Dyax Corp. has requested that portions of this document be accorded confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended. Confidential materials omitted and filed separately with the Securities and Exchange Commission.Asterisks [*****] denote such omission.

(a)  

Dyax Commitments.  From and after the Effective Date, Dyax shall not authorize or appoint any Person other than Walgreens to distribute or dispense Product to Active Patients in the Territory for use in connection with Infusion Services provided by Walgreens under the Services Agreement nor shall Dyax itself distribute or dispense Product to Active Patients in the Territory for use in connection with Infusion Services provided by Walgreens under the Services Agreement.  Except as expressly provided in the preceding sentence, nothing herein shall in any way limit Dyax’s ability to distribute or dispense Product otherwise than to Active Patients in the Territory in connection with the provision of Infusion Services by Walgreens under the Services Agreement.

(b)  

Walgreens Commitments.

(i)  

Walgreens shall not sell, distribute or dispense Product obtained by it from Dyax hereunder except in connection with the provision of Infusion Services to Active Patients under the Services Agreement.

(ii)  

During the Term, Walgreens shall not Disadvantage the Product in any way in the Territory.  For purpose of this Section 3.2(b)(ii), “Disadvantage” shall mean performing any activities that are intended to encourage the utilization of a Competing Product over the Product; provided however that Disadvantage shall not include, and Walgreens shall be permitted to take any actions related to any of the following:   (a) formularies mandated by a third party payor; (b) discussing or counseling any patient of Walgreens regarding any co-pay or cost differential between Product and any Competing Product; or (c) counseling any Walgreens patient regarding any information which Walgreens reasonably believes it is ethically and professionally bound by applicable laws to communicate to Walgreens’ patient.

(a)  

Orders.  From time to time, Dyax shall sell, and Walgreens may purchase, the Product in accordance with the terms and conditions of this Agreement.  To purchase the Product, Walgreens may issue a purchase order, on its form, by electronic transmission, fax, or telephone, from time to time.  In the event of any conflict between any such purchase order and the terms of this Agreement, the terms of this Agreement shall control, and no terms set forth in any such purchase order that are in addition to the terms explicitly contemplated by this Agreement shall have any force or effect.

(b)  

Payment.  Walgreens shall pay the Purchase Price for the Product in effect as of the date of issue of Walgreens’ purchase order.  Payment term for all orders of Product is [*****], [*****] from date of receipt of a correct invoice.  On all undisputed balances exceeding sixty (60) days from invoice receipt, Walgreens shall pay interest equal to the lesser of (a) [*****]% per month and (b) the maximum allowed by Applicable Law.

(c)  

Taxes.  All charges are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed on the Product.  Walgreens and Dyax acknowledge and agree that all purchases of Products by Walgreens from Dyax pursuant to this Agreement are purchases for resale by Walgreens to its patients.  For sales and use tax purposes, Walgreens and Dyax agree to treat such purchases accordingly and not charge sales and use tax to Walgreens.  Unless otherwise agreed by the Parties in writing, neither Party will take a position with respect to a taxing authority that is inconsistent with this Agreement.  Further, each Party agrees to provide reasonable cooperation and/or assistance to the other Party in the event such other Party is audited by, or is engaged in a dispute with, a taxing authority relating to the Products. Upon request, Walgreens shall provide to Dyax copies of tax or other levy exemption certificates acceptable to the taxing or levying authorities of all relevant jurisdictions.

(a)  

Product Delivery; Risk of Loss.  Dyax (or its third party logistics provider) will deliver all Product ordered by Walgreens to any delivery point designated in the applicable purchase order (the “Delivery Point”).  Dyax will pay all costs associated with delivering the Products to the Delivery Point including, without limitation, freight, rigging, warehousing, commission to selling agents and insurance.  Title to, and risk of loss of, all Product shall pass to Walgreens upon transfer of possession to Walgreens (or its agents) at the Delivery Point.

(b)  

Time of Delivery.  Dyax shall make commercially reasonable efforts to ship all Product ordered by Walgreens within [*****] Business Days of order placement.  Walgreens acknowledges and agrees that Dyax may not be able to fill all orders completely or within a specified time due to shortages or other causes and such inability shall not constitute a breach of this Agreement.  Walgreens reserves the right to cancel all or any part of any transaction if Product is not delivered within [*****] Business Days after the date specified in Walgreens’s purchase order, and the acceptance by Walgreens of any previous or future deliveries on dates other than those specified shall not constitute a waiver of Walgreens’ rights hereunder.

