Exhibit 10.9


 


[ **** ] indicates confidential portions have
been redacted and submitted separately pursuant to confidentiality request with
the Commission


 


SUPPLY AGREEMENT


 


THIS AGREEMENT is made as of the 18th day of August 2006
(the “Effective Date”).


 


BETWEEN:


 


1.             BIOSYN Corporation, a company
incorporated in California, USA, whose registered office is at 5939 Darwin
Court, Suite 114, Carlsbad, CA 92008, USA, and a wholly owned subsidiary
of BIOSYN Arzneimittel GmbH, Germany (collectively referred to herein as “BIOSYN”);
and


 


2.             Celldex Therapeutics Inc, a
Delaware corporation having its principle place of business at 222 Cameron
Drive, Suite 400, Phillipsburg, NJ 08865, USA. (“CELLDEX”).


 


3.             CELLDEX and BIOSYN each may be
referred to herein individually as a “Party” or collectively as the “Parties.”


 


WHEREAS:


 


A.            BIOSYN is a pharmaceutical
company engaged in the marketing and development of pharmaceuticals, including
pharmaceuticals for treating and preventing a number of diseases and
conditions. BIOSYN is also engaged in the manufacturing of proprietary
formulations of BIOSYN hemocyanin products including keyhole limpet hemocyanin
(KLH), abalone (AH), and horseshoe crab (HCH). 
BIOSYN KLH in this agreement refers to BIOSYN’S proprietary hemocyanin
subunit formulations, specifically, VACMUNE® liquid.


 


B.            BIOSYN has agreed to manufacture
and sell BIOSYN KLH to CELLDEX on a non-exclusive basis, and CELLDEX has agreed
to order exclusively from BIOSYN subject to the terms below.


 


C.            BIOSYN has a Drug Master File
(DMF) filed with the FDA for BIOSYN KLH.


 


THIS AGREEMENT WITNESSES as follows:


 


1.             INTERPRETATION.


 


1.1.         In this Agreement


 


“Affiliate” or “Affiliates”
means any corporation, company, partnership, joint venture, firm or other
entity that controls, is controlled by, or is under common control with a
Party.  For purposes of this definition, “control”
means (a) in the case of corporate entities, direct or indirect ownership
of at least fifty percent (50%) of the stock or shares entitled to vote for the
election of directors; and (b) in the case of non-corporate


 

















 


entities, direct or indirect ownership of at least fifty percent (50%)
of the equity interest with the power to direct the management and policies of
such noncorporate entities.


 


“BIOSYN KLH” means
the form of KLH manufactured by BIOSYN corresponding to and having the
specifications detailed on the Product Data Sheet attached hereto as Schedule 1
and incorporated by reference herein;


 


“DMF” means the
Drug Master File for BIOSYN KLH, VACMUNE® liquid, a copy of which has been
filed with the FDA and the Canadian regulatory agency.


 


“FDA” means the
United States Food and Drug Administration;


 


“Free Carrier”
bears the meaning set out in the incoterms 1990, a copy of the relevant section
of which is included as Schedule 3 hereto;


 


“Further Term”
means any term of five (5) years subsequent to the Initial Term;


 


“GMP” means Goods
Manufacturing Practices promulgated by the Division of Manufacturing and
Product Quality of the FDA.


 


“Initial Term”
means the first ten (10) year term of this Agreement, commencing on the
Effective Date and ending on the tenth anniversary thereof;


 


“KLH” means
Keyhole Limpet Hemocyanin, a protein from the giant limpet Megathura crenulata;


 


“Vaccines” means
the KLH-Peptide vaccine and other KLH-containing vaccines developed and owned
by CELLDEX.


 


“Year” means
calendar year, first month being January and the last month being December


 


1.2.         In this Agreement, a
reference to:


 


1.2.1.      a document in the “agreed
form” is a reference to a document in a form approved and for the purposes of
identification signed by or on behalf of the Parties;


 


1.2.2.      persons includes a reference
to any natural person(s), corporation, unincorporated business association,
joint venture or partnership;


 


1.2.3.      a person includes a
reference to that person’s legal personal representatives, successors and
permitted assigns;


 


1.2.4.      a Clause or Schedule, unless
the context otherwise requires, is a reference to a clause or schedule of this
Agreement;


 


1.2.5.      an agreement or other
document is a reference to that agreement or documents as from time to time
supplemented or amended.


