[*] indicates that a confidential portion of the text of this agreement has been
omitted and filed separately with the Securities and Exchange Commission
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT ("Amendment Agreement"), made as of this 17th day
of October, 1991, by and between XXXXXXX RIVER LABORATORIES, INC., a Delaware
corporation with its principal offices located at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("CRL"), and XOMA CORPORATION, a Delaware
corporation with its principal offices located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 ("XOMA").
Background/Purpose
XOMA and CRL entered into a Supply Agreement dated as of December 8, 1988
(as amended to date, the "Supply Agreement"), for the production by CRL of
murine ascites fluid ("Ascitic Fluid") from two cell lines owned by XOMA: N024
(or E5) for septic shock (the "E5 Product") and N020 (or H65) for graft-vs-host
reactions (together with the E5 Product, the "Products"). [*] the parties hereby
agree to amend the Supply Agreement in the manner set forth below.
1. Nullification of Previous Amendment Agreement. By their execution of
this Amendment Agreement, CRL and XOMA hereby agree that the Amendment Agreement
dated as of March 1, 1991, between CRL and XOMA (the "Expansion Amendment"),
relating to the reservation of expansion space at CRL's ascites manufacturing
facilities in Raleigh, North Carolina (the "Raleigh Facility") and the
reimbursement of fixed facility and operating expenses by XOMA, shall be a
nullity as of December 31, 1991 and shall be of no further force or effect on or
after such date. The nullification of the Expansion Amendment shall not,
however, relieve either party of any duties or obligations thereunder,
including, without limitation, the obligation to pay any expenses, fees or
reimbursement amounts which were incurred pursuant to the Expansion Amendment on
or before December 31, 1991. In the event of a conflict between the terms of
this Amendment Agreement and the terms of the Expansion Amendment, the terms of
this Amendment Agreement shall prevail.
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2. Amendment of Existing Purchase Order. Pursuant to Section 14.1 of the
Supply Agreement, the Supply Agreement and Purchase Order #31100-2 currently
outstanding thereunder for calendar year 1991 (the "Existing Purchase Order")
are each hereby amended by substituting for the Existing Purchase Order the
purchase order attached hereto as Exhibit A (the "Modified 1991 Purchase
Order"). XOMA hereby acknowledges that it understands the terms of the Modified
1991 Purchase Order and agrees (i) to execute and deliver the Modified 1991
Purchase Order simultaneous with the execution of this Amendment Agreement and
(ii) that the Modified 1991 Purchase Order shall take effect upon execution and
shall supersede in all respects the Existing Purchase Order. CRL and XOMA
acknowledge and agree that the Modified 1991 Purchase Order, when read in
conjunction with Section 7 of this Amendment Agreement, requires XOMA to
guarantee payment to CRL of an aggregate of [*] for Ascitic Fluid produced by
CRL during calendar year 1991.
3. 1992 Purchase Order. CRL and XOMA hereby agree that, during calendar
year 1992, CRL will deliver the quantities of Ascitic Fluid set forth on Exhibit
B hereto in accordance with the schedule set forth therein, which will result in
CRL delivering to XOMA a quantity of Ascitic Fluid sufficient to require XOMA to
pay CRL aggregate payments of at least [ * ] (the "1992 Minimum Payment") during
such calendar year. Ascitic Fluid which is available for delivery on a specified
date, but segregated and not shipped pursuant to Section 6 of this Amendment
Agreement, shall be deemed "delivered" for purposes of this Amendment Agreement.
Attached hereto as Exhibit C is a form of purchase order (the "1992 Purchase
Order"), which Purchase Order sets forth the specific terms necessary to ensure
that CRL receives not less than the 1992 Minimum Payment in connection with the
sale of Ascitic Fluid to XOMA in calendar year 1992. XOMA hereby acknowledges
that it has read and understands the terms of the 1992 Purchase Order and agrees
to execute and deliver the 1992 Purchase Order simultaneous with the execution
of this Amendment Agreement.
4. Availability of Production Space. Effective January l, 1992, CRL hereby
agrees [*]
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[*]. The reservation of the Reserved Space and, if necessary, the Expansion
Space shall be at no additional charge to XOMA, but XOMA shall under no
circumstances be relieved of its obligation to pay CRL, in accordance with the
terms of the 1992 Purchase Order, for any additional quantities of Ascitic Fluid
ordered by XOMA in excess of the amount required to ensure the 1992 Minimum
Payment. In its effort to meet any of XOMA's additional production requirements
for Ascitic Fluid, CRL will not be required to accelerate its production process
or increase the concentration of animals located in the Reserved Space or the
Expansion Space in a manner which CRL determines, in its reasonable business
judgment following consultation with XOMA, would likely impair CRL's ability to
maintain applicable health and safety standards including, without limitation,
health and safety standards applicable to the production of Ascitic Fluid, the
operation of the Facility, the well-being of persons in the facility or any
other health and safety standards imposed by law.
5. Maintenance of Core Staff. CRL hereby agrees to maintain a core staff of
trained production, quality assurance and other key personnel at the Raleigh
Facility sufficient to (i) ensure the timely delivery of the 1992 Minimum
Requirement and (ii) meet any reasonable requests from XOMA for the production
of additional quantities of Ascitic Fluid in compliance with "Good Manufacturing
Procedures" as set forth in CRL's License Applications to the FDA.