(a)  

Insurable Causes.  When used in the Returns Policy, the phrase “insurable causes” shall mean causes due to acts of God such as fires, floods, and windstorms.

(b)  

Cash Refund.  All unused return credits remaining at the expiration or early termination of this Agreement shall be paid to Walgreens in the form of certified check within [*****] days from the date of such expiration or early termination, as applicable.

(a)  

Inventory Levels.  During the Term, unless otherwise agreed by Dyax in writing (including via email or other electronic communication) and subject to 3.11(b), at a minimum Walgreens shall, at each CIS that is then currently providing Infusion Services to an Active Patient:  (i) maintain an inventory of [*****] units of Product at all times for those CIS that provide Infusion Services to [*****] Active Patients or less; and (ii) maintain an inventory of [*****] units of Product at all times for those CIS that provide Infusion Services to [*****] Active Patients or more.

(b)  

Supply Shortages.  Walgreens shall have no obligation to maintain the minimum inventory levels described in Section 3.11(a) if Product is unavailable from Dyax.

(c)  

Inventory Maintenance Fee.  In consideration of the performance by Walgreens of the inventory obligations set forth in this Section 3.11 and the logistical, storage and warehousing services related to same, Dyax shall pay a [*****] fee to Walgreens equal to [*****].  [*****].   Walgreens shall submit a [*****] invoice to Dyax setting forth any amounts then due from Dyax to Walgreens hereunder for the preceding [*****].  Payment of each such invoice shall be due within [*****] days of Dyax's receipt of the invoice.  On all undisputed balances exceeding [*****] days from invoice receipt, Dyax shall pay interest equal to the lesser of (a) [*****]% per [*****] and (b) the maximum allowed by Applicable Law.

(a)  

Suspension.  Upon written notification by Dyax to suspend distribution and dispensing of Product, Walgreens immediately shall suspend its distribution and dispensing of Product.  If the suspension continues for more than [*****] weeks, Dyax shall repurchase Product in saleable condition held in inventory by Walgreens at the price paid for such Product by Walgreens.  All repurchased Product shall be returned to Dyax (or Dyax’s third party logistics provider) at Dyax’s expense.

(b)  

Recalls.

(i)  

Recall Procedures.  Dyax shall promptly notify Walgreens of any recalls or market withdrawals initiated by Dyax or required by the FDA or any other governmental agency.  Walgreens shall notify Dyax promptly of any event or circumstance that Walgreens reasonably believes may necessitate a recall or market withdrawal.  Upon receipt of notice of a recall or market withdrawal from Dyax, Walgreens shall administer such recall or market withdrawal under the reasonable direction of Dyax.  Dyax shall provide Walgreens with a form letter to be used in connection with notice of any recall or market withdrawal, and shall, to the extent practicable, provide Walgreens the opportunity to review and comment on such letter.  Dyax shall be responsible for the mailing, shipping, and reasonable administrative expenses incurred by Walgreens in connection with the recall or market withdrawal, plus a reasonable service fee as mutually agreed upon in advance by the Parties.    Notwithstanding the foregoing, to the extent that such recall or market withdrawal arises or results from (A) the negligence or intentional misconduct of Walgreens or its Affiliates or any of its or their employees or agents, (B) the failure of Walgreens to provide in a timely manner any notice required to be given by Walgreens to Dyax pursuant to Section 3.9, or (C) the breach by Walgreens of this Agreement, then, in all such instances ((A), (B), and (C)), Walgreens shall bear and be responsible for those out-of-pocket costs incurred by Dyax to effectuate the recall or market withdrawal as well as the actual cost to manufacturer those Products that replaced the recalled Products.

(ii)  

Investigations; Cooperation.  Walgreens shall reasonably cooperate with Dyax in investigating any Adverse Event, Product Complaint or Product failure that results in a recall or market withdrawal and any reasonable, documented, out-of-pocket cost involved with such investigation shall be reimbursed by Dyax, except to the extent that such recall or market withdrawal arises or results from (A) the negligence or intentional misconduct of Walgreens or its Affiliates or any of its or their employees or agents, (B) the failure of Walgreens to provide in a timely manner any notice required to be given by Walgreens to Dyax pursuant to Section 3.9, or (C) the breach by Walgreens of this Agreement, in which event (any of (A), (B), or (C))Walgreens shall bear and be responsible for those out-of-pocket costs incurred by Dyax to conduct such investigation.

