS No. 123 or under the provisions
of Accounting Principles Board No. 25 ("APB No. 25"), but requires pro forma
disclosures in the footnotes to the financial statements as if the measurement
provisions of SFAS No. 123 had been adopted. The Company intends to account for
its stock-based compensation in accordance with the provisions of APB No. 25. As
such, the adoption of SFAS No. 123 will not impact the financial condition or
the results of operations of the Company.
RECENT PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128 ("SFAS No. 128"), "Earnings Per
Share," which is required to be adopted for the Company's June 30, 1998
financial statements. At that time, the Company will be required to change the
method currently used to compute net loss per share and to restate all prior
periods. Under the new requirements for calculating primary net loss per share,
the dilutive effect of stock options will be excluded. The impact of SFAS No.
128 on the calculation of primary and fully diluted net loss per share on the
financial statements is not expected to be material.
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 131 ("SFAS No. 131"), "Disclosures about
Segments of an Enterprise and Related Information," which is required to be
adopted for the fiscal years beginning after December 31, 1997. SFAS No. 131
changes the way public companies report segment information in annual financial
statements and also requires those companies to report selected segment
information in interim financial reports to shareholders. SFAS No. 131
supersedes Financial Accounting Standards No. 14, "Financial Reporting for
Segments of a Business Enterprise." The impact of SFAS No. 131 on the disclosure
for segment information on the financial statements which is not expected to be
material.
3. TRANSACTIONS WITH A RELATED PARTY
DISTRIBUTION AGREEMENTS
In May 1992, the Company and International Murex Technologies Corporation
(together with its affiliates, "Murex") entered into a Distribution Agreement
("Distribution Agreement"), whereby the Company granted to Murex the exclusive
right to distribute the Company's HBV DNA assays in specified countries in the
European Community and the co-exclusive right (meaning that the Company may also
distribute its products) to distribute the Company's HBV DNA test (for the
detection of the hepatitis B virus) in Africa. The agreement was amended in May
1993 to expand Murex's exclusive right to include certain countries in Eastern
Europe and in the Middle East.
F-9
<PAGE> 63
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
3. TRANSACTIONS WITH A RELATED PARTY (CONTINUED)
DISTRIBUTION AGREEMENTS (CONTINUED)
In February 1996, the Company and Murex entered into the 1996 Distribution
Agreement granting Murex the exclusive right to distribute certain of the
Company's HC I products, including its Hybrid Capture human papillomavirus DNA
test, in most of Europe, Africa and certain countries in the Middle East. The
1996 Distribution Agreement has a five-year term, subject to automatic renewal
for successive one-year terms. The Company has the right to terminate the 1996
Distribution Agreement with respect to particular countries, subject to Murex's
right to continue to distribute products within any such country on a
co-exclusive basis during a "wind-down" period of up to two years. Subsequent to
June 30, 1997, the Company and Murex entered into a new distribution agreement
(See Note 16).
DEVELOPMENT AND LICENSE AGREEMENTS
In April 1993, the Company entered into a Development and License Agreement
(the "1993 Agreement") with International Murex Technologies Limited ("IMTC").
Under the terms of the 1993 Agreement, IMTC funded certain of the Company's DNA
probe product development programs on a dollar for dollar cost reimbursement
basis. IMTC and the Company hold a co-exclusive license to market any products
developed under the 1993 Agreement.
In May 1994, the Company entered into an additional Development and License
Agreement (the "1994 Agreement") with IMTC. Under the terms of the 1994
Agreement, IMTC purchased 333,333 shares of the Company's Redeemable Convertible
Preferred Stock and placed $2 million in escrow to purchase 666,667 additional
shares of the Company's Redeemable Convertible Preferred Stock, over the term of
the 1994 agreement. Generally, amounts released from escrow were used to fund
mutually approved research and development projects on a dollar for dollar cost
reimbursement basis. As funding was released from escrow, shares of the
Company's Redeemable Convertible Preferred Stock were issued. During the years
ended June 30, 1995 and 1996, $1,215,000 and $785,000, respectively, were
released from the escrow and accordingly, the Company issued 405,000 and 261,667
shares, respectively, of Redeemable Convertible Preferred Stock. In connection
with the Company's IPO, all shares of Redeemable Convertible Preferred Stock
were converted to Common Stock (see Note 11). IMTC holds a license that is
co-exclusive (with the Company) to market products developed under the 1994
Agreement.
AGENCY AGREEMENT AND CUSTOMER TRANSFER AGREEMENT
Effective February 1, 1997, the Company entered into two agreements (the
"Agency Agreement" and the "Customer Transfer Agreement", collectively the
"Agreements") with Murex Diagnostics Corporation ("MDC"), to create a
Digene-direct European sales operation for the Company's women's health
products. Under the Agreements, the Company will begin selling its Hybrid
Capture human papillomavirus ("HPV") DNA tests directly in Europe using Murex's
distribution infrastructure. Murex will act as the exclusive agent for the
Company in designated European and Eastern European countries (the "Territory")
for a period of five years during which Murex will receive selling service fees
and a percentage of the Company's HPV revenues in the Territory.
The Agreements provide for a transition period during which the
administrative infrastructure will be agreed to and established. During this
transition period, the Company is recording its transactions consistent with the
Distribution Agreement with Murex. Furthermore, the Distribution Agreement still
remains in effect to cover the distribution of the Company's products in areas
outside the Territory. Prior to February 1, 1997, pursuant to the Distribution
Agreement, Murex had been acting as the exclusive European distributor in
designated non-US territories for the Company's HPV test and other of the
Company's products.
F-10
<PAGE> 64
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
3. TRANSACTIONS WITH A RELATED PARTY (CONTINUED)
AGENCY AGREEMENT AND CUSTOMER TRANSFER AGREEMENT (CONTINUED)
In connection with the Agreements, the Company acquired Murex's HPV
business assets (customer lists) for approximately $2,500,000 in exchange for
promissory notes in the aggregate amount of $1,702,750 and cash of $1,000,000.
The non-cash portion of this transaction related to imputed interest has been
excluded from the Statements of Cash Flows. The unsecured notes payable to Murex
are noninterest-bearing and have been discounted at 10.00% over the eleven month
term of the notes. The Company is amortizing the HPV business assets over five
years, the term of the Agency Agreement. In accordance with the Agency
Agreement, the Company agreed to pay to Murex costs of approximately $853,000
over eleven months, which costs have been expensed. Digene has agreed to
reimburse Murex for all costs incurred for selling and marketing expenses. All
other Digene products (except the Company's HPV products) exclusively
distributed by Murex in Europe and Eastern Europe will not be affected by the
Agreements.
4. INVENTORIES
Inventories are stated at the lower of cost or market on a first-in,
first-out basis.
Inventories consist of the following:
<TABLE>
<CAPTION>
JUNE 30,
------------------------
1996 1997
---------- ----------
<S> <C> <C>
Finished goods............................................... $ 616,458 $ 748,072
Work in process.............................................. 999,222 1,254,495
Raw materials................................................ 440,653 761,100
---------- ----------
2,056,333 2,763,667
Obsolescence reserve......................................... (250,000) (338,500)
---------- ----------
$1,806,333 $2,425,167
========== ==========
</TABLE>
5. PROPERTY AND EQUIPMENT
Property and equipment, including leasehold improvements, are stated at
cost and depreciated or amortized using the straight-line method over the
estimated useful lives of three to ten years. Leasehold improvements are
amortized over the lesser of the related lease term or the useful life.
Property and equipment consist of the following:
<TABLE>
<CAPTION>
JUNE 30,
--------------------------
1996 1997
----------- -----------
<S> <C> <C>
Furniture, fixtures and office equipment................... $ 679,624 $ 1,048,854
Machinery and equipment.................................... 1,371,109 1,807,448
Leasehold improvements..................................... 664,633 830,175
----------- -----------
2,715,366 3,686,477
Accumulated depreciation and amortization.................. (2,010,326) (2,471,929)
----------- -----------
$ 705,040 $ 1,214,548
=========== ===========
</TABLE>
6. INTANGIBLE ASSETS
Patents application costs are expensed as incurred. Noncompetition
agreements are amortized on a straight-line basis over their respective terms,
generally two to six years. Goodwill, which resulted from the
F-11
<PAGE> 65
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
6. INTANGIBLE ASSETS (CONTINUED)
acquisition of the Molecular Diagnostics Division of Life Technologies, Inc.
("LTI") in December 1990, is being amortized using the straight-line method over
five years.
In connection with the Agreements (See Note 3), the Company capitalized
approximately $2,500,000 for the acquisition of Murex's HPV customer lists and
is amortizing such amount over five years. The Company assesses the
recoverability of this intangible asset based upon several factors' including
management's intention with respect to the acquired customer lists and those
customer lists' projected undiscounted cash flows.
Intangible assets consist of the following:
<TABLE>
<CAPTION>
JUNE 30,
--------------------------
1996 1997
----------- -----------
<S> <C> <C>
Noncompetition agreements.................................. $ 1,087,349 $ 1,087,349
Acquired customer lists.................................... -- 2,497,172
Goodwill and other intangibles............................. 180,877 184,240
----------- -----------
1,268,226 3,768,761
Accumulated amortization................................... (1,219,218) (1,460,120)
----------- -----------
$ 49,008 $ 2,308,641
=========== ===========
</TABLE>
7. INCOME TAXES
The Company's net deferred tax assets are as follows:
<TABLE>
<CAPTION>
JUNE 30,
---------------------------
1996 1997
----------- ------------
<S> <C> <C>
Net operating loss carryforwards.......................... $ 5,193,000 $ 7,959,000
Research and development credits.......................... 443,000 443,000
Patent costs, net......................................... 788,000 669,000
Research and developmental deferral, net.................. 957,000 1,567,000
Acquired customer lists................................... -- 50,000
Other..................................................... 399,000 681,000
----------- ------------
Deferred tax assets....................................... 7,780,000 11,369,000
Valuation allowance....................................... (7,780,000) (11,369,000)
----------- ------------
Net deferred tax assets................................... $ -- $ --
=========== ============
</TABLE>
Due to the Company's net operating loss carryforwards, the Company did not
recognize a tax provision for the years ended June 30, 1995, 1996 and 1997. At
June 30, 1997, the Company had tax net operating loss carryforwards for income
tax purposes of approximately $19,900,000. At June 30, 1997, the Company also
had research and development credit carryforwards of approximately $443,000. In
1990, the Company experienced a change in ownership pursuant to Section 382 of
the Internal Revenue Code, which will cause the utilization of pre-change losses
and credits to be limited. Subject to this limitation, the Company's net
operating loss carryforwards and tax credits expire, if unused, at various dates
from 2003 through 2012.
F-12
<PAGE> 66
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
8. LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
JUNE 30,
------------------------
1996 1997
--------- -----------
<S> <C> <C>
Notes payable to Murex (See Note 3), net of unamortized
discount.................................................. $ -- $ 1,762,033
Amounts due to former stockholders, net of unamortized
discount.................................................. 187,260 85,007
Note payable to lessor...................................... 70,049 43,913
Other....................................................... 4,080 --
--------- -----------
261,389 1,890,953
Current maturities of long-term debt........................ (109,857) (1,338,220)
--------- -----------
Long-term debt, less current maturities..................... $ 151,532 $ 552,733
========= ==========
</TABLE>
The unsecured notes payable to Murex arose in conjunction with the
Company's acquisition of Murex's HPV customer lists (See Note 3), are
noninterest-bearing and have been discounted at 10.00%. Payments are due in ten
installments, through December 1998. During 1997, the Company made payments
totaling $577,864 and incurred interest expense of $76,107. At June 30, 1997,
accrued interest related to these notes totaled $66,562.
