EXHIBIT 10.63
AMENDMENT NO. 2 TO ENBREL SUPPLY AGREEMENT
THIS AMENDMENT NO. 2 TO ENBREL SUPPLY AGREEMENT (this "Amendment") is
entered into effective as of the 16th day of July, 2002, between and among
Genentech Inc., a Delaware corporation ("Genentech"), Immunex Corporation, a
Washington corporation and a wholly-owned subsidiary of Amgen Inc. ("Immunex"),
and Amgen Inc., a Delaware corporation ("Amgen").
Genentech and Immunex are parties to that certain ENBREL Supply
Agreement dated April 12, 2002, as amended by that certain Amendment No. 1 to
ENBREL Supply Agreement dated September 20, 2002 (as amended, the "Agreement").
On July 16, 2002, Amgen acquired Immunex, making Immunex a wholly-owned
subsidiary of Amgen, and Genentech, Immunex and Amgen (collectively, the
"Parties") wish to amend the Agreement accordingly.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Amendments to Defined Terms.
1.1 Section 1.33 (Genentech Confidential Information). Section
1.33 (Genentech Confidential Information) of the Agreement is
amended to read in its entirety as follows:
"1.33 Genentech Confidential Information" means all technical
and other information, whether patented or unpatented,
relating to the Genentech Facility, and/or Genentech
processes, methods, operations, technologies, forecasts and
business information that are disclosed or supplied to, or
used on behalf of, Immunex or its Affiliates (including
without limitation Amgen Inc.) by Genentech pursuant to, or by
any of Genentech's agents or contractors pursuant to, this
Agreement, the Tech Transfer Agreement and/or the Quality
Agreement, or of which Immunex or its Affiliates (including
without limitation Amgen Inc.) may become aware of through the
presence of their employees or agents at Genentech offices or
at the Genentech Facility, including, without limitation,
trade secrets, know-how, processes, concepts, experimental
methods and results and business and scientific plans and
information and facility layout and schematics."
1.2 Section 1.38 (Immunex Confidential Information). Section 1.38
(Immunex Confidential Information) of the Agreement is amended
to read in its entirety as follows:
"1.38 Immunex Confidential Information" means the Cell Line,
Master Cell Bank, Working Cell Bank, Manufacturing
Documentation, Manufacturing Process, and Product, and all
technical and other information, whether patented or
unpatented, relating thereto and/or to Immunex's or any of its
Affiliates' (including without limitation Amgen Inc.)
processes, methods, operations, technologies, forecasts and
business information that are disclosed or supplied to
Genentech by or on behalf of Immunex or its Affiliates
(including without limitation Amgen Inc.) pursuant to this
Agreement, the Tech Transfer Agreement and/or the Quality
Agreement, or of which Genentech may become aware of through
the presence of its employees or agents at Immunex offices or
facilities or at
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offices or facilities of Immunex Affiliates (including without
limitation Amgen Inc.) or at other facilities that manufacture
the Product, including, without limitation, trade secrets,
know-how, processes, concepts, experimental methods and
results and business and scientific plans and information and
facility layout and schematics. All portions of documents and
records describing or to the extent relating to the
Manufacturing Process at the Genentech Facility, including,
without limitation, process trend and variability data related
to the Product, shall be deemed to be Immunex Confidential
Information."
2. Confidentiality Obligations.
2.1 Amendments to Article 17, Confidentiality. Article 17 of the
Agreement, Confidentiality, is amended as follows:
A. Section 17.1 (a) (Genentech Confidentiality Obligations).
Section 17.1(a)(2) is amended to read in its entirety as
follows: "(2) contractors who are bound by similar obligations
of confidentiality and nonuse and who have a need to know such
information in order to provide direction to Genentech or
Immunex or Immunex's Affiliates (including without limitation
Amgen Inc.) regarding the respective obligations of Genentech,
Immunex and Immunex's Affiliates (including without limitation
Amgen, Inc.), under this Agreement, the Tech Transfer
Agreement and/or the Quality Agreement, or."
B. Section 17.1(b) (Immunex Confidentiality Obligations).
Section 17.1(b)(1) is amended to read in its entirety as
follows: "(1) employees, consultants, agents or contractors of
Immunex or Immunex's Affiliates (including without limitation
Amgen Inc.) who are bound by similar obligations of
confidentiality and nonuse and who have a need to know such
information in order to perform their duties in carrying out
Immunex's obligations under this Agreement, the Tech Transfer
Agreement and/or the Quality Agreement, or in order to provide
direction to Immunex regarding production, testing, storage or
quality of the Product or regulatory or compliance issues
related to the Product, or."
