Exhibit 4.26
Confidential treatment has been requested for certain
portions of this exhibit. The copy filed herewith omits the information subject
to the confidential treatment request. Omissions are designated as “[*****]”
or “*****”. A complete version of this exhibit has been filed
separately with the Commission pursuant to an application for confidential treatment
under Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
DISTRIBUTION, MANUFACTURING,
AND LICENSE AGREEMENT
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This Distribution, Manufacturing,
and License Agreement is entered into at the date of countersignature (the
“Effective Date”) by and between Acambis Research Limited, Peterhouse
Technology Park, 000 Xxxxxxxx Xxxx, Xxxxxxxxx XX0 0XX XX (“Acambis
Research”) and Xxxxxx Healthcare SA, having offices at Xxxxxxxxxxxx
0, XX-0000 Xxxxxxxxxxx, Xxxxxxxxxxx (“BHSA”) and Xxxxxx Healthcare
Corporation, having offices at Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000 (“BHC”).
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Table of Contents |
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1. |
Recitals |
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2. |
Definitions |
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3. |
Distributorship |
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3.1 |
Grant of Distributor Rights in the Territory |
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3.2 |
Distribution of Product Outside the Territory
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3.3 |
Marketing Authorisations |
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4. |
Description of Supplies and Services
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4.1 |
Manufacture of Crude Bulk Vaccine |
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4.2 |
Purification, Formulation, Fill/Lyophilize/Finish,
and Diluent |
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4.3 |
Labelling, Syringe, Kitting, Packaging ****** |
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4.4 |
Bifurcated Vaccinating Needles |
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4.5 |
Distribution |
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5. |
Payment & Payment
Amount |
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6. |
Title and Risk of Loss |
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7. |
Export/Import Requirements |
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8. |
License & Non-Compete |
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9. |
Audits & Reports |
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10. |
Security |
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11. |
Manufacturing Standards |
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12. |
Limitations of Liability |
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ACAMBIS CONFIDENTIAL INFORMATION
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Attachment A – Vero Cell Know-How
License between Xxxxxx Healthcare SA (Switzerland) and Acambis Inc.( December
02)
Attachment B – Product Pricing Recommendation Table for Sales to
Customers
Attachment C – Sample Indemnification Template |
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1.0 |
RECITALS |
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WHEREAS Acambis has developed a
lyophilized smallpox vaccine manufactured in vero cells (ACAM 2000 (Acambis))
that is the subject of BB-IND # 10628 filed with the U.S. Food and Drug
Administration on August 22, 2002; |
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WHEREAS Acambis Research intends
to market and sell the ACAM 2000 (Acambis) vaccine and the ACAM 2000 (******)
vaccine and related components to Governments other than the United States
Government and to Non-Governmental Organizations; |
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WHEREAS Baxter has developed an
international sales force to market and make sales to Government and Non-Government
Organizations; |
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WHEREAS, Baxter and Acambis acknowledge
that the Product (as hereinafter defined) is not licensed in the Territory.
Therefore, due to regulatory and liability reasons, the Product shall not
be distributed in the private market under this Agreement; |
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WHEREAS Baxter has the capability
and capacity to manufacture crude vaccine to be processed into ACAM 2000
(Acambis) vaccine and/or ACAM 2000 (******) vaccine; and |
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WHEREAS Xxxxxx Healthcare SA (BHSA)
and Acambis Inc., entered into the Vero Cell Know-How License dated of December
2002 (Attachment A), that provides for the transfer of Xxxxxx’x Vero
cell technology for ACAM 2000 to Acambis, Inc. |
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NOW, THEREFORE, THIS AGREEMENT
WITNESSETH that in consideration of the mutual agreements herein set forth
and other valuable consideration, the Parties agree as follows:
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2.0 |
DEFINITIONS |
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In this Agreement, the following terms shall
have the following meanings: |
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“ACAM 2000 (Acambis)” means
the vaccine manufactured and tested as described in BB-IND # 10628, as amended
from time to time. |
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“ACAM 2000 (******)” means
the vaccine consisting of the same Crude Bulk Product as used for ACAM 2000
(Acambis), but purified at Xxxxxx’x facility ****** and/or filled and
finished (wet or lyophilized) under different processes and locations than
used to manufacture ACAM 2000 (Acambis). |
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“Agreement” means
this Agreement, including all schedules, appendices, and attachments and
amendments agreed to in writing by the Parties; |
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“Acambis” means
Acambis PLC and/or any of its affiliates or subsidiaries, including but
not limited to Acambis Research. |
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“Affiliate” means
any company, partnership or other legal entity or person which directly
or indirectly controls, is controlled by or is under common control with
a Party. |
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“Baxter” means
both BHSA and BHC unless otherwise indicated. |
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“Control” means
the ownership of more than 50% of the issued share capital or the legal
power to direct or cause the direction of the Board or general management
and policies of the entity in question. |
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“Customer” means
any governmental authority (military or civilian) other than the United
States Government, any third party acting on behalf of a governmental authority
other than the United States Government, or a Non-Government Organization
(NGO). Customer does not include a private individual, doctor, hospital,
or physician supply house. The U.S. Government is not a Customer, whether
purchasing the Product for its own use or for transfer to a third-party.
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“Crude Bulk Vaccine” means
cell harvest of vaccinia virus grown on serum free Vero cells that originates
from the ACAM 1000 master virus seed and the ACAM 2000 production virus
seed. |
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“Marketing Authorisations”
means any and all authorisations required from any
Regulatory Authority to officially market, distribute, or sell the Product.
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“Net Sales” means
the actual total amount invoiced and/or received from a Customer for the
sale of any Product after deducting the following costs, provided such costs
are attributable to such sale of the Product and are actually borne by the
selling Party (whether Acambis Research or Baxter) and are specifically
itemized in a commission statement to the non-selling party (Acambis Research
or Baxter) and not otherwise incorporated into the sale to the Customer:
(i) outbound transportation expenses for shipments to Customers; (ii) taxes
consisting of sales, use, turnover, excise, export, import, duties or VAT,
separately billed or invoiced and borne by the selling Party imposed by
a government agency on such sales; (iii) credit or allowances given or made
for Product returned or not accepted by Customers, provided that such credit
or allowances shall not exceed the invoiced amount for such Product, (iv)
insurance charges covering the Product during transportation to the Customer;
(v) trade and/or cash discounts allowed and taken, for reasons such as quantity
purchased and (vi) liquidated damages of any kind stipulated in the sales
contract payable to a Customer in the Territory, including but not limited
to the damage caused by default or delay, provided that Acambis Research
has consented according to Article 3.1.4 and 3.1.5. |
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“Non-Government Organization”
means an organization which is independent from
the state and is self-governing, nonprofit/not-for-profit and established
voluntarily by citizens or by legal entities other than State agencies (i.e.,
organizations that exercise legislative, executive, and/or judicial powers)
on the basis of their individual or social interests and opinions and are
associated with organizations such as the United Nations. Examples of Non-Government
Organizations are the World Health Organization and the Pan American Health
Organization. |
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“Party” means
Acambis Research, BHSA or BHC. |
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“Parties” means
Acambis Research, BHSA, and BHC together. |
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“Product” means
either: (1) a 5,000 dose Smallpox Vaccine Kit containing (a) fifty (50),
100-dose vials of lyophilized ACAM |
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2000
(Acambis)-vaccine manufactured as described in the Product Specification
below; (b) fifty (50) vials of diluent with each vial being sufficient
to reconstituted one vial of lyophilized smallpox vaccine; (c) 5,000
bifurcated vaccinating needles; and (d) 50 syringes for transferring
the diluent; (hereinafter “Smallpox Vaccine Kit”), (2) a
5,000 dose Smallpox Vaccine Kit containing (a) fifty (50), 100-dose
vials of wet (liquid frozen) ACAM 2000 (******) vaccine manufactured
as described in the Product Specification below and (b) 5,000 bifurcated
vaccinating needles; (both (1) and (2) are hereinafter referred to
as “Smallpox Vaccine Kit”) or (3) Crude Bulk Vaccine as described
in the Product Specification below that has not been purified, formulated,
lyophilized or placed in vials (hereinafter “Crude Bulk Product”). |
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“Product
Specification” means
partially purified vaccinia virus produced in a vero cell culture
substrate with a final potency sufficient to confer immunity against
smallpox as specified in IND BB-10628 as amended from time-to-time
or, once US Food and Drug Administration licensure is granted, as
specified in such license. |
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“Regulatory
Authority” means
any authority having jurisdiction to regulate the manufacture, sale,
or distribution of the Product |
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“Scenario” means
the split of responsibility for manufacturing the Product as between
Baxter and Acambis Research as defined in Provisions 4.0.1 and 5.3 |
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“Seller” means
the Party that sells the Product to a Customer. For sales of Product
for delivery to Customers within the Territory, the Seller shall be
BHSA or one of its affiliated companies or subsidiaries. For sales
of Product for delivery to Customers outside the Territory, the Seller
shall be Acambis Research or its designated agent(s) |
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“Term” shall
have the definition given in Section 18.0. |
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“Territory”,
as such term relates to sales to a government authority (military or
civilian) or any third-party acting on behalf of a government authority,
means all countries worldwide, excluding the United States (and its
territorial possessions) and the United Kingdom. “Territory”,
as such term relates to sales to Non-Government Organizations, shall
mean all countries throughout the world. |
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3.0 |
DISTRIBUTORSHIP |
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3.1 |
Grant
of Distributor Rights in the Territory |
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3.1.1 |
Subject to the terms and conditions of this Agreement, during the Term,
Acambis Research hereby appoints BHSA as Acambis’ Research’s
exclusive distributor in the Territory for the sole purposes of marketing,
promoting, soliciting customers for, distributing, and selling (or
otherwise disposing of) the Product to Customers for delivery in the
Territory and BHSA accepts such appointment. BHSA may not assign or
otherwise transfer its distributorship rights, with the exception as
to affiliated companies or subsidiaries. Baxter shall not actively
sell or distribute the Product to any entity other than Customers within
the Territory. The Parties may however agree on a case by case basis
that Baxter uses a local distributor if required by local law, regulations,
or Government request. |
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3.1.2 |
Acambis
Research shall not, during the Term, appoint any other person, firm,
company or other entity as (a) its distributor for the marketing, promotion,or
sale of the Product to Customers in the Territory; (b) its distributor
for the solicitation of Customers for the Product to be delivered in
the Territory; or (c) agent or reseller of the Product to Customers in
the Territory. |
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3.1.3 |
Acambis
Research shall not, during the Term, market, promote or solicit Customers
for, or actively sell or distribute, the Product in the Territory without
the prior written consent of BHSA (such consent not be unreasonably
withheld or delayed). However,
this provision does not restrict Acambis Research from selling the Product
in the Territory to persons who are located within the European Union, who
are not solicited by Acambis Research and who approach Acambis Research on
their own initiative. |
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3.1.4 |
BHSA
shall coordinate each potential Customer order with Acambis Research.
