Secretary of the Commission pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Act of
1934.
26
NOT USE THE PRECLINICAL MATERIALS IN ANY HUMAN SUBJECT, (B) IT SHALL USE THE
PRECLINICAL MATERIALS IN COMPLIANCE WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL
LAWS AND REGULATIONS, AND (C) IT (AS A MATTER OF CONTRACT BETWEEN ITSELF AND
IMMUNOGEN) SHALL ASSUME ALL LIABILITY FOR DAMAGES THAT MAY ARISE FROM THE USE,
STORAGE AND DISPOSAL OF ANY PRECLINICAL MATERIALS, UNLESS SUCH LIABILITY RESULTS
FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF IMMUNOGEN OR ITS AFFILIATES OR
THEIR RESPECTIVE EMPLOYEES OR AGENTS.
BIOGEN IDEC SHALL BE ENTITLED TO TRANSFER
PRECLINICAL MATERIALS TO ANY THIRD PARTY UNDER TERMS OBLIGATING SUCH THIRD PARTY
NOT TO TRANSFER OR USE SUCH PRECLINICAL MATERIALS EXCEPT IN COMPLIANCE WITH THE
FOREGOING CLAUSES (A) AND (B) OF THIS SECTION 4.2.
4.3
SUPPLY OF CLINICAL MATERIALS BY IMMUNOGEN.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 4.1, DURING THE TERM OF THIS
AGREEMENT, IMMUNOGEN SHALL, AT BIOGEN IDEC'S REQUEST, USE REASONABLE COMMERCIAL
EFFORTS TO SUPPLY BIOGEN IDEC WITH SUCH QUANTITIES OF CLINICAL MATERIALS AS MAY
BE REASONABLY ORDERED BY BIOGEN IDEC IN CONNECTION WITH HUMAN CLINICAL TESTING
OF SUCH CLINICAL MATERIALS THROUGH THE COMPLETION OF ANY PHASE II CLINICAL
TRIALS DEEMED NECESSARY BY BIOGEN IDEC.
SHOULD BIOGEN IDEC DETERMINE IN GOOD
FAITH THAT IT PLANS TO REQUEST IMMUNOGEN TO MANUFACTURE CLINICAL MATERIALS AS
PROVIDED IN THE FOREGOING SENTENCE, IMMUNOGEN AND BIOGEN IDEC SHALL ENTER INTO A
SEPARATE AGREEMENT DETAILING THE TERMS OF SUPPLY FOR ANY CLINICAL MATERIALS THAT
IMMUNOGEN MAY BE SO REQUESTED TO SUPPLY TO BIOGEN IDEC FOR THE PURPOSE OF
CONDUCTING CLINICAL TRIALS, WHICH SUPPLY AGREEMENT SHALL INCLUDE, WITHOUT
LIMITATION, THE TERMS SET FORTH ON SCHEDULE B ATTACHED HERETO AND THE REMAINDER
OF THIS SECTION 4.3 (THE "SUPPLY AGREEMENT").
THE SUPPLY AGREEMENT WILL PROVIDE
THAT BIOGEN IDEC SHALL (A) PROVIDE IMMUNOGEN WITH A NON-BINDING FORECAST OF THE
QUANTITY OF CLINICAL MATERIALS IT REASONABLY EXPECTS TO ORDER OVER THE
SUCCEEDING [***] ([***]) MONTH PERIOD AND (B) SUPPLY IMMUNOGEN WITH QUANTITIES
OF BULK [***] ANTIBODY SUFFICIENT TO ENABLE IMMUNOGEN TO PRODUCE THE QUANTITY OF
CLINICAL MATERIALS SO REQUESTED.
SUBJECT TO THE FOREGOING, BIOGEN IDEC SHALL
ORDER ALL AMOUNTS OF CLINICAL MATERIALS, AND IMMUNOGEN SHALL DELIVER ALL SUCH
ORDERED AMOUNTS, IN ACCORDANCE WITH FORECASTING PARAMETERS, ADVANCE ORDERING
TIMEFRAMES AND DELIVERY TIMEFRAMES TO BE AGREED UPON BY THE PARTIES IN THE
SUPPLY AGREEMENT.
THE SUPPLY AGREEMENT FURTHER SHALL PROVIDE THAT IMMUNOGEN
SHALL USE COMMERCIALLY REASONABLE EFFORTS TO DELIVER SUCH AMOUNTS OF CLINICAL
MATERIALS ORDERED IN ACCORDANCE WITH THE FOREGOING (INCLUDING SUCH AGREED UPON
TIMEFRAMES) IN A TIMELY MANNER; PROVIDED, THAT, IMMUNOGEN'S OBLIGATIONS SHALL BE
CONTINGENT ON IMMUNOGEN'S
CONFIDENTIAL
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Act of
1934.
27
RECEIPT OF THE REQUIRED QUANTITIES OF [***] ANTIBODY FROM BIOGEN IDEC.
IN
CONNECTION WITH