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SUPPLY/PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and effective this 18th day
of January, 2001, by and between HTS Biosystems, Inc., a Minnesota Corporation
having its principal office at 00 Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxxxxxxx, the
United States of America ("HTS") and Mitsubishi Chemical Corporation, a Japanese
corporation having its principal office at 0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx,
Xxxxx, Xxxxx ("MCC").
WITNESSETH THAT:
WHEREAS, HTS has been engaged in the manufacture and sale of HTS SPR
Array System and Uncoated Grating Chips (the "Products");
WHEREAS, MCC wishes to purchase the Products from HTS for MCC's
Development; and
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreement herein set forth, the parties hereby agree as follows:
ARTICLE 1 (SUPPLY AND PURCHASE)
Subject to the terms and conditions set forth herein, HTS shall sell,
transfer and deliver to MCC, and MCC shall purchase and receive from HTS, the
Products meeting the quality specifications as set forth in Article 2.1 hereof.
ARTICLE 2 (SPECIFICATION)
2.1 The specifications and quantity of the Products to be delivered to MCC
hereunder (the "Specifications") shall be those as described in Exhibit
A attached hereto and made a part hereof.
2.2 Upon delivery of the Products to MCC, HTS shall provide a certificate
describing the result of its test on each lot of the Products delivered
meeting the Specifications.
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ARTICLE 3 (FORECAST AND ORDERING MECHANISM)
3.1 In order to help HTS make its production and supply program, MCC shall
inform HTS, in writing, of a forecast indicating MCC's estimated
semi-annual requirements for the Products during each such half year
period together with the monthly breakdown (a " Forecast"). None of the
figures indicated in each Forecast shall be interpreted as a binding
commitment of MCC; provided, however, that MCC shall use its reasonable
efforts to place purchase orders with HTS for the Products so as to
follow the monthly breakdown indicated in each Forecast.
3.2 A firm purchase order for the Products may be placed by MCC in writing
(by facsimile) with HTS at any time but not later than eight (8) weeks
by MCC, prior to the desired date of delivery. Each purchase order
shall indicate;
(1) the desired quantity of the Products and desired date of
delivery; and
(2) any other information as MCC deems necessary and appropriate.
3.3 Immediately but, in no event, later than one (1) week after the date of
each purchase order by MCC, HTS shall provide MCC, to whoever sent such
purchase order, with a written notice (by facsimile) of its (i)
acceptance of such MCC's purchase order or (ii) difficulty (together
with the reason therefor) to meet such MCC's requirement indicated in
any part of the purchase order. Each individual sales/purchase contract
shall be deemed established and become binding between such MCC and HTS
simultaneously upon HTS's written acceptance of such MCC's firm order
as placed pursuant to Article 3.2 above. If any difficulty should be
indicated in HTS's notice, MCC and HTS shall discuss in good faith
measures to solve such difficulty.
3.4 None of the terms and conditions as may be indicated in such purchase
order of MCC or HTS's acceptance which are not referred to in this
Agreement or not consistent with those of this Agreement shall have any
binding effect over the parties unless otherwise from time to time
agreed to by the parties.
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ARTICLE 4 (UNIT PRICE AND PAYMENT TERMS)
4.1 The unit price payable by MCC to HTS for the Products delivered
hereunder (the "Unit Price") shall be as described in Exhibit B per
attached hereto.
4.2 Each payment by MCC for the Products delivered from HTS to MCC
hereunder shall be made to HTS in US Currency. The U.S. currency
payments hereunder shall be determined on the basis of the telegraphic
transfer selling (TTS) rate of exchange as reported by Tokyo Mitsubishi
Bank in effect on the date such payments. Such payment shall be paid
within ninety (60) days after the delivery of the each Product. With
respect to the payment set forth herein, MCC shall be responsible for
taxes, duties or any other expenses in Japan and HTS shall be
responsible for taxes, duties or any other expenses in the United
States of America.