 


2

















 


1.3.         The headings in this
Agreement shall not affect the interpretation of this Agreement.


 


2.             OBLIGATIONS OF
BIOSYN.


 


2.1.         During the Initial Term
and any Further Term, BIOSYN shall use its best efforts consistent with
reasonable business practices to:


 


2.1.1.      fulfill all orders made by
CELLDEX in any one year for BIOSYN KLH. 
Orders by CELLDEX shall be fulfilled promptly, and in any event within
ninety (90) days of receiving an order (in substantially the form set out in
Schedule 2, or a standard purchase order) from CELLDEX;


 


2.1.2.      maintain sufficient
manufacturing and supply capacity so as to enable it to comply with this Clause
2;


 


2.1.3.      provide a minimum of two (2) grams
of BIOSYN KLH, per twelve (12) month period to CELLDEX (“CELLDEX Minimum
Requirement”) during the Initial Term of this Agreement;


 


2.1.4.      provide the two grams of product
as 100 vials of 20 mg/vial of BIOSYN KLH in approximately 1 mL.


 


2.1.5.      ensure that all BIOSYN KLH
supplied to CELLDEX complies with any description of BIOSYN KLH supplied by
BIOSYN to CELLDEX and complies in all respects (including with regard to its
manufacture) with the DMF and the KLH license granted in Clause 6 hereof.


 


3.             OBLIGATIONS OF
CELLDEX


 


3.1.         During the Initial Term
and any Further Term, CELLDEX shall use its best efforts consistent with
reasonable business practices to:


 


3.1.1.      procure all KLH for its
Vaccine development and manufacture from BIOSYN;


 


3.1.2.      subject to Clause 9.3, order
at least the CELLDEX Minimum Requirement each year, beginning January 2007;


 


3.1.3.      in January of each Year
thereafter, CELLDEX, shall place an order for the BIOSYN KLH


 


3.1.4.      hold in strictest
confidence, not use or disclose to any third party, and take all necessary
precautions to secure any Confidential Information (as defined below) of
BIOSYN.  Disclosure of such information
shall be restricted solely to employees, agents, consultants, and
representatives of CELLDEX who have been advised of their obligation with
respect to Confidential Information.  The
term “Confidential Information” shall mean all non-public information that
BIOSYN designates as being confidential, or which, under the


 


3

















 


circumstances of disclosure ought to be treated as confidential.  For the purposes of this Clause 3.1.4, the
term “Confidential Information” shall mean, without limitation, the terms and
conditions of this Agreement, the DMF, potential customers or suppliers of
information, trade secrets, source codes, documentation, formulae, technology,
or information received from others that a party is obligated to treat as
confidential.  If CELLDEX has any
questions as to what comprises such Confidential Information, then CELLDEX
shall first consult with BIOSYN.


 


The provisions of this Section 3.1.4 shall not
apply to any Confidential Information disclosed hereunder that:  (a) was known or used by CELLDEX or its
Affiliates prior to its date of disclosure to CELLDEX, as evidenced by the
prior written records of CELLDEX or its Affiliates; or (b) either before
or after the date of the disclosure to CELLDEX is lawfully disclosed without
restriction to CELLDEX or its Affiliates by an independent, unaffiliated third
party rightfully in possession of the Confidential Information (but only to the
extent of the rights received from such third party); or (c) either before
or after the date of the disclosure to CELLDEX becomes published or generally
known to the public through no fault or omission on the part of CELLDEX or its
Affiliates; or (d) is generally made available by BIOSYN to third parties
without restriction. Further, CELLDEX shall have the right to disclose
information disclosed by BIOSYN (x) to the extent necessary to comply with
applicable laws, to defend or prosecute litigation or to comply with
governmental regulations, or the rules of a stock exchange or automated
quotation system, provided that CELLDEX provides prior written notice of such
disclosure to BIOSYN and takes reasonable and lawful actions to avoid or
minimize the degree of such disclosure, including assisting BIOSYN to seek
confidential treatment or a protective order, or (y) to existing or
potential acquirers or merger candidates, existing or potential
sublicensees/licensees, investment bankers, existing or potential investors,
venture capital firms or other financial institutions or investors of CELLDEX
for purposes of obtaining financing, each of whom prior to disclosure must be
bound by obligations of confidentiality and non-use at least equivalent in
scope to those set forth in Section 3.1.4.


 


3.1.5.      pay for all reasonable costs
related to freight duty, packaging costs and associated taxes, including any
insurance, for the delivery of BIOSYN KLH to CELLDEX.


 


3.1.6.      pay all amounts due under
this Agreement in accordance with Clause 5.


 


4.             ORDERS FOR BIOSYN
KLH.


 


4.1.         All orders for BIOSYN KLH
will be placed by CELLDEX in writing and shall be in substantially the form set
out in Schedule 2.


