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:
1.1
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
1
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:
3.6.1
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.
|
2
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.
|