ARTICLE 5 (DELIVERY)
5.1 The terms of delivery of the Products from HTS to MCC shall be FOB
Boston Xxxxx International Airport.
5.2 The title to and the risk of loss of the Products shall pass from HTS
to MCC upon the time of delivery.
ARTICLE 6 (PACKING)
The Products shall be packed as requested by MCC and in a
commercially reasonable fashion.
ARTICLE 7 (USE OF THE PRODUCTS)
The Products shall be used solely for the MCC's research and
development.
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ARTICLE 8 (NON-CONFORMITY)
8.1 HTS hereby warrants to MCC that the Products shall meet with the
Specifications at the time of the delivery.
8.2 The warranty under this Article 8 shall not be valid and available
unless MCC, so delivered, shall have sent a written notice to HTS of an
alleged non-conformity of the Products to the Specifications within one
hundred eighty (180) days after the date of delivery of such allegedly
non-conforming Products.
8.3 In the event that MCC, so delivered, has proven, with proper technical
background, the alleged non-conformity of Products to have been
attributable to HTS, HTS shall provide MCC with replacement Products
that shall meet the Specifications without unreasonable delay.
ARTICLE 9 (DISCLAIMER)
The warranties and remedies as provided for in article 8 above shall
be exclusive and there are no other warranties, expressed or implied, including
the warranties of merchantability, fitness of the products for any particular
purpose other than that as described in Article 9 or non-infringement of third
party's intellectual property rights. In no event shall seller be liable or held
responsible to any incidental or consequential losses or damages (including, but
not limited to, economic losses or loss of profits) suffers or incurred by MCC
as a result of or in connection with the implementation of the supply of
products hereunder, except to the extent such losses or damages arise out of
gross negligence or willful misconduct of HTS.
ARTICLE 10 (TERM AND TERMINATION)
10.1 This Agreement shall be valid for a period of six (6) months commencing
on the execution date hereof.
10.2 Notwithstanding the provisions of Article 9.1 above, each of the
parties may terminate this Agreement by giving a written notice to the
other parties in the event that either party;
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(1) is declared insolvent or bankrupt, or makes an assignment or
other arrangement for the benefit of its creditors;
(2) has all or any substantial portion of its capital stock,
assets or any other property transferred by it to any third
party or expropriated by any government;
(3) is dissolved or liquidated;
(4) becomes unable to make payment or stop making payments to a
third party; or
(5) commits material default or breach of its obligation under
this Agreement, and such default or breach shall not have been
cured within thirty (30) days after the date of a written
notice of such default or breach by the non-defaulting Party.
10.3 Any expiration or termination of this Agreement shall not release any
party from any of its obligations accrued prior to the date of
expiration or termination or any liabilities to the other parties that
may incur upon such termination.
10.4 Upon termination of this Agreement for whatever reason, notwithstanding
the provisions of Article 4.2 above, the parties shall immediately pay
all then outstanding credit irrespective of their original due dates.
ARTICLE 11 (FORCE MAJEURE)
None of the parties shall be liable for any loss or damage, or delay
or failure in performing its obligation, other than any monetary obligation
against any other party, under this Agreement caused by circumstances beyond the
control of the party affected, which affects the relevant party or any other
person involved in the sale, manufacturing, supply, shipment or receipt of the
Product, including, but not limited to, acts of God, fire, flood, typhoon,
earthquake, tidal wave, landslide, plague, epidemic, quarantine restriction,
perils of the sea, war or serious threat of the same, civil commotion, blockade,
arrest or restraint of government, rulers or
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people, requisition of vessel or aircraft, strike, lockout, sabotage or other
labor dispute, explosion, accident or breakdown in a whole or in part of
machinery, plant, transportation or loading facility, governmental request,
guidance, order or regulation, unavailability of transportation or loading
facility, curtailment, shortage or failure in the supply of fuel, water,
electric current, other utility, or raw material, and any other similar causes
or circumstances which are beyond the reasonable control of the party affected.