(c)  

Government Notices.  Each Party shall provide the other with a copy of any correspondence or notices it receives from the FDA or other governmental entity specifically relating to activities conducted under this Agreement no later than [*****] Business Days following such receipt.

(a)  

Product Pricing.  Walgreens represents, warrants and covenants that no discount provided or other payment made pursuant to this Agreement is intended in any way as a discount related to a drug formulary and has not been negotiated or discussed between the Parties in connection with any drug formulary.

(b)  

Fees.  Each party acknowledges and agrees that any rebates or discounts that may be provided for in this Agreement are intended to be (i) “discounts or other reductions in price” as contemplated by U.S.C. § 1320a-7b (b) (3) (A) and (ii) fully compliant with the “discount” safe harbor provided at 42 CFR 1001.952 (h), regardless of how titled.  As such, both parties agree to comply with all of their respective obligations under 42 CFR 1001.9952(h) with respect to all of the discounts and rebates described herein (if any).  The discounts and rebates set forth in this Agreement were all arrived at as a result of arm’s length transactions.  Each party further acknowledges and agrees that, to the extent it may be required to do so under applicable state or federal law, it shall properly disclose and appropriately reflect to the respective governmental body the discount and rebate amounts set forth herein.

(c)  

Licensure.  Walgreens represents and warrants that it now has and shall maintain in full force during the Term all applicable federal and state pharmacy and other licenses or approvals required under Applicable Law and regulations to fulfill its obligations under this Agreement in each jurisdiction in the Territory.  Walgreens promptly shall notify Dyax of any denials, revocations or suspension of license or registrations by any state or federal agency or any other regulatory authority in the Territory.

(d)  

Dyax Representations and Warranties.  Dyax hereby represents and warrants to Walgreens that, at the time of delivery of Product by Dyax to Walgreens hereunder: (i) such Product shall not in any material respect be adulterated, misbranded or otherwise prohibited within the meaning of the FFDCA or within the meaning of any applicable state or local law; (ii) such Product will be merchandise that may be introduced and delivered into interstate commerce under the provisions of Section 301 of the FFDCA or Section 351 of the Public Health Service Act; (iii) Dyax (or as applicable its designated third-party logistics provider) has and will maintain, in full force and effect, all licenses and permits required under Applicable Law for Dyax to sell and distribute such Product under this Agreement; (iv) such Product will be the subject of a duly approved Biologics License Application and may be legally transported or sold under Applicable Laws; (v) such Product will have been approved by each applicable governmental authority for commercial sale and shipment of such Product within the Territory; and (vi) Dyax either (A) owns or holds the duly approved Biologics License Application, as such term is used in the Public Health Service Act, Title 21, United States Code, as amended, for such Product, or (B) is otherwise considered the “manufacturer” of such Product within the meaning of any applicable federal, state or local law relating to pedigrees.

(a)  

that is or hereafter becomes part of the public domain by public use, publication, general knowledge or the like through no wrongful act, fault or negligence on the part of the Receiving Party or its Recipients;

(b)  

that is received from a third party without restriction and without breach of any agreement between such third party and the Disclosing Party;

(c)  

that the Receiving Party can demonstrate by competent evidence was already in its possession without any limitation on use or disclosure prior to its receipt from the Disclosing Party;

(d)  

that is generally made available to third party by the Disclosing Party without restriction on disclosure; or

(e)  

that the Receiving Party can demonstrate by competent evidence was independently developed by the Receiving Party.

(a)  

Except as otherwise provided in this Agreement, each Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is:

(b)  

Receiving Party may disclose Confidential Information to the extent that such disclosure is made to Regulatory Authorities as required in connection with any filing, application or request for Regulatory Approval; provided, however, that reasonable measures shall be taken to assure confidential treatment of such information.

