Exhibit 10.2
SUPPLY AGREEMENT
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THIS AGREEMENT, made, executed and effective as of February 28, 1998
(hereinafter "Effective Date"), is between Becton, Xxxxxxxxx and Company, a New
Jersey corporation, through its subsidiary PharMingen having its principle
office at 00000 Xxxxxxxxx Xxxx, Xxx Xxxxx, XX 00000-0000 (hereinafter
individually and collectively "Becton") and Endogen, Inc. a Massachusetts
corporation have its principle office at 00 Xxxxxxxx Xxx, Xxxxxx, XX 00000-0000
(hereinafter called "Endogen").
W I T N E S S E T H:
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WHEREAS, Becton desires that Endogen manufacture for Becton [CONFIDENTIAL
TREATMENT REQUESTED]* of Endogen's [CONFIDENTIAL TREATMENT REQUESTED]* in
certain unpackaged bulk quantities; and
WHEREAS, Endogen desires that Becton manufacture for Endogen
[CONFIDENTIAL TREATMENT REQUESTED]* of Becton's [CONFIDENTIAL TREATMENT
REQUESTED]* in certain unpackaged bulk quantities; and
WHEREAS, each of the parties desires to enter into an agreement for the
manufacture, packaging and sale of each of the party's antibodies desired by the
other party.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein and other good and valuable consideration the
sufficiency and receipt of which are hereby acknowledged, the parties hereby
agree as follows:
1.0 Definitions
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As used in this Agreement:
1.1 "Buyer" shall mean a party hereto, be it Becton or Endogen
who is ordering and/or purchasing Products hereunder.
1.2 "Agreement" shall mean this Supply Agreement and any
exhibits, attachments or addenda hereto.
1.3 "Contract Year" shall mean in the context of the first
Contract Year hereunder the twelve-month period commencing on the Effective
Date. Each succeeding Contract Year, if any, shall consist of the twelve
calendar months following the end of the preceding Contract Year.
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* [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
1.4 "Proposed Product(s)" shall mean individually and
collectively Becton products consisting of at least the [CONFIDENTIAL TREATMENT
REQUESTED]* Becton [CONFIDENTIAL TREATMENT REQUESTED]* as identified in Schedule
C and the Endogen products consisting of at least the [CONFIDENTIAL TREATMENT
REQUESTED]* as identified in Schedule D, which Schedules may from time to time
be amended by mutual agreement of the parties in writing.
1.5 "Product(s)" shall mean individually and collectively
Becton products consisting of the [CONFIDENTIAL TREATMENT REQUESTED]* Becton
[CONFIDENTIAL TREATMENT REQUESTED]* as identified in Schedule C and the Endogen
products consisting of the [CONFIDENTIAL TREATMENT REQUESTED]* as identified in
Schedule D, which Schedules may from time to time be amended by mutual agreement
of the parties in writing; and the Specifications for each have been agreed to
by the parties in writing.
1.6 "Specifications" shall mean the research use only ("RUO")
manufacturing specifications, using conventional methods and practices,
packaging, quality assurance, quality control, analyses, methods, timing and
shipping specifications for Product, as being used by each party for the same
Product which it sells under its own label, unless otherwise agreed to by the
parties in writing.
1.7 "Supplier" shall mean a party hereto, be it Becton or
Endogen who is manufacturing and/or supplying Products hereunder.
1.8 "License and Option Agreement" shall mean the agreement
between Endogen and Becton dated February 28, 1998, related to granting to
Becton of certain intellectual property rights with respect to TcR technology to
which Endogen is exclusively licensed, in return for the payment of royalty
payments to Endogen.
