[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.17
SUPPLY AGREEMENT
between
biosyn Arzneimittel GmbH
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
D-70734 Fellbach
and
Genitope Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
THIS AGREEMENT IS MADE ON
BETWEEN:
1. BIOSYN ARZNEIMITTEL Gmbh, a company incorporated in Germany, whose
registered office is at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ("BIOSYN"); and
2. GENITOPE CORPORATION, a Delaware corporation having its principle place
of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("GENITOPE").
WHEREAS:
A BIOSYN is a company engaged in the marketing and development of
pharmaceuticals, including pharmaceuticals for treating and preventing
a number of diseases and conditions. BIOSYN is also engaged in the
manufacture of biosyn KLH (Immucothel(R)/Vacmun(R)).
B BIOSYN has agreed to manufacture and sell KLH to GENITOPE, and GENITOPE
has agreed to order exclusively from BIOSYN subject to the terms below.
C BIOSYN is pursuing a product license from the FDA for biosyn KLH
(Immucothel(R)/Vacmun(R)).
THIS AGREEMENT WITNESSES AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement
"biosyn KLH" means the form of KLH manufactured by BIOSYN
corresponding to the DMF (FDA File no.
[*]) and having the specifications
detailed on the Product Data Sheet attached
hereto as Schedule 1 and incorporated by
reference herein;
"DMF" means the Drug Master File for biosyn KLH a
copy of which has been filed with the FDA
(no. [*]);
"FDA" means the United States Food and Drug
Administration;
1.
"Free Carrier" bears the meaning set out in the incoterms
1990, a copy of the relevant section of
which is included as Schedule 3 hereto;
"Further Term" means any term of two (2) years subsequent
to the Initial Term;
"Genitope Vaccine" means a vaccine preparation produced by
GENITOPE comprising an idiotype protein
derived from a patient's B cell lymphoma
conjugated to KLH;
"Initial Term" means the first five (5) year term of this
Agreement running from the date of execution
for a period of five (5) years;
"KLH" means Keyhole Limpet Hemocyanin, a protein
from the giant limpet Megathura crenulata;
"KLH Licence" means the FDA product license for biosyn
KLH. When ultimately granted by the FDA.
1.2 In this Agreement, a reference to:
1.2.1 a document in the "agreed form" is a reference to a document
in a form approved and for the purposes of identification
signed by or on behalf of the Parties;
1.2.2 persons includes a reference to anybody corporate,
unincorporated association or partnership;
1.2.3 a person includes a reference to that person's legal personal
representatives, successors and permitted assigns;
1.2.4 a Clause or Schedule, unless the context otherwise requires,
is a reference to a clause or schedule of this Agreement;
1.2.5 an agreement or other document is a reference to that
agreement or documents as from time to time supplemented or
amended:
1.3 The headings in this Agreement shall not affect the interpretation of
this Agreement.
2. OBLIGATIONS OF BIOSYN
2.1 BIOSYN shall use best efforts to:
2.
2.1.1 fulfill all orders made by GENITOPE in [ * ] for biosyn KLH,
in so for as the total quantity ordered by GENITOPE for [ * ]
is less than or equal to [ * ]; orders by GENITOPE shall be
fulfilled promptly, and in any event within [ * ] of receiving
an order (in substantially the form set out in Schedule 2)
from GENITOPE;
2.1.2 maintain sufficient manufacturing and supply capacity so as to
enable it to fulfill all orders from GENITOPE,
2.1.3 provide a minimum of [ * ] of biosyn KLH per [ * ] period to
GENITOPE ("Genitope minimum requirement") during the Initial
Term of this Agreement;
2.1.4 ensure that all biosyn KLH supplied to GENITOPE is of
merchantable quality, fit for its intended purpose, complies
with any description applied to biosyn KLH and complies in all
respects (including with regard to its manufacture) with the
DMF and the KLH licence after being issued by the FDA.
2.2 BIOSYN may:
2.2.1 refuse to fulfill orders made by GENITOPE in so far as a
single order by GENITOPE exceeds [ * ] or the total quantity
ordered by GENITOPE in any [ * ] exceeds [ * ], GENITOPE will
be notified within seven (7) days of BIOSYN's receipt of any
order which BIOSYN intends to refuse. BIOSYN shall refuse no
orders that are in compliance with clause 2.1.1.
