Exhibit 10.22


 


[*]
Indicates that a portion of this exhibit has been omitted based on a request
for confidential treatment submitted to the Securities and Exchange
Commission.  The omitted portion has
been filed separately with the Commission.


 


SUPPLY
AGREEMENT


 


This agreement (the “Agreement”) is entered into effective as of
March 1, 2004 by and between The Curators of The University of Missouri, a
public corporation of the State of Missouri, contracting on behalf of its
Research Reactor Center, University of Missouri-Columbia (hereafter
“University”), and NeoRx Corporation, a Washington corporation (“NeoRx”).  University and NeoRx may hereafter from time
to time be referred to collectively as the “Parties” and individually as a
“Party.”


 


WITNESSETH


 


WHEREAS, NeoRx has obtained the rights to use certain technology and
processes to make, use, sell and distribute certain radiopharmaceutical
products for clinical and commercial purposes; and


 


WHEREAS, University owns facilities and has technical expertise to produce
radioisotopes, which are necessary for NeoRx to produce its radiopharmaceutical
products; and


 


WHEREAS, NeoRx desires that University manufacture and supply to and on
behalf of NeoRx certain quantities of reactor-produced radioisotopes in
radiochemical form from University, and University is willing and able to
provide such radioisotopes to and on behalf of NeoRx, all in accordance with
the terms and conditions set forth in this Agreement;


 


NOW THEREFORE, in consideration of the foregoing promises and
agreements set forth herein, the Parties agree as follows:


 


ARTICLE I - DEFINITIONS


 


1.1           “Affiliate” of a
Party means any corporation or other business entity controlled by, controlling
or under common control with such Party. 
For this purpose, “control” means direct or indirect beneficial
ownership of [*] more of the voting and income interest in such corporation or
other business entity.


 


1.2           “Batch” means a
specific quantity of the product intended to have uniform character and quality
and produced according to a single manufacturing order during the same cycle of
manufacture.


 


1.3           “Batch Record” means
a QA approved copy of the Master Batch Record used for the execution of the
processing of a specific Batch.


 


1.4           “Calibration Time”
means 12 Noon Central Time the day of manufacture of the Product.  For purposes of this agreement, Calibration
Time will be either 12 Noon


 

















 


 


Central
Standard Time (CST) or 12 Noon Central Daylight Time (CDT), whichever is
officially in effect in Columbia, Missouri.


 


1.5           “Certificate of
Analysis” for the purposes of this agreement, shall be interpreted the same as
a Certificate of Conformance.  This is a
written certificate produced by the University verifying and certifying that
the Batch of the product was processed in accordance with the
Master Batch Record and meets the Release Specifications.


 


1.6           “cGMP” means the
current Good Manufacturing Practices as required by FDA under 21 CFR Parts 210,
211, and 820.  This includes FDA
regulations, policies, or guidelines in effect at a particular time for the
manufacture, testing and quality control of radiochemicals to be further
processed into a radiopharmaceutical drug product.


 


1.7           “Curie” or “Ci” is a
radioactivity measure as defined in general scientific literature.  All references to Curies or Ci amounts are
stated in terms of Calibration Time unless otherwise specified.  The total Curie content in the Product will
be determined as described in the Standard Operating Procedure for total
activity level.


 


1.8           “Effective Date” means
the date this Agreement is entered into, as indicated in the first paragraph of
this Agreement.


 


1.9           “Facility” means
University’s manufacturing facility located at Research Reactor Center,
University of Missouri-Columbia.


 


1.10         “FDA” means the
United States Federal Food and Drug Administration and any successor agency.


 


1.11         “Investigational New
Drug” or “IND” means an application document filed with the FDA defining an
investigational new drug product for human use.


 


1.12         [Intentionally left
blank]


 


1.13         “Lot File” means the
written record of the Process methodology and testing results related thereto
of a specific Batch of Product ordered pursuant to a Purchase Order.  The Lot File serves as the official
documentation of the Process and tests performed by University for the specific
Batch of Product.


 


1.14         [*].


 


1.15         “Master Batch Record”
means the document, to be created by University, which sets forth the
methodology and formulae for processing the Product.


 


1.16         “Minimum Supply
Capacity” has the meaning as set forth in Section 2.5.


 


1.17         “MURR” means the
Missouri University Research Reactor, which is a research center within
University.


 


1.18         “New Drug
Application” or “NDA” means the application for marketing a new drug product
filed with the FDA.


 


2

















 


1.19         “Process,”
“Processing,” and “Processed” shall have comparable meanings and mean the act
of manufacturing, handling, testing, storing, analyzing, packaging, inspecting,
labeling and shipping Product in accordance with the Master Batch Record,
Release Specifications and Standard Operating Procedures.


 


1.20         “Product” means
Holmium (166) Chloride Processed in accordance with this Agreement.


