Exhibit 10.38
AMENDMENT NO. 7
TO THE
ENBREL SUPPLY
AGREEMENT
This Amendment No. 7 to the
ENBREL Supply Agreement (“Amendment No. 7”) is
made this 20th day of February, 2009 (the “Amendment
No. 7 Effective Date”) by and among IMMUNEX
CORPORATION, a corporation of the State of Washington, having
its principal place of business at One Amgen Center Drive, Thousand
Oaks, California, 91320, U.S.A., together with its Affiliates
(“Immunex”), WYETH (formerly known as American
Home Products Corporation), a corporation of the State of Delaware
having its corporate headquarters at Five Giralda Farms, Madison,
New Jersey 07940, U.S.A. and acting through its Wyeth
Pharmaceuticals Division (“Wyeth”), and BOEHRINGER
INGELHEIM PHARMA GMBH & CO. KG , (formerly doing
business as “Boehringer Ingelheim Pharma KG”) a German
corporation having a place of business at Birkendorfer Straße
65, 88397 Biberach an der Riss, Federal Republic of Germany
(“BIP”), and amends the Enbrel Supply Agreement
effective as of November 5, 1998, by and among Immunex, Wyeth,
and BIP, and as amended (the “Agreement”).
WHEREAS, Immunex,
Wyeth and BIP have entered into the Agreement for BIP’s
supply of Enbrel ® (etanercept) to Immunex and
Wyeth;
WHEREAS, effective June 3,
2002, the Parties amended the Agreement through Amendment
No. 2;
WHEREAS, pursuant to Amendment
No. 2, the Parties amended and restated Section 5.10(a)
of the Agreement to, among other things, allow Immunex and Wyeth to
reduce the Maximum Request in the Agreement by no more than [
* ]% per Calendar Year by providing at least [ * ]
months prior written notice to BIP; and
WHEREAS, the Parties desire to
further amend Section 5.10(a) of the Agreement to set forth
the annual Maximum Request for [ * ] and [ *
].
NOW THEREFORE, in consideration of
the mutual covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties hereto, each intending to be
legally bound, hereby agree as follows:
1. Annual Maximum Request for [
* ] and [ * ] . Section 5.10(a)(1) of the
Agreement shall be amended and restated as follows:
Maximum Request; Annual
Minimum .
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(1)
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Maximum
Request . Subject to
Section 5.10(c) below, beginning on [ * ] and
continuing through [ * ], the annual Maximum Request
in
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Note: Redacted portions have been marked with
[*]. The redacted portions are subject to a request for
confidential treatment that has been submitted to the Securities
and Exchange Commission.
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the Agreement shall be equal to the
Annual Minimum as defined in Section 5.10(b) below. Immunex
and Wyeth hereby waive their ability to reduce the Maximum Request
below the Annual Minimum under Section 5.1(b) hereof until an
effective date of [ * ] at the earliest, except to the
ex
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