LONZA A
WRITTEN FORECAST OF THE QUANTITY OF PRODUCT IT WILL REQUIRE
8
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1934, AS AMENDED, AND RULE
24B-2 PROMULGATED THEREUNDER.
OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
DURING EACH OF THE NEXT ENSUING
***
CONTRACT YEARS.
EACH SUCH FORECAST SHALL
REPRESENT TMC'S GOOD FAITH ESTIMATE OF ITS REQUIREMENTS FOR THE PRODUCTS DURING
THE PERIOD COVERED THEREBY, BUT SHALL BE SUBMITTED FOR PLANNING PURPOSES ONLY.
EXCEPT AS SET FORTH BELOW OR AS AGREED OTHERWISE BY THE PARTIES, SUCH FORECASTS
SHALL NOT CONSTITUTE A BINDING COMMITMENT TO PURCHASE ANY GIVEN QUANTITY OF
PRODUCTS. TMC'S FIRST FORECAST SHALL BE SUBMITTED TO LONZA AT LEAST NINETY (90)
DAYS PRIOR TO THE DATE ON WHICH THE PARTIES MUTUALLY EXPECT THE FDA TO APPROVE
THE COMMERCIAL MANUFACTURING PROCESS FOR THE PRODUCT.
THE QUANTITY OF PRODUCT
FOR THE FIRST TWO CONTRACT QUARTERS INCLUDED IN THE FIRST FORECAST SUBMITTED BY
TMC SHALL BE A BINDING COMMITMENT OF TMC.
AS USED HEREIN, THE TERM "CONTRACT
QUARTER" MEANS A PERIOD OF THREE SUCCESSIVE CALENDAR MONTHS BEGINNING ON THE
FIRST DAY OF EACH JANUARY, APRIL, JULY, AND OCTOBER OCCURRING DURING THE
COMMERCIAL PHASE, AND THE TERM "CONTRACT YEAR" SHALL MEAN A PERIOD OF FOUR (4)
SUCCESSIVE CONTRACT QUARTERS BEGINNING ON THE FIRST DAY OF THE FIRST CALENDAR
QUARTER COVERED BY A FORECAST.
8.4
PURCHASE ORDERS. TMC SHALL ORDER PRODUCT BY PLACING
WRITTEN OR ELECTRONIC PURCHASE ORDERS (EACH, A "PURCHASE ORDER") WITH LONZA AT
LEAST SIX (6) MONTHS PRIOR TO THE REQUESTED DELIVERY DATE.
LONZA AGREES TO
SUPPLY PRODUCT TO TMC IN ACCORDANCE WITH SUCH PURCHASE ORDERS.
IF LONZA
ANTICIPATES THAT, DESPITE ITS COMMERCIALLY REASONABLE EFFORTS, IT WILL BE UNABLE
TO DELIVER PRODUCTS ON OR BEFORE THE REQUESTED DELIVERY DATE SET FORTH IN ANY
PURCHASE ORDER, IT SHALL PROMPTLY SO NOTIFY TMC, AND COOPERATE WITH TMC TO
DETERMINE A MUTUALLY-ACCEPTABLE ALTERNATIVE DELIVERY DATE.
THE WRITTEN FORM OF
PURCHASE ORDER IS SET FORTH IN ANNEX 5.
8.5
All Product supplied hereunder shall be manufactured at
LONZA's production facilities in Visp, Switzerland, or at such other facility
approved in writing by TMC. The maximum quantity of Product which LONZA shall be
required to produce and sell hereunder during any two successive Contract
Quarters shall be
***
percent of the volume projected for such period in the
most recent forecast applicable thereto. LONZA agrees to reserve appropriate
manufacturing capacity in its production facilities so as to ensure that it is
able to fulfil TMC's purchase orders for the Product.
When requested by TMC,
LONZA shall provide to TMC a capacity plan based on TMC's forecasts for
Product.
Such capacity plan shall identify any capital investments LONZA
proposes to make in order to satisfy its obligations hereunder.
CLAUSE
9
PRICES, INVOICES, TERMS OF PAYMENT
9.1
THE PRICES TO BE CHARGED FOR THE WORK AND PRODUCTS ARE
SET FORTH IN ANNEX 4 AND ARE CALCULATED IN