 


1.21         “Proprietary
Information” means all information concerning a Party (the “Disclosing Party”)
which is furnished to or created by (such as notes, analysis, compilations,
studies, interpretations or other documents) the other Party or its directors,
officers, employees, agents, advisors or Affiliates (collectively, the
“Receiving Party”) as a result of entering into this Agreement and in
furtherance hereof.  The term
Proprietary Information, however, shall not include information which:


 


(a)           is in the public domain or becomes generally available to
the public through no fault of either Party; or


 


(b)           the Receiving Party can show by documentary evidence was
within its possession or control prior to its being furnished to the Receiving
Party by or on behalf of the Disclosing Party pursuant hereto, free of any
obligation of confidentiality; or


 


(c)           the Receiving Party can show by documentary evidence that
came into its possession or control subsequent to the date of this Agreement
from a third party free of any obligation of confidentiality; or


 


(d)           was independently developed by the Receiving Party without
the aid, application or use of the Proprietary Information; or


 


(e)           is required to be disclosed by law or order of any
governmental authority of competent jurisdiction (provided, that in such event,
the Receiving Party shall provide the Disclosing Party with notice of such law
or order and provide reasonable cooperation in connection with any attempt to
challenge or limit the scope of such disclosure).


 


1.22         “Purchase Order”
means the definitive ordering document originated by NeoRx that sets forth the
quantity of Product ordered and the delivery information.


 


1.23         “Release
Specifications” means the set of analytical tests, methods, and acceptance
criteria for Product attributes which must be met in order to prove the Product
meets the standards of quality, purity, identity and strength for this
substance.  Release Specifications are a
critical part of the Process and are filed with the FDA as part of an IND, MF
or an NDA.  All Release Specifications
are set forth on Exhibit A attached hereto, which were established initially by
NeoRx in consultation with University and which may be amended from time to
time by written agreement of the Parties and which are to conform with all
requirements of the FDA and applicable laws and regulations.  Upon such amendment, University will
implement any modified documents and/or procedures pertinent to the revised
Release Specifications.  Both parties
have the right to propose process and


 


3

















 


specification
improvements that are mutually beneficial, provided that no such improvements shall be implemented
without the written approval of the other party.


 


1.24         “Standard Operating
Procedures” or “SOPs” means University’s internal written standard operating
procedures, designed by University, governing all aspects of Processing the
Product, conducting analytical tests of Product, and maintaining records
related thereto.


 


1.25         “Term” has the
meaning as set forth in Section 10.1 (b).


 


1.26         “Waste” means all (a)
rejected or unusable Product, (b) Product not accepted for delivery by NeoRx,
for whatever reason, and (c) waste relating to University’s Processing of
Product.


 


1.27         “Type B Package” is
as defined by the Department of Transportation and the Nuclear Regulatory
Commission.


 


ARTICLE II- MANUFACTURE & SALE OF PRODUCT


 


2.1                               Equipment


 


2.1.1                     Installation


 


The Parties acknowledge that University must maintain in the Facility
sufficient dedicated equipment and associated components (the “Dedicated Equipment”)
to produce product.


 


2.1.2                     Exclusivity


 


(a)           During the Term, University may not use the Dedicated
Equipment for any purpose other than cGMP compatible processing of Holmium-166.


 


(b)           During the Term, University grants to NeoRx the first
right to the Holmium-166 production capacity at the University.


 


2.2                               Purchase and Sale of Product


 


University shall Process and sell to NeoRx, and NeoRx shall purchase
from University, during the Term, such quantities of the Product as NeoRx may
from time to time order from University. 
University shall Process the Product in strict conformity with this
Agreement, including without limitation the Master Batch Record, Standard
Operating Procedures, Release Specifications and all applicable laws and
regulations.


 


2.3                               Orders and Fulfillment


 


(a)           Purchase Orders.  NeoRx shall deliver to University a written
or electronic Purchase Order for the number of Curies that NeoRx desires to
purchase no later than [*] prior to the date of shipment from University.  Each Curie shall be shipped in such manner,
and to such location, as requested by NeoRx in each Purchase Order, provided
University is legally able to do so. 
Shipment time shall be [*], unless mutually agreed otherwise, for [*]


 


4

















 


Type B
Package, as defined in Section 1.27, to Denton, Texas each Monday, or to such
location as requested by NeoRx.


 


(b)           Additional
Provisions in Purchase Orders.  To the extent any Purchase
Order, invoice or acknowledgement form contains any provisions additional or
contrary to the provisions of this Agreement, such additional or contrary
provision shall have no force or effect and the terms of this Agreement shall
control unless otherwise agreed in writing by the Parties.


 


(c)           Output and Requirements.  During
the Term, NeoRx agrees to purchase from the University, and the University
agrees to supply to NeoRx, at least [*] of NeoRx’s U.S.  Product requirements.