(c)  

Indemnification Procedure.  A party seeking indemnification under this Section 7.1 (the “Indemnitee”) shall promptly notify the indemnifying party (the “Indemnitor”) in writing of any claim in respect of which the Indemnitee claims such indemnification hereunder, provided however, that the failure to given such notice shall not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor is materially prejudiced by such failure.  Further, the Indemnitee shall provide the Indemnitor sole control of the defense and/or settlement thereof with counsel reasonably satisfactory to the Indemnitee; provided, however, that the Indemnitee reserves the right to retain its own counsel to defend itself in, but not control the defense of, such suit, at its own expense, unless the interests of the Indemnitee and the Indemnitor in the suit conflict in such a manner and to such extent as to require, consistent with applicable standards of professional responsibility, the retention of separate counsel for the Indemnitee, in which case, the Indemnitor shall pay for one separate counsel chosen by the Indemnitee.  In the event the Indemnitor and/or its retained counsel fail to promptly provide such defense, or, having commenced such defense, fail to diligently proceed with such defense, the Indemnitee shall have the right to assume the defense of any such matter through legal counsel of its own choosing and the Indemnitor shall be liable for the attorneys’ fees and litigation expenses.  Neither the Indemnitor nor the Indemnitee shall be responsible to or bound by any settlement made by the other without its prior written consent, which shall not be unreasonably withheld or delayed.  The Indemnitor shall keep the Indemnitee reasonably informed of the progress of any claim, suit or action under this Section 7.1.

(a)  

Walgreens Insurance Obligations.  During the Term, Walgreens shall procure and maintain insurance coverages on an occurrence basis adequate to cover its indemnity obligations hereunder, including, without limitation:

(i)  

Employer’s liability insurance with a limit of $[*****] for bodily injury by accident per person, and $[*****] bodily injury by disease policy limit;

(ii)  

Commercial general liability insurance, including personal injury blanket contractual liability and broad form property damage, in the amount of $[*****] per occurrence, $[*****] general aggregate; and

(iii)  

Umbrella liability insurance in the amount of $[*****] per occurrence and aggregate.

(b)  

The insurance required by Section 7.2(a) may be made up through a combination of self-insured retention and traditional insurance.  Throughout the Term, Walgreens shall (i) provide prompt written notice to Dyax in the event Walgreens becomes aware or is notified that the insurance described in Section 7.2(a) will be materially adversely modified or cancelled in such a manner that Walgreens is no longer in compliance with the requirements of Section 7.2(a) and (B) make available to Dyax proof of such insurance.

(c)  

Dyax Insurance Obligations.  During the Term, Dyax shall procure and maintain insurance coverages on an occurrence basis adequate to cover its indemnity obligations hereunder, but in any event not less than amounts reasonably required by Walgreens, including, without limitation, products liability and commercial general liability insurance having a limit of not less than $[*****] per occurrence and umbrella liability insurance in the amount of $[*****] per occurrence and aggregate, from a duly licensed insurance company maintaining an A. M. Best’s Rating of A-/IX or better.  Dyax will designate Walgreens as an “additional insured” under such insurance policy and will obtain a broad form vendor’s endorsement for products liability for Walgreens.  Within five (5) days after the Effective Date, Dyax will provide to Walgreens a certificate of insurance indicating that such obligations have been satisfied, and shall thereafter make available to Walgreens proof of such insurance upon request.

(a)  

Term and Renewal.  The Term of this Agreement shall commence on the Effective Date and shall continue for [*****] year, unless earlier terminated pursuant to this Section 7.1 (the “Initial Term”), provided, that this Agreement shall, unless either Party shall by notice to the other Party given not less than [*****] days in advance of the end of the then-current Initial Term or Renewal Term, as the case may be, be extended automatically for additional [*****] year periods (“Renewal Term(s)”) at the end of the Initial Term and any Renewal Term successively.

(b)  

Termination for Material Breach.  In the event of a material breach of this Agreement or the Services Agreement by either Party, the other Party shall have the right to terminate this Agreement upon [*****] days’ advance notice to the breaching Party, unless such material breach is cured by the breaching Party before the end of such [*****] day period or, in the case of a breach which cannot be cured within [*****] days, the Party in breach is diligently and with commercially reasonable efforts attempting to cure.  Non-payment by either Party of any amounts due under this Agreement or the Services Agreement shall constitute a material breach.

(c)  

Termination for Insolvency.  Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party shall (i) file in any court or agency pursuant to any statute or regulation of any state, country or jurisdiction a petition in bankruptcy or insolvency or for reorganization or for arrangement or for the appointment of a receiver or trustee of it or of its assets, (ii) propose a written agreement of composition or extension of its debts, (iii) be served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed within [*****] days after the filing thereof, (iv) propose or be a party to any dissolution or liquidation, (v) make an assignment for the benefit of its creditors, or (vi) admit in writing its inability generally to pay its debts as they fall due in the general course.

