1
EXHIBIT 10.30
-------------
SUPPLY AGREEMENT
----------------
AGREEMENT, made as of this 10th day of January, 2001 by and between
GLIATECH MEDICAL INC., a corporation organized under the laws of the State of
Delaware, with offices at 00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000
(hereinafter referred to as "Purchaser"), and PHARMACIA CORPORATION, a
corporation organized under the laws of the State of Delaware, having a place of
business at 000 Xxxxx 000 Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred
to as "Supplier").
WITNESSETH:
-----------
WHEREAS, Purchaser desires to purchase all of its needs of bulk
quantities of the Product listed below (hereinafter referred to as "Product"),
from Supplier and Supplier desires to sell Product as raw material to Purchaser
for use in Purchaser's products Adcon T/N and Adcon L, in the quantities and
upon the terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual obligations of the
parties herein set forth, it is agreed as follows:
1. PRODUCT
-------
The Product is identified as Absorbable Gelatin Powder 1 gm.,
(non-sterile powder) for Gliatech. Product shall be supplied to Purchaser
without the over seal PVC heat shrink band. Purchaser agrees that Supplier will
be Purchaser's exclusive source for the Product, and further agrees that it will
not resell the product in the form supplied by Supplier.
2. TERM
----
This Agreement shall be effective commencing January 1st, 2001
and shall continue for a period of two (2) years (the "Term"). The Term may be
extended for successive two (2) -- one (1) year periods upon the written consent
of both Supplier and Purchaser at least three (3) months prior to the end of the
Term.
2
SUPPLY AGREEMENT
PAGE 2
3. QUANTITY/PRODUCT FORECAST/PURCHASE ORDERS
-----------------------------------------
3.1 Supplier will manufacture and sell and Purchaser will
purchase, for further manufacture and commercial distribution, bulk quantities
of Product. Purchaser understands that one (1) lot of Product consists of
approximately 7,000+/- 10% one (1) gram jars.
3.2 Upon implementation of this Agreement, Purchaser will
provide to Supplier a twelve (12) month non-binding rolling forecast for the
quantity of Product it intends to purchase on a monthly basis. Said forecast
shall be updated at the beginning of each calendar quarter thereafter.
3.3 Purchaser shall periodically deliver to Supplier written
purchase orders specifying quantity(ies) and deliver date(s). Each order must be
specified in case(s), not jars, with each case containing twenty-four (24) jars
each. Subsequent purchase orders shall be in writing and except as hereinafter
provided, shall specify quantities and delivery dates for each monthly period
and shall be delivered at least three (3) months prior to the beginning of the
period of which they relate.
3.4 Supplier shall manufacture and sell to Purchaser only such
quantities of Product that are subject to firm purchase orders. Purchaser shall
be obligated to purchase, and Supplier shall be obligated to sell, the quantity
of Product which is the subject of a firm purchase order. A purchase order
becomes firm ten (10) days after receipt by Supplier unless earlier rejected.
Rejection of a purchase order by Supplier shall not be unreasonable and may be
communicated to Purchaser telephonically if followed by written confirmation.
3.5 If Purchaser desires to purchase more than the quantities
listed in the purchase orders for such period, then Supplier shall use
reasonable efforts to supply such additional quantities upon the same terms and
conditions herein, but shall be under no obligation to supply any additional
quantities and shall not be responsible for any losses or damages which may
occur if it does not supply additional quantities.
3.6 All written forecasts and written purchase orders shall
include Purchaser's Account Number: 33-45353, which Account Number may be
changed from time to time by written notice to Purchaser. Further, all notice of
forecast and written purchase orders as required under the terms of this
Agreement, must be transmitted by facsimile with a written confirmation to
follow to Supplier at:
3
SUPPLY AGREEMENT
PAGE 3
Xxxxxx X. Xxxxxxxx, Demand Manager
PHARMACIA CORPORATION
OU8915-298-375
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
4. PRICE
-----
The price for Product sold by Supplier to Purchaser commencing
with the implementation of this Agreement and expiring at midnight December
31st, 2002 shall be $49.75/1 gram jar. Changes in pricing will be renegotiated
if any new package sizes of absorbable gelatin powder 1 gram jars (non-sterile)
are developed.