Amounts due to former stockholders, related to repurchases of Common Stock
during 1991, are noninterest-bearing, but have been discounted at 8.74%. Payment
is due in seven equal annual installments beginning July 1991.
The note payable to lessor represents the financing of a portion of
leasehold improvements made by the lessor under terms of the lease agreement for
the Company's research and development facility (See Note 9). The note,
originally for $200,000, is payable through December 1998 in 114 equal monthly
installments of $2,616 in principal plus interest at 9%. A $75,000 certificate
of deposit held by the Company is assigned to the lessor as collateral for the
lease obligation.
Annual maturities of long-term debt outstanding at June 30, 1997 are as
follows:
<TABLE>
<S> <C>
1998............................................ $1,338,220
1999............................................ 552,733
----------
$1,890,953
=========
</TABLE>
9. LEASE COMMITMENTS
The Company occupies a facility serving as its research and development
facility. The lease agreement for this facility terminates on December 31, 1998,
but provides for a five-year renewal at the Company's option. Under the lease
agreement, no rent was due during the period of construction and the initial
period of occupancy. The total minimum lease obligation is being expensed over
the term of the lease on a straight-line basis, with expense in excess of cash
outlays recorded as deferred rent. The lessor agreed to make approximately
$372,000 of improvements to the facility at the Company's expense, paid for in
cash of $172,000 and a note payable for $200,000 (See Note 8). The minimum
annual base rentals are subject to an annual increase of 30% of the increase in
the Consumer Price Index.
The Company's corporate headquarters and production operations are in an
office and manufacturing facility. The related lease agreement terminates in
July 1998, but is renewable at the Company's option for an additional five-year
period. The total minimum lease obligation is being expensed over the term of
the lease on a straight-line basis, with the expense in excess of cash outlays
recorded as deferred rent.
F-13
<PAGE> 67
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
9. LEASE COMMITMENTS (CONTINUED)
Future minimum rental commitments under these lease agreements, including
where applicable the Company's pro rata share of insurance, real estate taxes
and common area operating expenses, are as follows as of June 30, 1997:
<TABLE>
<S> <C>
1998.............................................. $577,959
1999.............................................. 217,820
2000.............................................. 28,670
2001.............................................. 13,143
2002.............................................. 8,068
--------
$845,660
========
</TABLE>
Rent expense under these leases was $380,804, $363,691 and $449,449 for the
years ended June 30, 1995, 1996 and 1997, respectively.
Remaining lease payments, net of anticipated sublease income of
approximately $380,000, for facilities vacated as a result of relocation and
consolidation were accrued in 1992. The remaining accrual at June 30, 1997 is
$100,618.
10. EMPLOYMENT AGREEMENTS
During 1997, the Company executed employment agreements with certain key
executives under which the Company is required to pay the following base
salaries annually over the next four years:
<TABLE>
<S> <C>
1998............................................ $ 510,000
1999............................................ 418,334
2000............................................ 255,000
2001............................................ 141,875
----------
$1,325,209
=========
</TABLE>
11. REDEEMABLE CONVERTIBLE PREFERRED STOCK
Immediately upon completion of the IPO, all outstanding shares of 1990,
1991, and 1994 Series Preferred Stock converted into shares of Common Stock on a
1 for 0.714 basis.
12. COMMON STOCK
On April 15, 1996, the holders of Common Stock purchase warrants elected to
purchase 70,436 shares of Common Stock at an exercise price of $6.65 per share.
As a result of this warrant exercise, the Company received net proceeds of
$468,399. The remaining unexercised warrants expired on April 15, 1996.
On May 6, 1996, the Company's stockholders approved a 1 for 1.4 reverse
stock split of the Company's Common Stock, which became effective on May 20,
1996. All references in the accompanying financial statements to the number of
shares of Common Stock and per-share amounts have been restated to reflect the
split.
On May 21, 1996, the Company issued 3,000,000 shares of Common Stock in the
IPO, which generated net proceeds of approximately $30,700,000.
F-14
<PAGE> 68
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
13. COMMON STOCK OPTIONS
The Company has adopted Stock Option Plans (the "Option Plans") under which
2,622,821 shares of Common Stock were reserved for issuance upon exercise of
options granted to employees, officers and consultants of the Company. The
Option Plans provide for grants of stock options to employees (including
officers and employee directors), directors and consultants of the Company. The
Option Plans were previously administered by the Board of Directors and
presently are being administered by the Compensation Committee, which determines
recipients and types of awards to be granted, including the exercise price,
number of shares subject to the award and the exercisability thereof. The terms
of stock options granted under the Option Plans may not exceed ten years. The
exercise price of options granted under the Option Plans, as determined by the
Compensation Committee, approximates fair value. The Company does not intend to
grant further options under these Option Plans.
The Company has also granted 162,761 options to purchase Common Stock to
outside consultants.
In March 1996, the Company adopted the Digene Corporation Omnibus Plan (the
"Omnibus Plan"). Pursuant to the Omnibus Plan, officers or other employees of
the Company may receive options to purchase Common Stock. The Omnibus Plan is
administered by the Compensation Committee. 2,000,000 shares have been reserved
for issuance under the Omnibus Plan.
In October 1996, the Company adopted the Digene Corporation Directors'
Stock Option Plan (the "Directors' Plan"). Pursuant to the Directors' Plan,
directors of the Company may receive options to purchase Common Stock. The
Directors' Plan is administered by the Board of Directors. 500,000 shares have
been reserved for issuance under the Directors' Plan.
Common stock options activity is as follows:
<TABLE>
<CAPTION>
YEARS ENDED JUNE 30,
--------------------------------------------------------------------------
1995 1996 1997
---------------------- ---------------------- ----------------------
WEIGHTED- WEIGHTED- WEIGHTED-
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of
year.......................... 1,778,313 $1.08 1,753,211 $1.19 2,660,582 $ 4.14
Options granted................. 57,372 4.20 987,033 8.86 460,000 10.14
Options exercised............... (18) .70 (40,510) .55 (275,825) .52
Options canceled or expired..... (82,456) 2.79 (39,152) 2.30 (32,424) 8.66
--------- --------- ---------
Outstanding at end of year...... 1,753,211 1.19 2,660,582 4.14 2,812,333 5.43
======== ======== ========
Options exercisable at
year-end...................... 1,133,926 $1.77 1,393,787 $1.88 1,288,218 $ 2.53
======== ======== ========
</TABLE>
F-15
<PAGE> 69
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
13. COMMON STOCK OPTIONS (CONTINUED)
The following table summarizes information about fixed-price stock options
outstanding at June 30, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
------------------------------------------ ---------------------------
NUMBER AVERAGE WEIGHTED- NUMBER WEIGHTED-
OUTSTANDING REMAINING AVERAGE EXERCISABLE AVERAGE
RANGE OF AT JUNE 30, CONTRACTUAL EXERCISE AT JUNE 30, EXERCISE
EXERCISE PRICES 1997 LIFE PRICE 1997 PRICE
- ------------------------------------- -------------- ----------- --------- -------------- ---------
<S> <C> <C> <C> <C> <C>
$ 0.00 - $ 2.00...................... 880,292 3.57 $0.79 866,597 $ 0.78
$ 2.01 - $ 5.00...................... 533,946 5.95 2.40 389,343 2.26
$ 5.01 - $ 8.00...................... 139,753 9.14 6.19 25,612 5.83
$ 8.01 - $11.00...................... 1,124,342 8.83 9.50 6,666 10.00
$11.01 - $13.25...................... 134,000 9.55 13.25 -- --
-------------- --------- -------------- ---------
2,812,333 $5.43 1,288,218 $ 2.53
=========== ======= ========== =======
</TABLE>
During fiscal 1997, the Company adopted the disclosure-only provisions of
SFAS No. 123. Had compensation cost for the Company's stock option plans been
determined based upon the fair value at the grant date for awards under the
plans consistent with the methodology prescribed under SFAS No. 123, the
Company's net loss in fiscal 1996 and 1997 would have been approximately
$3,607,000 and $7,594,000, or $1.78 per share and $0.67 per share, respectively.
The effect of applying SFAS No. 123 on 1996 and 1997 pro forma net loss as
stated above is not necessarily representative of the effects on reported net
loss for future years due to, among other things, (1) the vesting period of the
stock options and the (2) fair value of additional stock options in future
years.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option-pricing fair value model with the following
weighted-average assumptions used for grants in 1996: dividend yield of 0%;
expected volatility of 73%; risk-free interest rate of 5.875%; and expected life
of the option term of 6.6 years. The fair value of each option grant is
estimated on the date of grant using the Black-Sholes option-pricing fair value
model with the following weighted-average assumptions used for grants in 1997:
dividend yield of 0%; expected volatility of 73%; risk-free interest rate of
6.5%; and expected life of the option term of 6.6 years. The weighted average
fair values of the options granted in 1996 with a stock price equal to the
exercise price is $9.20 and with a stock price less than the exercise price is
$10.29. The weighted average fair values of the options granted in 1997 with a
stock price greater than the exercise price is $5.88, with a stock price equal
to the exercise price is $10.08 and with a stock price less than the exercise
price is $11.50.
14. RETIREMENT PLAN
Effective January 1, 1994, the Company adopted a 401(k) Profit Sharing Plan
(the "Plan"). The Plan, which covers all employees who have completed six months
of service, stipulates that employees may elect an amount between 1% and 15% of
their total compensation to contribute to the Plan. Employee contributions are
subject to Internal Revenue Service limitations. All employees who have
completed 1,000 hours of service during the plan year and are employed by the
Company on the last day of the plan year are eligible to share in discretionary
Company contributions. Employees vest in employer contributions over five years.
No contributions were made by the Company during the years ended June 30, 1995,
1996 and 1997.
15. OTHER COMMITMENTS
The Company's access to various probes, diagnostic techniques and a key
product component were acquired under agreements requiring the Company to pay
future royalties which are based on an aggregate of 3% of applicable future
gross sales. During fiscal 1995, 1996 and 1997, total royalties amounted to
$124,701, $324,925, and $396,665 respectively.
F-16
<PAGE> 70
DIGENE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
16. SUBSEQUENT EVENTS
In August 1997, the Company and Murex entered into a Distribution
Agreement, whereby the Company granted to Murex the exclusive right to
distribute the Company's HIV RNA Hybrid Capture II, CMV DNA, and HBV DNA Hybrid
Capture II assays in specified countries in Europe, Africa, Asia and the Middle
East.
F-17
<PAGE> 71
No person is authorized in connection with any offering made hereby to give
any information or to make any representation not contained herein and, if given
or made, such information or representation must not be relied upon as having
been authorized by the Company or the Underwriters. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any security
other than the Common Stock offered hereby, nor does it constitute an offer to
sell or a solicitation of an offer to buy any of the securities offered hereby
to any person in any jurisdiction in which it is unlawful to make such an offer
or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall under any circumstances create any implication that there has
been no change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any date subsequent to the date
hereof.
