Exhibit 10.2


 


CONFIDENTIAL PROVISIONS REDACTED


 


AMENDMENT NO. 2


TO


CLINICAL DRUG SUBSTANCE SUPPLY AGREEMENT


 


THIS
AMENDMENT NO. 2 TO CLINICAL DRUG SUBSTANCE SUPPLY AGREEMENT (this “Amendment”)
is entered into with effect as of 25 September 2009 (the “Amendment
Effective Date”) by and between Genmab MN, Inc. (“Genmab”) and
Facet Biotech Corporation (“Facet”) (Genmab and Facet hereinafter
together referred to as the “Parties”).


 


WHEREAS,
Genmab and Facet are parties to that certain Clinical Drug Substance Supply
Agreement with an effective date of 13 March 2008, as amended 17 March 2009
(as amended, the “Agreement”);


 


WHEREAS,
Facet paid Genmab a deposit on 28 July 2008, of [****]* US Dollars
($[****]*) for the Second Purchase Order and a further deposit on 30 July 2009,
of [****]* US Dollars ($[****]*) for the Third Purchase Order, constituting
[****]* percent ([****]*) of the Preliminary Purchase Price for the [****]*
Batches (as defined herein); and


 


WHEREAS,
Genmab and Facet wish to amend the Agreement to reflect the mutually acceptable
resolutions reached on disputed matters;


 


NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration the receipt of which is
hereby acknowledged, the Parties hereby agree as follows:


 


1.             Unless otherwise defined herein, capitalized terms
used in this Amendment shall have the meanings assigned thereto in the
Agreement.


 


2.             Facet shall deposit an amount equal to [****]* percent ([****]*) of the Preliminary Purchase Price, which is [****]* US Dollars ($[****]*) per Batch for a total of one million one hundred
twenty-five thousand US Dollars ($1,125,000) for the [****]* Batches (as defined herein), which would bring the total deposit for
the [****]* Batches to four million eight hundred seventy-five
thousand US Dollars ($4,875,000) or [****]* ([****]*) of the Preliminary Purchase Price, to Genmab within [****]* after full execution of this Amendment by the Parties.


 


3.             The Parties agree that the manufacture of the [****]* batches previously ordered by Facet pursuant to the
Second Purchase Order ([****]*,[****]*) have not been cancelled, but rather have been
postponed and constitute [****]* ([****]*) of the [****]*batches of Product (each, a “Batch”, and collectively,
the “[****]* Batches”) still to be manufactured by Genmab for
Facet pursuant to the Agreement.  The
Parties agree that Facet has satisfied all of its obligations in Section 3.1.3
of the Agreement.


 


4.             Section 1 of the Agreement is amended to add the
following term and definition:


 






* Certain information on this page has been
omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 

















 


“Production
Year” shall mean a 12-month period commencing 1 January of a given
calendar year and ending 31 December of that calendar year.


 


5.             Section 3 of the Agreement is amended to add the
following new subsection:


 


3.5           [****]* Remaining
Batches


 


3.5.1       Notice and Timing. No later than
[****]*, Facet shall notify Genmab in writing of the estimated production
timeframe, by year, for the [****]* Batches (the “Order”).


 


(a)           For manufacturing of a Batch
under a previously run process (i.e., Genmab’s Facility has previously
successfully manufactured, under either Genmab or PDL ownership, the Product
specified in the Order at the scale specified in the Order), Facet shall
provide Genmab, in the Order, [****]* prior notice from the intended date of
manufacture of such Batch. For manufacturing of a Batch using a new process
(i.e., Genmab’s Facility has not, under either Genmab or PDL ownership,
previously successfully manufactured either (i) the Product specified in
the Order or (ii) the Product specified in the Order at that scale
specified in the Order), Facet shall provide Genmab, in the Order, [****]*
prior notice from the intended date of manufacture of such Batch.


 


(b)           Genmab and Facet shall use
all commercially reasonable efforts to finalize production details as to
process, Facility, equipment and Raw Materials, no later than [****]* prior to
the date of manufacture of a Batch as indicated in the Order.


 


(c)           If Genmab is unable to
accommodate the delivery date as specified in the Order, and the Order provides
the notice required by Section 3.5.1(a), Facet will not be required to pay
an Extension Fee (as defined in Section 3.5.2(a)) should the manufacturing
and delivery of such Batch fall into a subsequent Production Year.


 


(d)           Facet may postpone
production of any Batch through the 2012 Production Year. Any Batch postponed
beyond the 2012 Production Year shall be considered a cancelled batch.