Prior to signing any agreement or contract for the sale of a Product,
BHSA shall inform Acambis Research (in writing and in English) of the
material features of such agreement or contract, including but not
limited to: customer name, price for the Product, whether the Customer
is providing indemnity and the terms of such indemnity, payment terms,
which Product is being ordered (Smallpox Vaccine Kits containing ACAM
2000 (Acambis) vaccine, Smallpox Vaccine Kits containing ACAM 2000
(******) vaccine, or Crude Bulk Product), proposed manufacturing and
delivery schedule, contractual consequences of delivery delays, potential
Marketing Authorization |
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requirements
that are indispensable to the Customer, any regulatory requirements
of the Customer or the competent Regulatory Authority(ies) any special
labelling requirements, under which Scenario (as set for in Section
5.3 below) the Product will be manufactured, and, if applicable, the
Scenario under which the originally delivered liquid ACAM2000 (******)
Product will be replaced. |
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3.1.5 |
Each Customer
order must be approved by Acambis Research prior to Baxter or its subsidiaries
signing any agreement or contract for the sale of Product, such approval
shall not to be unreasonably withheld and shall be compliant with applicable
laws and regulations. Acambis Research agrees to actively cooperate with
Baxter and to use all commercially reasonable endeavours to pursue with
such approval. |
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3.1.6 |
BHSA
shall inform each Customer in the Territory that the Product: (a) prior
to licensure, is intended for emergency use only and is not a licensed
product in the Territory or the United Kingdom; and (b) until such
time that the Product receives licensure from the US Food and Drug
Administration (“US FDA”), is not licensed in the United
States. |
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3.1.7 |
Acambis
Research has provided BHSA with a recommendation with regard to Customer
prices for the Product in the Territory, which is attached to this
Agreement as Attachment B (the price recommendations in Attachment
B reflect the prices for Customers providing Attachment C indemnity).
BHSA shall however not be obliged to follow such recommendations. |
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3.1.8 |
BHSA
shall not make or give any promises, warranties, guarantees or representations
concerning the Product other than those contained in BB-IND # 10628
and/or in Acambis Research’s product literature and shall provide
the Customer with a detailed outline description of the qualities and
specifications of ACAM 2000 (******) vaccine and ACAM 2000 (Acambis)
vaccine. Baxter and Acambis Research shall jointly create a document
that shall be provided to each Customer which outlines the differences
of ACAM 2000 (Acambis) compared to ACAM 2000 (******). Baxter shall
market the ACAM 2000 (Acambis) vaccine only for the indications authorised
by the US FDA and, if applicable, may market the ACAM 2000 (******)
vaccine only for those indications as authorized by the competent Regulatory
Authority(ies) in the Customer’s territory. Baxter shall market
the ACAM 2000 (Acambis) vaccine as Acambis vaccine and not represent
or otherwise give the appearance to a Customer that the ACAM 2000 (Acambis)
vaccine is a Baxter vaccine. |
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3.1.9 |
If Acambis
Research believes that BHSA is not using all reasonable endeavours
to market and promote the Product in a country of the Territory or
is not otherwise complying with its obligations under this Agreement
in a country in the Territory (the “Neglected Country”),
Acambis Research may provide written notice thereof to BHSA, specifying
the basis of its belief and any additional commercial activities Baxter
should reasonably undertake. Within 30 days of such notification, the
Parties shall meet and discuss in good faith the steps Baxter is taking
to market and promote the Product and any such additional activities
BHSA should commercially reasonably undertake. In the event that the
parties are unable to agree on such additional activities or if BHSA
does not undertake agreed upon remedial steps to remedy any default
within 60 days of notice, Acambis Research may terminate the assignment
of BHSA being the exclusive distributor as set forth in Art 3.1.1 of
this Agreement in the Neglected Country and such Country shall be excluded
from the Territory. |
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3.1.10 |
Provided
that Acambis Research has consented according to Article 3.1.4 and
3.1.5, BHSA may offer to Customers who have been provided with liquid
frozen Product the subsequent delivery of lyophilised Product at no
charge. After the free delivery of the lyophilised Product, BHSA shall
be responsible for it’s disposal. BHSA may not resell such liquid
frozen Product. |
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3.1.11 |
BHSA
shall not promote, make sales or otherwise engage in negotiations related
to the Product to any country, identified as acting contrary to the
foreign policy and national security goals of the U.S., restricted
under internal policy or in contravention of any international conventions
established by the United Nations, including but not limited to the
list of countries that the US Secretary
of State has made a determination (that remains in effect) that such
country has repeatedly provided support for acts of international terrorism.
At the time of signing this Agreement, that list is: Iran, Iraq, Libya,
Syria, Cuba, North Korea, and Sudan. |
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3.1.12 |
Should
during the term of this Agreement or thereafter Acambis decide to market
the Product to private individuals or entities outside the United States
or its territories, or the United Kingdom, then the Parties shall enter
into good faith discussions as to whether it might be agreeable to
use Baxter as a potential distributor. |
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3.2 |
Distribution
of Product Outside the Territory |
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3.2.1 |
BHSA
shall not, during the Term, market, promote or solicit persons for,
or actively sell or distribute, the Product outside the Territory without
the prior written consent of Acambis Research (such consent not be
unreasonably withheld or delayed). |
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However,
this provision does not restrict BHSA from selling the Product outside
the Territory to Customers who are located within the European Union,
who are not solicited by Baxter and who approach Baxter on their own
initiative. Such sales will be subject to the same payment obligations
as sales within the Territory as set out in Section 5 below. Baxter
may cooperate with or provide sales assistance to Acambis to promote
the Product to Customers outside the Territory, however, absent written
agreement to the contrary, Baxter shall not receive payment for such
cooperation or sales assistance in addition to the split of Net Sales
addressed in provision 5.3 below. |
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3.3 |
Marketing
Authorisations |
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3.3.1 |
ACAM 2000
(Acambis) |
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3.3.1.1 |
Acambis
shall initially have the right to file for any Marketing Authorization(s)
with respect to ACAM 2000 (Acambis). Should Acambis decide, in its sole discretion,
to apply for and obtain a Marketing Authorization in a country or region,
then Acambis will be responsible for filing and maintaining the Marketing
Authorization(s) for ACAM 2000 (Acambis) and shall bear all related
costs. If (1) Acambis decides to not apply for or obtain a Marketing
Authorization in a specific country or region or (2) Baxter or any
Baxter affiliate is required by law or government request to apply
for a Marketing Authorization in any country, then Acambis and BHSA
shall consult to jointly decide if a Marketing Authorization in this
particular country is commercially justified from a business perspective.
Acambis shall not unreasonably refuse to file and maintain the Marketing
Authorization(s) for ACAM 2000 (Acambis) nor shall it unreasonably
refuse to allow Baxter or any Baxter affiliate to file for a Marketing
Authorization under the circumstances of (2) above. |
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3.3.1.2 |
If obtaining
a Marketing Authorization for a certain country or region is not commercially
justified from a business perspective and Acambis elects not to file
for such Authorization, Baxter may apply for and obtain such Marketing
Authorization(s) and shall bear all related costs. |
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3.3.1.3 |
Baxter
shall provide all documents to Acambis (either in English or German)
required for Acambis to apply for and obtain such Marketing Authorization(s).