---------------------------
Table of Contents
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary........................ 3
Risk Factors.............................. 6
Use of Proceeds........................... 17
Dividend Policy........................... 17
Price Range of Common Stock............... 17
Capitalization............................ 18
Dilution.................................. 19
Selected Consolidated Financial Data...... 20
Management's Discussion and Analysis of
Financial Condition and Results of
Operations.............................. 21
Business.................................. 25
Management................................ 46
Principal and Selling Stockholders........ 48
Shares Eligible for Future Sale........... 49
Underwriting.............................. 50
Legal Matters............................. 51
Experts................................... 51
Available Information..................... 51
Incorporation of Certain Documents by
Reference............................... 52
Index to Consolidated Financial
Statements.............................. F-1
</TABLE>
2,500,000 SHARES
[DIGENE LOGO]
COMMON STOCK
---------------------------
PROSPECTUS
, 1997
---------------------------
UBS SECURITIES
MONTGOMERY SECURITIES
<PAGE> 72
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated amount of various expenses in
connection with the sale and distribution of the securities being registered:
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 12,034
NASD filing fee................................................... 4,472
Nasdaq National Market listing fee................................ 17,500
Transfer agent's fee and expenses*................................ 7,000*
Accounting fees and expenses*..................................... 40,000*
Legal fees and expenses*.......................................... 160,000*
"Blue Sky" fees and expenses (including legal fees)*.............. 1,000*
Costs of printing and engraving*.................................. 100,000*
Miscellaneous*.................................................... 7,994*
--------
Total*....................................................... $350,000*
========
</TABLE>
-----------------------
* Estimated
The Company will bear all expenses above.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation provides
that the Company shall, to the fullest extent permitted by Section 145 of the
General Corporation Law of the State of Delaware, as amended from time to time
("Section 145"), indemnify all persons whom it may indemnify pursuant thereto.
In addition, the Company's Amended and Restated Certificate of Incorporation
eliminates personal liability of its directors to the fullest extent permitted
by Section 102(b)(7) of the General Corporation Law of the State of Delaware, as
amended from time to time ("Section 102(b)(7)").
Section 145 permits a corporation to indemnify its directors and officers
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by third parties if such directors or
officers acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe their conduct was
unlawful. In a derivative action, indemnification may be made only for expenses
(including attorneys' fees) actually and reasonably incurred by directors and
officers in connection with the defense or settlement of an action or suit and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant officers or directors are fairly
and reasonably entitled to indemnification for such expenses despite such
adjudication of liability.
Section 102(b)(7) provides that a corporation may eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for willful or negligent conduct
in paying dividends or repurchasing stock out of other than lawfully available
funds or (iv) for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the liability of a
director for any act or omission occurring prior to the date when such provision
becomes effective.
II-1
<PAGE> 73
The Underwriting Agreement (to be filed as Exhibit 1.1 to an amendment to
this Registration Statement) provides that the Underwriters severally and not
jointly will indemnify and hold harmless the Company and each director, officer
or controlling person of the Company from and against any liability caused by
any statement or omission in the Registration Statement or Prospectus based upon
information furnished to the Company by the Underwriters for use therein.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-1 (file No.
333-2968)).
3.2 Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (file no. 333-2968)).
4.1 Form of Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (File No. 333-2968)).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll*
10.1 Employment Agreement dated as of July 11, 1997 between the Company and William J.
Payne
10.2 Distribution Agreement dated August 1, 1997 between the Company and Murex
Diagnostics Corporation
11.1 Statement Re: Computation of Per Share Loss
23.1 Consent of Ernst & Young LLP
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.1)*
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule
</TABLE>
- ---------------
* To be filed by amendment.
(b) Financial Statement Schedules
Schedule 1 -- Valuation and Qualifying Account and Reserve
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-2
<PAGE> 74
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 75
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Beltsville, State of Maryland, on September 11, 1997.
DIGENE CORPORATION
By /s/ EVAN JONES
------------------------------------
EVAN JONES
CHIEF EXECUTIVE OFFICER
We, the undersigned directors and officers of Digene Corporation, do hereby
constitute and appoint each of Evan Jones and Charles M. Fleischman, each with
full power of substitution, our true and lawful attorney-in-fact and agent to do
any and all acts and things in our names and in our behalf in our capacities
stated below, which acts and things either of them may deem necessary or
advisable to enable Digene Corporation to comply with the Securities Act of
1933, as amended, and any rules, regulations and requirements of the Securities
and Exchange Commission, in connection with this Registration Statement,
including specifically, but not limited to, power and authority to sign for any
or all of us in our names, in the capacities stated below, any and all
amendments (including post-effective amendments) hereto, and any registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended; and we do hereby ratify and confirm all that they shall do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------- -------------------
<C> <S> <C>
President, Chief Executive September 11, 1997
/s/ EVAN JONES Officer and Chairman
- ------------------------------------------ (principal executive
EVAN JONES officer)
Executive Vice President, September 11, 1997
Chief Operating Officer,
/s/ CHARLES M. FLEISCHMAN Chief Financial Officer and
- ------------------------------------------ Director (principal
CHARLES M. FLEISCHMAN financial officer)
/s/ JOSEPH P. SLATTERY Controller (principal September 11, 1997
- ------------------------------------------ accounting officer)
JOSEPH P. SLATTERY
/s/ JOHN J. WHITEHEAD Director September 11, 1997
- ------------------------------------------
JOHN J. WHITEHEAD
/s/ JOSEPH M. MIGLIARA Director September 11, 1997
- ------------------------------------------
JOSEPH M. MIGLIARA
/s/ WAYNE T. HOCKMEYER Director September 11, 1997
- ------------------------------------------
WAYNE T. HOCKMEYER
/s/ JOHN H. LANDON Director September 11, 1997
- ------------------------------------------
JOHN H. LANDON
</TABLE>
II-4
<PAGE> 76
SCHEDULE I--VALUATION AND QUALIFYING ACCOUNT AND RESERVE
(IN THOUSANDS)
DIGENE CORPORATION
<TABLE>
<CAPTION>
BALANCE AT
BEGINNING OF BALANCE AT
CLASSIFICATION PERIOD ADDITIONS DEDUCTIONS END OF PERIOD
- ------------------------------------------------- ------------ --------- ---------- -------------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts:
Year ended June 30, 1995.................... $ 55 $ 15 $ (19)(1) $ 51
Year ended June 30, 1996.................... 51 10 -- 61
Year ended June 30, 1997.................... 61 -- -- 61
Reserve for inventory obsolescence:
Year ended June 30, 1995.................... $200 $ 63 $ (128)(2) $ 135
Year ended June 30, 1996.................... 135 115 -- 250
Year ended June 30, 1997.................... 250 89 -- 339
</TABLE>
- ---------------
(1) Write off of accounts receivable
(2) Write off of obsolete inventory
S-1
<PAGE> 77
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Digene Corporation
We have audited the consolidated financial statements of Digene Corporation
as of June 30, 1996 and 1997 and for each of the three years in the period ended
June 30, 1997 and have issued our report thereon dated August 15, 1997 (included
elsewhere in this Registration Statement). Our audits also included the
financial statement schedules listed in Item 16(b) of this Registration
Statement. These schedules are the responsibility of the Company's management.
Our responsibility is to express an opinion based on our audits.
In our opinion, the financial statement schedules referred to above, when
considered in relation to the basic consolidated financial statements taken as a
whole, present fairly in all material respects the information set forth
therein.
/s/ Ernst & Young LLP
Vienna, Virginia
August 15, 1997
S-2
<PAGE> 78
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-1 (File No. 333-2968))
3.2 Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (File No. 333-2968))
4.1 Form of Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (File No. 333-2968))
5.1 Opinion of Ballard Spahr Andrews & Ingersoll*
10.1 Employment Agreement dated as of July 11, 1997 between the Company and William J.
Payne
10.2 Distribution Agreement dated August 1, 1997 between the Company and Murex
Diagnostics Corporation
11.1 Statement Re: Computation of Per Share Loss
23.1 Consent of Ernst & Young LLP
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.1)*
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule
</TABLE>
- ---------------
* To be filed by amendment.
<PAGE> 1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT dated as of July 11, 1997 between Digene Corporation, a
Delaware corporation, 9000 Virginia Manor Road, Suite 206, Beltsville,
Maryland, 20705 (the "Company"), and William J. Payne, Jr., Ph.D., 12767 St.
Lazare Lane, St. Louis, MO 63127 (the "Executive").
WITNESSETH
WHEREAS, the Company desires to employ Executive on the terms and conditions
herein contained; and
WHEREAS, Executive is willing to enter into this Agreement for employment with
the duties outlined herein on a full-time basis;
NOW, THEREFORE, in consideration of the premises, representations and mutual
covenants and agreements herein contained, the parties agree as follows:
1. Employment. The Company hereby employs the Executive and
Executive hereby accepts employment with the Company for the period beginning
July 21, 1997 and ending July 21, 2001, (the "Term"), subject to the terms and
conditions hereinafter contained. Such employment may be renewed upon the
mutual agreement of, and in consideration of such compensation as shall be
established by, the Company and the Executive.
2. Duties. Executive shall perform such duties and functions as
the Board of Directors of the Company (the "Board") may from time to time
determine which are consistent with the position of Vice President,
Development, shall comply with the policies and reasonable directions of the
Board, and shall discharge his responsibilities in a competent and faithful
manner, consistent with sound business practices.
During the Term of this Agreement, the Executive shall devote his
entire business time, attention and energies to the performance of his duties
for the business of the Company except to the extent that the Board may
specifically approve any outside interests. The Executive shall not, directly
or indirectly, without the consent of a majority of the Board, as owner,
partner, joint venturer, shareholder, employee, corporate officer or director,
engage or become financially interested in, be employed by, or render
consulting services to any business in competition with any business engaged in
during the Term by the Company or its subsidiaries; provided however, that (i)
the Executive may own securities of any corporation which is engaged in any
such business and which is publicly owned and traded, but in an amount not to
exceed at any one time two percent (2.0%) of any class of stock or securities
of such company and (ii) the foregoing shall not be deemed to prohibit the
Executive from conducting and continuing to conduct any business with respect
to which the Executive is engaged as of the date hereof (which businesses are
listed in Exhibit I attached hereto), whether said business is conducted
individually or through an entity in which the Executive has a legal or
beneficial interest.
3. Compensation.
a. Salary. During the Term, Executive shall receive a base
salary for services rendered hereunder of $145,000 per year, subject to such
increases as may be approved by the Board, payable not less frequently than
monthly consistent with the regular practices of the Company.
b. Bonus. The Executive shall be entitled to receive, as
additional compensation, on September 1 of each year, an annual cash bonus as
set forth in the Company's Executive Bonus Plan and approved by the Board of
Directors of the Company in its sole discretion.