 


3.5.2        Payment Amounts


 


(a)           Year [****]*.


 


(i) Should Facet indicate in the Order that any
of the [****]* Batches are to be manufactured in the [****]* Production Year,
Genmab shall commence manufacturing of such Batches in accordance with the
Order and the Agreement. Genmab shall invoice Facet in accordance with Section 7.2
of the Agreement upon Facet’s acceptance of the Product as set forth in Section 3.4
of the Agreement. For the avoidance of doubt, Facet’s prior payment of [****]*
percent ([****]*) of the 


 






* Certain information on this page has been
omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


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Preliminary
Purchase Price with respect to a Batch shall be credited against the actual
purchase price for such Batch.


 


(ii) Should Facet indicate in the Order that it
is cancelling any Batch of the [****]* Batches during the [****]*
Production Year or if Facet cancels any Batch that was to be manufactured in
the [****]* Production Year pursuant to the Order (which cancellation shall be
deemed to occur with respect to a Batch if Facet fails to provide timely notice
under Section 3.5.1 for the manufacture of such Batch in the [****]*
Production Year), then in each case Facet shall pay the remaining [****]*
percent ([****]*) of the Preliminary Purchase Price, which is [****]* US
Dollars ($[****]*) per Batch, for each such cancelled Batch within [****]* of
the date of Facet’s cancellation.


 


(iii) If Facet desires to postpone manufacture
of any of the [****]* Batches to the [****]* Production Year, Facet shall pay
Genmab no later than [****]*,[****]* US Dollars ($[****]*) per Batch for each
Batch postponed (the “Extension Fee”) [****]*. For clarity, any Batch postponed
by Facet to the [****]* Production Year may again be postponed by Facet to the
[****]* Production Year if Facet so elects pursuant to Section 3.5.2(b)(iii).


 


(b)           Year [****]*.


 


(i) For any Batch manufactured by Genmab in the
[****]* Production Year in accordance with the Order, Genmab shall invoice
Facet in accordance with Section 7.2 of the Agreement upon Facet’s
acceptance of the Product as set forth in Section 3.4 of the Agreement.
For the avoidance of doubt, Facet’s prior payment of [****]* percent ([****]*)
of the Preliminary Purchase Price with respect to a Batch shall be credited
against the actual purchase price for such Batch.


 


(ii) Should Facet indicate in the Order, or any
time thereafter, that it is cancelling any Batch of the [****]* Batches during
the [****]* Production Year or if Facet cancels any Batch that was to be
manufactured in the [****]* Production Year pursuant to the Order (which
cancellation shall be deemed to occur with respect to a Batch if Facet fails to
provide timely notice under Section 3.5.1 for the manufacture of such
Batch in the [****]* Production Year), then in each case Facet shall pay the
remaining [****]* percent ([****]*) of the Preliminary Purchase Price, which is
[****]* US Dollars ($[****]*) per Batch, for each such cancelled Batch within
[****]* of the date of Facet’s cancellation.


 


(iii) If Facet desires to postpone manufacture
of any of the [****]* Batches to the [****]* Production Year, Facet shall pay
Genmab no later than [****]*, the Extension Fee [****]*.


 






* Certain information on this page has been
omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


3

















 


(c)          Year [****]*.


 


(i) For any Batch manufactured by Genmab in the
[****]* Production Year, Genmab shall invoice Facet in accordance with Section 7.2
of the Agreement upon Facet’s acceptance of the Product as set forth in Section 3.4
of the Agreement. For the avoidance of doubt, Facet’s prior payment of [****]*
percent ([****]*) of the Preliminary Purchase Price with respect to a Batch
shall be credited against the actual purchase price for such Batch.


 


(ii) Should Facet indicate in the Order, or any
time thereafter, that it either (a) does not request the manufacture of
any Batch in the [****]* Production Year, or (b) it is cancelling any
Batch of the [****]* Batches during the [****]* Production Year, then in each
case Facet shall pay the remaining [****]* percent ([****]*) of the Preliminary
Purchase Price, which is [****]* US Dollars ($[****]*) per Batch, for such
cancelled Batch no later than [****]*.