5. INVOICE AND PAYMENT
-------------------
5.1 All orders under this Agreement shall be invoiced at the
time of shipment. Supplier shall use its best efforts to ship the Product, at
Supplier's expense, to such locations in the United States and at such times as
Purchaser shall from time to time designate in the purchase order. All shipments
of Product to Purchaser shall be FOB destination; terms two percent (2%) thirty
(30), Net thirty-one (31) days. Purchaser shall make payment therefor in U.S.
dollars by check mailed to Supplier by regular first class mail. If payment is
not promptly made, Supplier may refuse, in its sole discretion, all further
orders until Purchaser's account is paid in full or, if all amounts past due
under this Agreement have not been paid in full within thirty (30) days after
written notice to Purchaser, Supplier, in its sole discretion, may terminate
this Agreement with the effect set forth in Section 8 hereof.
5.2 LATE CHARGES. If any amount due hereunder is not paid on
or before the date due, Purchaser shall pay a late charge. The late charge shall
be equal to interest on the amount overdue, at the lesser of the maximum amount
allowed by law or eighteen percent (18%) per annum, compounded quarterly, from
the date such payment was due until the date paid.
5.3 RISK OF LOSS. Title and risk of loss of any Product from
time to time purchased by Purchaser from Supplier shall pass at F.O.B. shipping
point thereof to the Purchaser.
4
SUPPLY AGREEMENT
PAGE 4
6. WARRANTY AND SPECIFICATION CHANGES
----------------------------------
Supplier warrants that the Product to be supplied to Purchaser
will comply in all respects with the Specifications provided by Purchaser and
agreed to by Supplier (the "Specifications" attached hereto and made a part
hereof), or as hereafter amended from time to time by Purchaser and agreed to by
Supplier, and to the extent applicable, the United States Food and Drug
Administration's regulations concerning Good Manufacturing Practice. Prior to
the sale of product to purchaser Supplier agrees to provide Purchaser a
"Certificate of Analysis" for each lot purchased by Purchaser from Supplier, in
a form similar to that set forth in Exhibit "A" attached hereto. If said
certificate of analysis for that specific lot does not meet purchasers required
specification then in such event purchaser shall so notify supplier and shall
not be required to take delivery of that specified lot. THIS WARRANTY IS
EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL,
IMPLIED OR STATUTORY. EXCEPT WITH RESPECT TO THE FOREGOING WARRANTY REGARDING
SPECIFICATIONS, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
The liability of Supplier for Product found not to comply with
the Specifications in effect at the time of manufacture or found to contain
outside contaminants which were present when such Product left Supplier's
possessions ("Non-Conforming Product") shall be limited, at the election of
Supplier, to refunding the purchase price, replacing the Product or
reconditioning the same. Upon the request of Purchaser, Supplier shall make such
changes in the Specifications as are required by law or regulation or which are
not unduly burdensome for Supplier. Purchaser shall pay all Supplier's expenses
in making such changes and in continuing to manufacture Product with such
changes and Purchaser shall indemnify and hold Supplier harmless from any loss,
cost, damage, liability or expense (including reasonable legal expenses) in
connection therewith or arising therefrom.
7. INDEMNIFICATION
---------------
7.1 Supplier agrees to indemnify and hold Purchaser harmless
with respect to any claims for injury or damage where such injury or damage is
attributable to the negligence of Supplier.
5
SUPPLY AGREEMENT
PAGE 5
7.2 Purchaser shall indemnify Supplier for all loss, cost,
damage or expense incurred by Supplier from liability claims with respect to
Product, except to the extent that such loss, cost, damage or expense resulted
from Non-Conforming Product and shall further indemnify and hold harmless
Supplier against all claims, proceedings, damages, losses, liabilities, costs
and expenses.