Baxter shall not be required to provide any document or information
that is not in its possession or that Baxter is not entitled to disclose
to Acambis. |
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3.3.2 |
ACAM
2000 (******) |
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3.3.2.1 |
If (1)
Baxter or any Baxter affiliate is required by law or government request
to apply for and obtain a Marketing Authorization for ACAM 2000 (******)
or (2) Baxter determines that it wants to apply for and obtain a Marketing
Authorization for ACAM 2000 (******), Baxter may do so. Should Baxter
decide to apply for and obtain a Marketing Authorization for ACAM 2000
(******), Baxter shall bear all related costs. |
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3.3.2.2 |
If,
in the first instance discussed in Provision 3.3.2.1 above, Baxter
decides not to apply for and obtain a Marketing Authorization, then
Acambis and BHSA shall consult to jointly decide if a Marketing Authorization
in this particular country is commercially justified from a business
perspective. |
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3.3.2.3 |
Acambis
shall provide all documents to Baxter (in English) required for Baxter
to apply for and obtain such Marketing Authorization(s). Acambis shall
not be required to provide any document or information that is not
in its possession or that Acambis is not entitled to disclose to Baxter. |
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3.3.3 |
At the
conclusion or termination of this Agreement, BHSA shall transfer all
ACAM 2000 (Acambis) Marketing Authorizations acquired under this Article
and all materials obtained from Acambis Research hereunder to Acambis
Research. Such transfer shall be at no charge to Acambis Research other than
Acambis Research shall reasonably compensate BHSA for it’s transfer
activities relating to transferring the Marketing Authorization(s)
from BHSA’s name to Acambis’ name. |
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4.0 |
DESCRIPTION
OF SUPPLIES AND SERVICES |
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4.0.1 |
The
division of manufacturing responsibilities described in Provisions
4.1 through 4.5 below shall be divided between Baxter and Acambis Research
as indicated in the Scenarios set forth in provision 5.3 below. Baxter
and Acambis Research shall agree on which Scenario will be utilized
for each sale of the Product prior to either Party executing any agreement
with a Customer. If the division of manufacturing responsibilities
proposed by the Seller is not included in the provision 5.3 Scenarios,
Baxter and Acambis Research shall negotiate in good faith to reach
a reasonable split of the Net Sales based on their relative contributions
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manufacturing
the Product. |
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4.0.2 |
The
cost for performing the manufacturing responsibilities as detailed
in the
various Scenarios shall be borne by the Party having the responsibility
for performing such responsibilities. |
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4.0.3 |
Baxter
and Acambis agree that they will use the highest diligence reasonable
in performing their respective responsibilities under this Agreement. |
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4.0.4 |
BHSA
agrees to inform Acambis within fifteen (15) calendar days of the result
of
any regulatory development or material change to the Vero Cell
Master File. BHSA shall be responsible for all costs related to the creation
and maintenance of the Vero Cell Master File. |
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4.0.5 |
Acambis,
as the IND (and later product license) holder for the ACAM 0000 (Xxxxxxx)
xxxxxxx xx xxx Xxxxxx Xxxxxx, shall be responsible for reporting any
biological Product deviations to the US FDA under 21 CFR 600.14 and shall
bear all costs related to licensure of ACAM 0000 (Xxxxxxx) xxxxxxx xx
xxx Xxxxxx Xxxxxx. Baxter agrees to inform Acambis of any deviations
that might be reportable under 21 CFR 600.14 within ten (10) calendar
days of obtaining such information. |
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4.0.6 |
The
Party who is the Marketing Authorization holder for ACAM 2000 (Acambis)
vaccine
or ACAM 2000 (******) vaccine for the Marketing Authorization in a country
other than the United States shall be responsible for all reports required
by the relevant Regulatory Authority(ies) arising out of product deviations.
The non-Marketing Authorization holding Party agrees to inform the Marketing
Authorization holding party of any reportable deviations within ten (10)
calendar days of obtaining
such information. |
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4.0.7 |
For
ACAM 2000 (******) vaccine distributed by Baxter under this Agreement,
Acambis shall provide all reasonably necessary materials, documents and
assistance (not including 3d party proprietary information) to support
the technical transfer of purification and formulation activities from
Acambis to Baxter. Baxter shall perform any and all pre-clinical studies
and clinical trials (bridging or otherwise) required to meet any and
all regulatory requirements in the Territory should the Parties decide
to market such ACAM 2000 (******) vaccine in a particular country in
the Territory. However, nothing in this Provision 4.0.7 shall negatively
impact orders for ACAM2000 (Acambis) smallpox vaccine from the United
States Government. |
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4.0.8 |
For
ACAM 2000 (Acambis) vaccine, the Marketing Authorization holder is responsible
for all pre-clinical studies and clinical trials required by the relevant
Regulatory Authority. For those countries where Baxter is authorized
by Acambis to be the Marketing Authorization holder, Baxter shall provide
information related to such non-US product Marketing Authorization, pre-clinical
studies,
and/or clinical trials to Acambis as required by the US FDA. |
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4.0.9 |
Each
Party agrees to provide and maintain quality systems according to cGMP
and to provide the other Party access to its facilities at all reasonable
times for surveillance. |
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4.1 |
Manufacture
of Crude Bulk Vaccine |
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4.1.1 |
Crude
Bulk Vaccine shall be manufactured either at ********* |
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4.1.2 |
Whether
manufactured by BHSA or Acambis Research, each lot of Crude Bulk Vaccine
shall be manufactured: |
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(a) |
from cGMP
compliant master and production Vero cell banks so as to be acceptable
to the US FDA as licensed product; |
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******** |
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(d) |
in compliance
with current Good Manufacturing Process (cGMP). |
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4.1.3 |
If the
Customer orders Crude Bulk Product, the manufacturer of the Crude Bulk
Product shall package the vaccine for shipment to the customer in accordance
with commercial practice to ensure safe delivery by common carrier to
the destination agreed to between the selling Party and the Customer.
The bulk vaccine shall also be packaged in accordance with all applicable
federal, state and local rules and regulations, and the applicable rules
and regulations of the importing country. ************ |
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4.1.4 |
The Manufacturer
of the Crude Bulk Vaccine shall also perform quality control testing
on the Crude Bulk Vaccine as required by BB-IND # 10628, any subsequent
US FDA license for ACAM 2000 (all as amended from time to time), and
any additional QC tests required
by the US FDA. |
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4.1.5 |
Use
of BHSA ACAM 2000 Lots Manufactured under the US Government Subcontract
for Sales to Customers. |
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4.1.5.1 |
After
BHSA has completed its contractual responsibilities under Subcontract
200-2002-00010(BXTR) from the BHSA Lots of Crude Bulk Vaccine, Baxter
and Acambis shall utilize excess Crude Bulk Vaccine remaining from the
Lots manufactured under the Subcontract
as product “manufactured” under this Agreement unless otherwise agreed.
In order to be tendered under this Agreement as manufactured product, the Crude
Bulk Vaccine from such Lots must meet the requirements and specifications of
both Subcontract 200-2002-00010(BXTR), as modified from time-to-time, and this
Agreement. |
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4.1.6 |
Manufacture
of Crude Bulk Vaccine at BHSA |
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4.1.6.1 |
If the excess Crude Bulk Vaccine from
the Baxter ACAM 2000 Lots manufactured under the US Government Subcontract
are not sufficient to meet orders from Customers, Baxter and Acambis
Research may agree that BHSA may manufacture additional lots of Crude
Bulk Vaccine . Permission from Acambis to manufacture additional Crude
Bulk Vaccine
shall be granted only in writing and on a lot by lot basis. |
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4.1.6.2 |
If BHSA and Acambis Research agree
to manufacture additional Crude Bulk Vaccine under provision 4.1.6.1
above, Acambis Research and BHSA shall agree on a schedule for such
production. Such schedule shall be based upon the following criteria:
Customer requirements, availability of Acambis’ facilities, availability
of Baxter facilities, the demands of other Customers, and the demands
of the U.S. Government. |
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*****If BHSA and Acambis Research agree
to manufacture additional Crude Bulk Vaccine under provision 4.1.6.1
above and such bulk vaccine is to be formulated and purified at Acambis
*****, BHSA shall provide the anticipated date of shipment to Acambis
at least ten (10) working days prior to the shipment. Acambis shall
obtain, at its own risk and expense, any import license or other official
authorisation and carry out, where applicable, all customs formalities
for the import of the goods. BHSA shall assist Acambis in obtaining
such import license or other authorisations necessary for the import
of the Crude Bulk Vaccine. Legal title to such Crude Bulk Vaccine shall
pass according to Art. 6 of this Agreement. BHSA shall be responsible
for the risk of loss and costs of insurance, freight, and transportation
to Acambis’ facility in Canton, Massachusetts. |
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4.1.6.4 If BHSA ships Crude Bulk Vaccine to
Acambis’ Canton facility, BHSA shall provide preliminary results
of ****tests for all crude bulk lots by facsimile message within *******
of shipping Crude Bulk Vaccine to Acambis’ Canton facility and
a Certificate of Analysis ***** shipping the Crude Bulk Vaccine. BHSA
shall also provide finalized production batch records to Acambis within
**** shipping the Crude Bulk Vaccine. |
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4.1.6.5 BHSA agrees to inform Acambis within
******of the result of any regulatory development or change to Crude
Bulk Vaccine-specific standard operating procedures that materially
affect the production of Crude Bulk Vaccine. BHSA shall notify Acambis
of any required written approval from Acambis to change the master
batch records and Crude Bulk Vaccine specifications prior to the production
of subsequent lots of Crude Bulk Vaccine. |
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4.1.7 |
Manufacture of Crude Bulk Vaccine
at Acambis’ Canton
Facilities |
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4.1.7.1 |
After transferring the Vero Cell technology
to its facility in Canton Massachusetts, Acambis may manufacture Crude
Bulk Vaccine in accordance with the terms of the Vero Cell License
Agreement and this Agreement. The Parties agree however, that Crude
Bulk Vaccine manufactured at Xxxxxx’x facilities in Xxxx under
Acambis license shall be utilized for sales under this Agreement by
the Parties to the extent feasible under import or export laws before
Crude Bulk Vaccine manufactured at Acambis facilities in Canton shall
be utilized. |
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4.2.0 |
Purification,
Formulation, Fill/Lyophilize/Finish, and Diluent |
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4.2.0.1 |
Prior to executing an agreement
or contract for the sale of Product to Customers in the Territory,
Acambis Research and BHSA shall agree on a schedule for purification,
formulation, fill/lyophilize or manufacture liquid frozen Product/finish,
and, if applicable, provision of diluent under this Agreement. Such
schedule shall be based upon the following criteria: Customer requirements,
availability of Acambis’ facilities, availability of Xxxxxx facilities,
availability of bifurcated vaccinating needles, and the demands of
other Customers
and the U.S. Government. |
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4.2.1 |
Purification and Formulation |
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4.2.1.1 |
After manufacture of the Crude Bulk
Vaccine, Acambis shall purify, formulate and perform all other required
downstream processing (including quality control testing as required
by BB-IND #10628 as amended from time to time and as further required
by the US FDA) of the delivered Crude Bulk Vaccine such that the Crude
Bulk Vaccine may be filled, lyophilized, and finished as ACAM 2000
(Acambis) vaccine. |
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4.2.1.2 |
Such purification and formulation
shall be done in accordance with BB-IND # 10628 (as amended from time-to-time)
and as further required by the US FDA. |
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4.2.2 |
Fill/Lyophilize/Finish |
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4.2.2.1 |
Following purification
and formulation of the Crude Bulk Vaccine, Acambis shall provide for
the fill, finish, and lyophilization of the Purified Bulk Vaccine.