<PAGE> 2
c. Additional compensation. Executive shall receive, subject to
the approval of the Compensation Committee of the Board of Directors of the
Company at the next regularly scheduled Compensation Committee meeting, or as
promptly thereafter as practicable, options to purchase 75,000 shares of common
stock of the Company which will vest in three annual installments of 45,000,
15,000, and 15,000 shares on the third, fourth and fifth anniversaries,
respectively. The exercise price for such options will be the fair market value
of a share of common stock of the Company on the grant date.
d. It is contemplated that Executive, in the performance of his
duties will be required to relocate to the Silver Spring, Maryland,
metropolitan area. For any such required relocation, the Company agrees to
reimburse Executive for up to an aggregate of $60,000 of bona fide moving
expenses, travel expenses en route, two pre-moving house trips, temporary
quarters (up to 90 days) and closing costs associated with the sale of
Executive's current home and/or purchase of a new home. Amounts reimbursed by
the Company are subject to immediate repayment by the Executive as follows: if
Executive resigns or is terminated for justifiable cause (as hereinafter
defined) within six months of moving, $45,000 will be repaid to the Company;
between six and twelve months, $30,000 will be repaid to the Company; and
between twelve and eighteen months, $15,000 will be repaid to the Company. If
Executive is terminated without justifiable cause, Executive will not be
required to repay the Company any of the above amounts.
e. Reimbursement for expenses. The Company agrees to reimburse
Executive in a manner consistent with the regular practices of the Company, for
any and all reasonable business expenses incurred by Executive in connection
with the performance of his duties, upon presentation of proper vouchers by
Executive to support said expenses. This shall include, but not be limited to,
all items of travel, entertainment, business expenses, and other items of
expense while away on business from the principal office of the Company or
engaged in other business activity.
f. Vacation. Executive shall be entitled to four (4) weeks'
paid vacation in each calendar year in addition to the regularly scheduled
Company holidays. No more than four (4) weeks' vacation can be accumulated and
carried forward from year to year.
g. Other benefits. The Executive shall, in addition, be
entitled to participate in and receive any other fringe benefits customarily
provided by the Company to its employees of comparable standing with the
Executive (including, but not limited to, any profit-sharing, pension,
hospital, major medical insurance and group life insurance plans in accordance
with the terms of such plans), all as determined from time to time by the
Board. To the extent available at reasonable cost, the Company will use its
best efforts to promptly obtain and maintain appropriate directors and officers
liability insurance ("D&O"); if the Company cannot obtain appropriate D&O, it
will notify the Executive in writing within sixty (60) days of the signing of
this Agreement.
4. Termination. Executive's employment by the Company hereunder
shall terminate on the occurrence of:
a. Disability or Death. In the event of Executive's disability
or death during the Term of the Executive's employment, Executive, or his
estate, shall receive one (1) year's base salary. For the purpose hereof, the
term "disability" shall mean Executive's physical or mental inability to
perform his essential duties and responsibilities hereunder, with reasonable
accommodation, for a period of six (6) consecutive months during the term of
this Agreement, it being understood that notwithstanding any such inability to
perform his duties, Executive shall be entitled to receive his compensation as
provided herein until the termination of his employment hereunder. If the
Executive is entitled to long-term disability, the Company will supplement such
long-term disability payments such that payments, in the aggregate, to the
Executive shall not exceed one year's base salary.
<PAGE> 3
b. Justifiable cause. The obligations and liabilities of the
Company to the Executive shall cease as of the date of termination for
"justifiable cause," and Executive shall not be entitled to any further
compensation except for compensation accrued through the date of the
termination and except as otherwise provided herein. Executive will be entitled
to all stock, incentive stock options or equivalents vested as of the date of
the Board's termination action. For the purposes hereof, the term "justifiable
cause" shall mean and be limited to any termination by action of a majority of
the Board because of: Executive's conviction of a felony (which, through lapse
of time or otherwise, is not subject to appeal) or willful refusal without
proper cause to perform his obligations under this Agreement; except in the
normal course of business in the performance of his duties, any material
disclosure by Executive to any person, firm or corporation other than the
Company, its subsidiaries and its and their directors, officers and employees,
of any confidential information or trade secret of the Company or any of its
subsidiaries; Executive's pursuit of activities inimical, or contrary, to the
best interests of the Company; or the engaging by Executive in any business
other than the business of the Company and its subsidiaries which interferes
with the performance of his duties hereunder.
c. Without justifiable cause. In the event the Company
terminates this Agreement without justifiable cause (as defined in Section 4.b.
hereof), the parties hereto agree that damages to the Executive shall be
difficult to ascertain in any such event, but in order to limit the liability
of the Company the Executive shall be entitled to receive as liquidated damages
and not as penalty in any such event the following: (i) the amount of the base
salary (excluding bonus) of the Executive remaining due and payable from any
such date of termination for a period of twelve (12) months, which amount shall
be accelerated and immediately due upon any such termination; (ii) subject to
limitations imposed under the applicable option and incentive plans and grants
thereunder, any outstanding stock, incentive stock options or equivalents that
would have vested in the ordinary course of events until termination plus an
additional three months after the date of termination shall be accelerated and
vest immediately upon such termination; (iii) any bonus accrued to date pro
rata over the course of the year; (iv) all other benefits accruing to the
Executive on or prior to the expiration date of this Agreement as provided
hereunder.
d. Resignation. In the event the Executive resigns during the
term of this Agreement, he shall be entitled to: (i) the pro rata amount of the
annual bonus accrued to the date of resignation: (ii) all stock, incentive
stock options or equivalents vested as of the date of the resignation, subject
to the terms of the appropriate stock purchase agreement (s); (iii) all other
benefits accruing to the Executive on or prior to the expiration date of this
Agreement as provided hereunder.
5. Non-Competition. Executive agrees that for a period of twelve
(12) months after termination of his employment (the "Non-Competitive Period"),
Executive shall not, directly or indirectly, as owner, partner, joint venturer,
stockholder, employee, broker, agent, principal, trustee, corporate officer,
director, licensor, or in any capacity whatsoever engage in, become financially
interested in, be employed by, render any consultation or business advice with
respect to, or have any connection with, any business engaged in the research,
development, testing, design, manufacture, sale, lease, marketing, utilization
or exploitation of any products or services which are designed for the same
purpose as, are generically the same as, or are otherwise competitive with,
products or services of the Company, in existence or under development, in any
geographic area where, at the time of termination of his employment hereunder,
the business of the Company was being conducted in any manner whatsoever;
provided, however, that Executive may own any securities of any corporation
which is engaged in such business and is publicly owned and traded but in an
amount not to exceed at any one time two percent (2.0%) of any class of stock
or securities of such corporation. In addition, Executive shall not, during the
Non-Competitive Period, request or cause any customers of the Company to cancel
or terminate any business relationship with the Company. The Executive further
agrees that, during the Non-Competitive Period, the Executive and any
individual or entity controlled by or under common control with Executive,
shall not, without the
<PAGE> 4
Company's prior written consent, solicit, directly or
indirectly, for himself, themselves, or for any other person or entity, any
employee or consultant of the Company or any of its affiliates, or request or
cause any employee or consultant of the Company or any of its affiliates to
terminate his employment or services with the Company or any of its affiliates.
If any portion of the restrictions set forth in this Section 5
should, for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected.
Executive declares that the territorial, time limitations and scope
of activities restricted as set forth in this Section 5 are reasonable and
properly required for the adequate protection of the business of the Company.
In the event that any such territorial, time limitation and scope of activities
restricted is deemed to be unreasonable by a court of competent jurisdiction,
Executive agrees to the reduction of the territorial, time limitation or scope
to the area or period which such court shall have deemed reasonable.
The existence of any claim or cause of action by Executive against
the Company shall not constitute a defense to the enforcement by the Company of
the foregoing restrictive covenants, but such claim or cause of action shall be
litigated separately.
6. Confidentiality. Except in the normal course of business in the
performance of his duties, Executive shall not, during the Term of this
Agreement, or at any time following the end of the Term of this Agreement,
directly or indirectly, disclose or permit to be known, to any person, firm or
corporation, any confidential information acquired by him during the course of
, or as an incident to, his employment hereunder, relating to the Company, the
directors of the Company, or any client of the Company, including, but not
limited to, the business affairs of each of the foregoing. Such confidential
information shall include, but shall not be limited to, proprietary technology,
trade secrets, patented processes, research and development data, know-how,
formulae, pricing policies, the substance of agreements with customers and
others, and arrangements, customers lists and any other documents embodying
such confidential information.
All information and documents relating to the Company shall be the
exclusive property of the Company, and Executive shall use his best efforts to
prevent any publication or disclosure thereof. Upon termination of Executive's
employment with the Company, all documents, records, reports, writings and
other similar documents containing confidential information then in Executive's
possession or control shall be returned and left with the Company.
7. Representations and Agreements of Executive. Executive
represents and warrants that he is free to enter into this Agreement and to
perform the duties required hereunder, and that there are no employment
contracts or understandings, restrictive covenants or other restrictions,
whether written or oral, preventing the performance of his duties hereunder.
Executive agrees to submit to a medical examination (if job related and
consistent with business necessity) and to cooperate and supply such other
information and documents as may be required by any insurance company in
connection with the Company's obtaining life insurance on the life of the
Executive, and any other type of insurance or fringe benefit as the Company
shall determine from time to time to obtain.
8. Notices. Any notices required or permitted to be given
hereunder shall be sufficient if in writing, and if delivered by hand, or sent
by registered or certified mail, return receipt requested, to the Company of
the address set forth above and to Executive at the address set forth in the
personnel records of the Company, or such other address as either party may
from time to time designate in writing to the other, and shall be deemed given
as of the date of the delivery or mailing.
<PAGE> 5
9. Severability. If any of the covenants contained in this
Agreement, any part of any such covenant, are hereafter construed to be invalid
or unenforceable, the same shall not affect the remainder of the covenant or
covenants, or the remainder of the Agreement, which shall be given full effect,
without regard to the invalid portions.
10. Non-Waiver. The waiver or breach of any term or condition of
this Agreement shall not be deemed to constitute a waiver or breach of any other
term or condition.
11. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter, and no
modification or waiver of any provision hereof shall be valid unless it be in
writing and signed by all of the parties hereto.
12. Assignment. This Agreement and the rights and obligations of
the parties hereto shall bind and inure to the benefit of any successor or
successors by reorganization, merger or consolidation and any assignee of all
or substantially all of its business and properties, but, except as to any such
successor or assignee of the Company, neither this Agreement nor any rights or
benefits hereunder may be assigned or transferred by either party without the
prior written consent of the other party.
13. Binding Effect. This Agreement and all of the provisions hereof
shall be binding upon the legal representatives, heirs, distributees,
successors and assigns of the parties hereto.
14. Choice of Law . This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed therein.
15. Headings. The Section headings appearing in this Agreement are
for purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, amend, or affect its provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
By: /s/ WILLIAM J. PAYNE, JR.
------------------------------------
William J. Payne, Jr., Ph.D.
EXECUTIVE
DIGENE CORPORATION
By: /s/ EVAN JONES
------------------------------------
Evan Jones
President & CEO
<PAGE> 1
EXHIBIT 10.2
DISTRIBUTION AGREEMENT
Entered into this 1st day of August, 1997
BETWEEN
Digene Corporation, a company organized under the laws of the State of
Delaware, United States of America ("U.S.A.") and having its offices at 9000
Virginia Manor Road, Bellsville, Maryland 20705, U.S.A. ("Digene");
AND
Murex Diagnostics Corporation, a company organized under the laws of Barbados
and having its headquarters at White Park House, White Park Road, Bridgetown
Barbados ("MDC").
WITNESSETH
WHEREAS Digene is engaged in the business of developing, manufacturing and
marketing medical diagnostic products; and
WHEREAS MDC desires to acquire from Digene the right to distribute the medical
diagnostic products and biomedical research products identified herein
(collectively, the "Products").