2.0 Supply of Product
-----------------
2.1 As of the Effective Date the Supplier shall make
reasonably available to Buyer, the Proposed Products and the Specifications
therefore, which Proposed Product the Buyer shall purchase at the price set in
Section 5, for purposes of evaluation. Following Buyer's evaluation, the Buyer
shall then either accept the Specification provided by the Supplier or propose
an alternative specification. Once the parties have agreed in writing as to the
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* [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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Specification that shall apply to the Proposed Product, then the Specification
shall become the Specification for the Product and such Product shall be added
as appropriate to Schedule C or Schedule D and be subject to the following terms
and conditions. In the event that the parties are not able to agree on the
specification for the Proposed Product, then Supplier shall replace such
Proposed Product with an alternative Proposed Product.
2.2 During the term of this Agreement (including renewals) and
subject to all of the terms and provisions of this Agreement, Supplier shall
manufacture and sell bulk quantities of unpackaged Product to Buyer. Product
shall be quality control tested, manufactured, stored and shipped by Supplier in
strict conformity with the Specifications. The Supplier shall provide
specifications to the Buyer for each Product within thirty (30) days of the
Effective Date. Quality control testing shall be performed by Supplier in
accordance with the Specifications and the Product shall meet the Specifications
as provided by the Supplier or as the Specifications may be modified by mutual
agreement in writing prior to issuance of any purchase order under Paragraph
3.2.
2.3 Supplier shall provide manufacturing capacity sufficient
to supply Buyer's purchase orders for Product, provided that Buyer has provided
the purchase orders as specified in Paragraph 3.2 hereof. Supplier shall fill
orders for Product submitted by Buyer on the delivery date specified and advise
Buyer in advance of Supplier's inability to make full and timely delivery of
Product which Buyer has ordered.
2.4 (a) The Buyer shall have thirty (30) days after receipt of
a delivery of a shipment of Product from Supplier to inspect the shipment and to
notify the Supplier if the shipment of Product fails to meet the Specifications.
The notice date of Buyer's non acceptance shall be the date of telephone notice
to the Supplier with a subsequent confirmation in writing, faxed or mailed by
the Buyer specifying the notice date and the reason for the non acceptance.
(b) In the event that any shipment of Product by Supplier
to Buyer is not accepted by Buyer for any non conformance with the
Specifications, the Buyer shall, if so directed by the Supplier, promptly return
the shipment of Product which was not acceptable to the Supplier at Supplier's
expense and Supplier shall send a replacement shipment of Product conforming to
the Specifications within forty-five (45) days of the notice of non acceptance.
(c) If the Supplier disagrees with the Buyer's reasons for
non acceptance, the Supplier may request re-testing of the non accepted Product
shipment for verification of Buyer's reasons for non acceptance by an
independent laboratory which has been mutually agreed to by the Buyer and
Supplier. The Supplier shall bear the costs for any such re-testing. In the
event the Product is found by the independent laboratory to be in conformance
with the Specifications, then the Buyer shall accept the shipment and the Buyer
shall reimburse the Supplier for the cost of the re-testing.
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2.5 It is understood and agreed by Supplier that all
trademarks and trade names which are the property of Buyer, are and shall remain
the property of Buyer notwithstanding its use in connection with the sale of
Product by Buyer hereunder. It is also understood by Buyer that all trademarks
and trade names which are the property of Supplier, are and shall remain the
property of Supplier, Buyer shall not use such trademarks and/or trade names in
connection with the sale of Product by Buyer unless, specifically authorized to
do so in writing by the Supplier.
2.6 Nothing herein grants or shall be deemed to grant to a
party hereto any rights in and to any intellectual property rights owned or
licensed by the other party hereto.
2.7 In the event that the Supplier is unwilling or unable to
supply Product to Buyer, then the Supplier agrees to one of the following:
(i) if the Supplier has the right to grant to Buyer a license
or sublicense or to provide the clone or hybridoma, with out such an agreement
then the Supplier shall do so, or then the Supplier shall negotiate in good
faith a sublicense or license agreement and then provide the clone or hybridoma
to the Buyer; or
(ii) if the Supplier does not have the rights specified in (i)
above, then the Supplier agrees to cooperate in good faith to assist the Buyer
in obtaining such a sublicense or a license from the appropriate party.