Acambis shall also provide quality control testing as required by BB-IND
#10628 (as amended from time-to-time) and as further required by the
US FDA. |
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4.2.2.2 |
Such fill and finish shall be done in
accordance
with BB-IND # 10628 (as amended from time-to-time) and cGMP. |
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4.2.3 |
Diluent |
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4.2.3.1 |
Acambis shall provide diluent in vials,
each of which is sufficient to reconstitute 100 doses of lyophilized
ACAM 2000 (Acambis) vaccine, in accordance with the conditions and
specifications in BB-IND # 10628 (as amended from time-to-time) and
cGMP. |
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4.2.4 |
Purification, Formulation, Fill/Lyophilize
or manufacture liquid frozen Product/Finish, and Diluent by Xxxxxx |
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4.2.4.1 |
To the extent Acambis licenses Xxxxxx
to purify and formulate ACAM 2000 (Xxxx) vaccine and to fill, lyophilize
or manufacture liquid frozen Product and finish the purified Crude
Bulk Vaccine under provision 8.0 below, Xxxxxx shall perform such activities
in substantial compliance with BB-IND # 10628 (as amended from time
to time), such compliance to be determined between the parties and,
if required, shall also provide diluent to accompany the lyophilised
vaccine
product. |
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4.3 |
Labelling, Syringe, Kitting,
Packaging ***** |
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4.3.1 |
Labelling
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All
vaccine and accompanying diluent shall be labelled as specified by the relevant
Regulatory Authority(ies) and the Customer and as approved by Acambis Research. |
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4.3.2 |
Syringe |
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The
purpose of the syringe is to transfer the diluent to the vial of vaccine.
The syringe shall be a 1 mL tuberculin syringe fitted with a 5/8” 25
gauge needle. Each vial of vaccine shall be accompanied with one sterile
needle and syringe kitted as described below in provision 4.3.4. Such needles
and syringes shall be packaged to maintain sterility and withstand long-term
storage at ambient temperature. |
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4.3.3 |
Kitting |
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When
ordered as Smallpox Vaccine Kits, the Vaccine, Diluent, Needles, and Syringe
shall be kitted as follows: |
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(a) ********** |
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(b) *********** |
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(c) *********** |
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(d) ********* |
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(e) ********* |
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4.3.4 |
Packaging and Marking
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4.3.4.1 |
Product Kits shall be packaged
for shipment to the Customer in accordance with commercial practice to ensure
safe delivery by common carrier to the destination agreed to between the
Seller and the Customer. The Product Kits shall
also be packaged in accordance with all applicable federal, state and local
rules and regulations, and the applicable rules and regulations of the importing
country. |
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4.3.4.2 |
The Product Kits shall be packaged
to maintain the vaccine at ********** |
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4.3.5 |
Storage
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4.3.5.1 |
The component parts of the Product
Kits shall be stored pending placement into kits. The completed Product
Kits shall be stored pending delivery to the Customer. |
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******* |
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***Vials of Vaccine at *****
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*****Vials of Diluent at ****
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(c) Bifurcated Vaccinating Needles and
Syringes at ambient temperature in controlled inventory.
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4.3.5.3 |
The Crude Bulk Product shall be stored
pending delivery to the Customer at ***** |
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4.3.6 |
Responsibility for Labelling, Syringe,
Kitting, Packaging and Storage |
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4.3.6.1 |
For excess vaccine resulting from
BHSA ACAM 2000 Lots manufactured under the Government Subcontract and any
additional lots as may be authorized under Subcontract 200-2002-00010(BXTR)
that will be put into Smallpox Vaccine Kits for delivery to Customers within
the Territory; kitting, labelling, and storage services shall be performed
by either Acambis Research or Xxxxxx as agreed by the Parties .
Kitting, labelling and storage services provided
by BHC under this Agreement shall be performed at ************Kitting, labelling
and storage services provided by BHSA under this Agreement shall be performed
at ************ |
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4.3.6.2 |
For Product delivered to Customers
outside the Territory, Acambis Research shall determine the Scenario to
be used for labelling, syringe, kitting, packaging and storage. Should Acambis
Research select a scenario under which Xxxxxx performs the labelling, syringe,
kitting, packaging, and storage, Xxxxxx shall perform such labelling and
kitting services at **** and storage of Smallpox Vaccine Kit components
and completed kits at a ****** |
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4.3.6.3 |
The Party who stores Product shall
also ship such Product to the Customer in accordance with the terms of the
sales contract as specified by the Seller . |
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4.3.6.4 |
Kitting and Labelling at BPS
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4.3.6.4.1 |
|
If the ACAM 2000 (Acambis) vaccine is labelled
and kitted at *** BHC shall make arrangements for pick-up and shipment of
unlabeled vials of diluent (at 2-8C) and unlabeled vials of Product (at
<-10C) from ******as such components become available. |
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4.3.6.4.2 |
|
If the ACAM 2000 (Acambis) vaccine is labelled
and kitted **** BHC shall receive (i) vials containing vaccine ***********
and (ii) diluent vials ******** both in a configuration to be agreed upon
by the fill and finish vendor, BHC and Acambis. Product shall be inspected
upon receipt according to ******* with diluent stored at **** and vaccine
stored at ***** shall use all reasonable endeavours to minimize the time
at which vaccine and diluent are held at ambient temperature during inspection.
Records of time required for processing and inspection prior to cold storage
of Product shall be maintained.**** shall store
the Product in sealed bulk containers. |
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4.3.6.4.3 |
|
If the ACAM 2000 (Acambis) vaccine is labelled
and kitted by BHC, reasonable transportation (and related transportation
security) and insurance charges incurred by BHC to transport the vaccine
and diluent vials from Acambis’ designated filler and finisher to BHC
shall be reimbursed by Acambis Research at actual, external third-party
cost. |
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4.3.6.4.4 |
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BHC shall create appropriate batch records
for labelling and kitting the ACAM 2000 (Acambis) vaccine. Such batch records
shall be submitted to Acambis for review at least two weeks before the start
of the first labelling and kitting activities under this Agreement.
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4.4 |
Bifurcated Vaccinating Needles |
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4.4.1 |
If a Customer purchases Smallpox
Vaccine Kits, Acambis Research will provide Bifurcated Vaccinating Needles.