2.2.2 Upon notice of refusal to fulfill an order and if BIOSYN will
not inform GENITOPE about a new delivery term within [ * ],
GENITOPE may seek and obtain suitable replacement (or
substitute) KLH from another vendor.
3. OBLIGATIONS OF GENITOPE
GENITOPE shall order [ * ] from BIOSYN in the form of biosyn KLH
subject to the terms of clause 2.2.2.
4. ORDERS FOR BIOSYN KLH
4.1 All orders for biosyn KLH will be placed by GENITOPE in writing and
shall be in substantially the form set out in Schedule 2.
4.2 The biosyn KLH shall be supplied to GENITOPE by BIOSYN in accordance
with the terms of this Agreement and the orders accepted by BIOSYN
subject to the terms of clauses 2.1 and 2.2.
4.3 GENITOPE may by notice to BIOSYN reject all or any part of any order of
biosyn KLH which:
3.
4.3.1 has not been manufactured in accordance with the
specifications set out in the DMF or in the KLH licence after
being issued by the FDA.
4.3.2 is not of GMP quality or;
4.3.3 is not fit for its intended purpose or;
4.3.4 does not comply with any description applied to it.
Provided that such notice of rejection shall be given GENITOPE
within [ * ] of actual receipt by GENITOPE at the address for
delivery specified in the purchase order provided by GENITOPE.
Where all or any part of any order of biosyn KLH is rejected
by GENITOPE such biosyn KLH shall be returned to BIOSYN at the
risk and expense of BIOSYN for replacement forthwith by
BIOSYN.
4.4 All orders of biosyn KLH shall be supplied and delivered to GENITOPE by
BIOSYN Free Carrier subject to the terms of clause 4.3.4.
4.5 For the avoidance of doubt, title and risk in respect of biosyn KLH
supplied by BIOSYN to GENITOPE shall pass on completion of delivery in
accordance with clause 4.4 above, subject to the terms of clause 4.3.4.
5. PRICE AND PAYMENT
5.1 The price to be paid by GENITOPE to BIOSYN for biosyn KLH shall be [ *
] (or European Substitute) such price to be reviewed annually (upward
or downwards) and such review to reflect changes in the costs of
production of biosyn KLH. In no case shall an annual increase exceed [
* ].
5.2 Payment for biosyn KLH accepted by GENITOPE shall be made by GENITOPE
to BIOSYN within [ * ] in which biosyn KLH is actually received by
GENITOPE at the address specified in the purchase order provided by
GENITOPE in DM or European Substitute.
6. BIOSYN DMF
6.1 In consideration of the obligations undertaken by GENITOPE in this
Agreement, BIOSYN hereby agrees and undertakes to allow the FDA on
behalf of GENITOPE full, unconditional and unrestricted access to the
biosyn DMF for the purpose of the development, registration, use and
sale of the Genitope Vaccine.
6.2 BIOSYN, at the request of GENITOPE, provide written authority to access
the biosyn DMF to the FDA or any other such authority as is mentioned
in clause 6.1 above. BIOSYN hereby undertakes to provide to the FDA all
such authorization to access and use, on behalf of GENITOPE, the biosyn
DMF and all other documentation and authority as they may from time to
time require.
4.
7. TERM
This Agreement shall (unless terminated at an earlier date pursuant to
clause 10) continue in force for an Initial term of five (5) years from
the date of this Agreement and shall extend to a Further Term of two
(2) years on expiration of the Initial Term unless terminated by either
Party giving to the other notice by recorded letter six (6) months
before the termination of this Agreement.
8. FAILURE TO PERFORM
8.1 Breach by the Parties occurs when:
8.1.1 BIOSYN fails to comply with the terms of clause 2.2.1; or
8.1.2 GENITOPE fails to comply with the terms of clauses 3 or 5.2.
8.2 In the event either Party fails to perform their obligations under
clause 8.1 of this Agreement, the other Party shall give notice to the
Party which has failed to perform as provided in clause 15. The Party
failing to perform shall be allowed [ * ] to cure their breach. Failure
to cure within [ * ] permits the non-breaching Party, without
limitation to other remedies, to terminate this Agreement pursuant to
section 9 (below).
