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EXHIBIT 10.2
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
SUPPLY AGREEMENT
This Agreement is entered into as of September 20, 1996 by and between
BioTransplant, Inc., a corporation having its principal place of business at
Xxxxxxxx 00, 0xx Xxxxxx, Xxxxxxxxxxx Navy Yard, Charlestown, MA 02129 ("BTI")
and Neose Technologies, Inc., a corporation having its principal place of
business at 000 Xxxxxx Xxxx, Xxxxxxx, XX 00000 ("NEOSE").
WITNESSETH:
WHEREAS, the parties hereto desire that NEOSE supply PRODUCT to BTI (as
hereinafter defined); and
WHEREAS, BTI will evaluate PRODUCT in its ******************* model to
*********************************************** and/or *************************
*************************** and
WHEREAS, BTI and NEOSE desire to set forth in this Agreement the terms
and conditions of such supply;
NOW, THEREFORE, the parties hereto agree as follow:
1. DEFINITIONS
1.1 "PRODUCT" shall mean the *****************************************
******
1.2 "SPECIFICATIONS" shall mean, with respect to the PRODUCT, the
specifications, test procedures, process descriptions, and other
information relating to such PRODUCT as set forth in Schedule A,
which may be amended from time to time by mutual agreement in
writing.
2. PURCHASE OF PRODUCTS
2.1 (a) NEOSE shall sell and BTI shall purchase **********************
of PRODUCT meeting the SPECIFICATIONS.
(b) Subject to Section 2.4, BTI shall have the option to purchase
and NEOSE shall supply an additional ************************ of
PRODUCT under the terms of this Agreement. Such option may be
exercised at any time by BTI by written notice to NEOSE on or
before **************.
2.2 The price of PRODUCT shall be ***************.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
2.3 NEOSE shall use its best efforts to deliver the PRODUCT set forth
in Section 2.1(a) on or before ****************.
2.4 The parties contemplate that in the event BTI's evaluation of
PRODUCT in its ***************************************************
******************************************************************
****************************************************. If on or
before ************, NEOSE ***************************************
******************** BTI, NEOSE *************** BTI and *********
************************* under this Section 2. In addition, this
Agreement shall be terminated at that time.
3. DELIVERY, PAYMENT AND RISK OF LOSS
3.1 BTI shall pay to NEOSE the price of each shipment or transfer of
PRODUCT as follows: (i) ***************** upon ordering PRODUCT by
BTI; (ii) subject to Section 4.1, ******************** upon
delivery; (iii) ******************** upon completion by BTI of its
evaluation of PRODUCT in BTI's *************************; and
(iv) ******************** upon the *******************************
***************************** between the parties or the *********
**************************************************************;
provided that this payment shall *********************************
**************************************************************.
Payment shall be remitted in immediately available funds in the
invoice currency. Unless otherwise agreed between the parties the
invoice currency shall be U.S. Dollars.
3.2 Title to PRODUCT sold hereunder, and risk of loss with respect to
such PRODUCT, shall pass to BTI upon delivery of the PRODUCT to a
carrier designated by BTI at NEOSE's manufacturing facility. Upon
the passage of title, NEOSE's liability shall cease, and BTI shall
be the owner of such PRODUCT for all purposes.
3.3 No provision on NEOSE's purchase order forms which may purport to
impose different conditions upon the parties hereto shall modify
the terms of this Agreement.
4. ACCEPTANCE OF PRODUCT
4.1 BTI shall have ten (10) days from receipt of any delivery of
PRODUCT to examine such PRODUCT. BTI shall promptly notify NEOSE
of any defective PRODUCT and shall return to or otherwise dispose
of any defective shipments in accordance with NEOSE's instructions
at NEOSE's cost and expense. NEOSE shall promptly, but no later
than sixty (60) days after notice from BTI provide for replacement
delivery or give full credit to BTI for any defective shipments as
the parties may agree.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
5. INDEMNIFICATION
5.1 NEOSE agrees to indemnify and hold harmless BTI from or against
all third party liability, claims, losses, damages and expenses,
including reasonable attorneys fees, arising out of the supply of
PRODUCT to BTI under this Agreement; provided that such liability,
claim or loss etc. does not result from the negligence or
intentional misconduct of BTI.
5.2 BTI agrees to indemnify and hold harmless NEOSE from or against
all third party liability, claims, losses, liens and expenses
arising out of its use or sale of PRODUCT; provided that such
liability, claim or loss etc. does not result from the negligence
or intentional misconduct of NEOSE.
5.3 Each party shall notify the other promptly of any claim or
threatened claim, lawsuit or other proceeding under this Paragraph
and shall fully cooperate with all reasonable requests of the
indemnifying party with respect thereto. The party liable for
indemnification hereunder may, at its own expense, provide
attorneys reasonably acceptable to the indemnified party hereunder
to defend against any actions brought or filed against such
indemnified party with respect to the indemnity contained herein,
whether or not such actions are rightfully brought. In such event,
the indemnifying party shall have the right to control the
defense, settlement or compromise of any such action. This
Paragraph shall survive expiration or termination of this
Agreement.
