Exhibit 10.11
[LOGO]
E.I. DU PONT DE NEMOURS & CO. (INC.)
MEDICAL PRODUCTS DEPARTMENT
This document, when properly executed, shall constitute a Supply
Agreement between Progenics Pharmaceuticals, Inc. with offices at
Old Saw Mill River Road, Tarrytown, NY, (Progenics) and
X.X. XxXxxx de Nemours and Company (DuPont), with offices at
000 Xxxxxx Xxxxxx, Xxxxxx, XX.
1. PERIOD OF AGREEMENT:
May 1, 1995 through April 30, 1998. After the original term, this
Agreement will renew automatically for successive 12 month periods
unless either party gives notice to the other of its intention not to
renew at least 120 days prior to the expiration of the then current
term.
2. MATERIAL:
Recombinant Soluble sCD4, referred to hereafter as sCD4 or Product.
3. MATERIAL SPECIFICATIONS:
Material shall be suppled in the form and manner, and must conform in
all material respects to the specifications set out in Attachment A.
Alterations to these specifications require the express written
consent of each party.
4. INABILITY TO SUPPLY:
Progenics recognizes the importance of its obligation to meet DuPont's
material requirements in a timely and reliable manner. To enable such
continuity of supply, Progenics will use its best efforts to arrange
for sCD4 to be manufactured on Progenics' behalf if some unusual event
causes Progenics' inability to supply. If at any time, Progenics for a
continuous period of ten (10) days due to a force majeure event, or
non-force majeure event, shall be unable or unwilling to deliver any
Product subject to this Agreement and attachments hereto, then
Progenics shall notify DuPont of the situation and use its best
efforts to arrange for sCD4 to be manufactured to DuPont's material
requirements hereunder. In the event that the failure to deliver sCD4
shall be as a result of the fault of Progenics, then Progenics shall
bear all costs necessary to cause the sCD4 to be manufactured by
another party ("Alternate Manufacturing Cost").
MEDICAL PRODUCTS DEPARTMENT
000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 Telephone 000-000-0000
Fax (000) 000-0000
2
INABILITY TO SUPPLY (Cont'd):
In the event that the failure to deliver sCD4 shall be as a result of the
fault of DuPont, then DuPont shall bear all Alternate Manufacturing
Costs. In all other events, Progenics shall arrange for the alternate
manufacturer and each party shall bear its own costs. If Progenics
corrects the cause for alternate manufacture, then Progenics may
resume production of affected Product at any time.
5. PRICE
[***]
6. PAYMENT TERMS:
Net 30 days, following the receipt of a properly prepared and correct
invoice.
7. QUANTITY:
DuPont commits to purchase 100% of its purchase requirements for sCD4
during the term of this order from Progenics, and Progenics agrees to
supply 100% of DuPont's purchase requirements.
8. DELIVERY TERMS:
F.O.B. Destination, freight pre-paid and added.
9. RELEASE:
DuPont will advise Progenics of its purchase requirements at least
quarterly, or as may otherwise suit the parties by agreement.
Progenics shall ship product as required by DuPont according to a
mutually agreed upon schedule. Progenics shall advise DuPont at its
earliest opportunity if it is unable to ship Product at an agreed upon
time. Progenics will, on a best effort basis, attempt to fulfill any
unscheduled, or spot requirements of DuPont.
10. LABELLING AND SHIPPING:
Progenics' name and logo will appear on the main kit label (not on
components) on manual and on promotional literature, along with
DuPont's. All labels to be approved by both parties.
Product will be shipped Federal Express Priority I on dry ice. In
parallel, Progenics will perform stability studies on lyophilized
product. Shelf life of the sCD4 will be no less than 6 months upon
receipt by DuPont.
[***] Confidential Treatment Requested
3
11. CONFIDENTIALITY:
The parties hereto shall keep confidential all confidential technical
information, supplied by one party to the other, shall not disclose or
make known to any individual, firm, or corporation, except when
authorized in writing to do so by the other party, and shall not use
such information for any purpose other than the performance of the
obligations provided in this Agreement. The provisions of this clause
shall remain binding for five (5) years after the termination of this
Agreement.
Each party shall use the same degree of care to avoid disclosure of
confidential technical information as the party employs with similar
information of its own which it does not desire to publish or disclose.
Any confidential information shared between the parties must be
identified and labeled in writing as confidential. The confidentiality
of and information disclosed verbally must be identified in writing as
confidential no more than 14 days after disclosure.
This obligation shall not apply to information and/or documents which:
A) Are or come within the public domain otherwise than as
a consequence of a breach of the obligations
hereunder;
B) Are known to the receiving party prior to disclosure by
the other party as shown by the receiving party's
records;
C) Are lawfully disclosed to the receiving party by third
parties; or
D) Are subsequently independently developed by the
receiving party through no reference whatsoever to
disclosure hereunder.
12. WARRANTY:
Progenics warrants and guarantees that DuPont will not be subject to
any patent infringement with respect to sDC4 supplied by Progenics as
set forth in paragraph 14. In addition, Progenics warrants and
represents that it shall convey good and valid title to material(s)
supplied
4
WARRANTY (Cont'd):
hereunder and that material(s) supplied hereunder shall meet all of
the specifications set forth in Attachment A and shall be free from
defects except those caused by misuse or mishandling occurring after
such delivery. Progenics shall notify DuPont prior to making any
formulation changes in the Product. Progenics further warrants that
packaged product will meet the warranty of merchantability and fitness
for intended use. In the event of a recall of Product, Progenics
agrees to reimburse DuPont for all reasonable costs incurred in the
recall.