 


6.             Section 5 of the Agreement is amended to add the
following two new subsections:


 


5.10         Future Non-Conforming
Batches. If any Batch manufactured after the Amendment Effective Date is
defective or non-conforming (i.e. does not conform with the Specifications) for
any reason (such Batch being a “Non-Conforming Batch”), then Facet, at its sole
discretion, will decide whether such Non-Conforming Batch should be counted as
fulfillment of one of the [****]* Batches. If Facet decides to count the
Non-Conforming Batch as fulfillment of one of the [****]* Batches, Facet will
pay to Genmab the remaining [****]* percent ([****]*) of the Preliminary
Purchase Price, which is [****]* US Dollars ($[****]*), for such Batch and
Facet would have no additional payment obligations to Genmab with respect to
the manufacturing of such Non-Conforming Batch, including with respect to the
Fully Burdened Cost therefor. However, if Facet decides to not count the
Non-Conforming Batch as one of the [****]* Batches, then Facet will pay the
actual cost of the Non-Conforming Batch and request Genmab to manufacture an
additional Batch as replacement for the Non-Conforming Batch (a “Replacement
Batch”). Upon successful manufacture and Facet’s acceptance of such
Replacement Batch as set forth in Section 3.4 of the Agreement, Facet
shall pay Genmab the actual purchase price, less Facet’s payment of [****]*
percent ([****]*) of the Preliminary Purchase Price, upon receipt of Genmab’s
invoice as set forth in Section 7.2 of the Agreement. If Genmab is unable
to manufacture a Replacement Batch until the subsequent Production Year, Genmab
shall be deemed to have waived the Extension Fee for such Batch. If Genmab is
unable to manufacture the Replacement Batch until the subsequent Production
Year and the subsequent Production Year is [****]*, Genmab shall be obligated
to manufacture the Replacement Batch.


 


5.11         Inability to Manufacture. Subject to Section 16.9,
should Genmab be unable to meet its obligations to manufacture and deliver a
Batch for any reason (other than with respect to any Non-Conforming Batch which
is addressed under Section 5.10 of the Agreement) during the Production
Year as indicated in the Order (as such Production Year may be amended pursuant
to Sections 3.5.2(a)(iii) or 3.5.2(b)(iii)), Facet shall be entitled, in
addition to any other remedies set forth in the Agreement, to a refund of any
deposits and Extension Fees paid in accordance with Section 3.5.2 for such
Production Year. For 


 






* Certain information on this page has been
omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


4

















 


clarification
concerning refund of the Extension Fee, if Facet pays the appropriate Extension
Fee in [****]* to manufacture Batch(es) in the [****]* Production Year and
Genmab notifies Facet that it is unable to manufacture such Batch(es) for Facet
in the [****]*  Production Year, Facet
would be entitled to a refund of the Extension Fee; if Facet pays the
appropriate Extension Fee in [****]* to manufacture Batch(es) in the [****]*
Production Year and Genmab notifies Facet that it is unable to manufacture such
Batch(es) for Facet in the [****]* Production Year after [****]*, Facet would
be entitled to a refund of the Extension Fee paid in [****]*, but not the
Extension Fee paid in [****]* to extend manufacturing to the [****]* Production
Year.


 


7.             Except as set forth in this Amendment, all other terms
and conditions of the Agreement remain valid and unchanged. In the event of a
conflict between the terms of this Amendment and the Agreement, the terms of
this Amendment shall govern.


 


8.             This Amendment may be
executed in counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument. Any signature page delivered
by facsimile or electronic image transmission shall be binding to the same
extent as an original signature page.


 


[Signature page follows]


 






* Certain information on this page has been
omitted and filed separately with the SEC. Confidential treatment has been
requested with respect to the omitted portions.


 


5

















 


IN
WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their
duly authorized representatives as of the Amendment Effective Date.


 


	
  GENMAB
  MN, INC.

  	
   

  	
  FACET
  BIOTECH CORPORATION

  
	
  9450
  Winnetka Avenue N.

  	
   

  	
  1500
  Seaport Boulevard

  
	
  Brooklyn
  Park, MN 55445

  	
   

  	
  Redwood
  City, CA 94063

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Barry Littlejohns

  	
   

  	
  By:

  	
  /s/
  Faheem Hasnain

  
	
  Name:

  	
  Barry
  Littlejohns

  	
   

  	
  Name:

  	
  Faheem
  Hasnain

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  President
  and CEO

  
	
  Date:

  	
  9-28-09

  	
   

  	
  Date:

  	
  09-25-09

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Andrew Guggenhime

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Andrew
  Guggenhime

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Sr.
  Vice President and CFO

  
	
   

  	
   

  	
   

  	
  Date:

  	
  9/24/09

  



 


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