6. WARRANTIES
6.1 NEOSE warrants that PRODUCT at the time of delivery to BTI shall
meet the SPECIFICATIONS.
6.2 Each party represents and warrants that it has the full right and
authority to enter into this Agreement and that it is not aware of
any impediment which would inhibit its ability to perform the
terms and conditions imposed on it.
7. TERM AND TERMINATION
7.1 This Agreement is effective as of the date first above written
and, unless sooner terminated as provided herein, shall continue
for the earlier of one (1) year **********************************
***************************************. This Agreement may be
extended by mutual agreement of the parties hereto.
7.2 This agreement may be terminated by either party if:
(a) (i) the other party fails to observe, perform or otherwise
breaches any of its material covenants, agreements or
obligations under this
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Agreement in any material respect and (ii) such failure
continues for a period of thirty (30) days after receipt by
the other party of notice thereof from the electing party
specifying such failure. Following such period, the electing
party has ninety (90) days to give notice to the other party
of its election to terminate this agreement; or
(b) the other party files or institutes bankruptcy,
reorganization, liquidation, receivership or similar
proceedings under any debt relief laws or fails for more than
sixty (60) days to take steps to oppose the initiation of
such actions against it.
7.3 The termination of this Agreement shall not affect any outstanding
obligations of BTI or NEOSE hereunder, including but not limited
to any payments owed under the provisions of this Agreement while
it was in effect. Any such amount owed to a party shall be paid
within thirty (30) days of the termination of this Agreement. The
provisions of Sections 5 and 8.1 shall survive the termination of
this Agreement.
8. MISCELLANEOUS PROVISIONS
8.1 This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts without giving
effect to its conflict of law rules and regulations.
8.2 This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter thereof and
supersedes all prior agreements in this respect. There shall be no
amendments or modifications to this Agreement, except by a written
document which is signed by both parties.
8.3 The headings in this Agreement have been inserted for the
convenience of reference only and are not intended to limit or
expand on the meaning of the language contained in the particular
article or section.
8.4 Any delay in enforcing a party's rights under this Agreement or
any waiver as to a particular default or other matter shall not
constitute a waiver of a party's right to the future enforcement
of its rights under this Agreement, excepting only as to an
expressed written and signed waiver as to a particular matter for
a particular period of time.
8.5 In the event any provision of this Agreement should be held
invalid, illegal or unenforceable, the remaining provisions shall
not be affected or impaired and the parties will use all
reasonable efforts to replace the applicable provision within a
valid, legal and enforceable provision which insofar as practical
implements the purposes hereof.
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9. FORCE MAJEURE
Neither party shall be liable to the other for any default hereunder
which is due to cause beyond the control of the party in default,
including but not limited to the actions or inactions of any government
agency or instrumentality; breakdown of plant or machinery or shortages
of labor, fuel, transportation of materials, fires, floods,
earthquakes, war, riots or instructions. If either party shall seek to
rely on Force Majeure it shall give written notice to the other
indicating the details of the act which it claims has put due
performance of its obligations beyond its control. In addition, the
affected party shall exert all reasonable efforts to eliminate or cure
any Force Majeure event and to resume performance with all possible
speed. In the event this cannot be done within six (6) months, the
parties shall either resolve the matter by mutual agreement or
terminate this Agreement.
10. SUCCESSORS
The rights and obligations included in this agreement shall be binding
upon the parties hereto and their successors and permitted assigns.
11. ASSIGNMENT
This Agreement may not be assigned by either party without the consent
of the other except either party may assign this Agreement without
consent in the event of a merger or acquisition or a transfer of all of
its business or assets relating to this Agreement.
12. NOTICES
Any notice required or permitted to be given under this agreement shall
be deemed to have been sufficiently given and delivered upon the
earlier of (i) when received at the address set forth herein or (ii)
three (3) business days after being mailed by registered or certified
mail, postage prepaid with return receipt requested, addressed to the
party to be notified at its address stated in the Agreement or at such
other address as may hereafter be furnished in writing to the notifying
party or (iii) on the day when sent by facsimile as confirmed by
registered or certified mail.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives hereunto duly authorized as of the
day and year first above written.
BIOTRANSPLANT, INC. NEOSE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx Xxxx
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
SCHEDULE A
SPECIFICATIONS
*************** Specifications
********************* will have the following structure:
*************************************************
*************************************
shipments will contain at least ************************* as
determined by *********** chromatography
each batch will be a ************, and will be accompanied by
**** chromatograms demonstrating the degree of purity
contaminants may consist of *********************************
***************************************************
***********************************************************