8.3 In the event BIOSYN fails to perform pursuant to the events of clause
8.1.1, GENITOPE is entitled to attempt to cover by obtaining
pharmaceutical grade (cGMP) KLH from another source without prejudice
to any other remedy.
9. TERMINATION
9.1 Either Party may terminate this Agreement upon either of the events of
clause 8.1 or clause 9.2. If termination however is pursuant to clause
9.2, BIOSYN agrees that it will not withdraw supplies of biosyn KLH
required for the completion of any clinical trial conducted by GENITOPE
ongoing at the time of BIOSYN's notice of termination.
9.2 Events that permit termination, other than the events of clause 8.1,
are:
9.2.1 the passing by the Breaching Party of a resolution for its
winding-up or the making by a court of competent jurisdiction
of an order for the winding-up of the other Party of the
dissolution of the Breaching Party;
9.2.2 the making of an administration order in relation to the
Breaching Party or the appointment of a receiver over, or the
taking of possession or sale by an encumbrance of, any of the
Breaching Party's assets;
9.2.3 the Breaching Party making an arrangement or composition with
its creditors generally or making an application to a court of
competent jurisdiction for protection from its creditors
generally.
5.
10. CONSEQUENCES OF TERMINATION
10.1 Subject always to clause 9.1 (above) and clause 10 (below) all rights
and obligations of the parties shall cease to have effect immediately
upon termination of this Agreement except that termination shall not
affect:
10.1.1 the accrued rights and obligations of the parties at the date
of termination; and
10.1.2 the continued existence and validity of the rights and
obligations of the parties under clauses 2 and 5.2 (but only
in respect of any orders made by GENITOPE prior to the date of
termination) and clause 10 and any provisions of this
Agreement necessary for the interpretation or enforcement of
this Agreement.
10.2 Notwithstanding any other provision of this Agreement if this Agreement
terminates pursuant to clause 9 or is terminated by BIOSYN pursuant to
clause 8, then, in addition to those clauses which survive pursuant to
clause 10.1, [ * ] of this Agreement shall continue in force for a
period of two (2) years from the date of such termination. In respect
to clause 6 both Parties shall negotiate in good faith an agreement on
how to procede and the time period for survival of clause 6.
11. COSTS
Except as otherwise expressly provided in this Agreement, each Party
shall pay its own costs of and incidental to the negotiation,
preparation, execution and implementation by it of this Agreement and
of all other documents referred to in it.
12. FURTHER ASSURANCE
Each Party shall at its own cost do and execute or procure to be done
and executed all necessary acts, agreements, documents and things
reasonably within its power to give effect to this Agreement.
13. GENERAL
13.1 This Agreement constitutes the entire agreement between the Parties
relating to the subject matter of this Agreement and supersedes all
such previous agreements.
13.2 No modification of this Agreement shall be valid unless it is in
writing and signed by or on behalf of each of the Parties.
13.3 The failure to exercise or delay in exercising a right or remedy under
this Agreement shall not constitute a waiver of the right or remedy or
a waiver of any
6.
other rights or remedies and no single or partial exercise of any right
or remedy or the exercise of any other right or remedy.
13.4 Except as expressly provided in this Agreement the rights and remedies
contained in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
13.5 Any date, time or period referred to in this Agreement is of the
essence except only to the extent of which the Parties agree in writing
to vary it in which event the varied date, time or period is of the
essence.
13.6 Nothing in this Agreement be construed as creating a partnership
between the Parties or as constituting either Party as the agent of the
other Party for any purpose whatsoever and neither Party shall have the
authority or power to bind the other Party or to contract in the name
of or create a liability against the other Party in any way or for any
purpose.
13.7 BIOSYN shall perform services for GENITOPE as an independent contractor
and shall have complete control over its employees.