13. USE OF MATERIAL:
Progenics as a co-exclusive licensee to a family of patents owned by
Columbia University covering the CD4 gene and protein, will supply
DuPont with quantities of sCD4 necessary to meet market demands.
DuPont shall be entitled to use such sCD4 supplied by Progenics for
the manufacturing of drug screening kits to be sold by DuPont to third
parties.
14. PATENTS:
[***] and all divisional, continuation, continuation-in-part applications
thereof, any patent granted on any aforesaid patent application, and any
extension, reissue, or reexamination of any patents that may issue
thereon as well as any foreign counterparts thereof. [***]
Progenics shall defend any suit or proceeding brought against DuPont
based on a claim that materials or services purchased hereunder, or
any part thereof, furnished by Progenics under this Agreement
constitutes an infringement of any patent, copyright, or other
proprietary right of any third party provided Progenics is notified
promptly in writing and given authority, information, and assistance
by DuPont to defend such suits or proceedings.
*** Confidential Treatment Requested
5
PATENTS (Cont'd):
Progenics shall assume the responsibility to pay all costs, to
include such reasonable attorney fees of defending such suits or
proceeding and any damages that may be awarded therein against DuPont,
to settle any such claim on such terms and conditions it deems
advisable. In case the materials purchased hereunder, or any part
thereof, is in such suit or proceeding held to constitute infringement
or any patent, copyright, or other proprietary right of any third
party, and the use thereof is enjoined, or the settlement made
requires the use of services or materials purchased hereunder to be
discontinued, Progenics shall, at its own expense, and its option,
either procure for DuPont the right to continue using such materials
or services, replace the same with non-infringing materials which
conform to the available specifications, modify such materials or
services in a manner acceptable to DuPont so it becomes
non-infringing, or terminate this Agreement.
15. RELATIONSHIP OF THE PARTIES:
Nothing contained herein shall be construed to empower either party
to act as agent for the other. The parties agree that each of them
shall, in relation to its obligations hereunder, be acting as an
independent contractor.
RELATIONSHIP OF THE PARTIES (Cont'd)
Notwithstanding, neither party shall, during the period of this
Agreement, enter into discussions nor create an alternative
arrangement with any third party concerning the subject matter herein,
without first advising the other party of its intent.
16. ASSIGNMENT AND SUBCONTRACTING:
Neither party shall assign or transfer this Agreement, in whole or in
part, or any interest arising under this Agreement or subcontract any
work hereunder without the prior written consent of the other party.
Subject to the provisions of this clause, this Agreement shall insure
the benefit of and be binding upon the successors and assigns of the
parties.
17. DOCUMENTS/COMMUNICATIONS:
Purchase Order Number(s), Line Number(s), and Release Number(s) are
to appear on all paper work such as packing lists, invoices and
correspondence. Also, Certificates of Analysis (C.O.A.) shall be
submitted to DuPont by Progenics for each lot shipped by Progenics.
6
18. NOTICES:
Any notices to be given hereunder shall be given in writing and shall
be deemed to have been validly given when deposited in the United
States mail, properly stamped and addressed to DuPont or Progenics,
whichever the case may be, at the addresses shown below or at such
other address as may from time to time be designated by such party in
a notice to the other party.
Progenics: Progenics Pharmaceutical, Inc.
Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
DuPont: X.X. XxXxxx de Nemours and Company
Medical Products Department
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx-Xxxxxxx
Materials/Inventory Supervisor
19. NONDISCRIMINATION:
Progenics warrants that it has complied with all applicable laws,
rules, orders and regulations of governmental authority covering the
production, sale and delivery of the Product specified herein,
including, but not limited to, Executive Order 11246, and the rules
and regulations promulgated thereunder, the Rehabilitation Act of 1973
and the Vietnam Era Veterans Readjustment Act of 1974. Further, Progenics
warrants that in the performance of the services hereunder, it will
comply with all applicable provisions of the Fair Labor Standards Act
of 1938, as amended.
20. AUDITS:
Progenics shall permit no less frequently than once per year, and
upon reasonable notice by DuPont, inspections and audits by DuPont
during regular business hours of all records and aspects of sCD4
manufacture, testing, packaging, labelling and shipping.
21. CANCELLATION:
This Agreement may be cancelled by either party upon 120 days written
notice to the other party.
7
22. ENTIRETY:
This Agreement, together with the Attachments specifically referenced
and attached hereto, embodies the entire understanding between DuPont
and Progenics, and there are no contracts, warranties, or
representations, oral or written, express or implied, with reference
to the subject matter hereof which are not merged herein. Except as
otherwise specifically stated, no modification hereto shall be of any
force or effect unless reduced to writing and signed by both parties
and expressly referred to as being modifications of this Agreement.
AGREED & APPROVED:
FOR PROGENICS: FOR DUPONT:
Name: Xxxx X. Xxxxxx, M.D., Ph.D. Name: Xxxxxx X. Hand
Title: CEO and Scientific Dir. Title: Sr. Purchasing Agent
Signature: /s/ Xxxx X. Xxxxxx Signature: /s/ Xxxxxx X. Hand
Date: June 27, 1995 Date: June 8, 1995