2.2 Genentech Reaffirmation of Confidentiality Obligations.
Genentech hereby restates and reaffirms, for the benefit of
Immunex and Amgen, (i) Genentech's confidentiality obligations
under Article 17 of the Agreement (as amended by this
Amendment), including without limitation the obligations
contained in Section 17.1(a), and (ii) Genentech's
confidentiality obligations under the Tech Transfer Agreement;
and the Parties agree that Amgen is an intended third party
beneficiary of all such obligations of confidentiality, to the
same extent and with the same effect as if Amgen were the
party named therein, and Amgen shall have the right to enforce
such obligations of confidentiality against Genentech as if
Amgen were a party to the Agreement and the Tech Transfer
Agreement.
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2.3 Immunex Reaffirmation of Confidentiality Obligations. Immunex
hereby restates and reaffirms (i) Immunex's confidentiality
obligations under Article 17 of the Agreement (as amended by
this Amendment), including without limitation the obligations
contained in Section 17.1(b), and (ii) Immunex's
confidentiality obligations under the Tech Transfer Agreement.
2.4 Amgen Confidentiality Obligations. Amgen agrees to be bound by
the confidentiality obligations imposed on Immunex under
Article 17 of the Agreement (as amended by this Amendment),
including without limitation the obligations contained in
Section 17.1(b), and the confidentiality obligations imposed
on Immunex under the Tech Transfer Agreement, in each case to
the same extent and with the same effect as if Amgen were the
party named therein and Genentech shall have the right to
enforce such obligations of confidentiality against Amgen as
if Amgen were a party to the Agreement and the Tech Transfer
Agreement.
3. Immunity from Suit; Non-assertion.
3.1 Genentech Reaffirmation. Genentech hereby restates and
reaffirms, for the benefit of Immunex and Amgen, all of
Genentech's obligations under Section 13.2 of the Agreement,
including without limitation the non-assertion obligations
contained in Sections 13.2(b)(2), 13.2(c)(1), and 13.2(c)(2);
and the Parties agree that Amgen is an intended third party
beneficiary of all such obligations to the same extent and
with the same effect as if Amgen were the party named therein,
and Amgen shall have the right to enforce such obligations
against Genentech as if Amgen were a party to the Agreement.
3.2 Immunex Reaffirmation. Immunex hereby restates and reaffirms
all of Immunex's obligations under Section 13.2 of the
Agreement, including without limitation the nonassertion
obligations contained in Sections 13.2(b)(2), 13.2(c)(1) and
13.2(c)(2).
3.3 Amgen Obligations. Amgen agrees to be bound by all of the
obligations imposed on Immunex under Section 13.2 of the
Agreement, including without limitation the nonassertion
obligations contained in Sections 13.2(b)(2), 13.2(c)(1), and
13.2(c)(2), to the same extent and with the same effect as if
Amgen were the party named therein, and Genentech shall have
the right to enforce such obligations against Amgen as if
Amgen were a party to the Agreement.
4. Capitalized Terms. All capitalized terms used but not defined herein
shall have the meaning set forth in the Agreement.
5. Full Force and Effect. Except as set forth herein, all other terms of
the Agreement remain in full force and effect.
6. Counterparts; Facsimile; Further Amendment. This Amendment may be
executed in any number of counterparts, each of which shall be deemed
an original, and all of which, taken together, shall constitute one and
the same instrument. This Amendment shall be effective upon full
execution by facsimile or original, and a facsimile signature shall be
deemed to be
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and shall be as effective as an original signature. This Amendment may
not be amended except by a written instrument duly executed and
delivered by all Parties.
IN WITNESS WHEREOF, the Parties have executed this Amendment effective as of the
date set forth above.
GENENTECH, INC. IMMUNEX CORPORATION
By: /s/ David Ebersman By: /s/ Efi Cohen-Arazi
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David Ebersman Name: Efi Cohen-Arazi
Senior Vice President of Product Operations Its: VP Manufacturing
Date: 2/3/03 Date: 2/9/03
AMGEN INC.
By: /s/ Dennis Fenton
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Name: Dennis Fenton
Its: Executive Vice President
Date: 2/12/03
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