Purchase Agreement - CAYLA and Invitrogen Corp.
[Invitrogen LOGO]
PURCHASE AGREEMENT
THIS AGREEMENT is made and is effective this 1st day of, JULY 1994, (the
"Effective Date") by and between CAYLA having its technical offices located at
Centre Commercial de Gros, Avenue de Larrieu, 31094 Toulouse Cedex, France and
INVITROGEN CORPORATION, a California corporation having a principal place of
business at 3985-B Sorrento Valley Blvd, San Diego, CA 92121.
RECITALS
WHEREAS, Cayla has the knowledge and facilities for the production of
Phleomycin, Zeomycin, Zeocin, and Neocin (G418).
WHEREAS, Invitrogen desires to develop the Materials as products for
research markets, and desires thereafter to market and distribute the Materials
as widely as possible.
1. DEFINITIONS
1.1 "Materials" means the antibiotics Phleomycin, Zeomycin, Zeocin, and
Neocin (G418) produced by Cayla.
1.2 "Affiliate" means Invitrogen and any company or other legal entity
other than Invitrogen in whatever country organized, which directly controls, is
controlled by, or is under common control with Invitrogen. The term "control"
means possession, direct or indirect, of the powers to direct or cause the
direction of the management and policies of Invitrogen, whether through the
ownership of voting securities, by contract or otherwise.
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2. GRANT
2.1 Cayla hereby grants to Invitrogen and its Affiliates a
non-exclusive 3 year worldwide market with preferential pricing under Cayla's
Rights to use the Materials to make and/or sell Licensed Products.
2.2 *
3. TECHNOLOGY PRICING
3.1 Invitrogen will buy Phleomycin, Zeomycin, Zeocin, and Neocin (G418)
solely from Cayla for a price to be determined. Discounted price structure
dependent upon quantity purchased.
3.2 Invitrogen shall be granted most favored pricing on Phleomycin,
Zeomycin, and Zeocin. Third parties that purchase these antibiotics for
commercialization from Cayla will be charged * as much for the
material as Invitrogen establishing a * price ratio.
4. PURCHASE ORDERS
4.1 Purchase orders for the Material placed by Invitrogen will be subject
to the terms and conditions stated in the Purchase Order Form (Appendix I).
5. AGREEMENT TERM
5.1 This Agreement shall be in full force and effect from the Effective
Date and shall remain in effect for three (3) years unless terminated earlier in
accordance with other provisions in this Agreement or by operation of law.
5.2 In the event that Invitrogen shall at any time fail to perform any
term of this Agreement, then Cayla may give written notice of such default
(Notice of Default) to Invitrogen. If Invitrogen should fail to repair the
default within ninety (90) days of the effective date of such notice, Cayla
shall have the right to terminate this Agreement by a second written notice
(Notice of Termination) to Invitrogen. If a Notice of Termination is sent to
Invitrogen, this Agreement shall automatically terminate on the effective date
of such notice.
5.3 This Agreement may be terminated by Cayla at its option and without
prejudice to any other remedy to which it may be entitled at law or in equity,
or elsewhere under this Agreement, by giving written notice of termination to
Invitrogen if the latter should:
5.3(a) be adjudicated a voluntary or involuntary bankrupt upon
which necessary strains and protocols shall be and continue
to be provided to Invitrogen in order to continue sales
and/or custom work of Licensed Material.
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* "CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION."
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5.3(b) institute or suffer to be institute any proceeding for a
reorganization or rearrangement of its affairs; or
5.3(c) make an assignment for the benefit of creditors; or
5.3(d) become insolvent or have a receiver of its assets or
property appointed; or
5.3(e) allow any money judgment against it to remain unsatisfied
for a period of thirty (30) days or longer
5.4 Invitrogen will be allowed to renew this non-exclusivity purchase
agreement under most favored conditions provided sales have reached significant
values at the termination date.
6. NOTICES
6.1 Any notice required on permitted to be given under this Agreement
shall be deemed to have been properly given for all purposes if mailed by
first-class certified or registered mail to the addresses given:
To Invitrogen:
Invitrogen Corporation
3985-B Sorrento Valley Blvd.
San Diego, CA 92121
Attention: Mr. Joseph Fernandez
Vice-President, Business Development
To Cayla:
Centre Commercial de Gros
Avenue de Larrieu
31094 Toulouse, Cedex
France
Attention: Jean-Louis Bousque
Gerant
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IN WITNESS WHEREOF, both Cayla and Invitrogen have executed this Agreement,
in duplicate originals, by their respective officers.
INVITROGEN CORPORATION
By /s/ Joseph Fernandez
---------------------------------
Signature
Name: Joseph Fernandez
Title: Vice President, Business Development
Date: 6/10/94
CAYLA
By /s/ Jean-Louis Bousque
---------------------------------
Signature
Name: Jean-Louis Bousque
Title: Gerant
Date: 6/24/94
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AMENDMENT TO PURCHASE AGREEMENT
Effective as of 5/31/96, 1996, INVITROGEN CORPORATION ("INVITROGEN") a
corporation organized and existing under the laws of the State of California
and having its principal place of business at 3985 B Sorrento Valley
Boulevard, San Diego, California, 92121 and CAYLA, a corporation of the state
of France, with its technical offices located at ZI Nontaudran-5 rue Jean
Rodier, 31400 Toulouse Cedex, France, agree as follows:
ARTICLE I
BACKGROUND
SECTION 1.1. INVITROGEN and CAYLA are parties to a purchase agreement
made effective July 1, 1994 (the "Purchase Agreement") under which CAYLA
granted INVITROGEN rights to purchase certain materials at preferential
prices, and to use these materials to make and/or sell products.