14. ASSIGNMENT
Neither Party shall assign or transfer or purport to assign or transfer
any of its rights or obligations under this Agreement except with the
prior written consent of the other Party and save that GENITOPE may at
any time assign or transfer any of its rights or obligations under this
Agreement to any agent of the GENITOPE without the consent of BIOSYN.
15. NOTICES
15.1 Any notice or other communication under or in connection with this
Agreement shall be in writing in the English language and shall be
delivered personally or sent by first class post pre-paid recorded
delivery and air mail or by telefax, to the Party due to receive the
notice or communication at its address set out in this Agreement or
such other address as either Party may specify by notice in writing to
the other.
15.2 In the absence of evidence of earlier receipt, any notice or other
communication shall be deemed to have been duly given:
15.2.1 if delivered personally, when left at the address referred to
in clause 15.1;
15.2.2 if sent by mail other than air mail, six (6) days after
posting it;
15.2.3 if sent by air mail, six (6) days after posting it; and
15.2.4 if sent by telefax, when clearly received in full.
7.
16. GOVERNING LAW AND JURISDICTION
16.1 This Agreement is governed by, and shall be construed in accordance
with German law.
16.2 All disputes, controversies or differences which may arise between the
Parties in connection with this Agreement, if not otherwise resolved,
shall be settled preferentially by negotiation, and finally by
arbitration in accordance with the rules of conciliation and
arbitration of the International Chamber of Commerce. Such arbitration
shall be held in Paris, France and any award shall be binding upon the
Parties.
16.3 Each Party agrees that the process by which any proceedings are begun
pursuant to clause 16.2 may be served on BIOSYN by being delivered in
accordance with clause 15.2. Nothing contained in this paragraph shall
affect the right to serve process in any other manner permitted by law.
16.4 This Agreement is drawn up in the English language and if this
Agreement is translated into any language other than the English
language this version shall prevail.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same instrument.
As WITTNESS the hands of the Parties or their duly authorised
representatives the day and year first above written.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
8.
SCHEDULE 1
PRODUCT DATA SHEET
[ * ]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933,
AS AMENDED.
S1-1.
SCHEDULE 2
PURCHASE ORDER
TO: biosyn Arzneimittel GmbH
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
FROM: Genitope Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Please find below an order for biosyn KLH made in accordance with the terms of
the Collaboration Agreement entered into between us on
Date of order:
Quantity of order:
Delivery Date: within [ * ] from date of order
Address in the
USA for delivery:
Price:
Payment Date: [ * ] in which order actually received at
USA address for delivery.
Please confirm your acceptance of this order within [ * ] of the date hereof by
completing the acceptance form below and returning it to us, for the attention
of _______________ by fax (fax number ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇).
_________________________________________
Signed
For and on behalf of Genitope Corporation
_________________________________________
Date, Place
S2-1.
Order acceptance by biosyn Arzneimittel GmbH
_________________________________________
Signed
For and on behalf of biosyn Arzneimittel GmbH
_________________________________________
Date, Place
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
S2-2.
SCHEDULE 3
FREE CARRIER
THE CARRIER ... (NAMED PLACE) FCA
"The Carrier" means that the seller fulfils his obligation to deliver when he
has handed over the goods, cleared for export, into the ________ of the carrier
named by the buyer at the named place or point. __________ precise point is
indicated by the buyer, the seller may chose _____ in the place or range
stipulated where the carrier shall take the __________ into his charge. When,
according to commercial practice, the __________ assistance is required in
making the contract with the carrier (such as in rail or air transport) the
seller may act at the buyer's risk or expense.
____ term may be used for any mode of transport, including multimodal transport.
"Carrier" means any person who, in a contract of carriage, under-________ to
perform or to procure the performance of carriage by rail, land, sea, air,
inland waterway or buy a combination of such modes. The buyer instructs the
seller to deliver the cargo to a person, e.g. a ________ forwarder who is not a
"carrier", the seller ist deemed to have filled his obligation to deliver the
goods when they are in the cus-______ of that person.
"Transport terminal" means a railway terminal, a freight station, a container
terminal or yard, a multipurpose cargo terminal or any similar receiving point.