6. Segregation of E5 Product. If requested by XOMA, CRL will, subject to
reasonable space limitations, segregate but not ship E5 Product which is already
tested for, and has passed, release specifications (the "Segregated Inventory").
Title to and risk of loss of the Segregated Inventory shall pass to XOMA upon
segregation of the Segregated Inventory. When such Segregated Inventory is
subsequently shipped, CRL agrees to insure such Segregated Inventory during
shipment in accordance with CRL's customary practice of insuring Ascitic Fluid
in transit.
7. Guarantee. XOMA shall be obligated to purchase [*] Products (i) to be
supplied by CRL in calendar year 1991 and (ii) delivered in calendar year 1992
which are necessary to ensure that XOMA will pay the 1992 Minimum Payment, as
specified in the Modified 1991 Purchase Order and 1992 Purchase Order,
respectively, and CRL shall be obligated to produce and deliver said guaranteed
amount. XOMA shall be obligated to purchase [*] to be supplied by CRL in
calendar year 1992 in excess of the amount
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necessary to ensure that XOMA will pay the 1992 Minimum Payment and CRL shall be
obligated to produce and deliver such excess amount.
8. Extension of Supply Agreement. Pursuant to Section 1.2 of the Supply
Agreement, the Supply Agreement shall be extended through December 31, 1992, to
include coverage of the deliveries scheduled for calendar year 1992.
9. Other Terms. All other terms and conditions of the Supply Agreement
shall remain in full force and effect, except to the extent that modification is
necessary to reflect the nullification of the Expansion Amendment as of December
31, 1991 and the agreements set forth herein.
10. Long-Term Agreement. The parties agree that, following FDA approval of
the E5 Product, the current supply arrangement evidenced by the Supply Agreement
will be extended for an additional period of not less than [*], and also
modified so as to [*].
11. Notwithstanding anything to the contrary in the Supply Agreement, all
notices to be delivered to XOMA shall be directed to the attention of XOMA's
Legal Department.
IN WITNESS WHEREOF, CRL and XOMA have caused this Amendment Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
XXXXXXX RIVER LABORATORIES, INC.
By: /s/ Xxxxx X. Xxxxxx 10/21/91
Xxxxx X. Xxxxxx
President and Chief Operating
Officer
XOMA CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx 10/17/91
Xxxxxxxx X. Xxxxxx
Senior Vice President
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Facsimile of XOMA Purchase Order follows:
Exhibit A
XOMA PURCHASE ORDER
31100 *REPRINT*
Ship to XOMA II Receiving Dock
XOMA Corporation
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 x2021
Vendor Xxxxxxx River Biotechnical
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone 000 000-0000
Requestor X. Xxxxxx
Order date 10/17/91
Vendor Code 2222
Terms Net 30
Ship via O/N
F.O.B. FACT
Freight PPD
Taxable NO
P.O. Type REG
Account Number See Below
Confirm to X. Xxxxxxx
ITEM PART NUMBER/DESCRIPTION DELIVERY DATE
1 101209 12/31/91
Xxxxxxx, X0, Purchased
ACCOUNT: 1200-100
2 101204 CLOSED
Ascites, H65, Purchased
ACCOUNT: 1200-100
3 101209 CLOSED
Xxxxxxx, X0, Purchased
ACCOUNT: 1200-100
4 101204 04/10/91
Xxxxxxx, X00, Purchased
ACCOUNT: 1200-100
5 MISC- 5-31100 CLOSED
EDIM Adjustment
ACCOUNT: 0-0000-000
AMENDMENT TO PURCHASE ORDER 31100-2
XOMA guarantees to purchase 100% of PO#31100-4 requirements. Deliveries
to be made in accordance with the attached delivery schedule. Terms and
conditions of this purchase per supply agreement dated February 27,
1989, as amended from time to time.
TOTAL ORDER $9,412,115.80
/s/Xxxx Xxxxxxxx
Authorized Agent
EXHIBIT "B1"
XOMA PRODUCTION
[*]
EXHIBIT "B2"
XOMA PRODUCTION
[*]
Facsimile of XOMA Purchase Order follows:
Exhibit C
XOMA PURCHASE ORDER
35753 *REPRINT*
Ship to XOMA II Receiving Dock
XOMA Corporation
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 x2021
Xxxx to XOMA II Receiving Dock
XOMA Corporation
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 x2021
Vendor Xxxxxxx River Biotechnical
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone 000 000-0000
Requestor X. Xxxxxx
Order date 10/17/91
Vendor Code 2222
Terms Net 30
Ship via O/N
F.O.B. FACT
Freight PPD
Taxable NO
P.O. Type REG
Account Number 1200-100
Confirm to X. Xxxxxxx
ITEM PART NUMBER/DESCRIPTION
1 101209
Xxxxxxx, X0, Purchased
Any incremental quantities ordered by XOMA shall result in a
negotiation of a new, lower price based on volume for the full year.
XOMA guarantees to purchase 100% of PO#35753 requirements in 1992. Any
incremental quantities of E5 or H65 ascites purchases will be
guaranteed at 50% level. Deliveries to be made in accordance with the
attached delivery schedule. Additional terms and conditions supply
agreement dated February 27, 1989.
TOTAL ORDER $2,964,144.00
/s/Xxxx Xxxxxxxx
Authorized Agent