 


4.2.         The BIOSYN KL,H shall be
supplied to CELLDEX by BIOSYN in accordance with the terms of this Agreement.
The orders shall be accepted by BIOSYN subject to the terms of Clause 2.1.


 


4.3.         CELLDEX may by give
notice to BIOSYN rejecting all or any part of any order of BIOSYN KLH which:


 


4.3.1.      has not been manufactured in
accordance with the specifications set out in the DMF filed with the FDA;


 


4

















 


4.3.2.      is not of GMP quality; or


 


4.3.3.      does not comply with any
description applied to it and supplied by BIOSYN to CELLDEX.


 


The notice of rejection shall be given by CELLDEX
within thirty (30) days of actual receipt of the order by CELLDEX at the
address for delivery specified in the purchase order provided by CELLDEX.  Where all or any part of any order of BIOSYN
KLH is rejected by CELLDEX under this Clause 4.3.3, such BIOSYN KLH shall be
returned to BIOSYN at the risk and expense of BIOSYN for replacement forthwith
by BIOSYN and CELLDEX will be reimbursed for its shipping costs, unless it is
reasonably determined by BIOSYN that the order complies with this Clause 4.3.3,
in which case CELLDEX shall be obligated to purchase such order, assume all
risks of transportation, and pay all associated costs.


 


4.4.         All orders of BIOSYN KLH
shall be supplied and delivered to CELLDEX by BIOSYN via Free Carrier.


 


4.5.         Title and risk in respect
of BIOSYN KLH supplied by BIOSYN to CELLDEX shall pass on completion of
delivery in accordance with Clause 4.4 above, subject to the terms of Clause
4.3.


 


5.             PRICE AND PAYMENT.


 


5.1.         The price to be paid by
CELLDEX to BIOSYN for BIOSYN KLH shall be [ **** ] per vial for the first order
of between two — five grams (the “Initial Order”), [ **** ] per vial for orders
between 5-10 grams, and [ **** ] per vial for amounts above 10grams in a given
year, during the first five years of this Agreement.  Thereafter, such price shall be reviewed and
adjusted annually (upward or downwards), effective January of each year,
and such adjustment shall proportionately reflect changes in the costs of
production of BIOSYN KLH.  In no case
shall an annual increase or decrease exceed ten percent (10%).


 


5.2.         CELLDEX shall pay a
non-refundable deposit of 50% of the product cost at the time of placing the
order at the beginning of each year.


 


5.3.         The additional 50% of
product cost shall be paid per Clause 5.5.


 


5.4.         CELLDEX shall reimburse
BIOSYN for any and all expenses incurred by BIOSYN on behalf of CELLDEX,
including, without limitations, freight, packaging costs, duty and associated
taxes, including any insurance placed by CELLDEX for the delivery of BIOSYN KLH
to CELLDEX.


 


5.5.         Payment for BIOSYN KLH
accepted by CELLDEX and expenses incurred by BIOSYN under Clause 5.3 shall be
made by CELLDEX to BIOSYN within thirty (30) days of the end of the month in
which BIOSYN KLH is actually received by CELLDEX at the address specified in
the purchase order provided by CELLDEX.


 


5.6.         CELLDEX shall pay a one
time non refundable and non-exclusive licensing fee of [ **** ] to BIOSYN, due
in accordance with the following schedule:


 


5

















 


5.6.1.      [ **** ] on the Effective
Date of this Agreement.


 


5.6.2.      annual payments of [ **** ] per
year, payable each year on the anniversary date of the Effective Date of this
Agreement, until such amount is paid in full. 
Notwithstanding the foregoing, such annual installment shall not be
payable by CELLDEX in the event this Agreement is terminated by CELLDEX at
least sixty (60) days prior to the date such payment is to be made in
accordance with the provisions of Clause 9.3. 
In such event, CELLDEX will have no further obligation to make annual
payments under this Clause 5.6. Previously paid annual payments remain
non-refundable.


 


5.6.3.      Outstanding balance, if any,
shall be paid in full within thirty (30) days of approval for commercial sale
of CELLDEX’S peptide-KLH cancer vaccine


 


5.7.         CELLDEX shall pay to
BIOSYN for any special requests by CELLDEX for product characterization,
product quality, or any other requests for services or products not expressly
provided for in this Agreement at a price to be negotiated by the parties.


 


5.8.         All amounts due and
payable under this Agreement shall be made in United States currency.


 


5.9.         If any amounts due
hereunder are not paid when due, the unpaid balance shall accrue interest at
the rate of 1.5% per month until paid in full.


 


6.             BIOSYN LICENSE.


 


6.1.         In consideration of the
obligations undertaken by CELLDEX in this Agreement, BIOSYN hereby grants
CELLDEX a non-exclusive perpetual, world-wide, royalty-free license, to BIOSYN
KLH, to research, develop, make, have made, use, sell, offer for sale, export
and import the Vaccines (with the right to sublicense for the same purposes)
during the Initial Term and any Further Term.


 


6.2.         BIOSYN will update and
maintain the DMF per regulations of the Canadian and United States regulatory
authorities, and will provide any additional data requested to support CELLDEX’s
regulatory filings in any / all other worldwide markets at no additional cost,
pursuant to the licensing fee paid per Clause 5.6 .


 


6.3.         BIOSYN will be
responsible for any KLH related questions and specific regulatory related
updates requested by the United States, Canadian, or other worldwide regulatory
authorities.


 


6.4.         At the request of
CELLDEX, BIOSYN shall provide a cross-reference letter (“Cross Reference Letter”)
to the FDA, Canadian, or other worldwide Regulatory Agency, authorizing access
to the BIOSYN DMF.


 


6.4.1.      In its request, CELLDEX
shall provide the following information to BIOSYN for Cross Reference Letter
issuance:


 


6

















 


Title of the
IND/NDA; Name and Address of IND/NDA Holder; IND/NDA number; and


 


Name and address
of specific FDA or Canadian Regulatory Agency reviewer, if available.


 


6.5.         BIOSYN will deliver to
the FDA, Canadian, or other worldwide Regulatory Agency with a copy to CELLDEX,
the Cross Reference Letter, not later than thirty (30) days following the date
of CELLDEX’S request.


 


7.             TERM.


 


7.1.         This Agreement shall
(unless terminated at an earlier date pursuant to Clause 10) continue in full
force and effect for the Initial Term and any Further Term.


 


7.2.         After the Initial Term or
any Further Term, this Agreement shall be automatically extended for an
additional Further Term unless terminated by either Party by giving to the
other written notice of termination at least six (6) months prior to the
end of the Initial or Further Term, as the case may be.


 


8.             FAILURE TO PERFORM.


 


8.1.         A default by a Party
occurs when:


 


8.1.1.      BIOSYN fails to comply with
the terms of Clause 2 or any other covenant made by it under this Agreement; or


 


8.1.2.      CELLDEX fails to comply with
the terms of Clauses 3 or 5 or any other covenant made by it under this
Agreement.


 


8.2.         In the event either Party
is in default under Clause 8.1 of this Agreement, the other Party shall give
notice of default to the defaulting Party. 
The defaulting Party shall be allowed thirty (30) days to cure their
breach.  Failure to cure such default
within thirty (30) days permits the non-breaching Party, without limitation to
other remedies, to terminate this Agreement pursuant to Clause 9 below.


 


8.3.         In the event BIOSYN fails
to perform pursuant to the events of Clause 8.1.1, CELLDEX is entitled to
attempt to cover by obtaining pharmaceutical grade (cGMP) KLH from another
source without prejudice to any other remedy, provided, BIOSYN shall be
entitled to first cure the event pursuant to Clause 8.2.


 


9.             TERMINATION.


 


9.1.         Subject to Clauses 9.3
and 8.2, either Party may terminate this Agreement upon either of the events of
Clause 8.1.  If, however, termination is
pursuant to Clause 9.2 and BIOSYN is the Breaching Party, BIOSYN agrees that it
will not withdraw supplies of BIOSYN KLH required for the completion of any
clinical trial for the Vaccines conducted by CELLDEX


 


7

















 


pending at the time of BIOSYN’s notice of termination, so long as
CELLDEX is not in violation of Clauses 3 or 5.


 


9.2.         Events that permit
termination, other than the events of Clause 8.1, are:


 


9.2.1.      the passing by the Breaching
Party of a resolution for its winding-up or the making by a court of competent
jurisdiction of an order for the winding-up of the other Party of the
dissolution of the Breaching Party;


 


9.2.2.      the making of an
administration order in relation to the Breaching Party or the appointment of a
receiver over, or the taking of possession or sale by an encumbrance of, any of
the Breaching Party’s assets;


 


9.2.3.      the Breaching Party making
an arrangement or composition with its creditors generally or making an
application to a court of competent jurisdiction for protection from its
creditors generally.


 


9.3.         Notwithstanding anything
herein to the contrary, CELLDEX shall have the right to terminate this
Agreement upon sixty (60) days written notice to BIOSYN in the event CELLDEX
shall determine not to proceed with the development of the Vaccines for any
reason.  In such event, CELLDSEX shall
cease further development of the Vaccines.


 


10.          CONSEQUENCES OF
TERMINATION.


 


10.1.       Subject to Clause 9.1, all
rights and obligations of the parties shall cease to have effect immediately
upon termination of this Agreement except that termination shall not affect:


 


10.1.1.    the accrued rights and
obligations of the parties at the date of termination; and


 


10.1.2.    the continued existence and
validity of the rights and obligations of the Parties under Clauses 2 and 5
(but only in respect of any orders made by CELLDEX prior to the date of
termination as to both Clauses 2 and 5), Clause 10, Clause 3.1.2, and any
provisions of this Agreement necessary for the interpretation or enforcement of
this Agreement.


 


11.          COSTS.


 


Except as otherwise expressly provided in this
Agreement, each Party shall pay its own costs of and incidental to the
negotiation, preparation, execution and implementation by it of this Agreement
and of all other documents referred to in it.


 


12.          FURTHER ASSURANCE.


 


Each Party shall at its own cost do and execute or
procure to be done and executed all necessary acts, agreements, documents and
things reasonably within its power to give effect to this Agreement.


 


8

















 


13.          DISCLAIMERS


 


13.1.       EXCEPT AS SET FORTH IN
CLAUSE 2 OF THIS AGREEMENT, BIOSYN DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES
OF ANY KIND RELATING TO BIOSYN KLH WHETHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.


 


13.2.       IN NO EVENT SHALL BIOSYN BE
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY
DAMAGES ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE OF THE BIOSYN KLH OR
BREACH OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
PROFITS, LOSS OF BUSINESS, OR BUSINESS INTERRUPTION, EVEN IF BIOSYN HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


14.          GENERAL.


 


14.1.       This Agreement constitutes
the entire agreement between the Parties relating to the subject matter of this
Agreement and supersedes all such previous agreements.


 


14.2.       No modification of this
Agreement shall be valid unless it is in writing and signed by or on behalf of
each of the Parties.


 


14.3.       The failure to exercise or
delay in exercising a right or remedy under this Agreement shall not constitute
a waiver of the right or remedy or a waiver of any other rights or remedies and
no single or partial exercise of any right or remedy or the exercise of any
other right or remedy.


 


14.4.       Except as expressly
provided in this Agreement the rights and remedies contained in this Agreement
are cumulative and not exclusive of any rights or remedies provided by law.


 


14.5.       Any date, time or period
referred to in this Agreement is of the essence except only to the extent of
which the Parties agree in writing to vary it in which event the varied date,
time or period is of the essence.


 


14.6.       Nothing in this Agreement
be construed as creating a partnership between the Parties or as constituting
either Party as the agent of the other Party for any purpose whatsoever and
neither Party shall have the authority or power to bind the other Party or to
contract in the name of or create a liability against the other Party in any
way or for any purpose.


 


14.7.       The prevailing party(ies)
in any litigation, arbitration, insolvency or other proceeding (“Proceeding”)
relating to the enforcement or interpretation of this Agreement may recover
from the unsuccessful party(ies) all costs, expenses, and attorney’s fees
(including expert witness and other consultants’ fees and costs) relating to or
arising out of (a) the Proceeding (whether or not the Proceeding proceeds
to judgment), and (b) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award


 


9

















 


resulting from the Proceeding. 
All such judgments and awards shall contain a specific provision for the
recovery of all such subsequently incurred costs, expenses, and attorney’s
fees.


 


15.          ASSIGNMENT.


 


Neither Party shall assign or transfer or purport to
assign or transfer any of its rights or obligations under this Agreement except
with the prior written consent of the other Party; provided, however, that
CELLDEX shall have the right to assign the Agreement, without BIOSYN’S consent
to (a) its Affiliate(s) (provided that the assigning Party shall
remain jointly and severally liable with such Affiliate(s) under this
Agreement), and (b) an entity that acquires all or substantially all of
the business or assets of the assigning Party, whether by merger,
reorganization, acquisition, sale or otherwise.


 


16.          NOTICES.


 


16.1.       Any notice or other
communication under or in connection with this Agreement shall be in writing in
the English language and shall be delivered personally or sent by first class
post pre-paid recorded delivery and air mail, by confirmed telefax, or by
confirmed electronic mail (e-mail) to the Party due to receive the notice or communication
at its address set out in this Agreement or such other address as either Party
may specify by notice in writing to the other.


 


16.2.       In the absence of evidence
of earlier receipt, any notice or other communication shall be deemed to have
been duly given:


 


16.2.1.    if delivered personally, when
left at the address referred to in this Agreement;


 


16.2.2.    if sent by mail other than air
mail, six (6) days after posting it;


 


16.2.3.    if sent by air mail, six (6) days
after posting it; and


 


16.2.4.    if sent by confirmed telefax
or confirmed e-mail, when clearly received in full.


 


17.          GOVERNING LAW AND
JURISDICTION.


 


17.1.       This Agreement is governed
by, and shall be construed in accordance with Delaware law.


 


17.2.       Each party irrevocably
waives any objection which it might at any time have to the courts of Delaware
being nominated as the forum to hear and determine any proceedings and to
settle any disputes and agrees not to claim that the courts of Delaware are not
a convenient or appropriate forum.


 


17.3.       Each party agrees that the
process by which any proceedings are begun in Delaware may be served on BIOSYN
by being delivered in accordance with Clause 15.  Nothing


 


10

















 


contained in this paragraph shall affect the right to serve process in
any other manner permitted by law.


 


17.4.       This Agreement is drawn up
in the English language and if this Agreement is translated into any language
other than the English language this version shall prevail.


 


18.          ARBITRATION.


 


18.1.       In case any controversy or
claim arises out of or in relation to this Agreement or with respect to breach
thereof, the Parties shall seek to resolve the matter amicably through
discussions between the Parties.  Only if
the Parties fail to resolve such controversy, claim or breach within thirty
(30) days by amicable arrangement and compromise, the aggrieved Party may seek
arbitration a set forth herein.  Any
controversy or claim arising out of or in relation to this Agreement, or breach
hereof, shall be finally settled by arbitration in Wilmington, Delaware.  The arbitration shall be conducted before
three arbitrators in accordance with the Rules of the American Arbitration
Association then in effect.  Each Party
shall appoint one arbitrator within fifteen (15) days after receipt of a demand
for arbitration.  The two arbitrators
thus appointed shall, within fifteen (15) days after both shall have been
appointed, appoint a third arbitrator. 
Both Parties shall be bound by the award rendered by the arbitrators and
judgment thereon may be entered in any court of competent jurisdiction.


 


19.          COUNTERPARTS.


 


This Agreement may be executed in any number of
counterparts each of which when executed and delivered shall be an original,
but all the counterparts together shall constitute one and the same instrument.


 


As WITNESS the hands of the Parties or their duly
authorized representatives the day and year first above written.


 


	
  Signed by:

  
	
  for and behalf of

  CELLDEX, Inc.

  



 


	
  Signed by:

  
	
  for and behalf of

  BIOSYN CORPORATION

  



 


11

















 


Schedule 1


 


Product Data Sheet


 


12

















 


Schedule 2


 


Purchase order


 


	
  TO:

  	
  BIOSYN Corporation

  
	
   

  	
  5939 Darwin Courts,
  Suite 114

  
	
   

  	
  Carlsbad, CA 92008, USA

  
	
  FROM:

  	
  Celldex Therapeutics
  Inc

  
	
   

  	
  222 Cameron Drive,
  Suite 400, Phillipsburg, NJ 08865 USA

  



 


 


Please find below an order for BIOSYN KLH made in
accordance with the terms of the Supply Agreement entered into between us on July 21,
2006.


 


Date of order:


 


Quantity of order:


 


Delivery Date: 
within 90 days from date of order


 


Address in the 

USA for delivery:


 


Price:


 


Payment Enclosed (50% of Total Product):


 


Payment Date: 
30 days from end of month in which order actually received at USA
address for delivery.


 


Please confirm your acceptance of this order within 7
days of the date hereof by completing the acceptance form below and returning
it to us, for the attention of by fax (fax number).


 


	
   

  	
   

  
	
  Signed

  	
   

  
	
  For and on behalf of
  Celldex Therapeutics Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date, Place

  	
   

  
	
   

  	
   

  
	
  Order acceptance by
  BIOSYN Corporation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed

  	
   

  
	
  For and on behalf
  BIOSYN Corporation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date, Place

  	
   

  



 


13

















 


Schedule 3


 


Free Carrier


 


“Free Carrier” means that the seller fulfils his obligation
to deliver when he has handed over the goods, cleared for export, into the
charge of the carrier named by the buyer at the named place or point.  If no precise point is indicated by the
buyer, the seller may chose within the place or range stipulated where the
carrier shall take the goods into his charge. 
When, according to commercial practice, the seller’s assistance is
required in making the contract with the carrier (such as in rail or air
transport) the seller may act at the buyer’s risk and expense.


 


This term may be used for any mode of transport,
including multimodal transport.


 


“Carrier” means any person who, in a contract of
carriage, under-takes to perform or to procure the performance of carriage by
rail, road, sea, air, inland waterway or buy a combination of such modes.  If the buyer instructs the seller to deliver
the cargo to a person, e.g. a freight forwarder who is not a “carrier”, the
seller is deemed to have fulfilled his obligation to deliver the goods when
they are in the custody of that person.


 


“Transport terminal” means a railway terminal, a
freight station, a container terminal or yard, a multipurpose cargo terminal or
any similar receiving point.


 


“Container” includes any equipment used to unitise
cargo, e.g. all types of containers and/or flats, whether ISO accepted or not,
trailers, swap bodies, ro-ro equipment, igloos, and applies to all modes of
transport.


 


A. The seller must


 


A.l Provision of
goods In conformity with the contract


 


Provide the goods and the commercial invoice, or its
equivalent electronic message, in conformity with the contract of sale and any
other evidence of conformity which may be required by the contract.


 


A.2 Licenses,
authorizations and formalities


 


Obtain at his own risk and expense any export license
or other official authorization and carry out all customs formalities necessary
for the exportation of the goods.


 


A.3 Contract of
carriage and insurance


 


a) Contract of carriage


 


No obligation.
However, if requested by the buyer or if it is commercial practice and the
buyer does not give an instruction to the contrary in due time, the seller may
contract for carriage on usual terms at the buyer’s risk and expense.  The seller may decline to make the contract
and, if he does, shall promptly notify the buyer accordingly.


 


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b) Contract of insurance


 


No obligation.


 


A.4 Delivery


 


Deliver the goods into the custody of the carrier or
another person (e.g. a freight forwarder) named by the buyer, or chosen by the
seller in accordance with A.3.a), at the named place or point (e.g. transport
terminal or other receiving point) on the date or within the period for
delivery and in the manner agreed or customary at such point.  If no specific point has been agreed, and if
there are several points available, the seller may select the point at the
place of delivery which best suits his purpose. 
Failing precise instructions from the buyer, the seller may deliver the
goods to the carrier in such a manner as the transport mode of that carrier and
the quantity and/or nature of the goods may require.


 


Delivery to the carrier is completed:


 


I) In the case of rail
transport when the goods constitute a wagon load (or a container
load carried by rail) the seller has to load the wagon or container in the
appropriate manner.  Delivery is
completed when the loaded wagon or container is taken over by the railway or by
another person acting on its be-half.


 


When the goods do not constitute a wagon or container
load, delivery is completed when the seller has handed over the goods at the
railway receiving point or loaded them into a vehicle provided by the railway.


 


II) In the case of road
transport when loading takes place at the seller’s premises,
delivery is completed when the goods have been loaded on the vehicle provided
by the buyer.


 


When the goods are delivered to the carrier’s
premises, delivery is completed when they have been handed over to the road
carrier or to another person acting on his behalf.


 


III) In the case of transport by inland waterway when loading takes place at
the seller’s premises, delivery is completed when the goods have been loaded on
the carrying vessel provided by the buyer.


 


When the goods are delivered to the carrier’s
premises, delivery is completed when they have been handed over to the inland
waterway carrier or to another person acting on his behalf.


 


IV) In the case of sea
transport when the goods constitute a full container load (FCL),
delivery is completed when the loaded container is taken over by the sea
carrier.  When the container has been
carried to an operator of a transport terminal acting on behalf of the carrier,
the goods shall be deemed to have been taken over when the container has
entered into the premises of that terminal.


 


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When the goods are less than a container load (LCL),
or are not to be containerised, the seller has to carry them to the transport
terminal.  Delivery is completed when the
goods have been handed over to the sea carrier or to another person acting on
his behalf.


 


V) In the case of
air transport, delivery is completed when the goods have been handed
over to the air carrier or to another person acting on his behalf.


 


VI) In the case of unnamed
transport, delivery is completed when the goods have been handed
over to the carrier or to another person acting on his behalf.


 


VII) In the case of multimodal
transport, delivery is completed when the goods have been handed
over as specified in I) - VI), as the case may be.


 


A.5 Transfer of
risks


 


Subject to the provisions of B.5., bear all risks of
loss of or damage to the goods until such time as they have been delivered in
accordance with A.4.