ARTICLE 12 (NOTICE)
All notices, statements, reports, requests or other communications to
a party required or permitted hereunder shall be in writing and shall be deemed
effective and properly given when sent by registered or certified mail, or by
confirmed facsimile transmission to the person as indicated below or such other
person as may be designated by MCC or HTS by such notice;
if to MCC, to:
Mitsubishi Chemical Corporation.
0-0, Xxxxxxxxxx 0-xxxxx,
Xxxxxxx-xx, Xxxxx000-0000 Xxxxx
Attention: General Manager, Life Science Business Initiatives Department
Facsimile number: (00) 0000-0000
and, if to HTS, to:
HTS Biosystems, Inc.
00 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 U.S.A
Attention: CEO
Facsimile number: (000) 000-0000
MCC and HTS may change their respective above-specified recipient and/or mailing
address by notice to the other party given in the manner herein prescribed. All
notices shall be deemed given on the day when actually delivered as provided
above (if delivered by facsimile) or on the day shown on the return receipt (if
delivered by mail).
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ARTICLE 13 (CONFIDENTIALITY)
13.1 Each of the parties (the "Receiving Party") shall keep in confidence,
and shall not disclose to any third party and use for any purpose other
than that of this Agreement, the content of this Agreement nor any
confidential information furnished from any other Party (the
"Disclosing Party"), unless otherwise specifically agreed to in writing
by the Disclosing Party; provided, however, that any of the following
information shall not be deemed as confidential information for
purposes of this Agreement:
(1) information that is publicly known at the time of receipt from
the Disclosing Party, or that becomes known to the public
after receipt by any reason not attributable to the Receiving
Party.
(2) information that was already in possession of the Receiving
Party prior to the disclosure from the Disclosing Party.
(3) information that was furnished to the Receiving Party from any
third party as a matter of right without restriction on
disclosure.
13.2 The obligations under this Article shall survive any expiration or
termination of this Agreement for a period of five (5) years
thereafter.
ARTICLE 14 (WAIVER)
No waiver by any party of its right to enforce any provisions of this
Agreement shall constitute a waiver of such party's right to enforce such
provisions thereafter or to enforce any other provisions of this Agreement.
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ARTICLE 15 (ASSIGNMENT)
Each of the party shall not assign or transfer all or any part of
this Agreement to any third party without the prior written consent of the other
parties.
ARTICLE 16 (GOVERNING LAW)
This Agreement shall be construed in accordance with the laws of the
State of New York, excluding its choice of law provisions. The Parties further
agree to submit themselves to the non-exclusive jurisdiction of the state and
federal courts of the State of New York in the event that any dispute arises
under this Agreement.
ARTICLE 17 (SEVERABILITY)
17.1 In the event that any provision of this Agreement should be deemed
unlawful or invalid, then, except as provided for herein, such
provision shall be severed from this Agreement but the remaining
provisions of this Agreement as a whole shall remain unaffected and
binding on the Parties.
17.2 Notwithstanding any other provision of this Agreement to the contrary,
if the parties' intention as originally contemplated herein should
become disturbed or to be likely disturbed to a substantial degree by
the action or order of any government authorities concerned, then the
parities shall review this Agreement and discuss in good faith
alternative solutions practically available which may include the
termination of this Agreement.
ARTICLE 18 (ARBITRATION)
The parties hereto shall attempt to settle any dispute, controversy
or difference in connection with this Agreement and the incidental agreements in
an amicable way. In the event that such attempts should fail, then the parties
hereto agree that the dispute be exclusively and finally settled by arbitration
under the Rules of Conciliation and Arbitration of the International Chamber of
Commerce. The arbitration proceedings shall be held in Tokyo, Japan in the
English language.