3.0 Forecasts and Orders
--------------------
3.1 Buyer will submit to Supplier concurrently with the
execution of this Agreement for the first Contract Year and at least six (6)
months prior to the commencement of each subsequent Contract Year during the
term of this Agreement, a non-binding forecast of its estimated requirements for
Product during said year. Said annual forecast shall be updated on a semi-annual
basis.
3.2 Buyer will submit to Supplier at least one (1) month prior
to each desired shipment date, a purchase order for delivery of Buyer's desired
amount of Product. Product shall be shipped in accordance with the delivery
schedule set forth in Buyer's purchase orders.
3.3 Buyer's initial estimated quarterly and annual purchase
requirements for Product are as set forth on Schedule C attached hereto.
4.0 Delivery and Packaging
----------------------
4.1 Supplier shall fulfill the purchase order submitted by
Buyer, in accordance with Paragraph 3.2, by the date indicated thereon by
shipping the Product directly to Buyer in accordance with the shipping
specifications and procedures set forth in the Specifications. Notwithstanding
any contrary provisions of a purchase order, submitted by Buyer hereunder, the
provisions of this Agreement shall govern in all respects the subject matters
covered herein.
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4.2 Supplier shall provide such information as is reasonably
requested by Buyer, including but not limited to pre-shipment samples of Product
or lots of Product, quality control documentation, quality control results, lot
number(s), and expiration date and a Certificate of Analysis that the Product
when shipped met all applicable Specifications.
4.3 Title to the shipped Product shall pass F.O.B.
5.0 Price and Payment
-----------------
5.1 Product will be sold to Buyer at a price of [CONFIDENTIAL
TREATMENT REQUESTED]* of Product, unless otherwise agreed to by the parties in
writing.
5.2 The prices stated in Paragraph 5.1 are firm for all
Products ordered during the first five (5) Contract Years of this Agreement. In
any additional Contract Years beyond the first five, the parties will mutually
agree to the price per Product.
5.3 Payment for Product received and accepted by Buyer under
Buyer's purchase orders of this Agreement shall be made within thirty (30) days
of Buyer's acceptance under Paragraph 2.4 and receipt of invoice, unless product
shipment is not accepted by Buyer. All payment shall be in U.S. Dollars.
6.0 Term and Termination
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6.1 This Agreement shall continue in effect for an initial
term of [CONFIDENTIAL TREATMENT REQUESTED]*. This Agreement shall automatically
renew for additional terms of [CONFIDENTIAL TREATMENT REQUESTED]* unless notice
not to renew is sent by the Buyer, identifying the specific Product not to be
renewed, no later than 30 days prior to the end of the initial term or any
renewal term or any renewal term thereafter; such non renewal shall occur
without effecting the supply of all other Products being supplied to the other
party.
6.2 In addition to any other right to terminate provided
herein, either party may at its option and without waiving any rights at law or
in equity, terminate this Agreement upon failure of the other to perform within
thirty (30) days after receipt of notice specifying such failure, unless such
failure shall have been due to Force Majeure, or cannot with reasonable
diligence be cured within such thirty (30) day period and in such case is cured
as soon thereafter
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* [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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as reasonable diligence will allow. This shall be the sole remedy for breach of
this Agreement by either party.
6.3 In the event that the License and Option Agreement
terminates, this Agreement shall terminate one hundred and eighty (180) days
from the date of termination of the License and Option Agreement.
6.4 In the event either party shall become bankrupt, or
insolvent and/or if the assets of either shall be placed in the hands of a
receiver, assignee or trustee, whether by voluntary act or otherwise, this
Agreement may be terminated by the other party.
6.5 In any Contract Year subsequent to the first Contract
Year, Buyer shall have the right to terminate this Agreement on a Product by
Product basis, upon sixty (60) days' prior written notice to Supplier.
6.6 Termination of this Agreement shall be without prejudice
to the rights, obligations and debts of the parties arising or accruing prior to
such termination.