 


A.6 Division of
costs


 


Subject to the provisions of B.6


 


—   pay all costs relating to the goods
until such time as they have been delivered to the carrier in accordance with
A.4.;


 


—   pay the costs of
customs formalities as well as all duties, taxes, and other official charges
payable upon exportation.


 


A.7 Notice to the
buyer


 


Give the buyer sufficient notice that the goods have
been delivered into the custody of the carrier. Should the carrier fail to take
the goods into his charge at the time agreed, the seller must notify the buyer
accordingly.


 


A.8 Proof of
delivery, transport document or equivalent electronic message


 


Provide the buyer at the seller’s expense, if
customary, with the usual document in proof of delivery of the goods in
accordance with A.4.


 


Unless the document referred to in the preceding
paragraph is the transport document, render the buyer at the latter’s request,
risk and expense, every assistance in obtaining a transport document for the
contract of carriage (for example, a negotiable bill of lading, a
non-negotiable sea waybill, an inland waterway document, an air waybill, a
railway consignment note, a road consignment note, or a multimodal transport
document).


 


When the seller and the buyer have agreed to
communicate electronically, the document referred to in the preceding paragraph
may be replaced by an equivalent electronic data interchange (EDI) message.


 


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A.9 Checking
packaging — marking


 


Pay the costs of those checking operations (such as
checking quality, measuring, weighing, counting) which are necessary for the
purpose of delivering the goods to the carrier. Provide at his own expense
packaging (unless it is usual for the particular trade to send the goods of the
contract description unpacked) which is required for the transport of the
goods, to the extent that the circumstances relating to the transport (e.g.
modalities destination) are made known to the seller before the contract of
sale is concluded. Packaging is to be marked appropriately.


 


A.1O Other
obligations


 


Render the buyer at the latter’s request, risk and
expense, every assistance in obtaining any documents or equivalent electronic
messages (other than those mentioned in A.8) issued or transmitted in the
country of delivery and/or of origin which the buyer may require for the
importation of the goods and, where necessary, for their transit through
another country.


 


Provide the buyer, upon request, with the necessary
information for procuring insurance.


 


B. The Buyer Must


 


B.1 Payment of the
price


 


Pay the price as provided in the contract of sale.


 


B.2 Licenses,
authorizations and formalities


 


Obtain at his own risk and expense any import license
or other official authorization and carry out all customs formalities for the
importation of the goods and, where necessary, for their transit through another
country.


 


B.3 Contract of
carriage


 


Contract at his own expense for the carriage of the
goods from the named place, except as provided for in A.3.a).


 


B.4 Taking
delivery


 


Take delivery of the goods in accordance with A.4.


 


B.5 Transfer of
risks


 


Bear all risks of loss of or damage to the goods from
the time they have been delivered in accordance with A.4.


 


Should he fail to give notice in accordance with B.7.,
or should the carrier named by him fail to take the goods into his charge, bear
all risks of loss of or damage to the goods from the agreed date or the expiry
date of any period stipulated for delivery, provided, however, that the


 


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goods have been duly appropriated to the contract,
that is to say, clearly set aside or otherwise identified as the contract
goods.


 


B.6 Division of
costs


 


Pay all costs relating to the goods from the time when
they have been delivered in accordance with A,4.


 


Pay any additional costs incurred, either because he
fails to name the carrier, or the carrier named by him fails to take the goods
into his charge at the agreed time, or because he has failed to give
appropriate notice in accordance with B.7., provided, however, that the goods
have been duly appropriated to the contract, that is to say, clearly set aside
or otherwise identified as the contract goods.


 


Pay all duties, taxes and other official charges as
well as the costs of carrying out customs formalities payable upon importation
of the goods and, where necessary, for their transit through another country.


 


B.7 Notice to the
seller


 


Give the seller sufficient notice of the name of the
carrier and, where necessary, specify the mode of transport, as well as the
date or period for delivery the goods to him, as the case may be, of the point
within the place where the goods should be delivered to the carrier.


 


B.8 Proof of
delivery, transport document or equivalent electronic message


 


Accept the proof of delivery in accordance with A.8,


 


B.9 Inspection of
goods


 


Pay, unless otherwise agreed, the costs of
pre-shipment inspection except when mandated by the authorities of the country
of exportation.


 


B.10 Other
obligations


 


Pay all costs and charges incurred in obtaining the
documents or equivalent electronic messages mentioned in A.10. and reimburse
those incurred by the seller in rendering his assistance in accordance
therewith and in contracting for carriage in accordance with A.3.a).


 


Give the seller appropriate instructions whenever the
seller’s assistance in contracting for carriage is required in accordance with
A.3.a).


 


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