NOW THEREFORE, in consideration of the promises and of the mutual covenants and
obligations hereinafter set forth, the parties hereto agree as follows:
1. DISTRIBUTORSHIP
---------------
1.1 Digene hereby grants MDC the exclusive right to distribute the
Products described in Exhibit A, attached hereto and made a part
hereof during the term of this Agreement, to any testing
location in the Territories described in Exhibit B (the
"Territory"), and subject to the terms and conditions of this
Agreement. No rights whatsoever are granted to distribute
Products outside the Territory, whether directly or indirectly
through purchasers in the Territory for resale or other
distribution outside the Territory. MDC hereby agrees to sell
and promote the sale of the Products in conformity with and
subject to the terms and conditions of this Agreement and
further agrees not to sell or otherwise distribute Products to
purchasers in the Territory for resale or other distribution
outside the Territory. Digene agrees not to sell or otherwise
distribute Products to purchasers outside the Territory for
resale or other distribution in the Territory.
1.2 Products of Others. MDC shall have the right to distribute,
sell or sublicense the products of any manufacturers
provided that such other products are not similar to or
competitive with the Products and provided MDC is not in
competition with Digene. MDC shall be deemed to be in
competition with Digene if MDC, any of its affiliates, parent
companies or respective agents commences the distribution or
sale of a DNA or RNA probe assay or other DNA or RNA based
product for detection of HIV RNA, HBV DNA, or CMV DNA assays
based on Digene Confidential Information. Patent Rights (such
terms as defined in the 1994 Development and License Agreement
dated May 31, 1994) or any pending patent claimed by Digene and
filed by Digene as of the date of this Distribution Agreement,
or any product based in any respect upon Digene's Hybrid
Capture(R), SHARP Signal or Digene's proprietary Hybrid Capture
assay detection formats.
1
<PAGE> 2
1.3 If Digene introduces any DNA assay other than a Product into an
active development program, then Digene agrees to notify MDC and
discuss in good faith the distribution of such product with MDC,
but without obligation to reach agreement.
2. RESPONSIBILITIES OF MDC
2.1 MDC Responsibilities. In addition to all other rights and
obligations created by this Agreement and subject to Digene not
limiting MDC from meeting its responsibilities, MDC shall:
2.1.1 Use its reasonable efforts in the Territory to
distribute and support the Products including, without
limitation, the requirement to advertise the Products and
participate and exhibit the Products at major local
exhibitions for infectious disease diagnostics on a
country by country basis each year.
2.1.2 Maintain an adequate and qualified sales force to
accomplish the market objectives for the Products.
2.1.3 Provide adequate and competent technical assistance in
support of any prospective or actual Product sales in the
Territory including training salesmen and end users.
2.1.4 Maintain at all times a stock of Product necessary to
supply reasonable estimated demand therefor with
consideration given to normal time delays.
2.1.5 Provide adequate customer and technical support for the
Products and reasonably assist Digene in the discharge of
obligations to the customer.
2.1.6 Provide to end users written instructions which have been
agreed upon by Digene and MDC as to the usage of each of
the Products.
2.1.7 Deliver Products in the packaging agreed upon by Digene
and MDC. This packaging will include the name and logo
of Digene, as the manufacturer.
2.1.8 Work with Digene quarterly to determine MDC's estimated
Product requirements for the next quarter, marketing
potential, trends and forecasts, competition, marketing
techniques, current developments in the Territory,
changes of regulations governing the sale of Products in
the Territory and amounts of Products sold. MDC expressly
disclaims any liability regarding the information
concerning changes in the regulations.
2.1.9 Comply with and help Digene to comply with all present
and future regulations and/or licensing requirements
promulgated by authorized governmental authorities
effective during the term of this Agreement and required
in order to carry out the terms of this Agreement.
2.1.10 Exhibit C to this Agreement outlines specific support
and promotional activities which MDC agrees to perform
under this Agreement. In addition, Exhibit C outlines
specific undertakings by Murex regarding the
implementation and rules of engagement of this Agreement.
2.2 Scope and Limitations of Authority: This Agreement does not
create an employer-employee relationship between Digene
and MDC, nor an agency, joint venture or
<PAGE> 3
partnership. Neither party shall have the authority to act for
or bind the other in any way, to execute agreements on behalf of
the other or to represent that either party is in any way
responsible for the acts or omissions of the other. Digene shall
not have the right to direct or control MDC's performance. MDC
shall be an independent contractor only and may not engage
any other entity other than current resellers to carry out any
or all of its undertakings under this Agreement unless such
engagement is agreed to by Digene in writing. MDC shall not
appoint any other firm to sell the Products in the Territory
unless agreed in writing by Digene. A list of current resellers
approved by Digene is provided as Exhibit F.
2.3 Protection of Digene's Licenses: MDC acknowledges and agrees
that all Digene proprietary rights in Products delivered to MDC
by Digene are and shall remain at all times the exclusive
property of Digene and may not be duplicated by MDC or used
except pursuant to this Agreement and that MDC, by taking
delivery of, making payment for, distributing, and selling or
otherwise using or transferring any of the Products, shall not
become entitled to any proprietary rights in any such Products.
MDC shall take all reasonable measures to ensure that all
proprietary rights of Digene in the Products remain with Digene,
except that MDC will not be obligated to institute legal actions
against its customers or take responsibility for their actions.
2.4 Trademark Protection: MDC is hereby granted a non-exclusive
license to use Digene's current and future trademarks solely for
the purposes of promoting the Products and fulfilling its
obligation under the terms of this Agreement. MDC agrees not to
apply for registration of any trademarks used by Digene or
anyone relative to the Products, except where Digene shall be
the owner of such trademarks.
2.5 Confidentiality of Information:
2.5.1 From time to time, Digene may make available to MDC
information of a confidential nature including, but not
limited to, medical and technical data, test and
analysis data, marketing, application, manufacturing,
financial, bookkeeping, business, market and customer
information in a written form or orally. All oral
disclosures will be reduced to writing within thirty
(30) days and all confidential material will be clearly
labeled CONFIDENTIAL. MDC shall not disclose such
information to others or use such information without
the prior written consent of Digene, except to the
extent required by law. All other data or proprietary
information transmitted by Digene to MDC shall be
treated by MDC with the same care as it would exercise
in the handling of its own confidential or proprietary
information and in no event shall such information be
disclosed to any person including employee, consultant
and/or contractor unless such individual is bound by the
terms of this paragraph. Upon termination or
cancellation of this Agreement for any reason, all such
data, proprietary information and confidential
information of Digene shall be immediately returned by
MDC to an officer of Digene and the limitations and
undertakings specified in this paragraph shall remain in
effect for a period of four years from the date of
termination or expiration of this Agreement.
Confidential information as referred to in this Section
2.5 shall not include information (i) which is or
becomes public knowledge through no fault of MDC; (ii)
which is known to MDC at the time of disclosure by
Digene, as evidenced by MDC's written records; (iii)
which is disclosed to MDC on a non-confidential basis by
a third party having no obligation of secrecy to Digene.
<PAGE> 4
2.5.2. From time to time, MDC may make available to Digene
information of a confidential nature including, but not
limited to, medical and technical data, test and
analysis data, marketing, application, manufacturing,
financial, bookkeeping, business, market and customer
information in a written form or orally. All oral
disclosures will be reduced to writing within thirty
(30) days and all confidential material will be clearly
labeled CONFIDENTIAL. Digene shall not disclose such
information to others or use such information without
the prior written consent of MDC, except to the extent
required by law. All other data or proprietary
information transmitted by MDC to Digene shall be
treated by Digene with the same care as it would
exercise in the handling of its own confidential or
proprietary information and in no event shall such
information be disclosed to any person including
employee, consultant and/or contractor unless such
individual is bound by the terms of this paragraph. Upon
termination or cancellation of this Agreement for any
reason, all such data, proprietary information and
confidential information of MDC shall be immediately
returned by Digene to an officer of MDC and the
limitations and undertakings specified in this paragraph
shall remain in effect for a period of four years from
the date of termination or expiration of this Agreement.
Confidential information as referred to in this Section
2.5 shall not include information (i) which is or
becomes public knowledge through no fault of Digene;
(ii) which is known to Digene at the time of disclosure
by MDC, as evidenced by Digene's written records; (iii)
which is disclosed to Digene on a non-confidential basis
by a third party having no obligation of secrecy to MDC.
2.6 Customer Equipment and Software Validation. The validation of
equipment and software for use on Products shall be jointly
completed by Digene and MDC and shall need a jointly agreed-upon
Validation Protocol. The Validation Protocol shall meet the
standards applied to Digene's development Programs as defined in
the Digene-Murex Development and License Agreement dated April
14, 1993.
MDC shall market and sell only equipment and software to perform
Product assays which have met Validation Protocols (Validated
Equipment and Software). MDC shall use reasonable efforts to
assure that all customers for Products are trained and are
performing assays only on Validated Equipment and Software. If
the customer chooses not to acquire equipment and software from
Digene or MDC, then MDC will use all reasonable efforts to
assure that the customer is nevertheless using Validated
Equipment and Software.
Digene and MDC agree that MDC will use best efforts not to place
Validated Equipment or Software at a customer site which will
not be running Product assays on Validated Equipment and
Software.
The failure by a customer to use Validated Equipment and
Software for running Product assays shall invalidate any
warranty given by Digene as to the accuracy of the results of
the Product assay or as it related to Product performance as
stated in the Agreements.
3. RESPONSIBILITY OF DIGENE
3.1 Support Responsibilities: In addition to other rights and
obligations created by this Agreement, Digene shall:
4
<PAGE> 5
3.1.1 Make every reasonable effort to deliver Products set
forth in MDC's orders pursuant to the terms of this
Agreement. Shipments shall be made to MDC not later than
15 days from the date on which the order is received.
Digene reserves the right to immediately cease all
shipments of Product upon the discovery of a
non-conformity to specification in the Product. Digene
shall renew shipment only upon correction of such
non-conformity.
3.1.2 Provide a reasonable quantity of current promotional
material literature relating to the Products; and Digene
shall, at the request of MDC, provide a reasonable
amount of sales and product training to key employees of
MDC for the purpose of training MDC in the proper
support of the Products. MDC agrees to pay all
reasonable travel, travel related, and living expenses
of Digene personnel directly incurred by Digene in
providing such sales and product training at MDC's
request.
3.1.3 Assist MDC, upon request and subject to Digene's
approval, which shall not be unreasonably withheld, in
making presentations to MDC's customers or prospects.
3.2 Digene's Proprietary Marks: Digene may affix its trade name,
service marks or trademarks, now owned or hereafter acquired by
Digene (collectively the "Proprietary Marks"), to any of the
Products. MDC shall not have or acquire any right, title or
interest in the Proprietary Marks, either used alone or in
conjunction with other words or names, or in the good will
thereof, and shall not use any such Proprietary Marks without
the express written consent of Digene. Should MDC, in spite of
this provision, acquire any such title or interest by operation
of law or otherwise, MDC shall immediately notify Digene of that
fact and will, upon request by Digene, assign without
consideration the same to Digene. Upon Termination for cause as
defined in Section 7.2, MDC shall immediately return to Digene
all advertising, sales or promotional material containing
Digene's Proprietary Marks, and a complete list of active
accounts, outstanding quotations and product inquiries received
in the six months preceding termination.