"Container" includes any equipment used to unitise cargo, e.g. all _______ of
containers and/or flats, whether ISO accepted or not, trail-____, swap bodies,
ro-ro equipment, igloos, and applies to all modes of transport.
A. THE SELLER MUST B. THE BUYER MUST
A.1 PROVISION OF GOODS IN CONFORMITY WITH CONTRACT B.1 PAYMENT OF THE PRICE
Provide the goods and the commercial invoice, or its Pay the price as provided in the contract of sale.
equivalent electronic message, in conformity with the
contract of sale and any other evidence of conformity
which may be required by the contract.
A.2 LICENCES, AUTHORIZATIONS AND FORMALITIES B.2 LICENCES, AUTHORISATIONS AND FORMALITIES
Obtain at his own risk and expense any export licence or Obtain at his own risk and expense any import licence or
other official authorisation and carry out all customs other official authorisation and carry out all customs
formalities necessary for the exportation of the formalities for the importation of the goods and, where
goods. necessary, for their transit through another country.
A.3 CONTRACT OF CARRIAGE AND INSURANCE
B.3 CONTRACT OF CARRIAGE
a) Contract of carriage
No obligation. However, if requested by the buyer Contract at his own expense for the carriage of the goods
or if it is commercial practice and the buyer does from the named place, except as provided for in A.3.a).
not give an instruction to the contrary in due
time, the seller may contract for carriage on usual
terms at the buyer's risk and expense. The seller
may decline to make the contract and, if he does,
shall promptly notify the buyer accordingly.
S3-1.
b) Contract of insurance
No obligation.
A.4 DELIVERY B.4 TAKING DELIVERY
Deliver the goods into the custody of the carrier or Take delivery of the goods in accordance with A.4.
another person (e.g. a freight forwarder) named by the
buyer, or chosen by the seller in accordance with A.3.a),
at the named place or point (e.g. transport terminal or
other receiving point) on the date or within the period
for delivery and in the manner agreed or customary at such
point. If no specific point has been agreed, and if there
are several points available, the seller may select the
point at the place of delivery which best suits his
purpose. Failing precise instructions ___ the buyer, the
seller may deliver ____ goods to the carrier in such a
manner as the transport mode of ___ carrier and the
quantity and/or ____ of the goods may require.
________ to the carrier is completed:
I) In the case of RAIL TRANSPORT when the goods
constitute a wagon load (or a container load
carried by rail) the seller has to load the wagon
or container in the appropriate manner. Delivery is
completed when the loaded wagon or container is
taken over by the railway or by another person
acting on its behalf.
When the goods do not constitute a wagon or
container load, delivery is completed when the
seller has handed over the goods at the railway
receiving point or loaded them into a vehicle
provided by the railway.
II) In the case of road transport when loading takes
place at the seller's premises, delivery is
completed when the goods have been loaded on the
vehicle provided by the buyer.
When the goods are delivered to the carrier's
premises, delivery is completed when they have been
handed over to the road carrier or to another
person acting on his behalf.
III) In the case of transport by Inland waterway when
loading takes place at the seller's premises,
delivery is completed when the goods have been
loaded on the carrying vessel provided by the buyer.
When the goods are delivered to the carrier's
premises, delivery is completed when they have been
handed over to the inland waterway carrier or to
another person acting on his behalf.
S3-2.
IV) In the case of SEA TRANSPORT when the goods
constitute a full container load (FCL), delivery is
completed when the loaded container is taken over
by the sea carrier. When the container has been
carried to an operator of a transport terminal
acting on behalf of the carrier, the goods shall be
deemed to have been taken over when the container
has entered into the premises of that terminal.
When the goods are less than a container load
(LCL), or are not to be containerised, the seller
has to carry them to the transport terminal.
Delivery is completed when the goods have been
handed over to the sea carrier or to another person
acting on his behalf.
V) In the case of AIR TRANSPORT, delivery is completed
when the goods have been handed over to the air
carrier or to another person acting on his behalf.
VI) In the case of UNNAMED TRANSPORT, delivery is
completed when the goods have been handed over to
the carrier or to another person acting on his
behalf.
VII) In the case of MULTIMODAL TRANSPORT, delivery is
completed when the goods have been handed over as
specified in I) - VI), as the case may be.
