Exhibit
10.26.3


 


Certain confidential
information contained in this document, bracketed in the text and marked as
confidential, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.


 


3rd
AMENDMENT TO THE DISTRIBUTION AGREEMENT


 


This Third Amendment to
the Distribution Agreement (“AGREEMENT”), is entered into as of July 1, 2003 by
and between MedImmune, Inc., a Delaware Corporation, having its principal place
of business at 35 West Watkins Mill Road, Gaithersburg, MD 20878 (“MEDIMMUNE”)
and Abbott International, Ltd., a Delaware Corporation, having its principal
place of business at 200 Abbott Park Road, Abbott Park, IL 60064.


 


WITNESSETH


 


WHEREAS, MEDIMMUNE and
Abbott International, Ltd entered into a Distribution Agreement as of December
1, 1997 that was subsequently amended on April 28, 1999 and October 8, 1999
(collectively the “DISTRIBUTION AGREEMENT”); and


 


WHEREAS, the Parties
desire to further amend the DISTRIBUTION AGREEMENT.


 


NOW, THEREFORE, the
parties agree to the following terms and conditions:


 


1.             DEFINITIONS


 


1.1           All fully capitalized
terms used in this AGREEMENT have the same meaning as in the DISTRIBUTION
AGREEMENT, except as otherwise defined above.


 


2.             AMENDMENT


 


2.1           The
following language is added to the end of Section 3.2(a)(ii): (CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED).”


2.2  Section 3.3(a)(i)(B) is hereby amended by
deleting the provision in its entirety and replacing it with the following:


 


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 “3.3(a)(i)(B)(1) after first commercial sale of PRODUCT in the
TERRITORY and for PRODUCT delivered to the carrier before July 1, 2003, an
amount equal to the greater of (x) the sum of (CONFIDENTIAL TREATMENT
REQUESTED) for the PRODUCT and third party royalties to be paid on such PRODUCT
or (y) an amount equal to (1) the UNIT SALE PRICE for PRODUCT for the first
three CALENDAR QUARTERS of the CONTRACT YEAR prior to such CONTRACT YEAR in
which PRODUCT is delivered to the carrier, multiplied by (2) the number
of units of PRODUCT delivered to the carrier multiplied by (3) either
(CONFIDENTIAL TREATMENT REQUESTED) for PRODUCT delivered to the carrier
before  October 1, 2000, or
(CONFIDENTIAL TREATMENT REQUESTED) for PRODUCT delivered on or after October 1,
2000 and before July 1, 2003, or (CONFIDENTIAL TREATMENT REQUESTED) for PRODUCT
delivered to the carrier on or after October 1, 2000 and before July 1, 2003 to
the extent that the aggregate number of units of PRODUCT delivered to the
carrier in the applicable CONTRACT YEAR multiplied by the UNIT SALE
PRICE for PRODUCT exceeds $(CONFIDENTIAL TREATMENT REQUESTED); and”


 


2.3  The following new Section 3.3(a)(i)(B)(2) is
hereby added to the DISTRIBUTION AGREEMENT:


 


“3.3(a)(i)(B)(2) for
PRODUCT delivered to the carrier on or after July 1, 2003, in any given
CALENDAR QUARTER, an amount equal to the number of units of PRODUCT delivered
to the carrier in that CALENDAR QUARTER multiplied by the (CONFIDENTIAL
TREATMENT REQUESTED).  The (CONFIDENTIAL
TREATMENT REQUESTED) shall be calculated as (CONFIDENTIAL TREATMENT REQUESTED) of
the greater of (a) the sum of (CONFIDENTIAL TREATMENT REQUESTED) for each unit
of such PRODUCT and third party royalties to be paid on each unit of such
PRODUCT, or (b) an amount equal to:


(x) (CONFIDENTIAL
TREATMENT REQUESTED) of the first $(CONFIDENTIAL TREATMENT REQUESTED) of
aggregate NET SALES for the first three CALENDAR QUARTERS of the preceding
CONTRACT YEAR plus (CONFIDENTIAL TREATMENT REQUESTED) of the aggregate
NET SALES for the first three CALENDAR QUARTERS of the preceding CONTRACT YEAR
in excess of $(CONFIDENTIAL TREATMENT REQUESTED), divided by


                (y) the number of units of PRODUCT included in NET
SALES for the first three CALENDAR QUARTERS of the preceding CONTRACT YEAR.


 


                The parties agree that these (CONFIDENTIAL TREATMENT
REQUESTED) payments for PRODUCT delivered to the carrier are non-refundable.