3.3 Digene accepts the responsibility to provide MDC with complete
information regarding limitations to use of the Products,
especially those limitations which are required to be disclosed
under the regulations of the United States Food and Drug
Administration ("FDA"). Digene will work with MDC to gain and
maintain all governmental approvals, except customs and
importation, especially that of the FDA when necessary for MDC
to sell the Products in the Territory. MDC will aid Digene in
obtaining regulatory approval or appropriate government
notifications indicating, if this be the case, that regulatory
approval is not required in Territory countries.
3.4 Digene and MDC shall agree on the Product Claims for each
Product prior to the first delivery of such Product to MDC.
3.5 No amendment may be made by Digene to the Product Specification
or Product Claims without the prior written approval of MDC
except where such amendment is made in compliance with
governmental requirements and MDC has been notified in advance.
3.6 Digene undertakes to ensure that all Products are manufactured,
packaged and supplied in accordance with the Product
Specification and Product Claims.
5
<PAGE> 6
3.7 Digene undertakes to provide MDC with complete information regarding any
limitation on the right to use the Products, including any limitations
imposed under any regulations of the FDA, as soon as possible after
becoming aware of such limitation.
3.8 Digene undertakes in respect of each delivery of Products to MDC to give
notice to MDC or such MDC affiliates as shall be designated as the
delivery address in purchase orders for Products placed by MDC or an MDC
affiliate on Digene with such delivery in an agreed form certifying that
the Products in that delivery have been analyzed and meet the Product
Specification as agreed upon jointly in writing between MDC and Digene,
citing the lot number of the Products and the date on which the
shelf-life for such Products expires. All Products will have a minimum
of at least (5) five months shelf life from the date of shipment unless
agreed to in writing between Digene and MDC. Digene agrees to work in
good faith to achieve a (6) six month shelf life remaining from the date
of shipment for all products. MDC will be notified in writing by Digene
as soon as Digene deems that six month dating from the date of shipment
is possible.
3.9 Digene shall notify MDC of the discovery and nature of any non-
conformance of any Product to its Product Specification and/or Product
Claims and keep MDC informed of the progress of corrective actions
instigated by Digene.
3.10 Subject to receiving at least five (5) working days prior notice, Digene
will allow MDC and its duly authorized representatives and the personnel
of appropriate regulatory authorities during normal business hours
access to such premises as are used in the production and testing of the
Products for the purpose of inspection thereof.
3.11 If MDC reasonably considers it necessary in the light of customer
complaints it receives in respect of any Products (or when an
appropriate regulatory authority requires it) Digene shall at MDC's
request instigate a quality control/quality assurance investigation in
respect of the Products and report its findings to MDC as soon as such
findings are available and in any event within one (1) month of MDC's
request.
3.12 If Digene's findings are not in MDC's reasonable opinion considered
adequate to explain and resolve the problem or complaint giving rise to
a request by MDC under Section 3.11 Digene shall allow MDC the right to
raise specific questions about the complaint and the findings and any
other matter pertinent thereto. Digene's relevant personnel shall
provide MDC with such reasonable information and assistance and
pertinent information as MDC may require in this regard.
3.13 Digene undertakes to inform MDC of any material complaints Digene may
receive from its own customers or from any government or regulatory
authority in respect of the Products, their manufacture or constituents,
and Digene's findings in respect thereof. Such information and copies of
any relevant correspondence in relation thereto shall be supplied to MDC
as soon as practicable after receipt or issuance by Digene.
3.14 All packaging and trade dress of the Products including all labels
attached to and/or supplied with the Products shall be agreed between
the parties in writing in advance and shall not be changed except by
agreement, such agreement not to be unreasonably withheld by either
party, and following the procedures agreed between the parties from time
to time. All such packaging and labeling shall comply with any
regulatory requirement relating thereto.
6
<PAGE> 7
3.15 Digene's manufacturing process for any Product shall not be
amended in any way that could reasonably be expected to affect
the performance of that Product except with the prior written
agreement of MDC. In the event of such agreed amendment Digene
shall provide reasonable documentation to enable MDC to
appropriately modify the Product Specification and the QA
Specification to be applied to the Product hereunder. For the
avoidance of doubt, it could reasonably be expected that
performance of a Product would be affected by changes including
but not limited to the source of materials, manufacturing
process, labeling and packing components, bottle fill volumes or
adjustment of shelf life.
3.16 Digene agrees to take all reasonable steps to ensure that the
Products comply with all present and future regulations and
licensing requirements issued by any authorized governmental
authority which are effective during the term of this Agreement
where such compliance is required by law to carry out the
distribution and sale of the Products within the Territories.
MDC agrees to provide Digene with reasonable assistance in the
performance of its obligations pursuant to this paragraph.
3.17 Digene will take all steps necessary to gain and maintain all
governmental approvals necessary for the manufacture, marketing,
export, and sale of the Products and without prejudice to the
generality of the foregoing, all FDA approvals for MDC to sell
the Products, in the Territory. MDC shall take all reasonable
steps to assist Digene to obtain such regulatory approvals as
are necessary for marketing and sale of Products in the
Territory.
3.18 Digene agrees to follow FDA approved and inspected procedures to
ensure that the quality of the Products is achieved and
maintained. In the case of complaints from purchasers or other
users of the Products supplied to MDC, Digene will examine
samples retained from each lot in order to verify and/or assess
the cause of such complaints and notify MDC of the details of
such examination.
3.19 Exhibit C to this Agreement outlines specific undertakings by
Digene regarding the implementation and rules of engagement of
this Agreement.
4. PURCHASE OF PRODUCTS
4.1 Products: MDC shall purchase all units of the Products from
Digene and shall retain them in its own Inventory. MDC shall
deliver such units of the Products to its customers and shall be
responsible for sending invoices to such customers and for
collecting any purchase price or other charges due therefor.
MDC acknowledges that Digene manufactures products for in
vitro diagnostics and for biomedical research laboratories.
The Products which Digene agrees to provide are referred to in
Exhibit A. Digene will provide, at Digene's cost, DML-2000
luminometers, rotary shakers, and data analysis systems on
placement guidelines jointly agreed upon between Digene and
MDC. In the event MDC desires to place equipment at accounts or
in territories which are not within the placement guidelines,
then MDC shall have the option to purchase equipment at prices
jointly agreed upon between MDC and Digene. Certain accessories
and laboratory equipment are listed on Exhibit A. MDC shall
have no rights to distribute Digene's biomedical research
products or other in vitro diagnostic products unless
specifically agreed to in writing by Digene.
7
<PAGE> 8
4.2 Purchase Prices: MDC acknowledges and agrees that it shall pay the total
purchase price ("Purchase Price") for each Product ordered. The
Purchase Prices shall be paid to Digene as provided for in the Price
List set forth in Exhibit D, Part 1 and Part 2, attached hereto and made
a part hereof. Where MDC and Digene agree that price reductions are
required to achieve increased market penetration, such price reductions
will be negotiated on a country by country basis. Digene agrees to
provide MDC with 60 days advance notice of price changes and to increase
prices no more frequently than once every twelve (12) months. Digene
and MDC agree that kit pricing will be set to provide Digene revenue
equal to 60% of end-user sales. Digene will meet all freight and
insurance costs in delivering Product to Murex European affiliate
companies and MDC will meet all import duty taxes. At the end of each
Digene fiscal year MDC and Digene will work together to adjust the net
purchase price of each class of kits (HIV RNA, CMV DNA, HBV DNA) such
that Digene obtains revenue equal to 60% of MDC's net sales. Net sales
shall be as defined in the 1994 Development and License Agreement
between Digene and MDC dated May 31, 1994.
In addition, Digene shall be liable to pay for any penalty charges
levied by the relevant Government authorities as a result of
non-compliance by Digene of terms and conditions stipulated in
Government tender or contracts or any local purchase order provided that
Digene has previously agreed in writing to be bound by the terms of such
agreement.
4.3 Delivery and Payment. "Delivery" shall take place when shipments are
shipped from Digene in accordance with instructions from MDC. In the
absence of specific routing instructions, Digene reserves the right to
select the carrier and method of conveyance.
4.4 Risk of Loss: Risk of loss shall pass to MDC on shipment. If a
shipment of Products is not accepted by MDC due to failure to meet the
Product Specification, MDC will immediately notify Digene, return a
sample of Product at Digene's request and cost, if the failure is shown
to be a failure by Digene, and provide its reasonable efforts to help
Digene determine the source and nature of the problem. Digene may
request the return of the entire shipment, but will be obligated to pay
all freight and customs fees. The MDC will use its reasonable efforts
to assist Digene in pursuing a claim with the shipper at Digene's
request. Furthermore, if MDC is pursuing a claim with a shipper, Digene
will use its reasonable efforts to assist MDC in pursuing such claim.
4.5 Digene undertakes to supply, free of charge, one (1) kit from each
manufactured batch of Products in the delivery of Products to fill an
order from MDC to enable MDC to ensure that the Product conforms with
the Product Specification.
4.6 As soon as practicable after taking delivery of the Products, MDC shall
carry out an inspection on the Products to determine whether the
Products were shipped with the remaining shelf life specified in the
Product Specification and as defined in Section 3.8 and whether the
correct quantity has been delivered and within two (2) weeks of delivery
shall confirm or dispute the quantity of the Products supplied. Absence
of notification shall signify notification of acceptance.
4.7 Digene agrees to replace any Products not conforming with the Product
Specification, Product Claims or QA Specification within their shelf
life provided that at Digene's option such Product is returned to Digene
within 30 days of discovery and MDC provides Digene with written details
of non-conformance. Digene shall not be liable to replace any Product
which has a non-conformity caused by misuse of the Products
8
<PAGE> 9
by the negligence of MDC. Digene agrees to meet all costs
whatsoever incurred in the proper return and/or replacement of
any Product pursuant to this paragraph.
4.8 In the event of any dispute arising between the parties which
they are unable to settle amicably as to the quantity, quality
and/or suitability for use of Products, taking account the
terms of this Agreement and in particular the warranties of
Digene, the matter (including the question of payment for the
relevant Products by MDC) shall be determined in accordance with
Section 8.1.
4.9 MDC reserves the right to reject any Products which have been
supplied in breach of Digene's obligations under this Agreement
notwithstanding that payment has been made. Digene agrees to
replace such Products and to send such replacement Products free
of charge to MDC forthwith by airfreight prepaid to a
destination as instructed by MDC.
4.10 In the event that it is determined that damage to a Product was
caused during shipment by a carrier appointed by MDC and a claim
in respect of such damage is denied by MDC's insurance company
due to an inherent defect in the Product or improper packaging,
where Digene does not have grounds to reasonably object to this
conclusion, Digene shall replace such Products immediately free
of charge to MDC by airfreight prepaid to a destination as
instructed by MDC. MDC shall provide all reasonable assistance
to Digene should Digene pursue any claim against the third party
responsible for the shipment.
4.11 In the event of a recall, market withdrawal or correction of any
Products arising from a defect in the Products, Digene shall
replace the defective Products and deliver these replacements
free of charge as directed by MDC. In the event of a recall,
market withdrawal or correction of any Products which is proven
to be the result of willful fraud or gross negligence of Digene,
Digene shall reimburse MDC for all reasonable documented costs
and expenses associated with such an action save that Digene
shall not reimburse MDC for any costs that are proven to be the
result of willful fraud or gross negligence of MDC.
5. PAYMENT
5.1 Terms: Payment will be due at the end of the month following
the month of the date of invoice. Any invoice amount which is
not paid when due will bear interest at the rate of one and
one-half (1.5) percent per month. No Purchase Price or sums
owed to Digene by MDC shall be subject to set off for claims of
MDC. Digene shall have the right not to make further shipments
to MDC if MDC has any invoices which are more than 90 days in
arrears.
5.2 Taxes and Duties: MDC shall pay any and all applicable sales,
use or excise, state, local, federal or other taxes, Customs
duties, or amounts legally levied with respect to the
transportation, sale, transfer, license, sublicense or use of
Product by MDC, or upon the provision of any services by MDC
with respect to a Product, as such taxes or amounts that may now
or hereafter be imposed under the authority of any nation, group
of nations, state, or local taxing jurisdiction.
6. WARRANTY
6.1 Warranty: Digene agrees to replace any Product not performing
or conforming to the Product Specifications as agreed upon
jointly in writing between MDC and Digene pursuant to Section
3.8 if the nonconforming Product is returned to Digene within
the
9
<PAGE> 10
period of the shelf life specified by Digene for each of the
Products and provided that such nonconformity was not caused by
misuse or negligence of MDC. All third party expenses, including
any applicable transportation, handling, Customs and related
costs associated with the return and/or replacement of such
Products, if determined to be non-conforming, shall be paid by
Digene. DIGENE MAKES NO EXPRESS WARRANTY OTHER THAN THOSE
HEREIN, AND EXCLUDES AND DISCLAIMS, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL IMPLIED WARRANTIES INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES IN CONNECTION WITH THE
DESIGN, SALE AND MERCHANTABILITY OR FITNESS OF THE PRODUCTS FOR
ANY PARTICULAR PURPOSE OR USE EXCEPT THAT THE PRODUCTS ARE FREE
FROM MANUFACTURING DEFECTS AND CONFORM TO DIGENE'S PUBLISHED
SPECIFICATIONS AND, WHERE APPROPRIATE, THE REQUIREMENTS OF THE
UNITED STATES FOOD AND DRUG ADMINISTRATION. DIGENE SHALL HAVE NO
LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT
OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR
PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED THAT THE
POSSIBILITY OF SUCH DAMAGE EXISTS. While MDC may provide a
warranty for its end user, any warranty provided by MDC is its
own. Digene will make a reasonable effort to provide an initial
response to all customer complaints within five (5) working days
after receipt of said information.
6.2 Digene shall maintain product liability insurance during the
entire term of this Agreement in an amount not less than $1
million. Digene shall include all the Products in such policy.
6.3 Digene warrants that the Products supplied to MDC including the
containerization and packaging therefor shall at the time of
delivery be free from manufacturing defects and conform in all
respects with the Product claims, the requirements of the FDA,
and with International Airfreight Transport Association
requirements in force at that time.
6.4 Digene warrants that it has to the best of its knowledge and
belief supplied to MDC full details of all patents or other
intellectual property rights that are relevant to the sale by
MDC of Products in the Territories and shall notify MDC on
becoming aware of any other such intellectual property rights
from time to time.
6.5 Digene warrants that the Products supplied to MDC shall, subject
to any damage to the Products subsequent to delivery of the
products to MDC, conform in all respects with the Product Claims
and Product Specification during the period of the shelf life of
the Products.
6.6 Digene warrants that the Products supplied to MDC shall have at
least the minimum shelf life as specified in the Product
Specification or as defined in Section 3.8, Product Claims, and
any relevant packaging insert.
6.7 Digene warrants that the tests and quality control procedures
required to have been carried out by Digene prior to delivery
shall have been carried out by Digene to the Products so
delivered prior to delivery.
6.8 Digene warrants that the Products supplied to MDC shall be
manufactured and packaged in accordance with, and will meet, all
applicable USA regulations covering good manufacturing
practices.
6.9 Digene warrants that the Products shall be fit for their
purpose.
10
<PAGE> 11
6.10 Digene warrants that the Products shall be of merchantable
quality.
6.11 Digene warrants the Products shall be generally safe for their
intended use.
6.12 Digene warrants the Products shall be free of all liens and
encumbrances of any kind.
6.13 Digene hereby warrants that to the best of its knowledge the
manufacture, marketing, distribution or sale of the Products
does not infringe the intellectual property of any third party
subsisting at the date of this Agreement.
7. TERM AND TERMINATION
7.1 Term: The initial term of the Agreement shall commence on the
date of execution of this Agreement by both parties and will
remain in effect for the initial term of four (4) years and
seven (7) months, unless terminated earlier under the provisions
herein. At the conclusion of the initial term, and provided that
it has not been subject to earlier termination this Agreement
shall be automatically renewed for additional successive
one-year terms unless Digene or MDC chooses to terminate this
Agreement by providing written notice at least 90 days in
advance of the termination date or by providing 90 days notice
at any time after the conclusion of the initial term.
7.2 Termination for Cause: Digene may terminate this Agreement by
sixty (60) days notice to MDC upon the occurrence of any of the
following events should they not be remedied within such sixty
day notice period:
7.2.1 MDC fails to pay an invoice when due.
7.2.2 MDC fails to fulfill one or more of its obligations
under Section 1 or 2.
7.2.3 IMTC becomes bankrupt, insolvent or becomes unable to
pay its obligations when they become due.
7.2.4 MDC fails to substantially perform the specific support
and promotional activities outlined in Exhibit C without
prior written agreement by Digene, such termination to
be on a country by country basis.
7.2.5 One or both of the Development and License Agreements
dated May 31, 1994 or April 14, 1993 between
International Murex Technologies Corp. ("IMTC") and
Digene are terminated by Digene because of a breach by
IMTC.
7.3 Effect of Expiration, Termination: The effect of expiration or
termination of the Agreement is to be as follows:
7.3.1 Upon expiration of this Agreement or upon termination by
either party, Digene undertakes to supply MDC with all
Products required to enable MDC to fulfill its
contractual obligations, including all tenders won or
for which Murex has already bid prior to the date of
such termination.
7.3.2 Upon expiration of this Agreement or upon termination by
either party, Digene may determine, at its option
subject to Section 7.3.1, whether to ship products under
any Product Orders previously submitted by MDC. MDC will
have the right to sell all Products it has in inventory
to the newly appointed Distributor at cost plus any
handling cost or return all outstanding inventory to
Digene at cost plus any handling cost with 1.5%
11
<PAGE> 12
interest upon expiration of the served 90 day notice of
termination. All warranties in effect will survive the
termination of this Agreement.
7.3.3 Upon expiration of this Agreement or upon termination,
the terms of paragraph 2.5 will remain in effect for an
additional four years therefrom.
7.3.4 Termination of this Agreement for any reason shall be
without prejudice to any rights of either party against
the other arising out of events occurring prior to that
termination.
7.4 Co-Exclusive Distribution or Wind-Down. Twenty-four (24) months
from the effective date of this Agreement, MDC agrees that
Digene may terminate this Agreement at any time on a country by
country basis by providing 6 months advance notice in writing to
MDC. Effective as of the notification date, Digene shall have
the right to distribute Product directly on a co-exclusive basis
to customers who are not active customers of MDC. At the end of
the 6 month period, Digene will take over direct sales to all
customers in the territories affected by the termination notice.
If MDC has acquired equipment or accessories to support specific
accounts, Digene agrees to acquire from MDC any field
instrumentation in good working order used to support the
Products which MDC desires to sell to Digene (a 3 year
depreciation schedule will be used to calculate equipment
value).
8. MISCELLANEOUS PROVISIONS
8.1 Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or the performance or breach thereof, shall
be settled by arbitration, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in the
City of Washington, D.C., U.S.A. and judgment upon the award
rendered by the Arbitrator(s) may be entered in any Court having
jurisdiction thereof.
8.2 Assignment: Digene or MDC have the right to assign its rights
and obligations under this Agreement to any of its subsidiaries
and/or affiliates provided that such entity assumes all Digene's
or MDC's obligations under this Agreement. It is understood and
agreed that MDC may not assign in whole or in part any interest
in this Agreement other than as provided in this clause and
Section 2.2 hereof, without the prior written consent of Digene.
Any sale of all or substantially all of the assets or capital
stock of MDC shall not be deemed to be an assignment of this
Agreement. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors and permitted assignees of the
parties hereto.
8.3 Force Majeure: Either party shall be excused from any delay or
failure in performance hereunder caused by any labor dispute,
governmental requirement, act of God, earthquake, inability to
secure materials and transportation facilities, and other causes
beyond its control. If such delay shall continue for more than
90 days, and 135 days in the case of Digene's inability to
deliver Product, the party injured by the inability of the other
to perform shall have the right, upon written notice to the
other party, to terminate this Agreement.
8.4 Entire Agreement. This Agreement sets forth the entire agreement
and understanding between the parties relative to the subject
matter contained herein and supersedes all other agreements,
oral and written, heretofore made between the parties, except
that it shall not relieve either party from making payments
which may be owing under an agreement prior to the date thereof.
Any amendment hereto must be in writing and signed by an
authorized representative of Digene and MDC. Should
12
<PAGE> 13
any portion of this Agreement be held invalid, or unlawful, the
remainder of the Agreement shall continue to be binding on both
parties.
8.5 Captions: Section titles or captions contained herein are for
reference only and shall not be considered in construing this
Agreement.
8.6 Notices: All notices and requests required or authorized
hereunder, shall, except where specifically provided otherwise,
be given either in writing by personal delivery to the party to
whom notice is to be given, or sent by registered mail,
addressed to the party intended at the address set forth below.
The date of delivery in the case of personal delivery or the
date upon which it is deposited in the mail in the case of
notice by mail, shall be deemed to be the date of such notice.
Digene: Digene Corporation
9000 Virginia Manor Road, Suite 207
Beltsville, MD 20705
Attn: President or Executive Vice President
MDC: Murex Diagnostics Corporation
White Park House
White Park Road
Bridgetown
Barbados
Attn: General Manager
8.7 Waivers: The waiver by either party of any breach or alleged
breach of any provision hereunder shall not be construed to be a
waiver of any concurrent, prior or succeeding breach of said
provision or any other provision herein. Any waiver must be in
writing.
8.8 Records: MDC shall keep accurate and detailed records of all
sales of the Products, and MDC shall permit examination and
inspection of such records by authorized representatives of
Digene, upon reasonable notice, during usual business hours. MDC
may limit inspection of such information to an agreed
independent auditor, only to the extent such inspection may
divulge confidential information of MDC. In the event MDC
exercises its right to limit inspection to an auditor, written
records of sales not containing such confidential information
shall be supplied by MDC per the terms of Exhibit C.
8.9 Centralized Shipping: In the event MDC uses centralized ordering
and shipping for products to be delivered to individual
territories, MDC agrees to provide accurate data at the end of
every month (within 15 days) outlining the countries where
products have been shipped and the specific number of units
shipped. If differential pricing is provided in different
countries, MDC will make this information and the numbers of
units to be purchased at each price clear on purchase orders or
order at the price provided on Exhibit D Part 1, or subsequently
agreed to in writing between the parties, in which case, a
rebate will be provided on a monthly basis after the monthly
unit volume by country information has been received.