SECTION 1.2. INVITROGEN and CAYLA wish to amend the Purchase Agreement and
desire to hereby document the amendments.
SECTION 1.3. Terms used in this agreement have the same meanings in the
Purchase Agreement except as amended hereby.
ARTICLE II
AMENDMENTS
SECTION 2.1. AMENDMENTS TO ARTICLE 2.1. The Purchase Agreement is
hereby amended by changing ARTICLE 2.1. of the Purchase Agreement to read in its
entirety as follows:
2.1. CAYLA hereby grants to Invitrogen and its Affiliates a
non-exclusive 3.5 year (expiring on December 31, 1997) worldwide
market with preferential pricing under CAYLA's Rights to
use the Materials to make and/or sell Licensed Products.
SECTION 2.2. AMENDMENT TO ARTICLE 5.1. The Purchase Agreement is hereby
amended by changing ARTICLE 5.1. of the Purchase Agreement to read in its
entirety as follows:
5.1. This Agreement shall be in full force and effect from the
Effective Date and shall remain in effect for 3.5 years (expiring on
December 31, 1997) unless terminated earlier in accordance with other
provisions in this Agreement or by operation of law.
SECTION 2.3. AMENDMENT TO ARTICLE 5.4. The Purchase Agreement is hereby
amended by changing ARTICLE 5.4 of the Purchase Agreement to read in its
entirety as follows:
5.4 Invitrogen will be allowed to renew this non-exclusive purchase
agreement with preferential pricing for an additional three years
provided
(a) revenues payable to CAYLA (including royalties, licensing fees,
and purchases of materials, excluding hygromycin B) reaches
AMENDMENT TO PURCHASE AGREEMENT Page 1 of 2
INVITROGEN AND CAYLA
* "CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION."
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*
(b) revenues payable to CAYLA (including royalties, licensing fees,
and purchases of materials, excluding hygromycin B) reaches *
(C) Revenues payable to CAYLA including royalties, licensing fees,
and purchases of materials, excluding hygromycin B) *
revenues payable the preceding year of *
SECTION 2.4. The Purchase Agreement is hereby amended by adding ARTICLE
5.5 of the Purchase Agreement to read in its entirety as follows:
5.5 In the event that Invitrogen does not reach one of the targets
indicated in Article 5.4 a, b and c, Invitrogen will be allowed to
renew this non-exclusive purchase agreement with most favorable
terms.
IN WITNESS WHEREOF, the parties have caused this Amendment to the License
Agreement to be executed by their duly authorized representatives.
For and on behalf of: For and on behalf of:
INVITROGEN CORPORATION CAYLA
By: /s/ [ILLEGIBLE] By: /s/ Jean-Louis Bousque
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Title: V.P. Business Development Title: Gerant
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Date: 5/14/96 Date: 5/31/96
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AMENDMENT TO PURCHASE AGREEMENT Page 2 of 2
INVITROGEN AND CAYLA
* "CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION."
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[LOGO]
8 September 1998
Mr. Jean-Louis Bousque
CAYLA
5 rue Jean Rodier
31400 Toulouse
FRANCE
RE: ZEOCIN-TM- AND RELATED PRODUCTS
Dear Mr. Bousque,
I am writing to confirm the points we have agreed on with respect to the
Zeocin-TM- purchase agreement and the Ble gene license:
Notwithstanding anything in our prior agreements and amendments, we now agree as
follows:
1) Royalties payable on plasmids containing the Ble gene shall be * per
plasmid. Minimum royalty payments to maintain exclusivity for the Ble gene
shall be * for 1998. The license will continue to be exclusive as long as
Invitrogen makes minimum royalty payments which increase by * annually.
2) Minimum payments to CAYLA to maintain preferential pricing in the Zeocin-TM-
supply agreement shall be as follows:
a) minimum payments shall increase annually by the lesser of i) * or ii)
* . The minimum for 1998 is *
b) the following shall be credited against these minimums:
i) All antibiotic purchases from CAYLA, excluding Hygromycin B;
ii) *
iii) Royalties paid under the Ble license;
iv) Price of Zeocin/mg x 5mg x number of pouches of FastMedia products
containing Zeocin;
v) * purchases (if any).
3) The price of Zeocin shall be * from September 1, 1998 to September 1,
1999.
Sincerely, ACCEPTED & AGREED TO:
/s/ Warner R. Broaddus /s/ Jean-Louis Bousque, Gerant
Warner R. Broaddus Jean-Louis Bousque, Gerant
General Counsel CAYLA SARL
[LETTERHEAD]
* "CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION."