PRIVATE AGREEMENT between
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between
GRUPPO LEPETIT S.p.A., having its registered office in ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇, registered with Companies Registry of Milan under no. 22409, Tax Code and VAT no. 00795960152, in the person of its pro-tempore legal representative
(hereinafter, "LEPETIT")
and
BIOSEARCH ITALIA S.p.A., having its registered office in ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇, registered with Companies Registry of the Court of Milan under no. 1523129, Tax Code and VAT no. 11922440158, in the person of its pro-tempore legal representative
(hereinafter, "BIOSEARCH")
WHEREAS
- •
- BIOSEARCH
and LEPETIT entered into a private agreement on 4 December 1998, by means of which they agreed upon the principles for their future relations concerning the
production of [*] owned and developed with BIOSEARCH technology and, on 8 March 1999, they entered another private agreement relating to LEPETIT's specific production of
"[*]" for BIOSEARCH (hereinafter, the "Agreements");
- •
- LEPETIT,
at its own Brindisi plant (the "Plant"), owns some facilities (hereinafter, the "Equipment") and a production process, already experienced and tested at industrial
level (the "Process") for the [*] (hereinafter, the "[*]") of a solvent called "[*]", Equipment and Process used by LEPETIT
during the manufacturing process of one of its products;
- •
- BIOSEARCH,
after acknowledging the validity and effectiveness of LEPETIT's Equipment and Process for the [*], asked LEPETIT its availability to carry
out on its own the [*] used for the production of [*] (hereinafter, the "[*]"), to integrate the production of
[*] already manufactured by LEPETIT in compliance with the Agreements;
- •
- LEPETIT has declared that it is willing to perform such activities and therefore it is necessary to formalise in a specific agreement the contents of the understanding reached.
THEREFORE THE PARTIES AGREE AS FOLLOWS
ARTICLE 1—RECITALS
The preceding recitals are an integral part of this Agreement.
ARTICLE 2—SUBJECT MATTER
- 2.1
- BIOSEARCH
appoints LEPETIT, that accepts, to proceed to the [*] from the [*] arising from the production of
[*], owned by BIOSEARCH, according to the availability of LEPETIT's equipment, i.e. in the periods in which the equipment is not used by LEPETIT for its own
[*] activities, and by using the Process. The [*], after its conformity with the agreed specifications (Exhibit A) has been tested, shall be used
again for the production of [*].
- 2.2
- The cost for the disposal at third parties of [*], if any, resulting from the [*] Process shall be charged in full to [*] and the latter shall acknowledge it in full to [*].
[*] Indicates that certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
- 2.3
- LEPETIT undertakes to perform the [*] fully observing the applicable laws and good manufacturing practice as well as the production licenses required by law and observing the technical specifications (the "Specifications") agreed upon with BIOSEARCH.
ARTICLE 3—CHECKS AND CONTROLS
As regards quality control and inspection procedures, the parties shall adhere to the relevant procedures used in the Plant. BIOSEARCH shall be entitled to carry out checks and inspections on the [*], which LEPETIT shall permit, provided they are performed during normal working hours on business days.
ARTICLE 4—PERMITS AND AUTHORISATIONS
At its own risk and expense, LEPETIT shall apply for the grant of whatever authorisations are required from an environmental and safety point of view to proceed to the [*] and reuse of [*], in compliance with the applicable laws, rules and regulations in force. Any expenses relating to such authorisations shall be charged in full to BIOSEARCH.
LEPETIT shall send the required communications and notices concerning the [*], complying with the specific obligations imposed by the applicable legislation.
ARTICLE 5—CONFIDENTIALITY
The parties undertake to treat as secret and confidential all information they become aware of from the other party during the performance of this Agreement and also agree not to use such information for purposes other than this Agreement. The parties further undertake not to disclose such information to third parties, strictly limiting knowledge thereof to the employees involved in performing this Agreement.
The following are exceptions to the foregoing prohibition:
- 1)
- information
which at the time of its communication is already in the public domain;
- 2)
- information
which after being communicated will enter the public domain following publication or for other reasons, provided such is not a result of breach of this Agreement;
- 3)
- information
which a party can prove was already in its possession prior to communication thereof by the other party and which was not obtained directly or indirectly from that other
party;
- 4)
- information received from third parties provided such third parties have not directly or indirectly received it by virtue of a secrecy agreement.