13
<PAGE> 14
8.10 Governing Law
8.10.1 This Agreement, and all of the rights and duties in
connection therewith, shall be governed by and construed
under the law of the State of Maryland, U.S.A.
applicable to Agreements made and to be performed in
that State.
8.10.2 Each of the parties consents to the jurisdiction of the
courts of the State of Maryland, U.S.A. and of the
United States District Courts of Maryland, U.S.A. with
respect to any dispute or controversy arising under or
in connection with this agreement. A summons or
complaint in any such action or proceeding may be served
by mail in accordance with Section 8.6 provided a
reasonable time for response is allowed. This Section is
not intended to limit or amend the terms of Section 8.1
of this Agreement.
8.11 Digene and MDC agree not to announce this Agreement by press
release or other form of communication without the written
approval of the other party. Both parties agree to keep this
Agreement confidential unless required to disclose it by
operation of law.
8.12 Counterparts: Effectiveness of Agreement. This Agreement shall
be executed in counterparts, each of which shall be deemed an
original but both of which together shall constitute the same
instrument. This Agreement shall become effective upon the date
first written on this Agreement.
In consideration of the mutual covenants and conditions herein set forth, the
parties have executed this Agreement as of the day and year above written.
Murex Diagnostics Corporation Digene Corporation
Signature: Signature: /s/ EVAN JONES
------------------------- -------------------------
By: Peet Von Jaarsveld By: Evan Jones
Title: General Manager Title: President & CEO
Date: Date: August 1, 1997
-------------------------- --------------------------
14
<PAGE> 15
EXHIBIT A
Exclusive Products
Digene HIV RNA, CMV DNA, HBV DNA Hybrid Capture II quantitative
chemiluminescent microplate assays (specific part numbers will be added to this
Agreement as the products are formally introduced). Hybrid Capture II Equipment
and accessories will be provided on a non-exclusive basis.
Note: Digene is currently discussing the development of a low-cost qualitative
HBV DNA detection kit for a pharmaceutical company. Such a kit is not to be
considered part of this Agreement.
15
<PAGE> 16
EXHIBIT B
Territory
Europe Poland
Austria Czech and Slovak Republics
Belgium Hungary
Denmark Romania
Finland Commonwealth of Independent States
France Bulgaria
Germany Former Yugoslavia
Ireland Estonia
Italy Latvia
Luxembourg Lithuania
Netherlands Middle East
Norway United Arab Emirates
Portugal Saudi Arabia
Spain Lebanon
Sweden Oman
Switzerland Iran
United Kingdom Iraq
Greece Qatar
Jordan
Africa Bahrain
All Countries Syria
Yemen
Israel
Asia/Pacific Egypt
Singapore Malta
Cyprus
Eastern Europe Turkish Republic of Northern Cyprus
16
<PAGE> 17
EXHIBIT C
SPECIFIC SUPPORT AND PROMOTIONAL ACTIVITIES
MDC recognizes that significant market development activities will be required
to build sales volume for Digene's products. MDC agrees to actively promote
the Products to laboratories and end-user clinicians and pathologists. MDC
agrees to execute jointly agreed upon marketing campaigns in the Territory;
these campaigns may involve translation and printing of promotional materials
into brochures, advertisements and mailers. MDC will also undertake
jointly-initiated product promotional campaigns. MDC agrees to conduct these
campaigns with reasonable levels of expenditure consistent with the market
opportunity for the Products, to maintain appropriate organizational staffing
to execute said campaigns and to conduct educational seminars independently and
with Digene representatives.
MDC and Digene further agree to the additional rules of engagement as outlined
below:
1) Since the Products are integrally and strategically linked with other MDC
patient monitoring products MDC will work with Digene to set the strategic
plans for the Products. Digene will then work through Dartford to implement
those plans across the MDC territories. MDC will drive the territory
involvement not Digene.
MDC reserves the right of final say on marketing strategy, including end-user
prices, and tactics for the Products in its territory. If ultimately
differences cannot be resolved then Digene's recourse is to terminate the
Agreement. Digene cannot over-rule MDC on such issues.
2) MDC to respond on what sales and operational reports it can routinely make
available to enable Digene to monitor the implementation of
strategic/tactical plans.
These reports will fall short of providing monthly sales details by customer
for all customers, but MDC will try to address key account focus and to the
extent possible, provide monthly account volume.
Details of Product customers specific account information including average
sell prices and unit volume by customer will be made available on a periodic
basis (at least annually).
Digene will be entering its own lease-financing arrangements for microplate
instruments. Digene shall be provided specific information about the location
and users of such equipment. Digene shall be free to contact such customers
provided that clearance is provided on a local basis in advance by local
Murex management (such clearance not to be unreasonably withheld).
Digene would prefer that instruments placed by MDC are financed by Digene,
with placements being made under pre-agreed rules and guidelines. MDC will
not be required to refer placement decisions to Digene providing the
placements fall within the pre-agreed guidelines.
3) MDC agrees to consider Digene funding additional sales and marketing
resource, including additional sales persons to address a particular
opportunity, if MDC does not believe additional resources are commercially
justified or fit with MDC strategies and plans.
However MDC reserves the right to veto any such additional resource if it is
held to have an adverse effect on MDC's own plans or if implementation would
affect MDC's own activities (e.g. if
17
<PAGE> 18
Digene wishes to fund a major trade show but to man the show would take
away a disproportionate amount of MDC reps.)
Digene would have the option to terminate the Agreement if there were
disagreement on these additional resource requests.
4) Digene reserves the right to set the strategy and tactics for
discussing and managing the relationships with Pharmaceutical companies
with potential business in the Territory in respect of the Products.
Any subsequent sales of Product into the Territory will however be
subject to the standard MDC margin. If Digene wishes to refer to any
MDC product or other bundling opportunity with MDC in its discussions
with a pharmaceutical company, then Digene will fully discuss this
with MDC prior to any approach to any such third party. MDC reserves
the right to veto bringing the MDC name or products into any such
discussions.
18
<PAGE> 19
EXHIBIT D
Part 1, Part 2
Purchase Prices
Digene HIV RNA, CMV DNA, HBV DNA Hybrid Capture II quantitative
chemiluminescent microplate assays and related accessories (specific prices
will be added to this Agreement as the products are formally introduced).
19
<PAGE> 20
EXHIBIT E
Per Attached Packaged Insert
Product specifications will be agreed in writing in advance of the formal
release of the Products by MDC.
20
<PAGE> 21
EXHIBIT F
<TABLE>
<CAPTION>
TERRITORY DISTRIBUTOR
- --------- -----------
<S> <C>
Europe
- ------
Austria Szabo, Vienna
Belgium Murex Diagnostics Benelux B.V.
Denmark Orion Diagnostica A/S, Hellebaek
Finland Orion Diagnostica A/S, Espoo
France Murex Diagnostics France S.a.r.l.
Germany Murex Dianostica GmbH
Ireland Cahill May Roberts, Dublin (for MDC)
Italy Murex Diagnostici S.p.a.
Luxembourg Murex Diagnostics Benelux B.V.
Netherlands Murex Diagnostics Benelux B.V.
Norway Orion Diagnostica A/S, Asker
Portugal Sipaco, Lisbon
Spain Murex Diagnostica S.A.
Sweden Orion Diagnostica AB, Trosa
Switzerland Murex Diagnostics Benelux B.V. (Schaffhauser
Branch)
United Kingdom and Africa and Middle east Murex Biotech (UK) Ltd
(as defined below)
Greece (for HPV Hybrid Capture products only) Alpha-Medical Ltd, Athens
Africa
- ------
Botswana Delta Diagnostics
Kenya, Tanzania & Uganda Phillips Pharmaceuticals
Namibia Medlab Services
Zambia Africa Health
Zimbabwe Zimpharm
Eastern Europe
- --------------
Poland Alexim, Powinska
Czech Interade (for MDC)
Slovek Republic Timed Spol, Bratislava
Hungary Unilab, Budapest
Romania Tamisa Trading, Bucharest
Commonwealth of Independent States Dynatech, Denkendorf (Germany)
Bulgaria Global Medical, Sofia
Estonia Lisa, Tallin
Middle East
- -----------
United Arab Emirates Gulf and World Traders, Dubai
Saudi Arabia Abdulnehman Algosaib GTB, Riyadh
</TABLE>
21
<PAGE> 22
EXHIBIT G
QUALITY ASSURANCE
INCOMING GOODS AND
PRODUCT RELEASE SPECIFICATIONS
To be agreed upon jointly in writing on a product by product basis at product
release.
22
<PAGE> 1
EXHIBIT 11.1
DIGENE CORPORATION
STATEMENT RE: COMPUTATION OF PER SHARE LOSS
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
--------------------------------------
1995 1996 1997
--------- ---------- ----------
<S> <C> <C> <C>
EARNINGS PER SHARE:
Weighted average shares of common
stock outstanding................................ 368,356 1,545,247 11,393,978
Shares of 1994 Series Preferred Stock
issued during the twelve month period
prior to the initial filing of the S-1
(using the treasury stock method)................ 192,607 192,607 --
Shares of Common Stock issued during
the twelve month period prior to the
initial filing of the S-1 (using the
treasury method)................................. 5,295 5,295 --
Common equivalent shares from options
and warrants issued during the twelve
month period prior to the initial filing
of the S-1 (using the treasury stock
method).......................................... 283,666 283,666 --
----------- ----------- -----------
Total.............................................. 849,924 2,026,815 11,393,978
----------- ----------- -----------
Loss for the period................................ $(1,513,910) $(2,635,013) $(5,994,456)
----------- ----------- -----------
Net loss per share................................. $ (1.78) $ (1.30) $ (0.53)
=========== =========== ===========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT
We consent to the reference to our firm under the caption "Experts" and to
the use of our reports dated August 15, 1997, in the Registration Statement
(Form S-3 No. 333- ) and related Prospectus of Digene Corporation for the
registration of 2,500,000 shares of its common stock.
/s/ Ernst & Young LLP
Vienna, Virginia
September 10, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FINANCIAL STATEMENTS AS OF JUNE 30, 1997 AND FOR THE YEAR ENDED
JUNE 30, 1997 AND IS REFERENCED TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> JUN-30-1997
<EXCHANGE-RATE> 1
<CASH> 8,452,864
<SECURITIES> 11,061,283
<RECEIVABLES> 1,828,682
<ALLOWANCES> 61,000
<INVENTORY> 2,425,167
<CURRENT-ASSETS> 26,549,156
<PP&E> 3,686,477
<DEPRECIATION> 2,471,929
<TOTAL-ASSETS> 30,206,909
<CURRENT-LIABILITIES> 5,250,037
<BONDS> 0
0
0
<COMMON> 115,795
<OTHER-SE> 24,150,408
<TOTAL-LIABILITY-AND-EQUITY> 30,206,909
<SALES> 9,434,183
<TOTAL-REVENUES> 10,060,279
<CGS> 3,440,963
<TOTAL-COSTS> 3,440,963
<OTHER-EXPENSES> 36,825
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (83,777)
<INCOME-PRETAX> (5,994,456)
<INCOME-TAX> 0
<INCOME-CONTINUING> (5,994,456)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,994,456)
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</TABLE>
