AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
Exhibit 10.80
AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 2 (this
“Amendment”) is made as of the 17th day of July, 2002, by and between Immunex Corporation, a Washington corporation (“Seller”), and Schering Aktiengesellschaft, a stock corporation organized under the laws of The
Federal Republic of Germany (“Purchaser”).
WITNESSETH
WHEREAS, in accordance with Section 7.3 of the Asset Purchase Agreement, dated as of May 2, 2002, by and between Seller and Purchaser (as
amended by Amendment No. 1 to the Asset Purchase Agreement, dated as of June 25, 2002, the “Agreement”), the parties hereto desire to amend the Agreement in certain respects as set forth herein.
NOW, THEREFORE, in consideration of the premises, covenants, representations and warranties contained herein, the parties hereto,
intending to be legally bound, agree as follows:
SECTION
1. Definitions. Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Agreement, as amended hereby.
SECTION 2. Amendments to the Agreement. The Agreement is hereby amended as follows:
(a) Section 1.1(a)(viii) of the Seller Disclosure Letter is hereby amended by adding a new item 12 thereunder
as follows: “Agreement, dated as of March 1, 1994, between Behringwerke AG and Immunex Corporation”.
(b) Section 1.1(c) of the Seller Disclosure Letter is hereby amended by adding a new item 64 thereunder as follows: “Agreement, dated as of March 1, 1994, between Behringwerke AG and Immunex Corporation”.
(c) Section 2.1(a)(iii) of the Seller Disclosure Letter is hereby amended by adding
the following item thereto: “Revco -70C chest freezer, model #ULT740ANR, serial #XY1756A, Xxxxxx K #K4269”.
(d) Section 3.8(a)(iv) of the Seller Disclosure Letter is hereby amended by adding a new item 8 thereunder as follows: “Agreement, dated as of March 1, 1994, between Behringwerke AG and Immunex
Corporation”.
(e) Section 2.1(a)(iv) of the Seller Disclosure Letter
is hereby amended by inserting the following new assigned trademark under the table “Assigned Trademarks”:
| United States |
Positive Directions |
N/A |
N/A |
(f) Exhibit C to the Agreement is hereby
amended by inserting the following new assigned trademark under the table “Assigned Trademarks” in Attachment I to Exhibit C:
| United States |
Positive Directions |
N/A |
N/A |
(g) Exhibit F to the Agreement is hereby
amended by deleting Annexes A and B thereto and substituting therefor Annex A and Annex B attached hereto as Appendix A.
SECTION 3. Effect. Except as expressly set forth herein, the Agreement shall remain in full force and effect in all respects. This Amendment shall be deemed to be part of the
Agreement for all purposes, including Article IX of the Agreement.
SECTION
4. Descriptive Headings. The descriptive headings herein are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Amendment.
SECTION 5. Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to
the other party.
[Signature page to follow]
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first above written.
| IMMUNEX CORPORATION | ||
| By: |
/s/ XXXXXX X.
XXXXXXX | |
| Xxxxxx X. Xxxxxxx Chief
Executive Officer | ||
| SCHERING AKTIENGESELLSCHAFT | ||
| By: |
/s/ XXXXX
XXXXXXX | |
| Xxxxx Xxxxxxx General
Counsel | ||
| By: |
/s/ XXXXXXXX XXX
XXXX | |
| Xxxxxxxx xxx Xxxx Legal
Counsel |
3
Appendix A
ANNEX A
| Transition Service |
Max Period |
Max Hours/Month |
Contact Person (Purchaser/Seller) | |||
| Human Resources/Payroll |
||||||
| — Transition support of payroll, benefits and compensation information |
3 months |
60 |
— J. Wayne (Berlex)/ Xxxxx Xxxxx (Immunex) | |||
| Process Development & Mfg: |
||||||
| — Transition support of process development and manufacturing activities |
3 months |
40 |
— Xxxx Xxxxxxx (Berlex)/Xxxxx Xxxxxxx and Xxx Xxxxxx (Immunex) | |||
| Quality Assurance/Quality Control: |
||||||
| — Transition support for raw materials and acquisition and handling |
3 months |
20 |
— X. Xxxxxx, G. Oliarnyk (Berlex)/Xxx Xxxxx (Immunex) | |||
| — Transition support for in-process testing and final batch release |
3 months |
20 |
— X. Xxxxxx, G. Oliarnyk (Berlex)/Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxxx (Immunex) | |||
| Customer Contracts: |
||||||
| — Support transition of customer contracting through contract discussion with management
personnel |
3 months |
80 |
— X. Xxxxxxxx (Berlex) and X. Xxxxxxxx (Berlex)/Xxxxxxx Ambieli and Xxxxx Xxxxxx (Immunex) |
4
| Transition Service |
Max Period |
Max Hours/Month |
Contact Person (Purchaser/Seller) | |||
| Marketing: |
||||||
| — Support for all existing and ongoing market research studies, forecast databases, and competitive
intelligence databases |
1 month |
60 |
— Xxxxx Xxxxx (Berlex)/ Xxxxx Xxxxxxx (Immunex) | |||
| — Support for all sales training programs |
1 month |
80 |
— Xxx Xxxxxxxx (Berlex)/ Xxxxxxx Xxxxxxxxx (Immunex) | |||
| Sales: |
||||||
| — Support transition of chargeback processing to Purchaser |
3 months |
15 |
— X. Xxxxxxxx (Berlex), X. Xxxxxxxx (Berlex), X. Xxxxxxx (Berlex) /Xxxxxxx Xxxxxx (Immunex) |
5
| Transition Service |
Max Period |
Max Hours/Month |
Contact Person (Purchaser/Seller) | |||
| Clinical: |
||||||
| — Support transfer of clinical study management to Purchaser for Crohn’s clinical study and
progress study in colorectal cancer |
3 months |
125 |
— Xx. X. Xxxxxxx and X. Xxxxxxx (Berlex)/Xxxx Trench, X. Xxxxx, X. Xxxxx, and X.