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4.4.2 |
If the Product is kitted at BPS
or at another Xxxxxx facility, Xxxxxx shall coordinate the pick up of such
needles as lots become available at Acambis’ designee and shall transport
such needles to a designated Xxxxxx facility. Reasonable external, third-party
transportation and insurance charges incurred by Xxxxxx shall be reimbursed
by Acambis Research at actual cost. Following
inspection, needles shall be entered into Xxxxxx’x inventory and stored
at ambient temperature in controlled inventory. |
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4.4.3 |
If the Product is kitted by Acambis
Research, Acambis Research shall coordinate the pickup, distribution, and
inventory of such needles. |
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4.5 |
Distribution |
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4.5.1 |
For Product sales for delivery
in the Territory to a Customer, BHSA will market and distribute the Product
as described in Section 3.0, Distributorship,
and other applicable terms contained in this Agreement. |
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5.0 |
PAYMENT AND PAYMENT AMOUNT |
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5.1 |
Payment from the Customer shall be made under
the terms in the agreement between the Customer and the Seller. |
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5.2 |
Within 30 days of Seller’s receipt of Customer
payment, the Seller shall forward to the other Party its share of the Net
Sales. |
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5.3 |
The payment amount
due shall be determined by splitting the Net Sales amount between Xxxxxx
and Acambis Research according to which Scenario (1 through 5) was utilized
to manufacture the Product. The Scenarios and the split of the Net Sales
are as follows: |
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Scenario |
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Manufacture
Crude Bulk |
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Purify/Formulate
Fill/Finish & Diluent |
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Labelling,
Kitting, Syringe,
Packaging & Storage |
|
Needles |
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Distribution
as set forth in
Provision 3.0 |
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Net
Sales Split |
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Net
Sales Split in case of later
replacement of the liquid
ACAM 2000(***) |
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1 – |
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Xxxxxx |
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AR1 |
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Xxxxxx |
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AR |
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Xxxxxx or AR |
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****** |
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****** |
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2 – |
|
Xxxxxx |
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AR |
|
Acambis |
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AR |
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Xxxxxx or AR |
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****** |
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****** |
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3 – |
|
Xxxxxx |
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Xxxxxx |
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Xxxxxx |
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AR |
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Xxxxxx or AR |
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****** |
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****** |
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4 – |
|
Xxxxxx |
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— |
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Xxxxxx ****** |
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— |
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Xxxxxx or AR |
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****** |
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****** |
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5 – |
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AR |
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AR |
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AR |
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AR |
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Xxxxxx |
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****** |
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****** |
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5.4 |
The exchange rate
applicable to payments for the split of Net Sales under this Agreement shall
be the exchange rate published in the London Financial Times in effect on
the date the Seller receives payment for the Product from a Customer. Payments
to Acambis Research shall be made in Euros. |
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5.5 |
Payment of the
split of Net Sales shall be accompanied by an accounting detailing: the
date payment from the Customer was received, the method used for determining
the amount of payment due from the Customer to the Seller, the gross sales
price of the Product, the method of calculating the Net Sales, the Scenario
utilized to supply the Product to the Customer, the applicable split of
Net Sales, and the exchange rate (and date of such rate). |
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5.6 |
Payment to BHSA
shall be submitted to: Xxxxxx Healthcare SA Xxxxxxxx. 0 XX-0000 Xxxxxxxxxxx,
Xxxxxxxxxxx Contact person: ****** Bank Details: ********** |
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1 AR = Acambis Research |
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2 This ****** Net Sales Split for
Xxxxxx includes the ****** that would have otherwise been calculated and
paid under the Vero Cell Know-How License. |
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3 This ****** Net Sales Split for
Xxxxxx includes the ****** that would have otherwise been calculated and
paid under the Vero Cell Know-How License bank details: ****** ****** ******
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5.8 |
Payment
to Acambis Research shall be submitted to: Acambis Research Limited (Attn:Chief
Business Officer) Peterhouse Technology Park, 000 Xxxxxxxx Xxxx, Xxxxxxxxx
XX0 0XX XX |
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6.0 |
TITLE AND RISK OF LOSS |
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6.1 |
Legal
title to the vaccine product involved in the performance under this Agreement
shall pass for each Scenario outlined in Art. 5 according to this Article.
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6.1.1 |
SCENARIOS 1
and 2: Legal title to the Crude Bulk Vaccine shall pass from Xxxxxx to Acambis
Research upon shipment from Xxxxxx ****** (EXW Incoterms 2000). Title to
the Product shall vest in BHSA upon delivery of the Product to a Customer.
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6.1.2 |
SCENARIOS 3
and 4: Legal title to the vaccine shall be borne by BHSA until Customer’s
receipt of Product. Should BHSA |
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not be
the Seller in this Scenario 3, then legal title shall vest in Acambis
Research upon delivery of the Product to a Customer. |
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6.1.3 |
SCENARIO
5: Legal title to the vaccine shall be borne by Acambis Research. Legal
title shall vest in BHSA upon delivery of the Product to a Customer. |
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6.2 |
Legal
title to the Product components (e.g., diluent, vaccinating needles,
and syringes) shall be held by the Party who provided such components.
Unencumbered legal title to such components shall vest in the Seller
immediately upon shipment of Product to a Customer. |
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6.3 |
Risk of
loss for the vaccine and other Product components shall fall on the Party
in possession (personally or through its agent(s)) of such vaccine and/or
Product component at the time of the loss or, when the vaccine or components
are in transit, on the Party responsible for arranging the transit. |
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7.0 |
EXPORT/IMPORT
REQUIREMENTS |
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7.1 |
If Product
will be exported from the United States, the Party responsible for distribution
of the Product shall obtain, at its own risk and expense, any export
license or other official authorisation and carry out, where applicable,
all customs formalities for the export of Product from the US under this
Agreement and the import of such Product. The Party not responsible for
exporting the Product shall use all reasonable endeavours to assist the
exporting Party in obtaining such import license or other authorisations
necessary for the export of Product. |
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7.2 |
If
the Product will be exported from a country other than the United States,
Xxxxxx shall be required to obtain, at it’s own risk and expense,
any export license or other official authorisation and carry out, where
applicable, all customs formalities for theexport
of Product and the import of such Product. A cambis shall use all reasonable
endeavours to assist BHSA in obtaining such import
license or other authorisations necessary for the export of Product. |
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7.3 |
Xxxxxx,
at its own risk and expense, shall obtain any and all permits, licenses
or other official authorisations and carry out, where
applicable, all customs formalities for the export and/or import of purified
and formulated ACAM 2000 (******). |
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7.4 |
The Party
responsible for obtaining the export license or other official authorisation
as set forth in provisions 7.2 through 7.4 shall
also be responsible for insuring compliance with export requirements,
including but not limited to those requirements of the Bureau
of Export Administration (BXA) and the Bureau of Industry and Security
(BIS) of the US Department of Commerce. |
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8.0 |
LICENSE & NON-COMPETE |
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8.1 |
License |
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8.1.1 |
Acambis
hereby grants BHSA a royalty-free non-exclusive license to manufacture
Crude Bulk Vaccine from fermenter runs ******, however, such Crude Bulk
Vaccine cannot be purified, formulated, marketed, or sold unless authorized
by Acambis (in writing) in its sole discretion. Should Acambis not authorize
BHSA to purify, formulate, market or sell the Crude Bulk Vaccine from
fermenter runs ******, Xxxxxx shall destroy such Crude Bulk vaccine at
the end of the term, or upon termination of, this
Agreement. |
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8.1.2 |
Acambis
hereby grants BHSA a royalty-free non-exclusive license to purify, formulate,
fill, lyophilize or manufacture liquid frozen Product, finish and market
up to ****** doses of Crude Bulk Vaccine for sales to Customers. BHSA
shall complete purification and formulation of the ****** Crude Bulk
Vaccine by ******. BHSA shall fill and finish the purified vaccine (wet
or lyophilized, as appropriate), and supply diluent (if required) and
syringes to accompany such product. Xxxxxx shall perform this activity
with no additional requirements on Acambis personnel or Xxxxxx personnel
co-located at Acambis with the exception that Acambis will furnish limited
assistance in accordance with BHSA’s requirements, including: providing
bifurcated vaccinating needles, performing selected quality control tests,
and providing limited regulatory support. |
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8.1.3 |
If
the manufacture of additional Crude Bulk Vaccine is desired by Xxxxxx,
Xxxxxx
shall request, in writing to Acambis Research, that Acambis grant to
BHSA and its affiliate, ******, a royalty-free non-exclusive license
to manufacture additional Crude Bulk Vaccine solely for the purposes
of selling Product to a Customer under this Agreement for delivery within
the Territory. Such Request shall include the reason for the request
and the anticipated timeline. |
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8.1.4 |
If the
manufacture and marketing of additional finished vaccine beyond the license
granted in 8.1.2 is desired by Xxxxxx, Xxxxxx shall request, in writing
to Acambis Research, that Acambis grant to BHSA a royalty-free non-exclusive
license to purify, formulate,fill/lyophilize,manufacture and market liquid
frozen Product/finish ACAM 2000 (******) vaccine solely for the purpose
of selling Product to a Customer under this Agreement for delivery within
the Territory. Such request shall include: proposed timelines, a plan
to provide fill/lyophilization, marketing or the manufacture of liquid
frozen Product/finish services (if proposed), and a plan to provide diluent
(if proposed). |
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8.1.5 |
Xxxxxx
agrees that it shall not use the ACAM 2000 strain, or authorise others
to use the strain, for any purpose other than the marketing and sale
of Product to Customers within
the Territory as set forth in this Agreement. |
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8.1.6 |
For the
duration of this Agreement, Acambis grants to BHSA a non-exclusive royalty-
free license
to use Acambis’ intellectual property rights (including any and all trademarks,
logos and other markings used by Acambis) that are reasonably necessary to promote
the sale of the Product to Customers within the Territory. Xxxxxx shall not represent
ACAM 2000 (******) vaccine to be ACAM 2000 (Acambis) vaccine. Intellectual property
rights licensed from Acambis to BHSA used or embodied in the Product remain as
the sole property of Acambis. BHSA shall not apply for registration of or register
any intellectual property rights that claim the ACAM2000 (Acambis) or the Acambis
processes for which Acambis has licensed BHSA without the prior written consent
of Acambis. |
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8.1.7 |
BHSA agrees
that it will (a) use the trademarks of Acambis only in a manner from
time to time approved by Acambis accompanied by an acknowledgment that
the same are the trademarks of Acambis, (b) not use the trademarks of
Acambis in relation to any other products or in any way which might prejudice
their distinctiveness or validity or the goodwill of Acambis therein;
(c) not use any other trademarks so resembling the trademarks of Acambis
as to be likely to cause confusion or deception; and (d) not use the
trademarks of Acambis in combination with any other trademark or other
names or logos other than trademarks of Xxxxxx, except with the prior
written consent of Acambis. BHSA agrees that the use of the trademarks
of Acambis and all goodwill associated therewith, shall inure to the
benefit of Acambis. |
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8.1.8 |
Xxxxxx’x
right to use Acambis’ technology and the ACAM 2000 vaccine strain
is limited to the extent expressly stated in this Agreement and Acambis
retains all right, title and interest to the Acambis technology, the
ACAM 2000 vaccine strain, and all related intellectual property rights
and proprietary rights held by Acambis. |
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8.1.9 |
The grant
of the licenses from Acambis to Xxxxxx under this Agreement shall be
free of any charges
whatsoever. |
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8.2 |
Non-Compete |
|
|
Neither
Xxxxxx nor any affiliate shall sell or market smallpox vaccine other
than the Product inside or outside of the Teritorry during the term of
this Agreement. |
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|
9.0 |
AUDITS
AND REPORTS |
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|
9.1 |
Acambis
Research shall have the right to audit Xxxxxx’x facilities to determine
compliance with (i) cGMP and (ii) applicable federal, state, and local
laws, regulations and rules regarding facilities. Xxxxxx shall have the
right to conduct similar audits of Acambis’ facilities as required
by the Marketing Authorization held by Xxxxxx (if any), by law or regulations
or upon request of a Customer. Such audits shall be scheduled at mutually
agreeable times upon two (2) business days written notice and shall not
occur more than one (1) time per calendar year unless required by BHSA’s
or BHC’s compliance status or Acambis’ obligations as a license
holder. In connection with performing such audits, each party shall bear
its own expenses. All information disclosed or reviewed in such inspections
shall be deemed and treated as Confidential Information as stipulated
in this Agreement. |
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9.2 |
Xxxxxx
shall inform Acambis Research about the progress of its sales and marketing
activities of the Product in the Territory at least on a monthly basis.
