Exhibit 10.38
CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASSIGNMENT OF SUPPLY AGREEMENT
This Assignment of Supply Agreement (this "Agreement") is made and
entered into as of July 31, 2000 by and between 3DLM, Inc., a California
corporation formerly known as CancerVax, Inc., which is changing its name to
OncoVac, Inc. ("OncoVac"), and CancerVax Corporation, a Delaware corporation
("CancerVax").
RECITALS
A. Organon Teknika Corporation, a Delaware corporation
("Teknika"), and OncoVac are parties to a Supply Agreement dated as of April 15,
1998 (the "Supply Agreement").
B. OncoVac and CancerVax are "Affiliates," as such term is
defined in the Supply Agreement (Section 1.1), by virtue of being under common
ownership with the same majority shareholder who owns more than fifty percent
(50%) of the equity having the power to vote or direct the affairs of each
OncoVac and CancerVax.
C. OncoVac desires to assign all of its rights and obligations
under the Supply Agreement to CancerVax, and CancerVax desires to assume all
such rights and obligations, upon the terms and conditions set forth herein.
Now therefore, the parties agree as follows:
AGREEMENT
1. ASSIGNMENT
OncoVac hereby assigns to CancerVax, as of the date hereof and pursuant
to Section 7.2(b) of the Supply Agreement, all of OncoVac's right, title,
interest and obligations under the Supply Agreement, and CancerVax hereby
accepts such assignment and assumes all of OncoVac's right, title, interest and
obligations under the Supply Agreement. CancerVax further agrees to keep,
perform, comply with and fulfill all of the terms and obligations of OncoVac
under the Supply Agreement.
2. CONSIDERATION
In consideration for the assignment pursuant to Section 1 of this
Agreement, CancerVax agrees to issue to OncoVac preferred stock of CancerVax on
the same terms and conditions, at the same time, and having the same rights,
preferences and privileges, as CancerVax issues to investors in its next
preferred stock financing round (excluding the proposed recapitalization of
CancerVax), the number of shares of such
preferred stock to have an aggregate value of [***] based on the acquisition
price then paid by such other investors; provided, however, that OncoVac shall
execute agreements and documents that are in substance the same as those
executed by the other preferred stock investors.
3. REPRESENTATIONS AND WARRANTIES
OncoVac represents and warrants to CancerVax that the Supply Agreement
(a) is in full force and effect, (b) has not been amended or modified, (c) has
not been breached by OncoVac or, to its knowledge, by Teknika, and (d) is not
subject to a claim of breach by either party as of the date of this Agreement.
OncoVac further represents and warrants that there are no outstanding purchase
orders, obligations to pay or any claims under the Supply Agreement and no
rolling forecasts pursuant to Section 2.4(a) of the Supply Agreement that will
create or have created a binding obligation.
4. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
3DLM, INC.,
f/k/a CancerVax, Inc.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Its: Chairman
CANCERVAX CORPORATION
By: /s/ [ILLEGIBLE]
----------------------------
Its: President
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