 


(d)           Notice of
Inability to Fulfill.  University
shall notify NeoRx by telephone and in writing immediately if University
acquires any information that it will not be able to either (i) fulfill the
then most recent Purchase Orders or (ii) maintain Minimum Production
Capacity.  University shall promptly
notify NeoRx by telephone and in writing of any other production issues
(including any proposed or potential shutdown of the Facility for any reason)
or other information of which University becomes aware that may affect the
regulatory status of the Product or the ability of University to supply Product
in accordance with this Agreement or any Purchase Orders.  For planned, extended reactor shutdowns of
greater than one week, the University shall notify NeoRx as soon as the
shutdown is scheduled but in no case less than [*] prior to the scheduled shutdown.  For shutdowns of [*] duration or less, University shall notify NeoRx
as soon as possible.  The parties
acknowledge that scheduled shutdowns of [*] duration or less, provided the University gives at least [*] notice, are not to be considered in breach of
this Agreement.  Otherwise, the
foregoing notice requirements in no way prevent the University from being in
breach of this Agreement for its failure to Process and supply Product to NeoRx
pursuant to the terms of this Agreement (including, without limitation, the
requirements under Section 2.3 c).


 


2.4                               NeoRx’s Minimum and Maximum Purchases


 


(a)           Subject to Section
2.5(a), during the Term, NeoRx shall purchase and/or pay for a minimum of [*]
of Product per [*], except for [*] Thanksgiving and Christmas, and may purchase
up to a maximum of [*] of Product [*].


 


(b)           Notwithstanding the
above provisions, NeoRx will not be obligated to make payment for any Curies of
Product for which NeoRx does not accept delivery as a result of the
University’s inability to make the Product available to NeoRx.


 


2.5                               University’s Supply Capacity


 


(a)           Minimum Supply
Capacity.  Subject to the terms and conditions of this
Agreement, University will be capable of Processing, and NeoRx will have the
right to purchase, up to [*] of Product per [*], in [*] increments, on an
ongoing basis throughout the Term (the “Minimum Supply Capacity”).  Throughout the Term, the University shall be
capable of Processing a [*] Batch on any single day for delivery on Monday (or
as otherwise mutually agreed upon each week) in time to meet NeoRx’s shipping
requirements (as set forth in Section 2.3 (a)).


 


5

















 


(b)           Basis for Minimum
Supply.  The Parties agree that the Minimum Supply
Capacity will be based on the calculated activity level at Calibration
Time.  The Parties acknowledge that
although NeoRx will be obligated to make applicable minimum payments to
University as described in Section 2.4, NeoRx is not obligated to accept
delivery of the Curies available within the University’s production capacity
and that the actual number of Curies University will Process and ship per
calendar week will be dependent on the Purchase Orders University receives from
NeoRx.


 


(c)           Shipping Capacity.  University
shall be obligated to ship a maximum of [*] Type B Package per week, provided
by NeoRx, per Monday to Denton, Texas, or to such location as requested by
NeoRx.  University agrees to place
NeoRx’s Type B Packages on University’s maintenance program at a cost set forth
in Section 4.4 below.  University agrees
to place the NeoRx owned Type B Packages into the MURR Type B Quality Assurance
Program and shall provide routine maintenance on said Packages at a cost set
forth in Section 4.4 below.  The
maintenance items to be addressed under the terms of this agreement will be
limited to those items that are customarily performed by the user of a Type B
Package.  The scope of all maintenance
items to be performed by MURR is designated under the Nuclear Regulatory
Commission (NRC) approved MURR Quality Assurance Program and is limited to
those hardware items that can be replaced or maintained using commonly
available techniques and equipment. 
Examples of these typical hardware items include o-rings, retainer
bolts, and gaskets.  MURR shall not be
responsible for repairs that are outside of the scope of the MURR Quality
Assurance Program, such repairs must be performed by a qualified outside vendor
under the conditions set forth in the vendor’s NRC approved MURR Quality Assurance
Program at NeoRx’s expense.  The
University shall notify NeoRx of the necessity of third party maintenance and
shall receive prior approval from NeoRx before the performance of third party
maintenance.  MURR assumes no
responsibility to provide replacement Type B Packages in the event of
catastrophic failure or regulatory obsolescence, unless such catastrophic
failure is due to MURR’s negligence or willful misconduct.


 


2.6                               Responsible Personnel


 


During the Term of this Agreement, University will staff the Processing
of the Product with personnel who are reasonably qualified consistent with
industry standards.  University will
name a person responsible for production and a person responsible for quality
assurance.  The person responsible for
quality assurance and the person responsible for production will in no event be
the same person.  If any person named by
University terminates his or her employment with University during the Term of
this Agreement, University shall replace that individual as soon as possible
with someone of a comparable level of experience.


 


2.7                               Waste Disposal


 


University shall be responsible for the disposition, in accordance with
all established regulations, of all waste generated at University.


 


6

















 


ARTICLE III - DELIVERY & TITLE


 


3.1                               Delivery


 


All Product purchased by NeoRx hereunder shall be delivered F.O.B.  Facility. 
Risk of loss and title to the Products shall pass to NeoRx upon delivery
to and receipt by NeoRx’s designated carrier.


 


3.2                               Shipping Charges


 


NeoRx, in consultation with University, shall arrange for the shipment
of the Product from the University’s dock. 
NeoRx shall be responsible for the payment of all shipping charges
associated with such shipments.  NeoRx
shall make all third-party payments directly.


 


3.3                               Inspection and Acceptance


 


(a)           Product
Conformance:  All Product shall
comply with the Release Specifications. 
In accordance therewith, each Batch of Product delivered to NeoRx shall
be accompanied by or promptly followed by a Certificate of Analysis relating to
such Batch.  NeoRx may reject any Batch
if University fails to comply with Release Specifications or fails to deliver a
Certificate of Analysis along with such Batch, or if such Batch contains less
than [*] of the activity ordered by NeoRx in the applicable Purchase
Order.  If NeoRx rejects a Batch for
such reasons, NeoRx may return such Batch to University (at University’s
cost).  NeoRx shall not be obligated to
pay for such rejected Batch (and shall not be obligated to pay for any
shortfall below the Minimum Quantity resulting from such rejected Batches).


 


(b)           Disputes
Regarding Conformance of a Batch of Product:  The parties agree to select a mutually agreeable independent
laboratory as soon as possible after the effective date of this agreement to
assist in resolving disputes regarding product conformance.  A sample of the Batch of Product in dispute
will be submitted from University to the independent lab for analysis.  If the laboratory concludes that the Product
is not in conformance as set forth in subsection (a) above, the University
shall pay for the analysis and reimburse NeoRx in accordance with subsection
(a) above.  Otherwise, NeoRx shall pay
for the analysis and accept the Batch.


 


3.4                               Shipping Containers


 


NeoRx has developed a design for a shipping container (“Container
Design”) to be used for the shipment of radiopharmaceutical products.  University owns a number of depleted uranium
containers (the “DU Containers”), which are necessary to ship radiopharmaceutical
products.  NeoRx agrees to license the
use of the Container Design to University [*], during the Term for all orders of the
Product.  The DU Containers loaned to
NeoRx under this Agreement are to be used solely for transport of radioactivity
within MURR or shipment of radioactivity as mutually agreed by NeoRx and the
University.  NeoRx shall remain the sole
owner of the Container Design and University shall remain the sole owner of all
DU Containers; provided, however, that upon termination of this Agreement NeoRx
will have the option to lease the [*] DU Containers for [*] after termination
of the Agreement at a commercially reasonable rental rate.


 


7

















 


ARTICLE IV- PURCHASE PRICE AND PAYMENT


 


4.1          Curie Fee


 


In consideration for University Processing the Product in compliance
with the terms of this Agreement, NeoRx shall pay an amount equal to [*] per
Curie for the number of Curies ordered by NeoRx in the applicable Purchase
Order.  The Parties acknowledge that the
foregoing per Curie price is based upon NeoRx’s commitment to purchase and/or
pay for a minimum of [*] Curies per [*], except [*] Thanksgiving and Christmas,
for the duration of the Term.  Shipments
of [*] shall be accepted by NeoRx, but shall qualify for a credit of [*].  Shipments of [*], may be accepted by NeoRx
at its discretion and, if accepted, will qualify for a credit of [*] for each
Curie or partial Curie below [*].


 


4.2                               Basis of Curie Fee and Costs


 


The Parties agree that the price set forth in Section 4.1 is based on
the total Curie content ordered, and that the Curie fee includes the cost of
labor, materials, cost of Dedicated Equipment, and overhead to Process,
including testing the finished Product and is exclusive of the cost of
shipping, and packaging and handling expenses.


 


4.3                               Annual Adjustment of Curie Fees


 


On the anniversary date of the Agreement the Curie price may be
increased by an amount not to exceed the change from January to January of the
previous twelve (12) months in the U.S. 
Producer Price Index, all Commodities, as published by the U.S.  Department of Labor Bureau of Labor
Statistics or zero percent (0%), whichever is greater.  In any event, however, the annual price
adjustment shall be limited to no more than [*].


 


4.4                               Handling and Maintenance Charges


 


NeoRx agrees to pay MURR’s standard handling and standard container
maintenance charges, currently [*] per shipment and [*] per shipment,
respectively, but subject to minor standard change during the Term.  The foregoing described changes in such
charges shall not occur more than [*], and for any year shall be no greater
[*], respectively.


 


ARTICLE V - REGULATORY MATTERS


 


5.1          General


 


University understands that it will be primarily responsible for
ensuring that the Facility and the Process will be cGMP compliant as required
by the FDA.  University will
(a) create the Master Batch Record and Standard Operating Procedures,
which University will comply with in Processing the Product (in addition to
complying with the Release Specifications), (b) maintain all required
regulatory documents covering the Process and the Facility, and (c) make all
such required documents available to NeoRx for its review upon NeoRx’s request.


 


8

















 


5.2                               New Drug Applications


 


University shall cooperate with NeoRx with respect to any NDA
obligations relating to the Product that are imposed by the FDA or foreign
regulations.  NeoRx shall be responsible
for obtaining FDA or other regulatory approval for the NDA for any drug
products utilizing the Product, and shall own the NDA.  University agrees to comply with all
commitments made in the NDA regarding University’s Processing responsibilities,
but NeoRx agrees not to make commitments to the FDA on behalf of the University
without the University’s prior written approval.


 


5.3                               Notice of Safety Related Information


 


MURR and NeoRx shall provide to each other prompt notice of any
information it receives relating to the safety of the Product, including any
confirmed or unconfirmed information on adverse, serious, or unexpected events
associated with the manufacture of the Product.  For serious (based on a good faith evaluation), unexpected
events, MURR and NeoRx shall give each other notice by telephone within [*]
after receipt of the information and
followed by written notice not less than [*] thereafter.  The Parties shall
cooperate in responding to all applicable governmental agencies and filing any
reports with such agencies concerning any reactions (including drug experience
reports) caused by the Product.  The
Parties shall cooperate in providing timely assistance in responding to any
complaints relating to commercial goods produced and sold by NeoRx that contain
Product.  The costs associated with
responding to such complaints shall be borne by NeoRx; provided, however, if
the complaint was directly or indirectly caused by University’s failure to
Process the Product in strict accordance with the Master Batch Record or
Release Specifications, University shall reimburse NeoRx for all reasonable
internal and external costs and expenses incurred by NeoRx to appropriately
respond to such complaints (up to a maximum of [*] per batch).


 


ARTICLE VI - RECORDS AND AUDITS


 


6.1          Batch Records


 


The University shall retain all records of orders received, raw
materials purchased and stored, Batch Records for Product manufactured, work in
progress, Processing analyses and release control tests and the like for [*] or until NDA full approval.  Should the University be unable to store the
above-mentioned records, for any reason, the records will be shipped to NeoRx
Corporation for archival.


 


6.2                               Agency Records and Audits


 


University shall make available to NeoRx and all applicable government
agencies all documents and updates that they have prepared with regard to
Processing the Products that are required by law to be filed with any
governmental agency.  University shall
submit to all inquiries and inspections by any governmental agency with
authority to conduct such inquiries and inspections (hereinafter collectively
referred to as “Agency”).  University
shall promptly notify NeoRx of any Agency interactions and/or correspondence
relating to University’s operations that could relate, directly or indirectly,
to the Product.  University shall make
available for inspection by NeoRx all documents and correspondence received


 


9

















 


from any
Agency that relate in any way to the Process or the Product.  University shall immediately inform NeoRx of
all Agency audits that relate in any way to the Process or the Product.  Similarly, NeoRx shall inform University in
advance of any Agency planned audits of NeoRx if such audits relate directly to
the Products.  University shall
immediately provide NeoRx with copies of any regulatory letters or other
documents issued by any Agency and received by University in connection with
the audit or any inspection relating to the Product.


 


6.3                               FDA


 


NeoRx shall obtain and maintain all FDA and other regulatory approvals
necessary to enable NeoRx to use the Products as intended under this
Agreement.  University shall cooperate
with NeoRx as required in order to secure and maintain such governmental and
other approvals.


 


6.4                               Inspections


 


University shall permit indoctrinated employees and/or appropriately
trained representatives of NeoRx to enter, consistent with MURR access
protocols in effect at the time, and conduct a reasonable inspection and/or
audit of the Facility and/or the documents associated with the Processing of
Product during normal business hours and with at least seventy-two (72) hours
advanced notice in order to determine whether the Products are being Processed
in conformity with the terms of this Agreement.  In addition, and in conformity with all applicable laws, rules
and regulations, University shall permit employees or representatives of NeoRx
to inspect Products designated for delivery to NeoRx and otherwise provide
NeoRx with such information as it may reasonably be required to determine
whether the Products are being Processed in accordance with this Agreement,
including without limitation in accordance with the Master Batch Record,
Standard Operating Procedures, and all applicable laws, rules and regulations.


 


ARTICLE VII - REPRESENTATIONS AND WARRANTIES


 


7.1          Labor and Equipment


 


University represents that it shall furnish all labor, equipment and
facilities necessary to Process Product in the amounts, and in the timely
manner, as set forth in each Purchase Order. 
University has obtained, and will maintain throughout the Term, all
licenses necessary to Process the Product. 
University will abide by all applicable rules, regulations, laws and
mandates issued by all applicable regulatory bodies.


 


7.2                               Processing Requirements


 


University represents, warrants and agrees that it will Process all of
the Product in strict accordance with this Agreement, including without
limitation (i) the Master Batch Record, (ii) the Standard Operating Procedures,
(iii) the Release Specifications, (iv) all federal, state and local laws,
statutes, regulations or other requirements relating thereto and applicable to
the intended use of such Product, and (v) [*]. 
University further represents that it is not a party to any other
agreement that could hinder its ability to fulfill its obligations under this
Agreement.


 


10

















 


7.3                               Records Relating to Waste Disposal


 


University represents that it shall obtain and maintain all waste
generator licenses, disposal manifests and other records in accordance with
Federal statutes, laws and regulations and the statutes, laws and regulations
of the State of Missouri.


 


7.4                               Changes


 


University agrees that it will not implement any material revisions or
changes to the Product, Process, Master Batch Record or Standard Operating
Procedures associated with University’s Processing of the Product for and on
behalf of NeoRx without prior written notification to NeoRx in order to give
NeoRx an opportunity to validate that such changes would have no negative
impact on the Product.  A “material
revisions or changes” means any revision or change that would impact (a) the
raw materials supplier, (b) materials specifications, (c) formulation process,
(d) formulation equipment, or (e) testing procedures.  Furthermore, University will not make any changes, material or
otherwise, to the Release Specifications without prior written approval of
NeoRx.


 


7.5                               Safety Procedures


 


University represents that it shall have primary responsibility for
adopting and enforcing safety procedures for the handling and production of the
Products that comply in all material respects with all federal, state and local
environmental and occupational safety and health requirements to which
University is subject.


 


ARTICLE VIII - CONFIDENTIAL INFORMATION


 


8.1          Limitations on Disclosures


 


Except to the extent expressly authorized by this Agreement, during the
Term of this Agreement and five (5) years thereafter, neither Party shall:


 


(a)           disclose,
publish, or make available any Proprietary Information disclosed to it by the
other to any third party, including employees who do not need to know or have
access to such Proprietary Information; or


 


(b)           sell,
transfer, or otherwise use or exploit any such Proprietary Information
disclosed to it by the other Party; or


 


(c)           knowingly
permit the sale, transfer, use or exploitation by a third party of any such
Proprietary Information which may have been disclosed to such third party,
including employees who do not need to know or have access to such Proprietary
Information.


 


During the Term of this Agreement, neither Party shall make any press
release or other disclosure of the terms of this Agreement without the prior
written consent of the other Party, except as required by law or by a court of
competent jurisdiction and pursuant to the disclosure requirements of federal
or state regulatory agencies, including the United States Securities and
Exchange Commission.


 


11

















 


8.2                               Use of Parties’ Names


 


Neither Party shall advertise any connection with the other Party nor
make use of the other Party’s name or other identifying marks or property, nor
make representations, either express or implied, without the other Party’s
prior written approval.  The prior
sentence shall not, however, be construed so as to prevent mention of the
contribution of either Party in any scientific publication.


 


8.3                               Scholarly Publications


 


Notwithstanding paragraph 8.1(b) University shall have the right to
publish in scholarly journals and make scholarly presentations concerning any
information it may develop as a result of this Agreement.  University shall provide NeoRx with a copy
of any proposed scholarly publication or presentation 45 days before submission
for publication or presentation to allow NeoRx to review and comment on the
publication or presentation and delete any confidential Proprietary Information
of NeoRx.  NeoRx may request a 60-day
delay of the publication or presentation to allow the preparation of patent
applications should the materials disclose an invention.


 


ARTICLE IX - INDEMNIFICATION


 


9.1          Indemnification


 


(a)           Subject to Section
9.2, NeoRx shall defend, indemnify, and hold harmless University, its officers,
agents, employees and Affiliates from any third-party loss, claim, action,
damage, expense or liability (including defense costs and reasonable attorneys’
fees) arising out of NeoRx’s (a) breach, violation or nonfulfillment of any of
its covenant, agreements, representations or warranties under this Agreement,
(b) handling, possession, or use of the Products after University’s delivery of
the same to NeoRx, (c) negligence or willful misconduct, or (d) breach of any
third party’s trade secret rights, except to the extent that such loss, claim,
action, damage, expense or liability is based on, arises out of, or is due to
the negligence or willful misconduct of, or breach of this Agreement by,
University.


 


(b)           Subject to Section
9.2, to the extent permitted by Missouri law and without waiving sovereign
immunity, University shall defend, indemnify, and hold harmless NeoRx, its
officers, agents, employees and Affiliates from any third-party loss, claim,
action, damage, expense or liability (including defense costs and reasonable
attorneys’ fees) arising out of University’s (a) breach, violation or
nonfulfillment of any of its covenant, agreements, representations or
warranties under this Agreement, (b) handling, possession, or use of the
Products prior to University’s delivery of the same to NeoRx, (c) negligence or
willful misconduct, (d) disposal of any Waste, or (e) breach of any third
party’s trade secret rights, except to the extent that such loss, claim,
action, damage, expense or liability is based on, arises out of, or is due to
the negligence or willful misconduct of, or breach of this Agreement by, NeoRx.