Acambis shall provide Xxxxxx with manufacturing updates, including but
not limited to information on any event or difficulty that may have a
potential impact on the delivery schedules agreed upon or negotiated
between Sellers and Customers. |
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9.3 |
Additionally,
Xxxxxx shall submit quarterly reports to Acambis Research detailing: |
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(a) |
Potential
and actual sales in and outside the Territory; |
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(b) |
Current
and planned marketing efforts in and outside the Territory; |
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(c) |
a list of current contracts for the sale of Product to Customers and the price for the Product in such contracts; |
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(d) |
Status of manufacturing activities for Product; |
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(e) |
Anticipated payment dates for outstanding Product to be delivered to a Customer; if known, and |
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|
(f) |
Schedule of planned manufacturing activities. |
|
|
9.4 |
Xxxxxx
and Acambis Research shall keep proper records and books of account and
all proper entries therein relating to the Product sold to Customers for
delivery in the Territory (Xxxxxx) and for delivery outside the Territory
(Acambis Research) and the amounts paid by Customers and shall maintain
such records for seven years after the expiration of the Term or termination
of this Agreement. Xxxxxx and Acambis, and their respective auditors, shall
have the right to inspect such books and records (upon reasonable, prior
written notice, during regular business hours), for the sole purpose of
verifying the reports, information and payments provided or due hereunder
and verifying compliance with the material terms and conditions of this
Agreement. If such audit should disclose any underpayment of the split
of Net Sales, the underpaying party shall be given a reasonable time to
assess the situation and provide the other party with a counter statement,
and, if the underpayment is substantiated, promptly pay the amount due,
together with interest thereon at a rate of one and one-half percent (1.5%)
per month from the date such amount was due until fully paid. If the parties
fail to reach an agreement upon such underpayment, an independent third
party shall be mutually identified by Acambis Research and Xxxxxx in order
to decide upon the alleged underpayment. If the amount of such underpayment
exceeds 10% of the total amount due from that sale, the underpaying party
shall immediately reimburse the expenses associated with such audit. |
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10.0 |
SECURITY |
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|
|
BHSA
and SBHC agree that the work and services performed under this Agreement
shall be carried out under appropriate security designed to protect the
Product from theft, damage, and tampering. |
|
|
11.0 |
MANUFACTURING
STANDARDS |
|
|
11.1 |
For
the manufacture of Product that includes ACAM 2000 (Acambis) vaccine or
Crude Bulk Vaccine, all supplies and services (including all manufacturing
activities) performed under this Agreement shall comply with all applicable
US FDA requirements and cGMP regulations of the United States of America.
If at any time during the life of this Agreement, BHSA or BHC fail to comply
with cGMP in the manufacturing or packaging of the Product that includes
ACAM 2000 (Acambis) vaccine or Crude Bulk Vaccine and such failure results
in a material adverse effect on the on the safety, purity, or potency of
the Product (a material failure) as identified by the Center for Biologics
Evaluation and Research of the US FDA, BHSA and/or BHC shall have thirty
(30) calendar days from the time such material failure is identified within
which to cure such material failure. If BHSA and/or BHC fail to take such
an action within the thirty (30) calendar day period, then this Agreement
may be
terminated by Acambis, at Acambis’ sole discretion. |
|
|
11.2 |
The
manufacture of Product that includes ACAM 2000 (******) vaccine shall comply
with the rules and regulations of the relevant Regulatory Authority(ies)
and shall be in substantial compliance with the cGMP regulations of the
United States and all applicable
US FDA requirements. |
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11.3 |
Xxxxxx
and Acambis shall manufacture any Product to be sold under this
Agreement that includes ACAM 2000 (Acambis) vaccine or ACAM 2000 (******)
vaccine to the applicable cGMP and the other regulatory standards
appropriate for the status of the Product as marketed and sold |
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12.0 |
LIMITATIONS
OF LIABILITY |
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|
12.1 |
Except
as explicitly set out in this Agreement, all conditions, warranties, and
representations, expressed or implied by (i) statute or (ii) otherwise,
in relation to the Product are excluded to the extent possible under the
applicable laws. |
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12.2 |
To
the extent possible under the applicable laws, and except with respect
to damages (other than lost profits) arising out of or relating to breaches
of this Agreement, Xxxxxx is not liable to Acambis, and Acambis is not
liable to Xxxxxx, whether for negligence, tort, breach of contract, misrepresentation
or otherwise, for: |
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(a) |
loss or damage incurred as a result of third party claims; |
(b) |
loss of profit, goodwill, business opportunity or anticipated saving; |
(c) |
indirect or consequential loss or damage; |
(d) |
property damage; or |
(e) |
death or personal injury. |
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13.0 |
LICENSE
STATUS |
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|
13.1 |
No
Marketing Authorization has been issued for the Product inside the Territory
or outside the Territory. Acambis shall inform BHSA on a continuous basis
about the status of Marketing Authorizations for the Product in the US,
Canada, and Europe (through the EMEA). Should Acambis xxxxx Xxxxxx the
right to hold a Marketing Authorization for either ACAM 2000 (Acambis)
or ACAM 2000 (******) under provision 3.3 above, Xxxxxx shall inform
Acambis Research on a continuous basis about the status of the Marketing
Authorizations of the Product in those countries where Xxxxxx holds or
is seeking a Marketing Authorization. |
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14.0 |
NOTIFICATION PROCEDURES FOR PHARMACOVIGILANCE & RECALL |
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14.1 |
Adverse
Events / Adverse Experiences |
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|
14.1.1 |
The Parties
shall promptly inform each other of all reports of adverse experiences
/ adverse events (AE’s) in respect of the Product coming
to the knowledge of either party. Serious AE’s shall be communicated
promptly by telefax to the other Party. Any AE that involves a death
shall be reported within 24 hours and any serious AE shall be reported
within 48 hours according to a standard operating procedure to be agreed
upon between Acambis Research and Xxxxxx within three months of the execution
date of this Agreement. Prior to licensure, each Party shall cooperate
with the other to allow the holder of the pre-licensure application to
report and manage any AE’s as required by the applicable Regulatory
Authority(ies). For Products sold to Customers in the Territory, after
applying for and receiving a Marketing Authorization, the Marketing Authorization
holding party shall be solely responsible for investigating and evaluating
each AE in order to meet legal, regulatory, and contractual requirements
for risk assessment or proper reporting to the authorities. The non Marketing
Authorization holding party shall reasonably support the holder of the
Marketing Authorization in such activities. Xxxxxx and Acambis Research
shall jointly agree on a fair schedule on compensation for the regulatory
support of the non Marketing Authorization holding party under this Article. |
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14.2 |
Recalls |
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14.2.1 |
Product
recalls involving any ACAM 2000 Product for which Acambis has applied
for or obtained an Investigational New Drug (IND) application
or a Biological License Application (BLA) under United States law or
a non-United States Marketing Authorization, that is sold to a Customer
in the Territory shall be carried out in accordance with a standard operating
procedure to be agreed upon between Acambis Research and Xxxxxx within
three months of the execution date of this Agreement. |
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14.1.2 |
For the
recalls addressed in Provision 14.2.1, Xxxxxx shall provide reasonable
assistance to Acambis Research in any recall of such Product distributed
by Xxxxxx in the Territory. Xxxxxx and Acambis shall jointly develop
and execute any such recall in accordance with a recall procedure which
is compliant with the requirements of the relevant Regulatory Authority(ies)
having jurisdiction. Xxxxxx and Acambis Research shall jointly agree
on a fair schedule on compensation for Xxxxxx’x regulatory support
under this Article. |
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14.1.3 |
For Product
that includes ACAM 2000 (******) where Acambis does has not applied for
or received a Marketing Authorization, Xxxxxx shall, at its
own expense, develop procedures and perform any recall of the Product
consistent with Xxxxxx policies and procedures and any requirements of
the relevant Regulatory Authority(ies) having jurisdiction. |
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14.3 |
SOP |
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|
14.3.1 |
Consistent
with the above, Xxxxxx and Acambis shall jointly develop certain procedures
with regard to Pharmacovigilance & Field Corrective Actions
(including Recall) within three months of the execution date of this
Agreement. |
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15.0 |
INDEMNITY & INSURANCE |
|
|
15.1 |
Due
to the unknown risks of the Product, the Seller of the Product shall
use all reasonable endeavours to obtain complete indemnification for
all Parties under this Agreement from the Governmental Authority of Customer’s
nation according to the guidelines agreed upon in Attachment C. In
the event a Customer refuses
to provide complete indemnity consistent with Attachment C, the
Seller shall promptly notify the other Party and no contract shall
be executed until the other Party agrees in writing. When
a Government Authority of a Customer’s nation provides indemnification,
the Selling Party shall conduct due diligence to verify that such indemnification
is valid and enforceable. |
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15.2 |
Xxxxxx
agrees to defend, indemnify and hold free and harmless Acambis Research
and its affiliates, directors, officers and employees from any and all
claims or damages (including litigation expenses and attorneys’ fees
and costs) of every kind or nature whatsoever arising from acts and/or
omissions of Xxxxxx in the course of this Agreement including, without
limitation, any and all claims arising from third parties in relation
to any activity under the control or in the responsibility of Xxxxxx.