A.5 TRANSFER OF RISKS B.5 TRANSFER OF RISKS
Subject to the provisions of B.5., ____ all risks of loss Bear all risks of loss of or damage to the goods from the
of or damage to ____ goods until such time as they have time they have been delivered in accordance with A.4.
been delivered in accordance A.4.
Should he fail to give notice in accordance with B.7., or
should the carrier named by him fail to take the goods
into his charge, bear all risks of loss of or damage to
the goods from the agreed date or the expiry date of any
period stipulated for delivery, provided, however, that
the goods have been duly appropriated to the contract,
that is to say, clearly set aside or otherwise identified
as the contract goods.
A.6 DIVISION OF COSTS B.6 DIVISION OF COSTS
Subject to the provisions of B.6
Pay all costs relating to the goods from the time when
a) pay all costs relating to the goods until such time they have been delivered in accordance with A.4.
as they have been delivered to the carrier in
accordance with A.4.; Pay any additional costs incurred, either because he fails
to name the carrier, or the carrier named by him fails to
b) pay the costs of customs formalities as well as all take the goods into his charge at the agreed time, or
duties, taxes, and other official charges payable because he has failed to give appropriate notice in
upon exportation. accordance with B.7.;
S3-3.
provided, however, that the goods have been
duly appropriated to the contract, that is
to say, clearly set aside or otherwise
identified as the contract goods.
Pay all duties, taxes and other official
charges as well as the costs of carry out
customs formalities payable upon importation
of the goods and, where necessary, for their
transit through another country.
A.7 NOTICE TO THE BUYER B.7 NOTICE TO THE SELLER
Give the buyer sufficient notice that the goods have been Give the seller sufficient notice of the name of the
delivered into the custody of the carrier. Should the carrier and, where necessary, specify the mode of
carrier fail to take the goods into his charge at the time transport, as well as the date or period for delivery the
agreed, the seller must notify the buyer accordingly. goods to him, as the case may be, of the point within the
place where the goods should be delivered to the carrier.
A.8 PROOF OF DELIVERY, TRANSPORT DOCUMENT OR EQUIVALENT B.8 PROOF OF DELIVERY, TRANSPORT DOCUMENT OR EQUIVALENT
ELECTRONIC MESSAGE ELECTRONIC MESSAGE
Provide the buyer at the seller's expense, it customary, Accept the proof of delivery in accordance with A.8.
with the usual document in proof of delivery of the goods
in accordance with A.4.
Unless the document referred to in the preceding paragraph
is the transport document, render the buyer at the
latter's request, risk and expense, every assistance in
obtaining a transport document for the contract of
carriage (for example, a negotiable ▇▇▇▇ of lading, a
non-negotiable sea waybill, an inland waterway document,
an air waybill, a railway consignment note, a road
consignment note, or a multimodal transport document).
When the seller and the buyer have agreed to communicate
electronic ally, the document referred to in the preceding
paragraph may be re placed by an equivalent electronic
data interchange (EDI) message.
A.9 CHECKING - PACKAGING - MARKING B.9 INSPECTION OF GOODS
____ the costs of those checking qualifications (such as Pay, unless otherwise agreed, the costs of pre-shipment
checking quail_____, measuring, weighing, counting) such inspection except when mandated by the authorities of the
are necessary for the purpose of delivering the goods to country of exportation.
the carrier.
Provide at his own expense packaging (unless it is usual
for the particular trade to send the goods of the contract
description unpacked) such is required for the transport
of ___ goods, to the extent that the circumstances
relating to the transport (_______, modalities,
destination) are made known to the seller before the
contract of sale is concluded. Packaging is to be marked
appropriately.
S3-4.
A.10 OTHER OBLIGATIONS B.10 OTHER OBLIGATIONS
______ the buyer at the latter's request, risk and Pay all costs and charges incurred in obtaining the
expense, every assistance in obtaining any documents and documents or equivalent electronic messages mentioned in
equivalent electronic messages (other than those mentioned A.10. and reimburse those incurred by the seller in
in A.8) ________ or transmitted in the country delivery rendering his assistance in accordance therewith and in
and/or of origin which the buyer may require for the contracting for carriage in accordance with A.3.a).
importation of the goods and, where necessary, for their
transit through another country. Give the seller appropriate instructions whenever the
seller's assistance in contracting for carriage is
Provide the buyer, upon request, with the necessary required in accordance with A.3.a).
information for procuring insurance.