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ARTICLE 19 (ENTIRE AGREEMENT)
This Agreement contains the entire and final agreement of the parties
with respect to the subject matter hereof. Any and all prior memoranda of
understanding, letters of intent, promises, undertakings, representations,
agreements and understandings, written or oral, with respect to the subject
matter of this Agreement shall be hereby terminated. This Agreement may not be
altered, amended or modified in any way except by an instrument in writing
executed by the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to execute
by their duly authorized officers.
MITSUBISHI CHEMICAL CORPORATION
--------------------------------------------
By: Xxxxxxx Xxxxxxxx
Its: General Manager,
Life Science Business Initiative
Department
HTS BIOSYSTEMS, INC.
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By: Xxxxxxx X. Xxxxxxx
Its: Chief Executive Officer
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EXHIBIT A
SPECIFICATIONS FOR XXXXX 0 XXXXXXXXXX XXXX
XXXXXXXXXXX OF SPR PARAMETERS
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SPR PARAMETERS EQUIVALENT VALUES
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SPR angle shift 2.5 millidegrees
CHANGE IN PROTEIN SURFACE CONCENTRATION 0.05 ng/mm2
CHANGE IN BULK REFRACTIVE INDEX 5 x 10-5
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INSTRUMENT DETAILS
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FLEX CHIP ANALYZER
1. OPTICS
1)Illumination system
(1)LED HP HSDL4400
(2)Wavelength 875 nm
(3)Scanning methods to change incident angle Move source
a)Methods Motor driver
b)Scan speed (degrees/ms) 2.65x10-4 deg/ms
(3)Total incident angle (degrees)
(from XX to YY) 16-24
(which corresponds to a refractive index range of AA to BB) 1.43 x 10-1
(4)Individual incident angle of 35 LEDs (millidegree) 180 mdeg
(which corresponds to the resolution?) 3.24 x 10-3
(5)LED spot size on the sensor surface (mm2) 25 mm diameter
(which corresponds to the array capability ?) overfills
2. DETCTION SYSTEM
(1)CCD array detector Quantix 1401E-G2
a)Number of pixels 1317-1035
b)pixel size 6.8 x 6.8 um
c)CCD bits 12 bits
d)Spot size of reflected beam 10mm x 10mm
e)Frame rate 2 Frames/sec
f)Integration time (exposure time) 100 ms
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3. OTHERS
(1)STANDARD SENSOR CHIP to check the optics None currently
(1)Methods of getting same optical signal (intensity) Overfill 1 x 1 cm area
At every site on the STANDARD sensor surface
(2)Methods of correcting optical signals Normalization / angle scan
(3)Methods of on-line subtraction (reference) Currently off-line
(4)Advantage of this system 400 ROIs
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2.Flow control
1)Peristatic pump or Syringe pump peristaltic
2)Methods of flow path channeling
2)Flow rate range 1-500 uL/min
3)Stability of Flow rate (on sensor surface)
(1)Same flow rate at every site on sensor surface
(2)No short path
(3)To avoid air noises (foam)
4)To avoid sample dispersion due to mixing
between sample and buffer at the beginning
And end of injection (air segments ?)
5) To avoid concentration differences in the
flow cell (flow rate ?)
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0.XXXX ANALYSIS
1)Raw data of SPR of 35 LEDs at every site
on sensor surface.
a)CCD bit image optional
2)Methods of estimating peak shifts 5th order polynomial
(peak shifts or Intensity shifts?) Peak shifts
3)data Intervals 5 millidegrees or 1 sec
1 kinetic point every 12 seconds
4)Reaction time scale for 400 array spots.
5)Used capacity for one data
6)Software for calculation Labview
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4.OTHERS
1)Temperature control in FLEX CHIP Yes +/- 0.5 C
120 VAC
2)Power supply 60 Hz
3)Dimentions ( L x W x H ) 500x500x500mm
4)Net Weight (kg) 58 kg
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FLEX CHIP
1.Chip (Gold-coated sensor chip transducer)
1)Groove width (pitch) 856nm
38-40 nm
2)Groove depth 60 nm optimal
3)Groove shape sinusoidal
4)Gold-layer thickness 40-80 nm
5)Substrate PC
6)Manufacturing Process of Gold-coated gratings
(xxxxxxx, spattering etc)
a)Instruments
b)Methods
7)Spotting methods of samples (proteins)
a)Instruments (machines and tools)
b)Methods
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2.Disk (cartridge with sensor chip)
1)Cartridge material
2)Cartridge structure in detail (design)
3)Flow cell volume (L x W x H) 55 uL total (25 under window)
3)Manufacturing-Process to assemble cartridge
a)Instruments and tools (UV light, etc)
b)Methods
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SYSTEM SPECIFICATION HTS-Systems
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TYPE OF INFORMATION Detection
Concentration
Kinetics and Affinity data
Others (Thermodynamic analysis)?
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FLOW AND SAMPLING CONTROL
1)Flow rate range (through flow cell) 1-500 uL/min
(steps) 1 uL steps
2)Flow rate accuracy
3)Flow rate precision
4)Required sample volume Minimum 55 uL
5)Chemical resistance yes
(pulse or continuous flow)
(for Methanol and DMSO ,etc)
6)Sample capacity
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DETECTION
400 ROI ~250 um diameter (2500
ROI possible with ~100 um
1)Array capability diameter)
Real time monitoring of
2)Data presentation interactions
at every site on the sensor
surface once every 12 seconds
(may change w/ 2500 spot array)
1.33-1.40 with software
3)Sample refractive index range development
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Semi-fixed (mechanical
4)Analysis temperature adjustment)
(fixed or varied)
5)Temperature accuracy +/- 0.5 C
6)Time to change temperature
if needed
by 5?
From ambient to 35 degrees C in
by 10? less than 1 minute
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SYSTEM SPECIFICATION HTS-System
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TYPICAL WORKING TEST
(better than Quantech System)
Baseline
1)Baseline noise Not determined with new technique
2)Baseline drift Not determined with new technique
Glucose runs Use ethanol gradient for
characterization
1)Detection limit of glucose 0.1 % (.0025 deg) ethanol in
high resolution mode over entire
surface (all 400 ROIs)
(0 +2SD) 1-2 minute analysis time
2)CV's (at a glucose concentration
of 1mg/mL at all sites on sensor
Surface
3)Difference of relative SPR shift
between sites
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3)Difference of relative SPR shift between instruments
3)Linearity~ ~over 2 logs ( can currently detect 0.1 to
10% EtOH)
Other samples
1)Myoglobin (MWoF17000 Da)
2)Avidin , etc
TYPICAL DYNAMIC RANGE
(better than BIACORE System ?) Yes with additional work
Kinetics
1)Association rate constant NA
(in future)
2)Dissociation rate constant NA
(in future)
3)Affinity NA
(in future)
Detection limit of low molecular weight 50 pg/mm2
(no enhancer / direct measurement)
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EXHIBIT B
1. HTS SPR ARRAY SYSTEM
1-1 Unit Price US$150,000
1-2 Number of Units to be purchased: up to three (3) units
1-3 Conditions for payment:
MCC will pay half of the amounts that unit price multiply number of
units to be purchased to HTS within forty-five days and remaining
balance will be paid within forty-five days after receipt by MCC of
the instrument(s) by the MCC designated agent provided that MCC has
not informed HTS of non-acceptance of such instruments.
2. UNCOATED GRATING CHIPS
2-1 Unit Price US$1.75
2-2 Number of Uncoated Grating Chips To be determined
2-3 Conditions for payment:
MCC will pay the mounts that unit price multiply number of Uncoated
Grating Chips to be purchased to HTS within forty-five days upon
receipt of Uncoated Grating Chips.