ARTICLE 6—STORAGE AND USE
- 6.1
- Without charging any additional fees therefor, LEPETIT shall arrange to store and reuse the [*] in the production of [*] in compliance with the agreements made from time to time between the Parties and also undertakes to move it in conformity with BIOSEARCH's instructions. It is agreed upon by the Parties that, at the end of each seasonal [*] campaign, the possible waste of the Equipment's storing tanks shall be sent for disposal, should any other kind of storage not be possible. At all events, subject to prior written notice of LEPETIT to BIOSEARCH of the date of change of the [*]'s seasonal campaign, the parties shall meet at least two months before such date, to define the operating procedures suitable to minimise the recourse to disposal of the [*]. It is moreover expressly understood that the costs of disposal, as provided for by paragraph 2.2, shall be charged in full to BIOSEARCH.
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LEPETIT further undertakes to comply with all of the accounting and administrative formalities in connection with such storage and movement.
- 6.2
- The [*] shall belong to BIOSEARCH and be considered as such by LEPETIT. LEPETIT shall take care of its good storage, reuse or disposal according to the directions agreed upon.
ART. 7—ORDERS
With effect from the commencement date of this Agreement, BIOSEARCH shall send LEPETIT the authorisation to the [*] and reuse of [*] to be made by LEPETIT during the subsequent [*] period subject to availability of the Equipment. LEPETIT, upon receipt of the order, shall notify BIOSEARCH of the availability of the Equipment, of the [*] times and of the availability of the [*]. Any delay in the availability of the [*] may in no way be imputed to LEPETIT, provided that it is not caused by a manifest negligence of the latter.
The [*] shall be reused by LEPETIT according to the instructions given by BIOSEARCH.
ART. 8—MANUFACTURING CONSIDERATION AND PAYMENT TERMS
- 8.1
- The all-inclusive consideration for the [*] that is the subject matter of this Agreement shall be ITL [*] (= [*]) for every kilo of [*]. Upon introduction of the Euro as exchange currency, the above amount will be converted according to the applicable rules.
Such amount will at the end of each solar year be revised in accordance with variations in the ISTAT index, or different index to be introduced upon introduction of Euro as exchange currency.
- 8.2
- In
the event of significant variations in the productivity and/or yield of the Manufacturing, the parties agree to renegotiate in good faith the consideration under the preceding
paragraph. Should the parties fail to reach agreement on the new consideration, each party shall be entitled to withdraw from this Agreement subject to giving adequate notice.
- 8.3
- The amounts under paragraph 8.1 above shall be paid by BIOSEARCH at the end of the month by bank transfer within [*] from the date of invoice.
ART. 9—TERM
- 9.1
- This
Agreement shall take effect from 1 December 2000 until [*], expiry date of the agreement regarding the production of [*].
- 9.2
- Upon
[*] of the [*], this [*] will [*] for [*].
- 9.3
- This
Agreement may be terminated immediately by either of the parties without any notice period and subject to communicating the termination by registered letter (with advice of
receipt) in the event that the other party breaches any one of its obligations and fails to remedy the breach within [*] of being requested to do so by the
non-defaulting party.
- 9.4
- BIOSEARCH
shall have the right to withdraw from this Agreement subject to giving at least [*] prior written notice in the event that one of its production
units becomes available provided that it notifies LEPETIT of such in writing by registered letter (with advice of receipt). No indemnity shall be due to LEPETIT in such case.
- 9.5
- LEPETIT shall have the right to withdraw from this Agreement subject to giving at least [*] prior written notice, without incurring any penalty or having to pay any compensation or indemnity to BIOSEARCH, in the event of the further unavailability of the Equipment necessary for the [*] of its own [*].
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ART. 10—ASSIGNMENT
This Agreement may in no case be assigned or transferred by either party in whole or in part to third parties without the prior written consent of the other party. LEPETIT shall have the right to assign this Agreement to other companies of the Aventis Group in Italy, subject to giving BIOSEARCH written notice thereof. BIOSEARCH shall have the right to assign this Agreement to one of its production companies, subject to giving LEPETIT written notice thereof.
ART. 11—DISPUTES
The Courts of Milan shall have exclusive jurisdiction over any dispute that may arise between the parties in relation to the interpretation and/or performance of the provisions of this Agreement.
ART. 12—CONTRACTUAL EXPENSES AND TAXATION
The parties declare that the goods and services contemplated by this Agreement are subject to VAT and thus this Agreement will be registered at a fixed tax pursuant to and in accordance with Articles 5 and 40 of Presidential Decree no. 131 of 24 April 1986.
Lainate, 30 November 2000
Gruppo Lepetit S.p.A. Biosearch Italia S.p.A.
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Detailed list of [*]
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