This indemnity shall not apply however, to the extent any such claims
are (a) caused by any act or omission under Acambis responsibility, including
but not limited to any act or omission of third parties under contractual
control of Acambis, or (b) indemnified by Customer according to Art 15.1. |
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|
15.3 |
Acambis
agrees to defend, indemnify and hold free and harmless Xxxxxx and its
affiliates, directors, officers and employees from any and all claims
or damages (including litigation expenses and attorneys’ fees and
costs) of every kind or nature whatsoever arising from acts and/or omissions
of Acambis in the course of this Agreement including, without limitation,
any and all claims arising from third parties in relation to any activity
under the control or in the responsibility of Acambis. This indemnity
shall not apply however, to the extent any such claims are (a) caused
by any act or omission under Xxxxxx’x control, including but not
limited to any act or omission of third parties under contractual control
of Baxter, or (b) indemnified by the Customer according to Art. 15.1. |
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15.4 |
Both
Baxter and Acambis Research shall maintain insurance in appropriate amounts
and terms to cover their potential liability with respect to personal
injury or product liability claims related to or arising out of the Product,
including any such insurance as may be required by any Regulatory Authority(ies)
or other law or regulation. |
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|
15.5 |
The
rights and obligations of the parties under this clause shall survive
the Agreement’s termination, expiration or completion. Each party
shall promptly notify the other of any claim in respect of which the
notifying party intends to claim indemnification under this Article 15.
The party seeking indemnification will not enter into any settlement,
which would admit any fault of the other or place any blame on the Product
without the prior written consent of the other party. Both parties shall
cooperate fully in the investigation of any action, claim or liability
covered by this indemnification, shall be given opportunity to assume
their own defense, including but not limited to the option to be represented
in any such action or proceeding. |
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16.0 |
CONFIDENTIALITY |
|
|
16.1 |
Except
to the extent as may be authorised in writing, each party agrees that,
during the term of this Agreement and for a period of five (5) years
following its termination or completion, it shall (1) use any Proprietary
Information disclosed to it only for the purpose of performance under
this Agreement, (2) not disclose Proprietary Information to any third
party, or to any employee who does not have a need-to-know such information,
and (3) employ the same standard of care it uses to protect its own Proprietary
Information. To be considered “Proprietary Information” under
this clause, the information must be (a) disclosed in written or tangible
form and appropriately marked as proprietary, or (b) if disclosed orally
or visually, clearly identified as proprietary at the time of disclosure
and summarized in writing within thirty (30) calendar days after such
disclosure. Information shall not be deemed to be proprietary if such
information is already known without restriction to a receiving party;
or is rightfully received without restriction by the receiving party
from a third party having the right to disclose the information; or becomes
publicly available through no wrongful act of the receiving party; or
is hereafter furnished by the disclosing party without a similar restriction
on disclosure; or is independently developed by the receiving party without
breach of this Agreement. The receiving party shall not be liable for
inadvertent disclosure or use of the information received hereunder if,
upon discovery of such, it shall take reasonable steps to prevent any
further inadvertent disclosure or unauthorised use. The receiving party
may make disclosures required by operation of law, provided that the
receiving party shall give the disclosing party reasonable advance notice
to provide the disclosing party an opportunity to contest the requirement
of disclosure. No license is either granted or implied by the conveyance
of Proprietary Information by either party. The Parties further agree
that the obligations set forth above shall survive termination or completion
of this Agreement. |
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16.2 |
The
terms of the above confidentiality provision supersede and replace the
Confidential Disclosure Agreement signed by Xxxxxx Healthcare Corporation
and Acambis Inc. executed 7 October 2002. |
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|
16.3 |
Notwithstanding
any other provision of this Agreement, neither BHSA nor BHC grant under
this Agreement any rights to any party in its technical data, computer
software, or other intellectual property that may be developed under
or in connection with this Agreement. |
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17.0
|
NOTICES |
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|
17.1 |
A
notice under or in connection with this Agreement shall be in writing
and shall be delivered personally or sent by first class post pre-paid
recorded delivery (and airmail if overseas) to the relevant party as
follows: |
|
|
(a) |
If to Acambis:
****** Director, Acambis Research Limited Peterhouse Technology Park
000 Xxxxxxxx Xxxx Xxxxxxxxx XX0 0XX XX |
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|
(b) |
If to Baxter:
****** Xxxxxx Healthcare Corp 00000 Xxx Xxxxxxxx Xx Xxxxxxxx, XX 00000
***** |
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18.0
|
TERM
AND TERMINATION |
|
|
18.1 |
This
Agreement shall come into force on the date first above written and,
unless earlier terminated, shall remain in force for a period of five
(5) years. |
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|
18.2 |
Notwithstanding
termination rights stated in other sections of this Agreement, either
Party may terminate this Agreement forthwith by giving a notice to the
other Party in any of the following events : |
|
|
(a) |
In the
event that the other party commits a material breach or default of this
Agreement and fails to take action to remedy such breach or default within
thirty days after receipt of written notice from the other Party. |
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|
(b) |
In the
event that a party files or consents to the filing of any petition of
bankruptcy or for other relief under any bankruptcy law for the relief
of its creditors, is adjudicated insolvent or bankrupt, is dissolved
or liquidated, or makes any assignment to its creditors, or a receiver
or similar person is appointed for or in relation to such a party or
a substantial part of its assets or undertaking. |
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18.3
|
Accounting
for Residual Materials |
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|
18.3.1 |
Upon conclusion
or termination of this Agreement, Baxter shall return to Acambis Research
(without charge) all materials in its possession
to which Acambis has exclusive title under this Agreement and which were
provided to Baxter by Acambis Research and/or Acambis under this Agreement.
Such materials shall include, but not be limited to, the master virus
seed, the production virus seed, and any other Acambis-proprietary materials
and/or documents used in the manufacture of ACAM 2000 (Acambis) or ACAM
2000 (******). |
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|
18.3.2 |
Upon conclusion
or termination of this Agreement, Acambis Research and/or any affiliated
company shall return to Baxter (without charge) all materials
in its possession to which Baxter has exclusive title under this Agreement
and which were provided to Acambis Research by Baxter under this Agreement. |
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18.3.3 |
Upon conclusion
or termination of this Agreement, if Acambis Research or Baxter has kit
components (e.g., diluent, vaccinating needles, or
syringes) that were not sold to a Customer, the Party who paid for the
component shall remove and retain such component and have no recourse
for reimbursement of the cost of such material or Product against the
other Party. |
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|
18.3.4 |
Upon conclusion
or termination of this Agreement, a Party holding title to residual vaccine
shall have the right, in its sole discretion, to
remove and retain that vaccine at no cost to the other Party. If the
owner of the residual vaccine elects not to remove and retain such vaccine,
that vaccine shall be destroyed by the Party last in possession of that
vaccine with the costs of disposal shared equally between the Parties. |
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19.0
|
FORCE
MAJEURE |
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19.1 |
Any
delay or failure in the performance of any obligation under this Agreement
by either Party hereto shall be excused if and to the extent caused, directly
or indirectly, by occurrences beyond such party’s reasonable control.
If as a result of force majeure, any party hereto is precluded from receiving
any benefit to which it is entitled hereunder, the parties shall review
the terms hereof so as to restore them to the same relative positions as
those previously obtained hereunder. |
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19.2 |
The
party affected by force majeure shall promptly inform the other of the occurrence
of such force majeure. |
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20.0 |
INDEPENDENT
ORGANIZATIONS |
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|
|
It is understood and agreed that
Baxter and Acambis are deemed to be independent parties in all their operations
and activities hereunder; that Xxxxxx’x employees performing work hereunder
shall deemed to be Xxxxxx’x employees exclusively with no relation
to Acambis and that Acambis’ employees performing work hereunder shall
be deemed to be Acambis’ employees exclusively with no relation to
Baxter. Xxxxxx’x employees shall be paid by Baxter for all services
in connection with this Agreement and Baxter shall be responsible for all
obligations and reports covering Social Security, unemployment insurance,
worker’s compensation, income tax, and other reports and deductions
required by state, U.S. federal, or foreign law. Acambis’ employees
shall be paid by Acambis for all services in connection with this Agreement
and Acambis shall be responsible for all obligations and reports covering
Social Security, unemployment insurance, worker’s compensation, income
tax, and other reports and deductions required by state, U.S. federal, or
foreign law. |
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21.0 |
INTELLECTUAL PROPERTY
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|
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21.1 |
Neither
party shall knowingly do anything to infringe upon or harm the intellectual
property rights of the other party. Each party shall promptly notify the
other of any and all infringements, limitations, illegal use or misuse,
of the other’s intellectual property rights of which it becomes aware.