 


9.2          No Personal Liability


 


No shareholder, member, officer, employee or board member (the
“Individuals”), individual or collectively, of either University or NeoRx
incurs or assumes any individual or


 


12

















 


personal
liability by the execution of this Agreement or by reason of the default of
either Party in the performance of any of the terms herein.  All such liability of the Individuals of
each Party is hereby released by the other Party as a condition of and in
partial consideration for the execution of this Agreement.


 


9.3                               Procedure


 


Each Party agrees to give to the indemnifying Party (a) prompt notice
of any claim or suit coming within the purview of the indemnities contained in
this Article IX, (b) all relevant facts in its possession or control, subject
to the treatment of such information pursuant to Article VIII, (c) the right to
exclusive control of the defense of any action (at its sole expense), and (d)
its cooperation in the defense of any such action.


 


ARTICLE X - TERM AND TERMINATION


 


10.1        Term


 


(a)           Subject to the
Parties’ ability to terminate this Agreement as set forth in this Article X,
the “Initial Term” of this Agreement shall commence on the Effective Date and
shall continue through [*] (the “Initial Term”).


 


(b)           NeoRx shall have the
option to renew this Agreement, with the consent of the University which will
not be unreasonably withheld, under the same terms and conditions, for up to
[*] additional [*] terms (the “Extension Term(s)”) beyond the Initial Term;
provided, that NeoRx shall exercise its option, if at all, in writing with no
less than [*] remaining in the then-current Term.  The Initial Term and Extension Terms, if any, unless terminated
earlier pursuant to the terms of this Agreement, are referred to herein as the
“Term.”


 


(c)           Notwithstanding
clauses (a) and (b) above, the Parties acknowledge that at any time they may
agree to replace this Agreement in its entirety with a long-term commercial
supply agreement.


 


10.2                        Termination by Either Party


 


Either Party may terminate this Agreement at any time after the
happening of any of the following events; provided, however, that the Party
terminating this Agreement shall provide the other with written notice of such
termination prior to the date thereof:


 


(a)           either
Party breaches any of its agreements, covenants, representations or warranties
as set forth in this Agreement and the breaching Party fails to cure such
breach within fifteen (15) days of written notice thereof from the
non-breaching Party; or


 


(b)           University
fails to timely fulfill [*] Purchase Orders in any rolling six (6) month
period; or


 


(c)           the
FDA (or other governmental agency with authority), Missouri Department of
Health or other regulatory agency orders University to cease Processing the
Product or orders NeoRx to permanently cease utilizing the Product.


 


13

















 


Notwithstanding any provision in this Agreement to the contrary,
University shall continue to Process the Product, and deliver Product in
response to any Purchase Order, through the date of termination, unless such
Process and delivery requirements are waived in writing by NeoRx.


 


10.3                        Disputes


 


In the event of a dispute regarding the interpretation of this
Agreement, the Parties agree they will endeavor to resolve such dispute
amicably.  In the event a dispute cannot
be resolved by the Parties, then upon the written request of any Party that
includes a summary of the dispute, a senior executive officer of NeoRx and a
senior official of MURR shall promptly meet and endeavor to resolve the dispute
through good-faith negotiations within thirty (30) days of their receipt of the
dispute.


 


10.4                        Return of Information


 


Upon expiration or termination of this Agreement, each Party shall
return all originals and copies of the other Party s Proprietary Information it
may have received or created.


 


10.5                        Rights on Termination


 


(a)           Continuing
Obligations.  Upon termination of this Agreement, each of the
Parties shall continue to be bound by its obligations under Articles VII, VIII
and IX of this Agreement.


 


(b)           NeoRx’s
Additional Remedies. 
If NeoRx terminates this Agreement
pursuant to Section 10.2(a) (for University’s breach of this Agreement) or
Section 10.2(b) (for University’s failure to timely fulfill Purchase Orders),
then, in addition to any other remedy available to NeoRx at law:


 


(i)            during
the six (6) months following termination, if requested by NeoRx University
shall provide not more than [*] person-hours of the time of University
employees, at no additional cost to NeoRx, to facilitate a transition to a
third party facility for Processing the Product


 


(ii)           within
thirty (30) days of such termination, University shall transfer to NeoRx
certified copies of the Lot Files and all records relating to batches of the
Product delivered to NeoRx; and


 


(iii)          University
will, at NeoRx’s request, continue to Process Product pursuant to the terms and
conditions of this Agreement and sell the same to NeoRx at the prices in effect
at time of termination for the remainder of the Term.


 


ARTICLE XI - FORCE MAJEURE


 


Neither Party hereto shall be liable to the other in damages for, nor
shall this Agreement be terminable by reason of, any delay or default in such
Party s performance hereunder if such delay or default is caused by conditions
beyond such Party’s control including, but not limited to, acts of God, war,
insurrection, civil commotion, destruction of


 


14

















 


production
facilities or materials by earthquake, fire, flood or storm, labor disturbances
including strikes or lockouts or epidemic (“Force Majeure”).  Each Party hereto agrees to promptly notify
the other Party of any event of Force Majeure and to employ all reasonable
efforts toward prompt resumption of its performance hereunder when possible if
such performance is delayed or interrupted by reason of such event.


