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EXHIBIT 99.1 AMENDMENT NO. 1 TO THE COMMERCIAL SUPPLY AGREEMENT

Supply Agreement

EXHIBIT 99.1 AMENDMENT NO. 1 TO THE
COMMERCIAL SUPPLY AGREEMENT | Document Parties: HALOZYME THERAPEUTICS INC | AVID BIOSERVICES, INC | HALOZYME, INC You are currently viewing:
This Supply Agreement involves

HALOZYME THERAPEUTICS INC | AVID BIOSERVICES, INC | HALOZYME, INC

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Title: EXHIBIT 99.1 AMENDMENT NO. 1 TO THE COMMERCIAL SUPPLY AGREEMENT
Governing Law: California     Date: 12/21/2006
Industry: Biotechnology and Drugs     Law Firm: Morrison & Foerster LLP     Sector: Healthcare

EXHIBIT 99.1 AMENDMENT NO. 1 TO THE
COMMERCIAL SUPPLY AGREEMENT, Parties: halozyme therapeutics inc , avid bioservices  inc , halozyme  inc
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CONFIDENTIAL TREATMENT REQUESTED

CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED IS OMITTED AND NOTED WITH “***.” AN UNREDACTED VERSION OF THIS
DOCUMENT HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION.

AMENDMENT NO. 1 TO THE
COMMERCIAL SUPPLY AGREEMENT

     THIS AMENDMENT NO. 1 TO THE COMMERCIAL SUPPLY AGREEMENT (this “Amendment”), effective as of December 15, 2006 (the “Amendment Date”), is entered into between AVID BIOSERVICES, INC., a Delaware corporation (“Avid”), having a place of business at 14282 Franklin Avenue, Tustin, California 92780, and HALOZYME, INC., a California corporation (“Halozyme”), having a place of business at 11588 Sorrento Valley Road, Suite 17, San Diego, California 92121, with respect to the following facts:

     WHEREAS, the parties entered into that Commercial Supply Agreement effective as of February 15, 2005 (the “Supply Agreement”).

     WHEREAS, Avid and Halozyme desire to extend the term of the Supply Agreement and to otherwise amend the Supply Agreement in certain respects, all on the terms and conditions set forth below.

     NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth below, the parties hereby amend the Supply Agreement and otherwise agree as follows:

     1.  Amendments .

     1.1 Section 3.4.1(a) of the Supply Agreement is hereby amended and restated in its entirety as follows:

     (a) HALOZYME shall pay AVID a slot reservation deposit (the “Slot Reservation Deposit”) equal to 33% of the price of each Bulk Drug Substance per the Purchase Price, which amount is due no later than one hundred twenty (120) days prior to the date the applicable batch is scheduled to be manufactured per the Manufacturing Schedule. In no event shall AVID be required to reserve a manufacturing slot for HALOZYME until HALOZYME has paid its slot reservation deposit.

     1.2 Section 3.4.2 of the Supply Agreement is hereby amended and restated in its entirety as follows:

     3.4.2 Cancellation Fee . Subject to 2.2.5 and 3.4.1(a), HALOZYME recognizes that AVID will reserve certain manufacturing capacity for HALOZYME to meet the BDS requirements set forth in the Manufacturing Schedule. In exchange for this commitment, and as AVID’s sole and exclusive remedy for any cancellation of a manufacturing run set forth in the Manufacturing Schedule, HALOZYME hereby agrees to pay AVID a cancellation fee solely for the cancellation of manufacturing runs of the BDS as more particularly described in the Purchase Price. The cancellation fee shall be calculated by taking the product of (i) the price for the manufacturing of the BDS per the Purchase

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CONFIDENTIAL TREATMENT REQUESTED

Price and (ii) the applicable percentage based set forth below based on the date of termination:

 

 

 

 

 

 

 

Cancellation *** prior to start of a manufacturing run per Manufacturing Schedule

 

***

 

 

 

 

 

 

 

Cancellation *** prior to start of a manufacturing run per Manufacturing Schedule

 

***

     Notwithstanding the foregoing, if HALOZYME cancels a manufacturing run less than *** prior to the scheduled start of the manufacturing run per the Manufacturing Schedule, HALOZYME shall not owe a cancellation fee if AVID is able to fill such slot with another of its external customers. AVID shall use its best efforts to attempt to fill a slot created by any such cancellation. HALOZYME shall notify AVID as soon as practical of any planned or anticipated manufacturing delays.

     1.3 Section 3 of the Supply Agreement is hereby amended by adding the following new Sections 3.6 and 3.7 immediately following the end of Section 3.5:

     3.6 Forecasting .

          3.6.1 Forecasts . Commencing on January 1, 2007, and on the first day of each calendar quarter thereafter during the Term, HALOZYME shall prepare and provide AVID with a written forecast (each a “Forecast”) of its estimated requirements of manufacturing runs of BDS for each of the following *** calendar quarters.

          3.6.2 Purchase Obligations . Subject to the payment provisions of Section 3.4.1 and cancellation charges of Section 3.4.2, HALOZYME shall be required to purchase and pay for all BDS produced by each manufacturing run forecasted in the *** of each Forecast. The manufacturing runs forecasted for the *** of each Forecast shall be non-binding and for planning purposes only.

          3.6.3 Manufacturing Obligations .

          (a) AVID shall maintain sufficient raw materials or in-process inventory and maintain open manufacturing slots to perform, and shall perform, each manufacturing run forecasted in the *** of each Forecast and for each subsequent manufacturing run for which HALOZYME has paid a Slot Reservation Fee, up to a maximum of twenty (20) runs in a period of four (4) consecutive calendar quarters, and to sell to HALOZYME all BDS produced thereby; provided, however, if HALOZYME requests additional manufacturing runs in excess of those on the most recent Forecast, AVID shall use commercially reasonable efforts to perform such additional manufacturing runs and shall sell to HALOZYME all BDS produced thereby.

 

 

 

 

***

 

Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission.

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CONFIDENTIAL TREATMENT REQUESTED

          (b) AVID shall provide HALOZYME with a right of first refusal for manufacturing slots to perform the subsequent manufacturing runs that are forecasted for the *** of each Forecast for which HALOZYME has not yet paid a Slot Reservation Fee. Should another external customer request to use any such slot, then AVID shall inform HALOZYME in writing of such request and HALOZYME shall have the right of first refusal for such slot. If HALOZYME desires to reserve such slot, HALOZYME shall inform AVID in writing within three (3) business days after its receipt of such notice. If (i) such customer has responded to a bona fide project proposal sent by AVID, (ii) such customer in good faith agrees to pay, promptly upon reservation of such slot, not less than the same nonrefundable slot reservation fee as HALOZYME hereunder for such slot, and (iii) such notice expressly states so, then HALOZYME shall pay the applicable Slot Reservation Fee for such slot within three (3) business days after its receipt of such notice, and such Slot Reservation Fee shall be non-refundable; provided, however, in such case, if payment for the Slot Reservation Fee is not received within such three (3) business day period, then AVID shall have no obligation to reserve the said slot for HALOZYME.

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