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21.2 |
Baxter
may refer to the Product by the associated Acambis trademarks applicable
to such Product and include such in advertising, marketing, and promotional
materials, provided that such reference is not misleading. Subject to the
preceding sentence and other than the license granted under provision 8.1.5
of this Agreement, Baxter is granted no right, title, or license to, or
interest in, any trademarks of Acambis. Baxter acknowledges Acambis’
rights in its trademarks and agrees that any use of such trademarks shall
inure to the benefit of Acambis |
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22.0 |
REGULATORY
SUPPORT |
|
|
22.1 |
ACAM
2000 (Acambis) |
|
|
22.1.1 |
Acambis,
as the holder of BB-IND # 10628, shall amend the CMC (Chemistry, Manufacturing,
and Controls) Section of such IND with lot release data from the manufacture
of the ACAM 2000 (Acambis) vaccine lot used for the Product while such Product
is under IND. |
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22.1.2 |
Where
Baxter performs manufacturing steps that are required to be described in
Acambis’ IND and/or biologics license application (“BLA”)
for ACAM 2000 (Acambis), Baxter shall provide such information (in English
or German) to Acambis as soon as reasonably practicable. Baxter shall not
sell Product to Customers as ACAM 2000 (Acambis) unless Acambis agrees and
such Product conforms to Acambis’ IND and/or BLA on file with the US
FDA. |
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22.1.3 |
Acambis
will be responsible for performing the regulatory activities required by
the Regulatory Authorities with respect to the manufacture, marketing, sale
and use of the Product that includes ACAM 2000 (Acambis). Baxter shall provide
regulatory support to assist Acambis in meeting the requirements of the
non-US Regulatory Authorities. Such support will include, but is not limited
to advice and assistance in obtaining and maintaining European product Marketing
Authorization(s) in obtaining and maintaining product Marketing Authorizations
in other non-US countries, and meeting all regulatory requirements and performing
the required regulatory activities as set forth by the non-US Regulatory
Authorities. |
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22.1.4 |
ACAM
2000 (******) |
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|
22.1.4.1 |
For
ACAM 2000 (******) if Acambis elects to hold the Marketing Authorization
after Baxter has declined to do so, |
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|
Acambis will be responsible for
performing the regulatory activities required by the relevant Regulatory
Authority(ies) with respect to the manufacture, marketing, sale and use
of the Product that includes ACAM 2000 (******). Baxter shall provide regulatory
support to assist Acambis in meeting the requirements of the relevant Regulatory
Authority(ies). |
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22.1.4.2 |
For
ACAM 2000 (******) where Baxter holds the Marketing Authorization or where
there is no Marketing Authorization, Baxter will be responsible for performing
the regulatory activities required by the relevant Regulatory Authority(ies)
with respect to the manufacture, marketing, sale and use of the Product
that includes ACAM 2000 (******). If Baxter applies for and obtains a Marketing
Authorization for Product that includes the ACAM 2000 (******) vaccine,
Baxter shall develop and provide all documentation required to obtain and
maintain such Marketing Authorization. Baxter shall submit all such documentation
to Acambis Research for review prior to Baxter filing with the relevant
Regulatory Authority(ies). |
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23.0 |
GENERAL
|
|
|
23.1 |
Except
as stated otherwise in this Agreement, neither this Agreement nor any right
or obligations hereunder shall be assignable by either party hereto without
the prior written approval of the other party, and any assignment without
such prior written consent shall be null and void. In the case of an assignment
to an affiliate of a Party, such consent shall not be unreasonably withheld
or delayed. |
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23.2 |
The
invalidity, illegality or unenforceability of the whole or part of any provision
of this Agreement does not affect or impair the continuation in force of
the remainder of this Agreement. All Attachments are an integrated part
of this Agreement. |
|
|
23.3 |
No
waiver of a breach of any provision of this Agreement shall constitute a
waiver of any other breach of such provision. Failure of any party to enforce
at any time, or from time to time, any provision of this Agreement shall
not be construed as a waiver thereof. The remedies herein shall be cumulative
and additional to any other remedies in law or in equity. |
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23.4 |
This
Agreement and the other agreements referenced herein contain the entire
understanding of the parties hereto with respect to the sale of Product
to Customers, and supersedes all prior discussions, agreements, understandings
with respect to its subject matter, and no condition, definition, warranty
or representation other than those expressly provided for herein shall be
binding upon either party. Any amendments, modification, change or alteration
of this Agreement shall be made in writing which expressly refers to this
Agreement and which is signed by a duly authorised officer or representative
of each of the parties hereto. All Attachments to this Agreement are an
integrated part of this Agreement. |
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|
23.5 |
Baxter
shall comply with all applicable laws and regulations inside and outside
of the Territory that from time-to-time apply to this Agreement or the transactions
and activities contemplated by this Agreement. Baxter shall not knowingly
take any action, which will cause Acambis to be in violation of any law
of any jurisdiction inside or outside of the Territory. |
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23.6 |
A
person who is not a party to this Agreement has no rights under the Contracts
(Right of Third Parties) Act of 1999 or otherwise to enforce any term of
this Agreement. |
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|
23.7 |
All
disputes arising out of or in connection with this Agreement shall be, if
not settled amicably between the involved parties, will be referred to the
Chief Executive Officer of Acambis PLC and the Chief Executive Officer of
Xxxxxx International Inc. for good faith resolution, for a period of at
least 90 days. During such period, both Parties shall in good faith explore
resolution of the dispute using alternative dispute resolution techniques
before pursuing other remedies. If such dispute is not resolved by the end
of such period (or extension thereto as agreed upon by the Parties), the
Parties shall be free to pursue the legal or equitable remedies available
to them before the ordinary courts of England. |
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23.8 |
This
Agreement is governed by, and shall be construed in accordance with, the
laws of England and Wales. The Parties irrevocably decree that the Courts
of England have non-exclusive jurisdiction to decide and settle any dispute
or claim arising out of or in connection with this Agreement (“Proceedings”).
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|
23.9 |
The
parties agree that process by which any Proceedings are begun in England
may be served on BHSA and BHC by being delivered to a person at Xxxxxx Healthcare
Ltd, Wallingford Rd, Xxxxxxx, Near Xxxxxxx, Xxxxxxxxx, XX00 0XX, Xxxxxx
Xxxxxxx, with a copy to BHSA, for the attention of the Corporate Counsel.
|
|
|
23.10 |
If
the appointment of the person mentioned in clause 23.10 ceases to be effective
or such person ceases for any reason to act as process agent for BHSA or
BHC, BHSA and BHC shall immediately appoint a replacement process agent
for the purposes of |
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|
clause
23.10 and shall immediately notify Acambis Research of the change in accordance
with Provision 17. This clause does not affect the right to serve process
in any other manner permitted by law. |
The headings
in this Agreement do not affect its interpretation.
Signed
by |
|
|
|
For
and on behalf of Acambis Research
Limited |
|
|
Name: |
|
|
|
Date: |
27 December
2002 |
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|
Signed by |
|
|
|
|
|
For
and on behalf of Xxxxxx Healthcare SA |
|
|
Name: |
|
Date: |
13
January 2003 |
|
|
Signed by |
|
|
|
|
|
For
and on behalf of Xxxxxx Healthcare
Corporation |
|
|
Name: |
|
|
|
Date: |
13
January 2003 |
|
|
ATTACHMENT
A
Attachment
A has been filed as Exhibit 4.16 to this Form 20-F/A.
ATTACHMENT
C
SAMPLE
IDEMNIFICATION TEMPLATE
(In this Attachment C, “Purchaser” means the Customer, “Manufacturer” Acambis Inc., its parent company Acambis PLC, and any of its affiliates, and “Seller” BHSA)
The Purchaser shall indemnify the (i) Seller, (ii) Manufacturer and (iii) all subcontractors and affiliates of Seller or Manufacturer that are in any way involved in the manufacture, filling, labelling, ****** or distribution of the Product, as well as all officers, employees, directors and principal officials of all the above entities, on demand, against each loss, liability and/or cost (including litigation expenses and attorneys’ fees and costs) that any of them incurs arising from any alleged adverse reaction in a human being which directly or indirectly arises out of the handling and/or administration of the Product or directly or indirectly arises out of the release of toxic material into the environment, including, without limitation, each loss, liability and cost incurred by any of them as a result of defending or settling a claim alleging such a liability.
In condition 10.1, “adverse reaction” means anaphylaxis, Lymphadenitis, fever and malaise, postvaccinal encephalitis, vaccinia necrosum, eczema vaccinatum, fatality and any other reaction that is not intended, independent of whether such reaction was foreseeable or not, including, but not limited to:
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• |
adverse
reaction resulting from the administration of or exposure to the Product
distributed under the scope of this Contract, irrespective of when
such reaction is manifested; |
|
|
• |
the failure
of the Product to function as intended; |
|
|
• |
the failure
of the Product to confer immunity from smallpox; |
|
|
• |
any side
effects arising from the administration of the Product or any performance
of the Product in a manner not intended. |
|
|
The
rights and obligations of the parties under this clause shall survive
the Agreement’s termination, expiration or completion. The Seller
shall notify the Purchaser as soon as possible of any claim or action
against, or any loss by, the Seller that may be reasonably expected
to involve indemnification under this clause. Each party (other than
Seller) subject to indemnification shall be deemed to be a third-party
beneficiary of this Agreement and shall have the right to maintain
suit in its own capacity and name to enforce such indemnification.
|
22