8. TERMINATION
-----------
This Agreement may be terminated by the mutual written
agreement of the Supplier and the Purchaser.
Supplier may also terminate this Agreement upon thirty (30)
days' advance written notice to Purchaser in the event that (i) Purchaser shall
make an assignment for the benefit of creditors, permit or procure the
appointment of a receiver for its assets, or become the subject of any
bankruptcy, insolvency or similar proceeding which shall have remained in force,
undischarged or unstayed for a period of sixty (60) days from the date of
institution thereof; or (ii) Purchaser shall fail to perform any obligation
under this Agreement. Upon termination of this Agreement, neither party shall
have any further obligation to the other hereunder except for obligations which
by their terms are to be performed after termination of this Agreement,
obligations pursuant to Section 6 and 7 hereof, and except that Purchaser shall
remain obligated to pay (a) any unpaid invoices issued by Supplier prior to or
within three (3) months after such termination and (b) any costs or damages to
Supplier associated with such termination.
Either party may terminate this Agreement for any reason or
for no reason upon ninety (90) days written notice to the other party.
9. FORCE MAJEURE
-------------
Neither party shall be deemed to be in default hereunder for
failure to perform, except for non-payment of sums due, if performance is
prevented or delayed by reason of fire, floods, storms, explosions, strikes, or
other labor troubles, riots, material shortages, car shortages, or other
transportation difficulties, governmental regulations, Acts of God, wars,
hostilities, belligerent activities, or other cause beyond such party's control.
6
SUPPLY AGREEMENT
PAGE 6
10. WAIVER
------
No waiver by either party of any breach of any of the terms
and conditions contained herein shall be construed as a waiver of any succeeding
breach of the same or any other term or condition herein.
11. NOTICE
------
All notices and other communications permitted or required to
be given under this Agreement shall be in writing and shall be deemed to have
been given when delivered personally or transmitted by telex or facsimile
(provided there has been confirmation of receipt) or received by registered or
certified mail, return receipt requested, if to Purchaser to it at:
GLIATECH MEDICAL INC.
00000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
ATTN: Director of Manufacturing
And if to Supplier to it at:
PHARMACIA CORPORATION
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ATTN: Demand Manager - Gelfoam
Or to such other person or address as either party shall hereinafter designate
to the other from time to time by similar notice, and as shall be required under
Section 3.6 herein.
12. ASSIGNABILITY
-------------
This Agreement may not be assigned by either party hereto
without the prior written consent of the other, except that Supplier may assign
this Agreement in connection with the sale of its manufacturing facility
responsible for manufacturing said Product without the prior written consent of
Purchaser, and further provided that either party may assign any of its rights
and obligations to any affiliate, but no such assignment shall relieve Supplier
or Purchaser of its obligations hereunder. Subject to the foregoing, all
covenants, agreements, representations and
7
SUPPLY AGREEMENT
PAGE 7
warranties contained in this Agreement shall bind and enure to the benefit of
the respective successors and assignees of the parties hereto.
13. GOVERNING LAW
-------------
This Agreement shall be governed by and construed under the
laws of the State of New Jersey.
14. MODIFICATIONS; SEVERABILITY
---------------------------
This Agreement may not be modified or amended except as
expressly set forth herein, by any course of dealing, usage of trade, oral
agreement or any writing, unless signed by an officer of the party to be charged
therewith. Each provision of this Agreement is severable. If any provision
hereof is invalid for any length of time, the remaining provisions shall remain
valid and binding provided that the invalidity of any provision does not
substantially affect the interest of either party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and first above written.
PHARMACIA CORPORATION GLIATECH MEDICAL INC.
BY: /S/ XXXXX XXXXXX BY: /S/ XXXXXX X. XXXXXX
---------------------------------- ------------------------------------
TITLE: Marketing Director-Diversified Products TITLE: Chief Operating Officer
