AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
EX-10.80 8 dex1080.htm AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT Prepared by R.R. Donnelley Financial -- 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, Abbott 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]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
| IMMUNEX CORPORATION | ||
| By: | /s/ EDWARD V. FRITZKY | |
| Edward V. Fritzky Chief Executive Officer | ||
| SCHERING AKTIENGESELLSCHAFT | ||
| By: | /s/ HORST KRUEGER | |
| Horst Krueger General Counsel | ||
| By: | /s/ NICHOLAS VON BEHR | |
| Nicholas von Behr Legal Counsel |
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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)/ Nancy Bruce (Immunex) | |||
| Process Development & Mfg: | ||||||
| — Transition support of process development and manufacturing activities | 3 months | 40 | — Dave Carlson (Berlex)/Brent Willems and Jim Thomas (Immunex) | |||
| Quality Assurance/Quality Control: | ||||||
| — Transition support for raw materials and acquisition and handling | 3 months | 20 | — M. Graham, G. Oliarnyk (Berlex)/Ken Riker (Immunex) | |||
| — Transition support for in-process testing and final batch release | 3 months | 20 | — M. Graham, G. Oliarnyk (Berlex)/Maija Sorenson and Annette Vahratian (Immunex) | |||
| Customer Contracts: | ||||||
| — Support transition of customer contracting through contract discussion with management personnel | 3 months | 80 | — R. Graybill (Berlex) and R. Crandall (Berlex)/Michael Ambieli and Joyce Golden (Immunex) |
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| 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 | — Nancy Burns (Berlex)/ Tyler Ellison (Immunex) | |||
| — Support for all sales training programs | 1 month | 80 | — Rob Crandall (Berlex)/ Michael Casarella (Immunex) | |||
| Sales: | ||||||
| — Support transition of chargeback processing to Purchaser | 3 months | 15 | — R. Graybill (Berlex), R. Crandall (Berlex), A. Santini (Berlex) /Kendall Stever (Immunex) |
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| 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 | — Dr. E. Bradley and M. Gilbert (Berlex)/Anne Trench, A. Rubin, M. Bisom, and C. Foerder (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 |
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| 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 | — Dr. H. Krenz (Berlex)/Wayne Jack Wallis (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 | — T. Bourdakis (Berlex) /Lisa Brown (Immunex) | |||
| Commercial Distribution | ||||||
| — Finished goods warehousing and distribution | 1 month | N/A | — I. Arshen (Berlex) and J. Vineis (Berlex) / Rich Gaeto (Immunex) | |||
| Finance: | ||||||
| — Consultation services for general accounting, cost accounting, account analysis, month end closing and SAP (FI/CO, etc.) | 3 months | 100 | — J. Zitelli, J. Gould, L. Wayne (Berlex)/ Kendall Stever, Janet Kautz (Immunex) |
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| 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 | — Dr. B. Spiegel (Berlex) and J. Gould (Berlex)/Carl 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, C. Brochard and Dr. B. Spiegel (Berlex) / Carl 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: Neil McDonnell
Telephone: 206 ###-###-####
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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, C. Brochard and Dr. B. Spiegel (Berlex) / Carl March (Immunex) |
MONTHLY FEE FOR PURCHASER SERVICES = $0
Purchaser Transition Coordinator
Name: Henrik Jochens
Telephone: 510 ###-###-####
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