7.0 Representations and Warranties
------------------------------
7.1 Supplier represents and warrants to Buyer that:
a) All Product to be sold to Buyer hereunder will be
manufactured, packaged and shipped in strict conformity with the Specifications,
will be free from defects in materials and workmanship.
b) All Product will be manufactured, packaged, labeled,
stored and shipped in strict conformity with all applicable U.S. federal, state
and local laws and regulations.
7.2 Supplier also represents and warrants to Buyer that it has
the full power and authority to enter into and to perform this Agreement, and
knows of no contract, agreement, promise, undertaking or other fact or
circumstance which would prevent the full execution and performance of this
Agreement by it.
8.0 Food and Drug Administration and Governmental Applications
----------------------------------------------------------
Supplier shall furnish Buyer any information requested by
United States Food and Drug Administration ("FDA") and other governmental
authorities regarding Supplier's performance hereunder or relating to any other
matter, which Buyer requires for FDA and other governmental submissions.
9.0 Inspection
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Supplier agrees to permit Buyer to enter and inspect, at
mutually agreeable times, during normal business hours the facilities in which
the Product are manufactured, processed,
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packaged or held in order to determine whether such manufacturing, processing,
packaging or holding conforms with applicable Specifications and all applicable
U.S. laws and regulations.
10.0 Quality Control; Documentation
------------------------------
In order to insure compliance with the Specifications,
Supplier shall carry out quality control analyses at the times and by analytical
methods set forth in the Specifications. Supplier shall provide Buyer with
copies of all documentation with respect thereto, and such other documentation
as may be required by the Specifications, at the time of completion of
manufacturing according to Buyer's purchase orders.
11.0 Indemnification
---------------
11.1 Supplier shall indemnify, defend and hold harmless Buyer, its
subsidiaries and affiliates (the "Buyer Indemnities") from and against any and
all claims, demands, losses, liabilities, costs, expenses, or damages (including
reasonable attorneys' fees and related costs) based upon, arising out of, or
resulting from, any breach by Supplier in its performance of this Agreement or
of any representation or warranty made by it herein.
11.2 Buyer shall indemnify, defend and hold harmless Supplier, its
subsidiaries and affiliates (the "Supplier Indemnities") from and against any
and all claims, demands, losses, liabilities, costs, expenses, or damages
(including reasonable attorneys' fees and related costs) based upon, arising out
of, or resulting from, any misuse of the Product by Buyer or any end purchaser.
12.0 Independent Contractor
----------------------
It is understood that the employees, methods, facilities and
equipment of Supplier shall at all times be under its exclusive direction and
control. Supplier relationship to Buyer shall be that of an independent
contractor and nothing in this Agreement shall be construed to constitute
Supplier or any of its employees, as an employee, agent, joint venturer or
partner of Buyer.
13.0 Public Announcements
--------------------
Except as otherwise required by law, neither party shall make
any public announcement with respect to the subject matter or existence of this
Agreement and the transactions completed hereby, nor any other public
announcement mentioning the other party without the prior written consent of the
other party, which consent shall not be unreasonably denied or delayed.
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14.0 Assignment and Subcontracting and Acquisition
---------------------------------------------
Neither party shall assign or transfer this Agreement, in
whole or in part, or any interest arising under this Agreement without the prior
written consent of the other party. Such consent shall not be unreasonably
withheld or delayed and shall not be deemed or operate to relieve the assigning
or delegating party from any liabilities or obligations assumed or to be
performed by it hereunder. Subject to the provisions of this Section, this
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties.
15.0 Entire Agreement
----------------
This Agreement, together with the Schedules and exhibits
incorporated herein by reference, contains the entire agreement between the
parties and supersedes all previous written or oral negotiations, commitments,
transactions, or understandings. This Agreement may only be modified in writing,
executed by duly constituted officers of both parties.