Xxxxxxx (Immunex) | |||
| — Consultation and support of ProTrack database |
||||||
| — Oversight of transfer/installation of controlled records only if requested |
||||||
| — Consultation/advisory service for records systems |
||||||
| — PPD support to process and forward misdirected clinical specimens to central lab |
||||||
| — PPD consulting support for GLP assays |
6
| Transition Service |
Max Period |
Max Hours/Month |
Contact Person (Purchaser/Seller) | |||
| Safety Reporting: |
||||||
| — Support transfer of adverse experience reporting and analysis and maintenance of case data and data
files |
3 months |
100 |
— Xx. X. Xxxxx (Berlex)/Xxxxx Xxxx Xxxxxx (Immunex) | |||
| — ARISg data entry as needed to input incoming AE’s |
||||||
| — Reviewer support for AE coding, determination of drug relationship, follow-up, and case-transfer to
Berlex safety surveillance |
||||||
| Regulatory: |
||||||
| — Support transfer of regulatory and government filing maintenance |
3 months |
40 |
— X. Xxxxxxxxx (Berlex) /Xxxx Xxxxx (Immunex) | |||
| Commercial Distribution |
||||||
| — Finished goods warehousing and distribution |
1 month |
N/A |
— X. Xxxxxx (Berlex) and X. Xxxxxx (Berlex) / Xxxx Xxxxx (Immunex) | |||
| Finance: |
||||||
| — Consultation services for general accounting, cost accounting, account analysis, month end closing and
SAP (FI/CO, etc.) |
3 months |
100 |
— X. Xxxxxxx, X. Xxxxx, X. Xxxxx (Berlex)/ Xxxxxxx Xxxxxx, Xxxxx Xxxxx (Immunex) |
7
| Transition Service |
Max Period |
Max Hours/Month |
Contact Person (Purchaser/Seller) | |||
| Information Technology |
||||||
| — Provision of information about the existing IT environment, day-to-day operation of the IT system
relating to LEUKINE and technical support for database transfer |
3 months |
30 |
— Xx. X. Xxxxxxx (Berlex) and X. Xxxxx (Berlex)/Xxxx March (Immunex) | |||
| Software Applications |
||||||
| — Access to and consultation services relating to the operation and transfer of content of the Systems
(as defined in Annex C) as they relate to LEUKINE and the Business (as more fully described in Annex C) |
9 months |
That number of hours required based on the commercially reasonable efforts of Seller to achieve the objectives as set forth in Annex
C |
— G. Oliarnyk, X. Xxxxxxxx and Xx. X. Xxxxxxx (Berlex) / Xxxx March(Immunex) |
| MONTHLY FEE FOR SELLER SERVICES (Month 1) |
= |
$110,625 | ||
| MONTHLY FEE FOR SELLER SERVICES (Months 2-3) |
= |
$78,125 |
Seller Transition Coordinator
Name: Xxxx XxXxxxxxx
Telephone: 000-000-0000
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ANNEX B
| Transition Service |
Max Period |
Max Hours |
Contact Person | |||
| Software Applications |
||||||
| Access to and consultation services related to the operation and transfer of content of the Systems (as more fully described in Annex C) |
9 months |
That number of hours required based on the commercially reasonable efforts of Purchaser to achieve the objectives as set forth in Annex C
|
— G. Oliarnyk, X. Xxxxxxxx and Xx. X. Xxxxxxx (Berlex) / Xxxx March (Immunex) |
MONTHLY FEE FOR PURCHASER SERVICES = $0
Purchaser Transition Coordinator
Name: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
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