(d)  

Termination or Expiration of the Services Agreement.  This Agreement shall terminate immediately upon termination or expiration of the Services Agreement.

(e)  

Effect of Expiration or Termination.  Upon expiration or termination of this Agreement, neither Walgreens nor Dyax shall have continuing obligations or continuing rights, provided that the provision of Sections 3.10, 3.11(c), 3.17, Article V, Article VI, Artcile VII and this Article VIII, and to the extent necessary to give effect to the aforementioned provisions Article I, shall survive termination or expiration of this Agreement and continue as and to the extent consistent with their terms.  The expiration or termination of this Agreement shall not affect the continued validity of any claim or obligation arising in or attributable to the period prior to such expiration or termination.

(f)  

Force Majeure.  Neither Dyax nor Walgreens shall be liable in damages, or shall be subject to termination of this Agreement by the other Party, for any delay or default in performing any obligation hereunder if that delay or default is due to a Force Majeure, provided that (i) the Force Majeure does not result from the fault or negligence of the Party relying upon its provision, and (ii) notice of the Force Majeure is provided by the Party relying on such provision within [*****] days after the Force Majeure takes place.  If the delay or default in performance caused by the Force Majeure continues for longer than [*****] days, the non-performing Party may terminate this Agreement upon [*****] days’ notice to the other Party.  The Party affected by the Force Majeure shall use all reasonable efforts to prevent or mitigate its effects on the other Party.

(a)  

Independent Status of the Parties.  Dyax and Walgreens are independent entities, each acting in its own name for its own account.  This Agreement is not intended nor shall it be construed to create a partnership or joint venture between the Parties.  Neither Party has any authority to act as an agent or representative of the other, or to contract in the name of or create or assume any obligation against, or otherwise legally bind, the other Party in any way for any purpose.

(b)  

Assignment by Walgreens.  This Agreement, and the rights and obligations of Walgreens hereunder, may not be transferred or assigned by Walgreens to any third party without the prior written consent of Dyax, provided that no such consent will be required in connection with an assignment (i) to any Affiliate, (ii) to any successor (including the surviving company in any consolidation, merger or other combination by operation of law or otherwise) or (iii) to any assignee of all or substantially all of Walgreens’s business in the Territory or that portion of the business of Walgreens that relates to the activities contemplated hereby.

(c)  

Additional Rights Upon Change in Control of Walgreens.  In the event an unrelated third party acquires all of the interest in Walgreens through a sale of stock, a consolidation, merger or other combination, or Walgreens assigns all or substantially all of Walgreens’s business to an unrelated third party (each such unrelated third party defined as a “Successor”), then Dyax shall automatically have the additional right to terminate this Agreement in the event the Successor does not strictly comply with the terms of this Agreement and such failure to so comply is not cured by the Successor within [*****] days from Successor’s receipt of notice of the failure by Dyax.

(d)  

Assignment by Dyax.  This Agreement, and the rights and obligations of Dyax hereunder, may not be transferred or assigned by Dyax to any third party without the prior written consent of Walgreens, provided that no such consent will be required in connection with an assignment (i) to any Affiliate, (ii) to any successor (including the surviving company in any consolidation, merger or other combination by operation of law or otherwise) or (iii) to any assignee of all or substantially all of Dyax’s business in the Territory or that portion of the business of Dyax that relates to the Product.

DYAX CORP.

WALGREENS INFUSION SERVICES, INC.

 

By:

/s/Gustav Christensen

 

By:

/s/Frank P. DeStefano

 

Name:

Gustav Christensen

 

Name:

Frank P. DeStefano

 

Title:

President and CEO

 

Title:

Group VP, Rx Purch.; Supply Chain

 

Date:

8/31/2011

 

Date:

8/20/2011

Affiliate Purchases.  The Agreement is hereby amended by including the following as a new Section 3.20:

Purchase Rebate.  The Agreement is hereby amended by including the following as a new Section 3.21:

Term and Renewal.  The Agreement is hereby amended by deleting Section 8.1(a) in its entirety and replacing it with the following:

Ratification of the Agreement.  The parties hereby ratify the terms and conditions of the Agreement, as amended herein.