 


ARTICLE XII -
MISCELLANEOUS


 


12.1                        Assignment


 


This Agreement shall be binding upon and inure to the benefit of the
Parties, their successors and permitted assigns.  Notwithstanding the foregoing, NeoRx may assign its rights and/or
delegate its obligations under this Agreement to any third party.  NeoRx will give University immediate notice
of any such assignment.  University may
not assign its rights and/or delegate its obligations under this Agreement to
any third party without NeoRx’s prior written consent.


 


12.2                        Entire Agreement; Amendments; Counterparts


 


This Agreement, along with each Purchase Order and the attached
Exhibits, contains the entire understanding of the Parties hereto relating to
the subject matter contained herein, supersedes all prior agreements, promises
and understandings of the Parties.  This
Agreement may not be modified, amended or any provision waived except by
written agreement of the Parties.  This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same agreement.


 


12.3                        Notices


 


All notices, demands, requests and other communications shall be in
writing or by written telecommunication, and shall be given when delivered
personally to the addressee or, if mailed, by certified mail, return receipt
requested, postage prepaid, or sent by written telecommunication, when
delivered to the addresses specified below. 
Either Party may from time to time change its address, facsimile number
or designated individual by notice to the other Party.


 


	
  If to NeoRx:

  	
   

  	
  NeoRx Corporation

  
	
   

  	
   

  	
  300 Elliott Avenue West, Suite 500

  
	
   

  	
   

  	
  Seattle, Washington 98119

  
	
   

  	
   

  	
  Attention:  Anna Wight, Legal
  Department

  
	
   

  	
   

  	
   

  
	
  If to University:

  	
   

  	
  MU Research Reactor

  
	
   

  	
   

  	
  1513 Research Park Dr.

  
	
   

  	
   

  	
  Columbia, MO 65211

  
	
   

  	
   

  	
  Attention:  Ken Brooks

  



 


Such notice, demand, request, and other communications shall be deemed
to have been given as of the date so delivered or transmitted by facsimile (as
long as the transmitting machine confirms successful transmission) or, if
mailed, three (3) business days after the date so mailed, or, if sent by
overnight courier service, one (1) business day after the date so sent.


 


15

















 


12.4                        Relationship of Parties


 


The Parties are acting herein as independent contractors and
independent employers.  Nothing herein
contained shall create or be construed as creating a partnership, joint
venture, joint employer or agency relationship between the Parties and no Party
shall have the authority to bind the other in any respect.


 


12.5                        No Waiver; Severability


 


Any provision of this Agreement may be waived at any time in writing
executed by the Party for whose benefit such provision exists; provided,
however, that the failure to enforce any provision of this Agreement shall not
constitute a waiver thereof.  In the
event that any provision of this Agreement shall be held invalid or
unenforceable under applicable law, the remainder of this Agreement shall
remain valid and enforceable, unless such invalidity or unenforceability
substantially diminishes the rights and obligations, taken as a whole, of any
Party.


 


12.6                        Agreement Approval; Further Assurances


 


Each Party hereby represents and warrants that all necessary corporate
approvals for this Agreement have been obtained, and the person whose signature
appears below has the authority necessary to execute this Agreement on behalf
of the Party indicated.  Each Party
agrees that it shall execute such further documents and perform such further
acts as may be necessary to comply with the terms of this Agreement.


 


12.7                        Captions


 


The captions in this Agreement are solely for convenience of reference
and shall not be used for purposes of interpreting or construing the provisions
hereof.


 


12.8                        Intellectual Property


 


No trademark, trade name, logo, trade dress, copyright or license
therein, or other intellectual property rights (collectively, “Intellectual
Property”) are conveyed by this Agreement, and neither Party shall have the
right to use the other Party’s Intellectual Property for any purpose whatsoever
without prior written consent.


 


12.9                        Survival


 


The provisions in Article V, VII, VIII, IX and XII, and Sections 2.7,
3.4, 6.1, 6.2, 10.3, 10.4 and 10.5, shall survive the termination of this
Agreement.


 


IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by duly their authorized representatives, effective on this date first
set forth above.


 


16

















 


	
  THE CURATORS OF THE

  UNIVERSITY OF MISSOURI

  	
  NEORX CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Lisa J. Wimmenauer

  	
   

  	
  By:

  	
   

  	
  /s/ Anna Wight

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   Lisa J. Wimmenauer

  	
   

  	
  Name:

  	
   Anna Wight

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Its:

  	
  Associate Director of Business Services

  	
   

  	
  Its:  

  	
   Vice President Legal

  	
   

  
																



 


17

















 


Exhibit A


 


[*]