S3-5.
Signed by: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
--------------------------------
For and on behalf of Chairman & Chief Scientific Officer
GENITOPE CORPORATION 9 November 1998
Signed by: /s/ ▇. ▇▇▇▇▇▇▇
--------------------------------
For and on behalf of 9 December 1998
BIOSYN ARZNEIMITTEL GMBH
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
S3-6.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
AMENDMENT TO SUPPLY AGREEMENT
This Amendment to Supply Agreement (this "Amendment") is made as of May
25, 2000, by and among biosyn Arzneimittel GmbH, a company incorporated in
Germany ("BIOSYN"), and Genitope Corporation, a Delaware corporation
("GENITOPE"), who agree as follows:
1. Recitals.
1.1 BIOSYN and GENITOPE are parties to a Supply Agreement
dated December 9, 1998 (the "Supply Agreement"), pursuant to which BIOSYN is
manufacturing and selling KLH (Irnmucothel(R)Vacmun(R)) to GENITOPE; said Supply
Agreement is incorporated by reference herein.
1.2 BIOSYN and GENITOPE desire to amend the Supply
Agreement as set forth in this Amendment.
2. Performance by biosyn California. BIOSYN may at its perform
its obligations under the Supply Agreement, in whole or in part through biosyn
Corporation, a California corporation ("BIOSYN CALIFORNIA").
3. Shipment and Delivery:
3.1 Orders received by BIOSYN or BIOSYN CALIFORNIA after
April 1, 2000 will be shipped from BIOSYN CALIFORNIA's facility in Carlsbad,
California ("Carlsbad").
3.2 Orders received before April 1, 2000 will be
processed at Carlsbad and product shipped from Fellbach, Germany.
3.3 All orders shipped from Fellbach, Germany will be
shipped in accordance with Sections 4.4 and 4.5 of the Supply Agreement;
provided, that for all orders less than [ * ] shipped from Fellbach, Germany,
GENITOPE shall pay to BIOSYN a packaging charge of [ * ].
3.4 All orders shipped, from Carlsbad will be shipped in
accordance with the following provisions:
3.4.1 GENITOPE will pay all freight, duty and
associated taxes, including any insurance GENITOPE instructs to be
placed, for the delivery of the biosyn KLH to GENITOPE.
3.4.2 Title to the biosyn KLH will pass to
GENITOPE upon [ * ]. Risk of loss shall remain with BIOSYN until the
title of the batches passes to GENITOPE at [ * ].
3.4.3 For all orders less than [ * ], shipped from
Carlsbad, GENITOPE will pay BIOSYN a packing charge of [ * ].
3.4.4 All other shipping terms will be in
accordance with BIOSYN's standard practices.
4. Price and Payment.
4.1 Section 5.12 of the Supply Agreement is amended to
read as follows:
A-1.
"5.1 The price to be paid by GENITOPE to BIOSYN for biosyn
KLH for the year 2000 shall be [ * ], such price to
be reviewed annually (upward or downwards) and such
review to reflect changes in the costs of production
of biosyn KLH. In no case shall an annual increase
exceed [ * ]; provided, that GENITOPE continues to
order [ * ]
4.2 Section 5.2 of the Supply Agreement is amended to
read as follows:
"5.2 Payment for biosyn KLH accepted by GENITOPE shall be
made by GENITOPE to BIOSYN within [ * ] in which
biosyn KLH is actually received by GENITOPE at the
address specified in the purchase order provided by
GENITOPE in USD."
5. Full Force. The Supply Agreement remains in full force and,
except as expressly set forth above, the Supply Agreement is unmodified.
BIOSYN ARZNIMITTEL GMBH
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Muddulcrishna
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Muddulcrishna, Ph.D._
Title: Director
GENITOPE CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: CEO
[ * ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED.
A-2.