 


                For any given CALENDAR QUARTER, in the event that (i)  the change in the weighted-average
exchange rate for the seven MAJOR MARKETS for that CALENDAR QUARTER (calculated
as total NET SALES in local currency for the seven MAJOR MARKETs divided by
total sales in U.S. dollars for the seven MAJOR MARKETs (calculated in
accordance with Section 3.3(a)(ii)(D))) from the weighted-average exchange rate
for the seven MAJOR MARKETS for the first three CALENDAR


 


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QUARTERS of the preceding
CONTRACT YEAR exceeds (CONFIDENTIAL TREATMENT REQUESTED) or (ii) any change in
economic conditions or governmental price regulation in any MAJOR MARKET causes
a reduction of greater than (CONFIDENTIAL TREATMENT REQUESTED) in the amount of
the sales or selling price of the PRODUCT in such MAJOR MARKET, the Parties
will renegotiate in good faith the MINIMUM PRICE for PRODUCT delivered to the
carrier for the remaining CONTRACT QUARTERS under this Section 3.3(a)(i)(B)(2);
and”


 


2.4  Section 3.3(a)(ii) is hereby amended by
adding the following language to the beginning of the paragraph:
“3.3(a)(ii)(A)For all Product delivered to the carrier before July 1, 2003,”


 


2.5 The following
new Section 3.3 (a)(ii)(B) is hereby added to the DISTRIBUTION AGREEMENT:


 


“3.3(a)(ii)(B) For all
PRODUCT delivered to a carrier designated by ABBOTT on or after July 1, 2003:


(1) The additional amount
due, if any, for PRODUCT sold in a CALENDAR QUARTER under Section 3.2 (as
calculated under Section 3.3(a)(ii)(B)(2)) will be paid to MEDIMMUNE within
forty-five days after the end of each CALENDAR QUARTER in accordance with this
Section 3.3(a)(ii)(B).


(2) The additional amount
due, if any, for PRODUCT sold in a CALENDAR QUARTER (on a first-in, first-out
basis, with specific identification of and separate calculation for each
inventory layer (i.e., the appropriate CONTRACT YEAR during which the
applicable unit of PRODUCT was sold) and each unit type (e.g., separate
calculations for 50 mg and 100 mg vials)), is calculated as follows:


1.     the amount by which:


(a) the greater of: (x)
the sum of (CONFIDENTIAL TREATMENT REQUESTED) for each unit of such PRODUCT and
third party royalties to be paid on each unit of such PRODUCT or (y) the price
of PRODUCT for such CALENDAR QUARTER (as calculated in accordance with Section
3.2(a) with NET SALES converted in accordance with Section 3.3(a)(ii)(B(4))) divided
by the number of units of PRODUCT sold for such CALENDAR QUARTER;  exceeds


(b) the (CONFIDENTIAL
TREATMENT REQUESTED) per unit of PRODUCT paid to MEDIMMUNE under Section
3.3(a)(i)(B)(2) for PRODUCT sold during such CALENDAR QUARTER, if any; multiplied
by


2.     the aggregate number of units of PRODUCT
sold for such CALENDAR QUARTER.


(3)  If the amount described in Section
3.3(a)(ii)(B)(2) is a deficiency, (CONFIDENTIAL TREATMENT REQUESTED) in respect
of that CALENDAR QUARTER (CONFIDENTIAL TREATMENT REQUESTED).


(4)  Whenever for the purpose of calculating
payment, conversion from any foreign currency shall be required, such
conversion shall be completed for each month of the CALENDAR QUARTER as
follows:  the conversion methodology for
sales shall be calculated with respect to each country or territory, using the
average exchange rate of the current month and prior month source rate used by
ABBOTT for financial reporting, as reported by Reuters on the penultimate business
day of each month.


 


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3.             EFFECT


 


3.1           Effective as of
December 1, 2003 and solely for purposes of calculating amounts due under
sections 7(iv) and 7(v), the term “CONTRACT YEAR” shall mean the 12  month
period commencing on December 1 of each CALENDAR YEAR and ending on November 30
of the immediately following CALENDAR YEAR. 
For any CONTRACT YEAR, if MEDIMMUNE is entitled to payment under
sections 7(iv) or 7(v) for sales during that CONTRACT YEAR, ABBOTT agrees to
provide MEDIMMUNE with written notification that MEDIMMUNE is entitled to such
payment within 30 days after the end of such CONTRACT YEAR.


 


3.2           The DISTRIBUTION
AGREEMENT is amended as provided hereinabove as of July 1, 2003 in accordance
with Section 14.3 of the DISTRIBUTION AGREEMENT.  All other items and provisions of the DISTRIBUTION AGREEMENT
shall be unaffected by this AGREEMENT and continue in full force and effect.


 


[Remainder
of this page intentionally left blank.]


 


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IN WITNESS WHEREOF, the
parties have each caused this AGREEMENT to be signed and delivered by its duly
authorized officer or representative as indicated below.


 


	
  ABBOTT INTERNATIONAL,
  LTD

  	
  MEDIMMUNE, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  	
  By:

  	
  /s/ Melvin D. Booth

  	
   

  
						



 


 


JOINDER


 


 


The undersigned, Abbott
Laboratories, an Illinois corporation, hereby consents to this AGREEMENT and
joins in the execution of this AGREEMENT for the purpose of obligating itself
to the obligations and undertakings of Abbott International Ltd., as set forth
in this AGREEMENT.


 


 


ABBOTT LABORATORIES


 


	
  By:

  	
  /s/

  	
   

  	
   

  



 


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