16.0 Waiver
------
Either party's waiver of any term or condition of this
Agreement at any time shall not be construed to waive such term or condition at
subsequent times or any other term or condition, nor as a waiver of its rights
to enforce such term or condition.
17.0 Notices
-------
Any notice, request, instruction or other document to be given
hereunder shall be deemed validly given, if in writing and delivered personally,
by overnight courier, or sent by U.S. certified mail, postage prepaid, return
receipt requested, as follows:
If to Becton:
PharMingen, Inc
00000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Attn: President
And Becton Xxxxxxxxx Immunocytometry Systems Division
0000 Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: President
With a copy to: Becton, Xxxxxxxxx and Company
0 Xxxxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000
Attn: Assistant General Counsel
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And if to Endogen: Endogen, Inc.
00 Xxxxxxxx Xxx
Xxxxxx, XX 00000-0000
Attn: President
All notices and other communications shall be deemed delivered on the
date of actual receipt.
18.0 Headings
--------
The headings and sub-headings herein are inserted for the
convenience of reference only and shall not affect the interpretation of this
Agreement.
19.0 Counterparts
------------
This Agreement may be executed in two (2) counterparts each of
which shall be deemed an original, but both of which only together shall
constitute the same singular effective instrument, and which shall become
effective as of the later date written below when executed by the last party
hereto.
20.0 Severability
------------
If and to the extent that any court of competent jurisdiction holds any
provision (or any part thereof) of this Agreement to be invalid or
unenforceable, such holding shall in no way affect the validity of the remainder
of this Agreement.
21.0 Disagreements
-------------
21.1 (a) In the event there is a disagreement between the
Supplier and Buyer, the parties shall attempt in good faith to resolve any
dispute arising out of or relating to this Agreement promptly by negotiations
between executives who have authority to settle the controversy. Any party may
give the other party(ies) written notice of any dispute hereunder not resolved
in the normal course of business. Within twenty (20) days after delivery of said
notice, executives of each of the parties shall discuss by telephone or meet at
a mutually acceptable time and place, and thereafter as often as they reasonably
deem necessary, to exchange relevant information and to attempt to resolve the
dispute. If the matter has not been resolved within sixty (60) days of the
disputing party's notice, or if the parties fail to discuss or meet within
twenty (20) days, any party may initiate mediation of the controversy or claim
under the then current Center for Public Resources Procedure for Mediation of
Business Disputes.
(b) If a negotiator intends to be accompanied at a
telephone conference or a meeting by an attorney, the other negotiators shall be
given at least three (3) working days'
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notice of such intention and may also be accompanied by an attorney. All
negotiations pursuant to this clause are confidential and shall be treated as
compromise and settlement negotiations for purposes of the Federal Rules of
Evidence and any state rules of evidence.
(c) If the mediation set forth in Section 21.1(a) is
unsuccessful in settling the dispute then the parties agree to enter into
binding arbitration under the Commercial Arbitration Rules of the American
Arbitration Association, with a single arbitrator who is mutually agreed to by
the parties in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective duly authorized officers in counterpart originals,
as of the date last subscribed below.
Endogen: Becton:
ENDOGEN, INC. BECTON, XXXXXXXXX AND COMPANY
Through its subsidiary PharMingen
By: /s/ Xxxx X. Xxxxxxx By: /s/ Chun-Xxxx Xxxxx
-------------------------- -----------------------------
Xxxx X. Xxxxxxx Xxxx-Xxxx Xxxxx, Ph.D.
CEO and President President
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Schedule A
Becton Products
Catalog No. Description Clone
----------- ----------- -----
[CONFIDENTIAL TREATMENT REQUESTED]*
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* [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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Schedule B
Endogen Products
Shall include [CONFIDENTIAL TREATMENT REQUESTED]* products carried in Endogen's
current catalogue, except [CONFIDENTIAL TREATMENT REQUESTED]* products.
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* [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL WHICH HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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Schedule C
Becton Products
Schedule D
Endogen Products
