SECOND AMENDMENT TO THE AUGUST 31, 2005 SUPPLY AGREEMENT BETWEEN AMERSHAM HEALTH AS AND ORGANICHEM CORPORATION
CONFIDENTIAL
TREATMENT REQUESTED
Exhibit 10.26
SECOND
AMENDMENT TO THE AUGUST 31, 2005 SUPPLY AGREEMENT BETWEEN AMERSHAM HEALTH AS AND
ORGANICHEM CORPORATION
THIS
SECOND AMENDMENT (this “Second Amendment”) TO AGREEMENT between Amersham Health
AS and Organichem Corporation is made as of January 1st, 2009
by and between GE Healthcare AS (formerly Amersham Health AS) (“Buyer”) and AMRI
Rensselaer, Inc. (formerly Organichem Corporation) (“Seller”)
WITNESSETH:
WHEREAS,
Amersham Health AS and Organichem Corporation entered into a Supply Agreement,
dated as of August 21, 2005 (the “Agreement”); and
WHEREAS,
Amersham Health AS has since been renamed GE Healthcare AS; and
WHEREAS,
Organichem corporation has since been renamed AMRI Rensselaer, Inc.;
and
WHEREAS,
in accordance with Section 12.2 of the Agreement, Buyer and Seller desire to
amend, effective January 1, 2009 (the “Amendment Effective Date”), the terms of
the Parties’ Agreement,
NOW,
THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties hereby agree
as follows:
1. Term. Section
2.2 is hereby deleted and replaced with the following:
“This Agreement is valid from January
1, 2005 and will remain in effect until December 31, 2013 unless earlier
terminated in accordance with Article 2.3.
2. Prices and
Quantities. Section 3.3 is hereby deleted and replaced with
the following:
“The agreed prices and anticipated
quantities in the Agreement period are:
Contract
Price & Volume
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2009
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Volume
(Kg)
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[*****]
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[*****]
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[*****]
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[*****]
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[*****]
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Price
($/Kg)
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$[*****]
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$[*****]
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$[*****]
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$[*****]
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$[*****]
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Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*****] denotes
omissions.
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CONFIDENTIAL
TREATMENT REQUESTED
Payment
Terms – 75 days from date of invoice received.
Freight –
Seller to assume shipping arrangements and will pre-pay transport to
Kristiansand, Norway
INCOTERMS: FCA
Rensselaer
Price
Volume Adjustment
a) No
adjustment if volume is less than or equal to [*****]% of contract
volume.
b) If
Volume decrease is between [*****]% to [*****]%, then the percent price increase
will be equal to the percent of volume decrease minus [*****]% times [*****]%
for the whole volume.
c) If
Volume decrease is greater than [*****]% then the percent price increase will be
[*****]% minus [*****]% times [*****]% for the whole volume.
d) If
the volume increase is greater than [*****]% then the percent price decrease
will be equal to the percent of volume increase minus [*****]% times [*****]%
for the whole volume.
Buyer
shall have the option for 2012 and 2013 to obtain up to [*****]percent
([*****]%) of its total volume requirements from other sources
AMRI’s price for 2012 and 2013 will
then increase by the percent of volume decrease times [*****]% for the whole
volume.
In the event that Buyer decides to
exercise such option, it shall give Seller six (6) months prior written
notice.
However,
Section 3.3.2 shall remain and Section 3.4 is deleted.
Section 3.3.3. is deleted and replaced
with the following:
3.3.3. Seller’s Obligation to
Manufacture
“Seller shall be required to
manufacture up to [*****] percent of the quantities shown in Section 3.3 or
Buyer’s subsequent good faith forecasts provided that such forecasts are
delivered to Seller in accordance with the provisions of Section
6.1. Notwithstanding the requirements of this Section 3.3.3, Seller
shall make commercially reasonable efforts to accommodate Buyer’s requests for
Product greater than [*****] percent of Buyer’s forecast. In the
event that Seller is unable to supply Product in accordance with Buyer’s
forecasts, Buyer shall be relieved of its obligation to Purchase only to the
extent that is required to meet Buyer’s needs in the current calendar year for
Product that cannot be supplied by Seller.
3. Liquid
ABA. In the event that the parties develop a commercial liquid
ABA product, they agree to discuss and amend the Agreement as
necessary. In addition, the Parties agree to meet at least once a
year to discuss potential process improvements for the benefit of both Parties
and will amend the Agreement accordingly.
Portions
of this Exhibit were omitted and have been filed separately with the Secretary
of the Commission pursuant to the Company’s application requesting confidential
treatment under Rule 24b-2 of the Exchange Act; [*****] denotes
omissions.
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4. Reach. Buyer
will pre-register and take the lead to obtain the required testing data and
documentation in order to comply with this directive. Seller agrees
to support Buyer to comply with this directive. Seller further agrees
to reimburse Buyer for any required testing and documentation
expense. Buyer agrees to leverage existing data as practical and to
minimize these costs.
5. The
following shall be added to Article 10:
10.4
Notification
“Seller
shall promptly notify Buyer of any claim against Seller which could in any way
jeopardize Seller’s ability to supply the Product to Buyer pursuant to this
Agreement.
Seller
shall also notify Buyer of any material changes in Seller’s corporate structure
or ownership.”
6. The following is hereby
added to Article 12:
12(g)
“Seller shall provide written assurance of its compliance with all EHS and GMP
regulations.”
7. Business Contingency
Plan. The following is hereby added to Section
13.2:
“Seller agrees to provide to Buyer an
annual review and update of Seller’s BCP which shall include a risk assessment
on how the Seller will meet their obligations as set forth in this
Agreement.
The BCP, including the risk profile,
shall be reviewed at Seller’s expense at least every two years by a third party
agreed upon by the parties.
In connection with the BCP, Seller
agrees not to single source any key raw materials without the prior written
consent of Buyer, such consent shall not be unreasonably withheld or
delayed.”
8. Continuation of
Agreement. The terms and conditions of the Agreement shall,
except as modified by this Second Amendment, continue unchanged and in full
force and effect.
IN WITNESS
WHEREOF, the Parties have executed this Second Amendment on the date
first above written.
AMRI
RENSSELAER,
INC. GE
Healthcare
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇
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By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇, Ph.D.
President
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▇. ▇▇▇▇▇▇▇▇▇
President
& CEO, Healthcare Systems
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Date:
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December 22, 1008 |
Date:
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January 5, 2008 | ||
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